One of my law firm’s clients is a major computer software maker. The partner in whose section I currently work assigned me the task of getting the client’s former vice-president for financial affairs to pay back funds he embezzled over a period of nearly three years. The company wants not only repayment in full but interest of twenty-three percent per year, based on its average rate of profit on investment during that time. Their argument is that, had the funds been available, they would have been used at least as effectively as the rest of the company’s capital, and so fair restitution must include the lost profit. Moreover, they want repayment at once, not over an extended period. I consider the company’s demands reasonable, and the embezzler’s lawyer says his client would meet them if he could. But he has convinced me that his client simply does not have sufficient assets of his own. He could repay promptly if his wife would agree to selling their jointly owned residence, but, unfortunately, she refuses to cooperate.
When I conferred with my superior, she said: “Tell the embezzler’s counsel that our client is running out of patience and will report the matter to the police and press charges unless the property is on the market by the end of this month.” I pointed out that at the first conference with our client I asked whether the matter had been reported to the police, and they said no; while they want their money, they do not want to press criminal charges against their former colleague. My superior replied: “I know the embezzler’s wife well. She will not want to see her husband, the father of her children, in jail. Threatening criminal charges is sure to break the logjam.”
I feel this tactic is dishonorable. But the rules of our professional ethics do not exclude it. How big an issue must I make of this?
No definite answer can be given to this question, partly because the information supplied is inadequate. But four problems can be sketched out to guide the questioner’s further reflection. First, threatening criminal prosecution of the embezzler to motivate his wife to sell their house might be unfair to the wife, who was not a party to his crime. Second, because lying is always wrong and professional ethics forbids a lawyer in representing a client to make a false statement of material fact to a third party, the threat may not be made unless the client is prepared to carry it out. Third, it might not be in the client’s best interests to carry out the threat. If not, the lawyer should not recommend doing so. Fourth, making the threat of criminal charges might be an abuse of criminal process to obtain restitution, which is a civil matter.
I see four problems with threatening to press criminal charges against the embezzler, but am not certain any of them is decisive, partly because some call for more information about the facts of the case than you have provided. But perhaps sketching out the problems I see will help your further reflection.
First, would it be fair to carry out this threat, inasmuch as it will be aimed at the embezzler’s wife, who presumably did not participate in the crime? Perhaps and perhaps not; and on some assumptions about the circumstances, the fairness or unfairness will be clear, while on others it will not be. It surely would not be unfair if the embezzled funds were invested in the home, the objective is to compel the wife to make that part of the equity available for restitution, and her doing so would not leave the family homeless. But it would be unfair if the embezzled funds had been wasted in gambling, the couple had purchased the home with money the wife inherited from her parents, and making the equity available for restitution would leave the family homeless. But if the residence was purchased by the couple’s cooperation over the years and only the embezzler’s share of the equity will be needed for restitution, the fairness of compelling the wife to agree to sell is arguable. The argument against it is: She is not responsible for her husband’s action and giving up her home would be a severe hardship. The argument for it is: The embezzler is a part owner, and at least his rightful share should be available to repay what he owes. Moreover, his wife and children stand to benefit from a resolution of his problem that would keep him out of jail and avoid a criminal record probably permanently damaging to his earning power.410
A second problem: Will the threat be a lie? Lying is always wrong (see LCL, 405–12). Moreover, in threatening that your client will report the matter to the police and press charges, assuming the client remains unwilling to press them, you would be knowingly making a false statement of material fact to a third party in representing the client—an act that would violate professional ethics.411
Someone might argue that you could solve this problem by bluffing—for example, saying that your client could report the matter and press charges. The possibility of doing so, after all, is real; calling attention to it would not assert anything, the argument would conclude, but only suggest that your client might proceed. I grant that in some contexts, such as warfare and certain games, a bluff does not involve an assertion, and so one can regard bluffing as legitimate in those contexts without admitting any exception to the exclusion of lying as always immoral. But despite their opposition, the parties to litigation, unlike warring enemies and people playing games, should cooperate in seeking justice on the basis of truth. Thus, litigation requires cooperation among officers of the court, each faithfully fulfilling the responsibilities of his or her proper role and communicating honestly with the others. Therefore, if a statement that your client could report the matter and press charges were intended to suggest that the client might proceed, it would be a false assertion unless the client, having been advised of the proposed threat, is willing to press charges in at least some possible circumstances. Moreover, being weaker, a threat that only kept open the possibility of criminal charges would be less likely to be effective.
