ETHICS OPINION 360-1940

NUMBER 360 1940

Question. A is a patrolman employed by the City of New York Police Department, who was granted a discharge in bankruptcy. B was the holder of a judgment against A, which was listed in A’s bankruptcy and which was discharged. B’s attorney has had A brought up on departmental charges complaining of A’s failure to pay B’s judgment setting up that such failure was a violation of departmental rules. These charges have always been dismissed, B’s attorney, having full knowledge of the facts, threatens to reopen the departmental hearings until A pays the discharged judgment, or is himself discharged from his position. He now threatens another letter to the Police Commissioner on the same subject.

Does an attorney representing a judgment creditor violate the ethics of his profession when he lodges repeated complaints with the judgment debtor’s superiors in the New York City Police Department when the judgment has been discharged in bankruptcy and the attorney admittedly had full knowledge of the bankruptcy? May the attorney for the creditors threaten to continue the complaints until the judgment is paid?

Answer, The principles of Canon 30 of the Canons of Professional Ethics are applicable. That Canon reads:

The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong. But otherwise it is his right, and having accepted retainer, it becomes his duty to insist upon the judgment of the Court as to the legal merits of his client’s claim. His appearance in Court should be deemed equivalent to an assertion on his honor that in his opinion his client’s case is one proper for judicial determinations.

Rule 218 of the Rules and Regulations of the Police Department provides; “A member of the department shall promptly pay his just debts and shall not incur liabilities which he is unable or unwilling to discharge.” This rule must be read with In re Hicks, 133 Fed, Rep. 739, which recognizes the right of a member of the Police Department to resort to bankruptcy proceedings. In a communication to this Committee, the Acting Secretary to the Police Commissioner of the City of New York stated: “It has been the policy of this Department to consider the Hicks case as a judicial and constitutional limitation upon our Rule No. 218.”

The judgment having been duly discharged in the bankruptcy proceedings, the conduct of the attorney is, in the opinion of the Committee, professionally improper and in violation of the principles underlying Canon 30.