(973) 403-9200
By Charles F. Vuotto, Jr., Esq.
Editor-in-Chief
The purpose of this column is to discuss whether the bench and bar require further clarification of the Rules of Professional Conduct to guide professionals with regard to the precarious situation when criminal law intersects a civil law matter. There are various factual circumstances where the criminal code intersects the practice of family law. I believe it is fair to say that we confront these circumstances most often when a litigant violates an order for timesharing or a domestic violence restraining order. When an adverse party takes, or threatens to take, such an action, to what extent can an attorney for the aggrieved party reference the applicable criminal ramifications to such actions?
The Rules of Professional Conduct and case law prohibit attorneys from threatening criminal action in a civil matter. Specifically, RPC 3.4(g) provides that a lawyer shall not “present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.” (Emphasis added) RPC 3.1 further limits attorneys to asserting only those issues they know, or reasonably believe, to have a basis in law and fact.
While the Rules of Professional Conduct prohibit attorneys from threatening criminal action to gain an improper advantage in a civil litigation, the New Jersey Code of Criminal Justice regulatescertainconduct that intersects withaspects of family law. For example, N.J.S.A. 2C:13-4provides:
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(1) Takes or detains a minor child with the purpose of concealing the minor child and thereby depriving the child’s other parent of custody or parenting time with the minor child; or
(2) After being served with process or having actual knowledge of an action affecting marriage or custody but prior to the issuance of a temporary or final order determining custody and parenting time rights to a minor child, takes, detains, entices or conceals the child within or outside the State for the purpose of depriving the child’s other parent of custody or parenting time, or to evade the jurisdiction of the courts of this State; or
(3) After being served with process or having actual knowledge of an action affecting the protective services needs of a child pursuant to Title 9 of the Revised Statutes in an action affecting custody, but prior to the issuance of a temporary or final order determining custody rights of a minor child, takes, detains, entices or conceals the child within or outside the State for the purpose of evading the jurisdiction of the courts of this State; or
(4) After the issuance of a temporary or final order specifying custody, joint custody rights or parenting time, takes, detains, entices or conceals a minor child from the other parent in violation of the custody or parenting time order.
Interference with custody is a crime of the second degree if the child is taken, detained, enticed or concealed: (i) outside the United States[i] or (ii) for more than 24 hours. Otherwise, interference with custody is a crime of the third degree but the presumption of non-imprisonment set forth in subsection e. of N.J.S.2C:44-1 for a first offense of a crime of the third degree shall not apply.[ii]
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Further, N.J.S.A. 2C:29-9 provides the following consequences fornoncompliance with a court order:
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As another example, N.J.S.A. 2C: 24-4 prohibits a person having a legal duty for the care of a child (or assuming the responsibility for such care) from endangering the welfare of a child by engaging in certain sexual conduct that would impair or debauch the morals of the child.
As yet another example of the criminal code’s intersection with family law, N.J.S.A. 2C:20-2(d) addresses “theft from spouse,” stating “[i]t is no defense that theft or computer criminal activity was from or committed against the actor’s spouse, except that misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft or computer criminal activity only if it occurs after the parties have ceased living together.”
In applying RPC 3.4(g), the courts have disciplined attorneys who threatened criminal action, but in other cases have held the attorneys’ actions not to be unethical. For example,the New Jersey Supreme Court Disciplinary Review Board recommended,and the Supreme Court ordered,censure for an attorney who threatened to pursue criminal charges of fraud to demonstrate parental unfitness in a custody matter.[iv] The attorney threatened to file charges with the Internal Revenue Service, the Welfare Board, Rental Assistance and the New Jersey Department of Taxation unless the adverse party accepted the custody settlement proposal. The New Jersey Supreme Court Disciplinary Review Board held the attorney’s conduct to be in clear violation of RPC 3.4(g).
