Ethics Opinions

Opinion No. 79-7

Summary: Although an attorney may represent a client who in the same matter pursues both a civil remedy for its benefits to the client and a criminal matter to bring the offender to justice, the criminal matter cannot be used solely as a negotiating point or "club" in the civil matter. See Wilkins, J., Memorandum, 7 Mass. Law. Weekly 617, March 26, 1979, at 13. Accepting a civil settlement in return for a promise, express or implied, not to prosecute the crime (except to the limited extent permitted by G.L. c.276, S 55) or presenting, participating in, or threatening to present criminal charges solely to obtain an advantage in the civil matter are all unprofessional conduct for an attorney.

Facts: The secretary of an attorney has been found to have embezzled over $10,000 (a felony under G.L. c.266, S30) from the attorney's office and trustee accounts. The attorney and his lawyer wish to confront the secretary with the facts and demand payment. If the secretary refuses, the lawyer would like to suggest that the evidence be presented to the district attorney for prosecution, but if the funds are returned, the client-attorney does not wish to prosecute. The lawyer asks whether this approach is proper for him and his client-attorney.

Discussion: Under G.L. c.268, S36, compounding a felony (accepting anything of value in return for a promise, express or implied, not to prosecute the felony) is a crime. It is also a common law crime thus to compound a misdemeanor. See Partridge v. Hood, 120 Mass. 403 (1876).
There is an implied exception under G.L. c.276, SS55-56, allowing dismissal of a criminal complaint against a defendant for "a charge of assault and battery or other misdemeanor for which he is liable in a civil action," in the discretion of the court, if "the person injured appears before the court ... and acknowledges in writing that he has received satisfaction for the injury ... ." This statute authorizes the settlement of a personal claim in the disposition of a pending criminal settlement only in the listed crimes, which do not include a felonious larceny. Even this statute "does not authorize an injured person to threaten criminal proceedings unless a settlement is obtained." See Wilkins, J. Memorandum, 7 Mass. Law. Weekly 617, March 26, 1979, at 13.
Therefore, any attempt by the attorney to secure repayment by a promise to compound the felonious larceny would violate both Rule 3:22, DR 7-102(A)(7) (which proscribes counselling or assisting the client in conduct that he knows to be illegal) and Rule 3:22A, DF 7(a) [Standards Relating to the Defense Function, adopted as S.J.C. Rule 3:22A on March 1, 1979], to the same effect.
Even without a promise to compound the felony, DR 7-105 provides that: "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." See also EC 7-21, pointing out that "the criminal process is designed for the protection of society as a whole." It is clear from the facts presented that the only reason for threatening the use of criminal process is to secure repayment of the felonious larceny. Any such threat is therefore improper.
If no such threat is made, it is of course proper to seek to get voluntary repayment from the secretary and confront her with the facts. If the secretary refuses, the question then arises whether the attorney may properly present the evidence to the district attorney for prosecution. Clearly, he is under no obligation to do so in any case, for "misprision of felony" (failure to report a known felony) does not appear to be a crime in Massachusetts, nor is it required by Rule 3:22, except in a few special circumstances not found here, such as DR 7-102(B).
Under DR 7-105, the lawyer could not properly present or participate in presenting such criminal charges "solely to obtain an advantage in a criminal matter." Whether this is a lawyer's sole motive in any given case is of course a question of fact. Justice Wilkins in the above-cited memorandum discussed this matter as follows:
Careful lines must be drawn, because conduct prohibited by DR 7-105 may in many cases not be strikingly dissimilar to conduct which is proper. DR 7-105 does not prohibit representing a client who pursues against another party, both a civil remedy and a criminal complaint, so long as each is pursued for a proper purpose. The civil remedy must be pursued for its benefits to the plaintiff, and the criminal matter pursued to bring an offender to justice. The plaintiff-complainant can proceed as to both, even though bringing a criminal complaint increases the pressure on his opponent in the civil matter. However, DR 7-105 prohibits invoking the criminal matter solely to gain a civil advantage: the complainant-plaintiff cannot use the criminal proceeding solely as a negotiating point or "club" in the civil matter.
Wilkins, J., Memorandum, 7 Mass. Law. Weekly 617, March 26, 1979, at 13.
Space does not permit reproduction of the whole of Justice Wilkins' memorandum. Attorneys seeking to collect civil damages for conduct which is also criminal would do well to study this memorandum carefully. As Justice Wilkins observed in it:
There are apparently some members of the bar who would regard the seeking of these (criminal) complaints as acceptable professional practice. Although the dissemination of this memorandum may not be widespread, it will serve as a first attempt to articulate in this Commonwealth the scope of the restrictions expressed in DR 7-105.
Wilkins, J., Memorandum, 7 Mass. Law. Weekly 617, March 26, 1979, at 13.


Permission to publish granted by the Board of Delegates, 1979. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.
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