State Bar of Arizona Ethics Opinions
93-11: NSF Checks
Attorney may not instigate criminal prosecution against former client who pays fees with NSF check.
September 28, 1993
The inquiring attorney formerly represented a criminal defendant but withdrew from the case after the client was either unable or unwilling to pay the balance due on his legal fees. Prior to the inquiring attorney's withdrawal, the client tendered to him a check for $400.00 to cover most of the balance owed. However, the client informed the inquiring attorney shortly thereafter that the check would not clear, because the client had lost his job. The client assured the inquiring attorney that he would receive additional monies within two weeks which would be sufficient to cover the check. However, when the inquiring attorney redeposited the check two weeks later, it still did not clear.
Four months later, the inquiring attorney mailed a letter to the client requesting payment within 12 days, and informing the client that he would turn over the check "as well as all additional information" to the County Attorney for prosecution if no payment was received.
The inquiring attorney does not say whether he told the client that he would file a civil action to collect his fees, or whether he actually filed such an action. However, the inquiring attorney does believe that, under these facts, he has grounds to initiate a criminal proceeding against his client for knowingly writing a check on insufficient funds.
May the inquiring attorney ethically instigate a criminal prosecution against a former client whose personal check for legal services was returned unpaid because of insufficient funds?
ETHICAL RULES INVOLVED
ER 1.6 (a) and (d) Confidentiality of Information
The question of whether an attorney may ethically instigate a criminal proceeding against a client for tendering a bad check was addressed in our Opinion No. 76-14 (July 23, 1976), which disapproved of the practice. Interestingly, the opinion did not cite any of the ethics rules then in effect; instead, the committee relied on two "ethics considerations." First, we noted that EC 2-23 discouraged even the filing of a civil suit against a client to collect fees except to avoid "fraud or gross imposition" by the client. From this consideration, the committee extrapolated that the filing of a criminal complaint against the client would be improper unless the attorney believed it was necessary to protect the public. Opinion No. 76-14, supra, at 3.
Secondly, the committee referred to EC 9-6, the consideration that emphasized the importance of upholding the honor of the profession and avoiding even the appearance of impropriety. We concluded that filing a criminal complaint against a client appeared improper and would constitute "reprehensible" conduct on the part of the lawyer. We further concluded that the lawyer "should charge the matter up to the yearly usual percentage of loss of fees and forget about the matter." Opinion No. 76-14, supra, at 4.
Of course, neither EC 2-23 nor EC 9-6 survived the adoption of Arizona's Rules of Professional Conduct in 1985, and we cannot subscribe to the reasoning of Opinion No. 76-14. However, we think that an existing ethics rule applies, which acts to prohibit the inquiring attorney from instigating a criminal complaint against his client.
ER 1.6(a) requires that a lawyer maintain the confidentiality of all information "relating to representation" of a client. This rule is intended to be broad and, generally speaking, encompasses all information a lawyer learns about the client or the client's case during the course of representation. See our Opinion No. 91-02 (January 15, 1991). This committee recently held that ER 1.6(a) prevents an attorney from disclosing client names and balances owed by them to the attorney to a financial institution for purposes of obtaining a loan. See our Opinion No. 92-4 (March 26, 1992). Similarly, we believe that it would be improper to disclose a client's name, the amount owed, and any other information pertaining to a client's tendering of a check drawn on insufficient funds, unless an exception to the rule of ER 1.6(a) applies.
The only potentially applicable exception is ER 1.6(d), which provides, in relevant part:
"A lawyer may reveal [confidential] information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, . . ."
We do not think that this provision authorizes disclosure of confidential information to criminal prosecution authorities under the facts presented. First, a criminal proceeding is not, strictly speaking, a controversy between a lawyer and the client; rather, it is a dispute between the State and an accused individual. Secondly, we believe that filing a criminal complaint against a client is rarely, if ever, reasonably necessary" to collect a fee, when a civil action is available.1 The Comment to ER 1.6 speaks to this issue:
"A lawyer entitled to a fee is permitted by paragraph (b) (2) [sic] to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure."
According to this passage, the clear policy behind any exception to the confidentiality rule is that disclosure should be the minimum necessary to effect the purposes of the exception. Under the facts presented, we do not believe this exception applies to permit the inquiring attorney to disclose confidential information to the County Attorney.
Finally, we must note the jurisdictional limitations of this committee. We cannot advise whether the inquiring attorney has sufficient legal grounds to file a criminal complaint against his client, or what the elements of such a criminal offense are. See our Statement of Jurisdictional Policies, paragraph 6(a).
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 1993
1 As mentioned before, the inquiring attorney has apparently made no attempt to collect his fees in a civil action or fee arbitration proceeding.