State Bar of Arizona Ethics Opinions
Letter to delinquent parent to be mailed by Child Support Services Division of County Attorney's office threatening possible civil contempt and criminal consequences for failure to pay court ordered child support.
March 7, 1991
The inquiring attorney, who is employed by the Child Support Services Division of a County Attorney's Office, has asked about the ethical propriety of using a form letter in child support matters containing the following paragraphs:
"A recent review of your file shows you have not made child support payments in some time. This is unacceptable. Please contact our office within the next fifteen (15) days or the next communication you receive from us may be an order to appear in court regarding contempt.
"If you are found to be in contempt for failure to obey a court order, you could be sentenced to jail. You should also be aware that, under Arizona law (A.R.S. § 12-2458), a conviction for failure to pay child support is a Class 6 felony punishable by imprisonment."
1. Is it ethically permissible, under Arizona’s Rules of Professional Conduct, to threaten criminal prosecution in order to gain an advantage in a civil proceeding?
2. If so, do the quoted paragraphs from the form letter proposed to be sent by the inquiring attorney constitute such a threat?
ETHICAL RULE INVOLVED
ER 8.4. Misconduct
It is professional misconduct for a lawyer to:
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(d) engage in conduct that is prejudicial to the administration of justice;
RELEVANT STATUTORY PROVISIONS
A.R.S. § 12-2458. Failure of parent to provide for child: classification
A. Any parent of a minor child who knowingly fails, without lawful excuse, to furnish reasonable support for his or her child is guilty of a class 6 felony.
A.R.S. § 13-1804. Theft by extortion; classification
A. A person commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to do in the future any of the following:
5. Accuse anyone of a crime or bring criminal charges against anyone.
8. Perform or cause to be performed any other act which would not in itself materially benefit the defendant but which is calculated to harm another person materially with respect to his wealth, safety, business calling, career, financial condition, reputation or personal relationships.1
B. Theft by extortion, as defined in subsection A, paragraph 1 is a class 2 felony. Otherwise, theft by extortion is a class 4 felony.
The ethical issue presented by the quoted paragraphs from the proposed form letter relates to the former prohibition against threatening criminal prosecution to gain an advantage in a civil case. This conduct was specifically prohibited by Disciplinary Rule 7-105(A) of the former Arizona Code of Professional Responsibility (former Rule 29(a), Ariz.R.S.Ct., 17A A.R.S.). This prohibition was not specifically carried over into the present Arizona Rules of Professional Conduct. Such conduct would be unethical under present ER 8.4(b) of the new Rules (under Rule 42, Ariz.R.S.Ct., 17A A.R.S.), if the threat amounts to an attempted extortion within the purview of Arizona’s Criminal Code. ER 8.4(d), which prohibits conduct that is "prejudicial to the administration of justice," might also be implicated if such a threat were to constitute extortion under the Criminal Code.
There is still some debate over whether the use of a threat of criminal prosecution to gain an advantage in a civil matter is banned by ER 8.4(d) of the current Rules of Professional Conduct. Geoffrey C. Hazard, Jr., and W. William Hodes, in The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct (Second Edition, 1990), suggest that only in some circumstances will a threat of criminal prosecution violate ER 8.4(d):
"Although DR 7-105(A) was consciously not carried forward into the Rules of Professional Conduct, [a prosecutor's conduct in dismissing a criminal case in return for the criminal defendant’s withdrawal of a civil complaint against the state] is arguably •prejudicial to the administration of justice,• and hence violative of Rule 8.4(d). [The prosecutor’s] bargaining power is overwhelming, and she has too great a temptation to press questionable charges in order to gain bargaining chips. Furthermore, if the defendant is guilty, it is not in the public interest for him to escape punishment merely because the prosecutor fears bad publicity or a lawsuit."
See 2 The Law of Lawyering, supra, at pages 959-60. Charles W. Wolfram, in his Modern Legal Ethics (West Publ. Co., 1986), reluctantly concludes that only threats amounting to extortion for purposes of the criminal law are prohibited:
". . . it is difficult to see that any threats are proscribed by the final version of the Model Rules beyond those kinds of threats that fall afoul of the jurisdictions' criminal law definition of extortion. Thus, abusively harassing a:other with threats of a well-founded criminal complaint may be permissible under the Model Rules -- a clear, and unfortunate, diminution of the protections afforded by the Code. The behavior permitted by the Model Rules, if engaged in by a client legally in some states, is sufficiently close to the edge of legality and so unappealing a tactic in general that it would better have been prohibited outright in the Model Rules."
