December 11, 1984
A lawyer representing a company in a discrimination suit brought by a former employee of the company may disclose to the prosecutor facts discovered through the company's internal investigation of the dismissal which may cause the prosecutor to issue criminal charges against the former employee.
Reference: MCPR DR 7-105; CI-332, CI-776.
A security guard fatally injured a customer whom the guard accused of shoplifting. The guard's employer conducted an internal investigation of the incident and turned over some, but not all, of the information to the police and prosecutor. The guard was charged with manslaughter, but the charges were dismissed at arraignment. The guard was discharged from employment, then sued the employer alleging discrimination.
The lawyer for the employer believes that the information in the internal investigation may cause the prosecutor to reconsider the dismissal of criminal charges, and asks whether additional disclosure is permitted.
MCPR 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." The intent of this rule is quite clear, and it has been the basis for prior informal opinions which have stated that it is improper to cite or refer to criminal statutes which might apply where a lawyer sends a collection letter to a debtor on behalf of a client. CI-332 and CI-776.
This disciplinary rule would not prevent disclosure of the information in this case, for a number of reasons. First and foremost, there is no communication between the lawyer and the adverse litigant, so it cannot be said that any threat is being made to the guard about the possible criminal charges.
Second, it does not appear that a simple disclosure of facts would make the lawyer a participant in the presentation of criminal charges. The lawyer in this case has no prosecutorial authority, and would not be making any decision or recommendation to the prosecutor regarding the possibility of issuing a warrant.
Any other result would result in precluding the employer from cooperating with prosecution agents whenever a dismissed employee subsequently challenges the dismissal in court. MCPR DR 7-105 was not intended to lead to such a result.
A related legal question involves the duty of a lawyer to disclose to the prosecutor facts relevant to a felony prosecution. This committee does not give opinions on questions of law, and therefore the inquirer will have to research that issue.