Opinion 89-17
(September 1989)

You have asked the Professional Guidance Committee for an opinion in connection with your representation of a car leasing company in its efforts to obtain return of a leased vehicle, the whereabouts have been concealed by the lessee. Specifically you have addressed the following questions to the Committee:

1.  May you, as counsel, inform the lessee that criminal remedies would be pursued if the car is not returned immediately?

2.  May your client make the same communication at your direction?

3.  May you or your client advise the lessee that criminal remedies will be pursued if he does not return the leased vehicle and if he does not conform to other lease requirements such as reimbursement for damages to the car, costs associated with repossessing the vehicle and lost rent?

Assuming the client intends to pursue both civil and criminal remedies, may you inform the lessee of this decision? If so, might you expose yourself to breach of professional responsibility if criminal remedies are not pursued?

You correctly observe that the prohibition set forth in Disciplinary Rule 7-105 of the Code of Professional Responsibility specifically prohibiting threat of criminal prosecution in order to obtain an advantage in a civil matter has not been carried forward into the Rules of Professional Conduct which became effective April 1, 1988.

Under the Rules of Professional Conduct, your proposed conduct is governed by Rule 4.1 which provides that a lawyer shall not knowingly make a false statement of material fact of law to a third person. Therefore, so long as you, as counsel, have made a good faith determination that criminal remedies pertain to the lessee's conduct, which determination involves a question of law as to which the Committee can express no opinion, and that your client in fact intends to pursue those remedies, it is permissible to notify the lessee of your client's intention to apply to the District Attorney's Office, for issuance of a criminal complaint. However a violation of Rule 4.1 would occur if you were to suggest that you or your client, rather than the District Attorney controlled the issuance of a criminal complaint.

In this regard, kindly note that Rule 4.3 prohibits a lawyer from giving advice to an unrepresented party, other than to recommend securing counsel, and therefore your statements should be carefully tailored so as not to go beyond the bounds of notifying the lessee of your client's intentions. For example, it would be improper for you to advise the lessee that his conduct is in fact criminal.

You have raised not only the permissible bounds of your conduct, but that of your client's as well. Rule 8.4 states:

It is professional misconduct for a lawyer to: (a) violate ... the rules of professional conduct, knowingly assist or induce another to do so or do so through the acts of another.

Thus, you may not counsel your client to do that which you are prohibited to do by the Rules of Professional Conduct.

Conclusion:

No violation of the Rules of Professional Conduct occurs when an attorney notifies an opposing party of his client's intention to pursue criminal remedies, where a good faith determination has been made that the criminal remedies pertain and that the client in fact intends to pursue those remedies.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.