Still, while a lying threat should be excluded, your client may feel that it would be morally acceptable in the circumstances. You can point out, however, that the same sympathy for a former colleague that may underlie the client’s reluctance to press charges also should exclude using an insincere threat to manipulate him and coerce his wife. You can point out too that bluffs often have bad effects. They sometimes provoke unexpected and undesirable responses, often make it harder to arrive at a settlement later, and, if unsuccessful, tend to undermine the credibility of future threats. If the client is unconvinced but also remains unwilling to agree to carry out the threat of criminal prosecution, you should explain that professional ethics excludes making a false statement to a third party in representing a client, and recommend an alternative to lying: that the client not demand immediate repayment but instead offer to accept what the embezzler can repay now, together with a legally binding undertaking to pay the remainder over an extended period, with interest at a mutually agreeable rate.
A third problem: Would it be in your client’s best interests to carry out the threat or would pressing criminal charges actually be self-defeating in relation to your client’s objective of obtaining repayment? If the embezzler’s wife resists the threat and your client presses charges, the result could well be that the embezzler will be less able to repay than if he is not prosecuted. If you judge that carrying out the threat would be counterproductive, do not recommend making it, since you could not recommend carrying it out and, as has been explained, a lying threat must be excluded.
The fourth problem: Would the threat of criminal charges to motivate the embezzler’s wife be an abuse of criminal process to pursue a goal in a civil matter?
If the answer is yes—and a case can be made for saying it is—then making the threat would be an injustice, if not to the embezzler, at least to the public at large. Criminal processes should be directed toward justice as an aspect of the society’s common good; civil processes are directed toward justice among contending parties. It seems to follow that the decision whether or not to press criminal charges should be made on the basis of the common good rather than of any party’s particular interests. So, prima facie it seems that the threat you are considering would be an abuse of criminal process.412 Perhaps that is why you feel this tactic is dishonorable.
Nevertheless, a case also can be made for the contrary view. Though clear in theory and in the legal system itself, the distinction between the ends primarily served by criminal and civil law—by the one, the common good of society as a whole; and by the other, the particular goods of those concerned—is not always so clear in practice. Some crimes—murder, for instance—are regularly reported and prosecuted without regard to the effects on private interests. Perhaps that also should be the case with embezzlement. In fact, however, probably most embezzlers who repay what they have taken are simply discharged and, perhaps, denied a favorable reference. Neither the police nor public prosecutors appear to take the initiative in such cases. Thus, with respect to crimes of this sort the public authorities apparently have concluded that the common good of society as a whole is sufficiently served even if the wronged party does not choose to press criminal charges. Insofar as the authorities have adopted that policy, it encourages wronged parties to use the threat of reporting embezzlement to the authorities as a means of obtaining restitution.
Perhaps your reflection—helped, I hope, by the preceding explanations—and/or your conference with the client will lead to a solution. Perhaps, though, you will conclude either that you cannot honestly make the threat or that, on other grounds, you cannot make it justly. If so, try to get your supervisor to understand why the threat should not be made; if she still insists, you must refuse. If making the threat would be making a false statement, point out that professional ethics precludes doing so. If the threat could be made honestly but not justly, however, explain your refusal as a personal matter of conscience, and ask to be excused from handling the matter. In either case, if your supervisor insists that you make the threat, appeal to the managing partner or partners. That will involve some risk to your job and your future prospects with the firm, but you must accept the risk, since the alternative would be to intend dishonesty and/or some other injustice. Saving your soul is far more important than keeping your job.
410. Someone might refer to q. 183, above, and object that, unless the embezzler’s wife participated in his wrongdoing or directly profited from it, trying to compel her to help him repay would be inherently unfair. However, there are significant differences between the two cases. To begin with, in the other case, the husband’s parents were related to the couple and their children as extended family, which is not the basis in our society for primary mutual economic responsibilities; in this case, the embezzler, his wife, and children are members of a nuclear family, which does ground such responsibilities. In the other case, too, the husband’s parents had no reason to expect that making the payments would result in future benefits to themselves; in this case, the wife does have reason to hope that helping her husband repay what he owes will bring her and her children through present adversity and allow the family as a whole to enjoy a better future.
411. See American Bar Association, Model Code of Professional Responsibility (1986), DR 7–102, (A) (5); Model Rules of Professional Conduct (1993), Rule 4.1 (a).
412. American Bar Association, Model Code of Professional Responsibility (1986), EC 7–21, DR 7–105A, forcefully takes this position; however, Model Rules of Professional Conduct (1993) does not deal with this matter. The norms of professional ethics in force where the questioner practices may or may not touch on it.