Ethics Opinion

Opinion No. 76-15

December 1976

Summary: In professional appearances at hearings before a public authority or other governmental agency, lawyers are subject to Canon 7 providing that "A lawyer should represent a client zealously within the bounds of the law," and to the limitations upon such representation in DR 7-102(A), 7-105 and 7-106 with regard to threatened legal action against the members of such bodies and to their general conduct before such adjudicatory bodies.

Facts: At hearings before a public authority, attorneys stated that if the Authority ruled against their clients, they would in one case pursue the rights of their clients, making each member of the authority a party defendant in the civil litigation, and in another case would hold the members personally responsible for their actions, rather than the Authority. The authority has asked whether such threats are considered proper ethical procedure.

Discussion: DR 7-105(A) provides: "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." No violation of this DR is alleged here.
Further limitations on a lawyer's representing a client are set forth in DR 7-102(A), which provides in relevant part:
In his representation of a client, a lawyer shall not: (1) File a suit, assert a position, conduct a defense or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another. (2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such a claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law.
Unless improper under DR 7-102(A) above as harassment, malicious injury, or presentation of an unwarranted claim or defense--as to which we do not have sufficient facts to determine--the first lawyer's statement that he would pursue the rights of his clients, making each member of the authority a personal defendant in the civil litigation, would not be improper.
The statement of the second lawyer that he would hold the members of the authority personally responsible for their actions, rather than hold the authority responsible, would be improper under DR 7-102(A) above, if such an action was "unwarranted under existing law" and not supportable "by good faith argument" for a change in existing law. If his client's sole remedy would be a civil suit for breach of contract against the authority, for instance, the statement might well be ethically improper. Since our committee does not pass upon questions of substantive law, we express no opinion upon this legal question.
In this connection we note the recent decision of the Supreme Judicial Court in Sriberg v. Raymond, Mass. Adv. Sh. (1976) 961, followed by the U.S. District Court in Sriberg v. Raymond, --F. Supp.--(D. Mass. 1976). These cases held that allegedly libelous statements made by a lawyer in a letter to the president of a company against which he was threatening suit to be absolutely privileged, where the "communication to a prospective defendant relates to a proceeding which is contemplated in good faith and which is under serious consideration." We believe such a communication is the kind of communication which is ethically proper under DR 7-102(A).
DR 7-105(C) provides: "In appearing in his professional capacity before a tribunal, a lawyer shall not ... (6) Engage in undignified or discourteous conduct which is degrading to a tribunal." We wish emphatically to advise any lawyer appearing at a hearing before a public authority or other government agency having adjudicatory powers that in our opinion such a hearing involves a professional appearance before a "tribunal" (defined in paragraph [6] of the "Definitions" section of Rule 3:22 to include "all courts and all other adjudicatory bodies"), and that the lawyer is subject to the limitations in DR 7-105(C)(6) applicable to such appearances.

Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.