Likewise, the Supreme Court imposed a one-year suspension on an attorney who assisted in the preparation and filing of criminal charges for bigamy against the adverse party in a personal injury lawsuit.[v] The adverse party, who had joined her alleged husband in a per quod claim, admitted her divorce in Mexico from her first husband was not valid. The attorney assisted his client in filing a criminal complaint hoping she would drop the civil lawsuit.
In Paterno v. Paterno,[vi] Judge Conrad Krafte concluded that interference with custody and parenting time could be pursued simultaneously in the criminal context under N.J.S.A. 2C:13-4, and in the family part for violation of litigant’s rights. This holding suggeststhere is no bar to a client pursuing all available remedies under the law. There still remains a question, however,regarding how far an attorney may go in referencing his or herintent to pursue criminal charges.
Some practitioners believe RPC 3.4(g) is violated when the assertion of potential criminal charges is essentially a quidproquo. Some believe this would be so even if the attorney stopped short of affirmatively advising he or she intended to pursue criminal action. In other words,for an attorney to suggest that he or she is “considering” criminal action or “intends to discuss pursuing criminal action” with that attorney’s client, or that he or she “may be pursuing criminal action” would all seem to run afoul of the prohibitions of RPC 3.4(g). On the other hand, some attorney believe that the trap may be avoided if the attorney asserts something like the following: 1) “We believe you have acted in direct violation of a criminal statute,” or 2) “arguably you are in violation of a criminal statute.” or 3) “my client intends to pursue all remedies available to him or her pursuant to a (criminal statute).” Therefore, one school of thought is that there is no prohibition about being transparent and advising one’s client of an intention to do so, so long as it is not an attempt to extract an advantageous result. Of course, if anattorney allegeshis or her client intends to pursue criminal charges there must be a basis in law and fact for making such assertion.[vii] Others feel that attorneys may run afoul of RPC 3.4(g) when the criminal proceedings that are threatened or actually undertaken are unrelated to the matter at hand. In those cases, it simply appears to be extortion. Pursuing criminal sanctions related to a matter is viewed by some as the right of citizen and, if it is in good faith, it is not done in order to “obtain an improper advantage.”
There is no question that a practitioner walks a fine line in referencing a criminal statute in the context of any civil litigation. Is there a gray area where an attorney can discuss the possibility of pursuing criminal action in a non-coercive way that is not ‘improper’ or necessarily for the purpose of gaining an advantage in a case? Put differently, is it permissible for a practitioner to generally inform an adversary when a client intends to seek all of the remedies available to him or her under the law, including criminal action, if the facts as alleged constitute a crime, and that is,in fact, the client’s intention? Is it permissible as long as the notification is not threatening or coercive in any way? Does the answer change when an adversary is a self-represented litigant? In light of all of these questions, do we require further clarification in the Rules of Professional Conduct?
The author would like to give special thanks to Cheryl E. Connors, Ashley N. Richardson, Stacey L. Miller, and other members of the NJFL Editorial Boardfor their assistance with this column.
[i]In the highly publicized case, Innes v. Carrascosa, 391 N.J. Super. 453 (App.Div. 2007), the mother was incarcerated after refusing to return the child to New Jersey from Spain in violation of specific court orders.
[ii]N.J.S.A. 2C:13-4 (a).
[iii]N.J.S.A. 2C:29-9.
[iv]In re Balliette, Docket No. DRB 13-287 (Apr. 10, 2014), censure ordered, 217 N.J. 277 (2014)
[v]In re Cohn, 46 N.J. 202 (1966); see alsoIn re Dworkin, 16 N.J. 455 (1954) (imposing a one-year suspension on an attorney who threatened criminal charges against a man who forged a government check for $70 to gain an additional fee of $100 to resolve the case); In re Krieger,48 N.J. 186 (1966) (suspending an attorney for three months after he initiated criminal prosecution alleging perjury against a key witnessfor the purpose of achieving a favorable result in a civil action).
[vi]254 N.J.Super. 190 (Ch. Div. 1991).
[vii] The author thanks Mark Biel, Esq. for these insightful comments.