Op. cit., at 718. Professional ethics committees in other jurisdictions have reached differing conclusions on this issue. See, e.g., Florida Bar Opinion 89-3 (March 1, 1989) (ABA/BNA Lawyers' Manual on Professional Conduct, p. 901:2508, and vol. 5, no. 8, May 10, 1989, issue, pp. 137-138) (concluding that the prohibition against making threats of criminal prosecution in a civil (91-07) 3 matter is "implied" in the provisions of the A.B.A. Model Rules of Professional Conduct, especially ER' s3.1,4.4,8.4 (c) and 8.4(d)); and New Jersey Advisory Committee Opinion 595 (December 18, 1986) (ABA/BNA Lawyers’ Manual, supra, p. 901:5804) (deciding that the omission of former DR 7-105 in the new Model Rules was not the intent or the affirmative action of the A. B.A. Committee that drafted the new Rules ). Accord, Wisconsin State Bar Formal Opinion E-87-5 (June 17, 1987) (ABA/BNA Lawyers’ Manual, supra, p. 901:9105); and Illinois State Bar Opinion 87-7 (January 29, 1988) (ABA/BNA Lawyers’ Manual, supra, pp. 901:3006-901:3007) (threats to report a lawyer to disciplinary authorities). Cf. Pennsylvania Bar Association Opinion 89-74 (undated) (ABA/BNA Lawyers’ Manual, supra, p. 901:7319), and Philadelphia Bar Association Opinion 89-17 (September, 1989) (ABA/BNA Lawyers’ Manual, supra, p. 901:7526), deciding that threats of criminal prosecution are not per se violative of the Model Rules; such threats must run afoul of a more specific ethical proscription, such as making a false statement of material fact or law (see, e.g., ER’s 4.1, 4.3 and 8.4).
This committee has been informed that the debate in the A.B.A. Committee over dropping the express prohibition of former DR 7-105(A) in formulating the new Model Rules centered around the necessity for an express prohibition beyond what the extortion statutes require. See, e.g., discussion in 2 Hazard & Hodes, The Law of Lawyering, at § 4.4:103, pp. 759-762. Apparently, that Committee decided to drop the express prohibition and thereby not prohibit conduct which was not otherwise proscribed by the respective states’ extortion laws.
Based upon the foregoing information, we agree with Philadelphia Bar Association Opinion 89-17, supra, believing that a threat of criminal prosecution is not per se violative of the Rules of Professional Conduct. Only if such a threat runs afoul of a specific ethical proscription, or violates a state’s criminal extortion statute, would the threat be unethical.
As to the present inquiry, we do not believe that the threats of contempt expressed in the proposed paragraphs of the letter to the delinquent parent constitute extortion, under A.R.S. § 13-1804, since the contempt alluded to appears to be a civil contempt, rather than a criminal contempt.
A closer question is presented by the reference in the proposed paragraphs of the letter to A.R.S. § 12-2458 which provides that it is a class 6 felony for a parent knowingly, and without a lawful excuse, to fail to provide his or her child with reasonable support. Under the holding in Bush v. State, 19 Ariz. 195, 201, 168 Pac. 508, 511 (1917), a threat of criminal prosecution can constitute extortion even if a person other than the one making the threat is to receive the property extorted. Thus, the fact that the child would be the ultimate beneficiary of the child support money to be paid, rather than the writer of the letter, does not mean that the proposed conduct would not violate A.R.S. § 13-1804.
It could also be argued that the letter in question is not a threat per se, but merely some free educational, legal advice. Whether this language constitutes a "threat" prohibited by A.R.S. § 13-1804 (A) (5) depends upon both the intent of the sender and the perception of the recipient. As stated in Bush v. State, supra:
"No precise words are necessary to convey a threat. Conduct takes its legal color and quality more or less from the circumstances surrounding it. All that is necessary is that the alleged threat be definite and understandable to the mind of ordinary intelligence."
19 Ariz. at 200, 168 Pac. at 510.
Because this committee does not know all of the circumstances, it cannot judge whether the proposed conduct would constitute a threat. Suffice it to say that we believe that the better practice would be to omit reference to A.R.S. § 12-2458 in the proposed form letter.
Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.
©State Bar of Arizona 1991
1 The Arizona Court of Appeals has held that A.R.S. § 13-1804 (A) (8) is unconstitutionally vague. State v. Steiger, 162 Ariz. 138, 141-143, 781 P. 2d 616, 619-621 (App. 1989).