Vail Daily column: Threatening criminal prosecution in a civil matter
Lawyers must play nice. Really. It’s like in kindergarten where certain rules apply and if one violates the rules, then it’s time out or the lawyerly equivalent.
As I’ve mentioned more than once in these columns, lawyers have about a million rules to follow. There are rules of civil procedure, rules of criminal procedure, rules of evidence … and rules of professional conduct, the last of which guide attorneys’ ethical and professional responsibilities. The rules of cricketeering are, by comparison, a cake-walk.
Of the many rules, at least one specifically proscribes what an attorney may or may not do in zealous advocacy of his client’s interests. I’ll pick this up in just a sec. But first, a little detour into the world of law to gives what follows context.
Law, as you may know, is divided into two broad categories — civil law and (no, not “uncivil” law) criminal law. Criminal law, you may have deduced, deals with crimes and such. Although the law can at times be a confounding mistress, at times at least, this stuff just plain makes sense. “Civil” law deals with other stuff, stuff that isn’t crimes. When Google sues Apple or your uncle Gus sues his landlord or his boss, those are civil rather than criminal matters. Another way to look at it is, if what’s being sought is punishment, the matter is most likely criminal. If money damages are sought, eureka, we’ve got a civil matter on our hands. From another perspective, if the people are the party prosecuting the action, then more likely than not we’re dealing with a crime. If it’s two independent parties going at it mano a mano, the betting money is on a civil dispute.
So, Colorado Rules of Professional Conduct Rule 4.5 says that “a lawyer may not threaten criminal, administrative or disciplinary charges to obtain an advantage in a civil matter nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter.”
OK, a little vivisection is in order.
Say a lawyer — let’s call him Lawyer A — is representing you in suing a Mr. So-And-So. The matter between you and Mr. So-And-So, being a personal dispute is “civil” in nature, that is, the state is not prosecuting So-And-So for an alleged crime.
Lawyer A and So-And-So’s lawyer, Lawyer B, both have a duty of zealous advocacy on behalf of their respective clients. This too is encoded in the rules. Both must do their utmost — within the rules and according to the law — to serve their respective clients’ legitimate interests. There are, of course, exceptions; lawyers may not, for example, aid a client in perpetuating a fraud or in any way contriving to do what candor and fairness will not abide. But within the rules, and within the law, a lawyer must strive earnestly on his client’s behalf. Certain lines may not, however, be crossed.
Let’s say, for example, in order to achieve the client’s goals, B decides to contact law enforcement to report that you stole So-And-So’s wristwatch. Let’s go further and say that B knows darn well and good that rather than steal So-And-So’s wristwatch, So-And-So, following a drunken bacchanal at your home, simply left it on your kitchen counter. Let’s go even a tad further and say, you never noticed that So-And-So left his watch at your digs and the cleaning crew that tidies up your place after drunken bacchanals instead spotted it and slipped it in a pocket, intending, of course, to return it to you or the rightful owner but … oops… forgot.
B gets wind of this.
He figures he just might scare the bejesus out of you if he reports the Tag Heuer stolen.
He calls up So-And-So and they hatch their plan.
B says, “That watch of yours?”
“The one I left at What’s-His-Name-Who’s-Suing-Me’s house during the apogee of the drunken bacchanal?”
“Yeah, that one.”
“Yeah, I should ask What’s-His-Name to get that back to me.”
“What if, instead,” B suggests, “we call the Po-Po and report it stolen?”
Here, So-And-So narrows his beady eyes.
B goes on. “You see if we report it stolen, maybe What’s-His-Name will have the bejesus scared out of him and come to the table to settle this whole mess.”
So-And-So chimes in with a “Brilliant!”
But not so much. The rules, fairness and common decency forbid it. B, as an officer of the court, may not misuse the court or his authority to bully, threaten, cajole, scare or intimidate poor What’s-His-Name into abandoning his claims or in any way altering his positions, by B threatening him with criminal prosecution. Neither may B threaten “administrative” action, for example reporting What’s-His-Name, who is a resident alien, to ICE.
Lawyers simply must play fair. And if the lawyer fails to do so, then he’ll have some “splainin” of his own to do. Although presented jocularly here, in fact, this stuff is taken very, very seriously.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.