OPINION 455
November 1987

Question Presented

Should a lawyer, who represents a plaintiff in a civil suit alleging a cause of action against the defendants for damages for breach of contract, conversion and fraud, "assist" in prosecuting a criminal charge against such defendant?

Facts

After filing the civil suit, plaintiff has determined that the civil defendants conduct may have violated one or more criminal statutes, and is considering whether to present the matter to the district attorney for appropriate action, and has discussed with plaintiff's lawyer the possibility of using his legal services in prosecuting such a criminal charge against such defendant.

The civil plaintiff, who would be the complainant in such a criminal action, disavows any intent to press criminal charges solely for gain, and purports to be motivated by a feeling that the wrongdoer should be punished. It is assumed that the civil plaintiff would be able, without the "assistance" of the civil case lawyer, to relate the facts to the district attorney grand jury, and petit jury, and, likewise, that district attorney would be able, without the "assistance" of the civil case lawyer, to adequately prosecute a criminal charge. The civil suit remains pending and has not been tried or disposed of by final judgment.

Conclusion

DR 7-105 states that a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter. While inclusion of the word "solely" in the disciplinary rule may indicate some possibility of permissiveness if the motive were other than as proscribed, a different subjective motive may be difficult of ascertainment, especially during the pendency of the civil case involving the same factual situation. While "assistance" of the civil case lawyer in prosecuting a criminal charge involving facts common to both cases may not, standing alone, rise to a presumption that it is done to bolster the civil case under the facts here stated in light of the disavowal of the civil plaintiff to press charges solely for gain, at least the lawyer's "assistance" in presenting and prosecuting the criminal charge would be rendered suspect as long as the possibility of advantage therefrom exists in the pending civil suit. This is especially true in light of the circumstances that the lawyer's "assistance" appears to be neither required nor necessary to criminal prosecution under these facts.

We consider the inquiry presented to be within the purview of DR 7-105, and, therefore, find that, under the facts presented, "assistance" by the attorney for the plaintiff in the pending civil suit in the criminal prosecutorial role would not be proper.