Can a lawyer threaten criminal charges to gain leverage in a civil debt collection?

Plain-English summary

The committee addressed a lawyer who, in corresponding with a debtor, alludes to possible criminal prosecution to advance a client's civil claim. It concluded that it is unethical for a lawyer to threaten to present criminal charges solely to obtain an advantage in a civil matter, and that where counsel alludes to possible criminal prosecution when writing to a debtor for the sole purpose of advancing the client's civil claim, such conduct is unethical, citing DR 7-104.

Currency note

This opinion was issued in 1985, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The former Code's express bar on threatening criminal prosecution to gain civil advantage was not carried forward verbatim into the current Rules; the committee note records that current Rule 3.4(h) allows a lawyer to advise a client about the client's rights under the criminal law. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer mention possible criminal charges to collect a civil debt?

A: Under this 1985 opinion, not where the sole purpose is to advance the client's civil claim; alluding to possible criminal prosecution in a debtor letter for that sole purpose is unethical.

Q: What is the line the committee drew?

A: The threat is unethical when made solely to obtain an advantage in a civil matter. The committee note adds that current Rule 3.4(h) allows a lawyer to advise the client about the client's rights under the criminal law.

Background and rules framework

The opinion applies the former Code's bar on threatening criminal prosecution to gain advantage in a civil matter, citing DR 7-104. The committee note maps the area onto current Virginia Rule 3.4(h) on advising a client about rights under the criminal law, the subject covered by ABA Model Rule 3.4.

Citations and references

Rules of Professional Conduct:

• DR 7-104 (threatening criminal prosecution for civil advantage) (former Code)
• Virginia Rule 3.4(h) / ABA Model Rule 3.4 (advising a client about rights under the criminal law)

See also

• VA LEO 838: The Duty to Report a Disciplinary Violation
• VA LEO 848: A Prosecutor Taping a Represented Suspect
• VA LEO 801: Contacting Employees of an Adverse Corporation

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0715.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LEGAL ETHICS OPINION 715

THREATENING CRIMINAL
PROSECUTION – CIVIL MATTER.

It is unethical for a lawyer to threaten to present criminal charges solely to obtain an
Advantage in a civil matter. Accordingly, if counsel alludes to possible criminal
prosecution when corresponding with a debtor for the sole purpose of advancing his
client's civil claim, such conduct is unethical. [See: DR:7-104]

Committee Opinion
August 30, 1985

Legal Ethics Committee Notes. – Rule 3.4(h) allows a lawyer to offer advice to the
client about the client’s rights under the criminal law.