Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May a prosecutor ethically inform a crime victim of possible civil remedies?
A prosecutor may properly inform a crime victim of civil remedies available against a criminal.
Rule 2-105(B) of the Rules of Professional Conduct of the State Bar.
The Committee has been asked whether a prosecutor may properly inform a crime victim who has suffered a property loss that a small claims court action could be brought against the criminal (or his parents, if he is a juvenile) in an effort to recover the loss. The inquirer indicates that the convicted criminal has not been ordered to make restitution of the loss as a condition of the probation.
It is the Committee's opinion that information regarding civil remedies properly may be provided to the crime victim by the prosecutor in response to the victim's inquiry. Further, the prosecutor may volunteer the information, absent improper motives.
Canon 2 of the American Bar Association Code of Professional Responsibility provides some guidance. Canon 2 states: "A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available." Ethical Consideration 2-3 of the American Bar Association Code of Professional Responsibility expands upon canon 2 as follows:
"... The giving of advice that one should take legal action could well be a fulfillment of the duty of the legal profession to assist laymen in recognizing legal problems . . ."
The prosecutor has an obligation to answer reasonable questions of members of the public. Unquestionably, a crime victim has an interest in learning what legal remedies are available. The loss of property is a legal problem warranting resolution. Failure to mention the availability of a possible civil remedy could mislead the victim. Nonetheless, volunteering the information raises questions of relation and motive. Rule 2-105(B) of the Rules of Professional Conduct states:
"A member of the State Bar shall not advise the commencement, prosecution or defense of a case unless he has been consulted in reference thereto, except when his relation to a party or to the subject matter is such as to make it proper for him to do so."
As the prosecutor has not been consulted about the civil action, the volunteering of the information would only be proper if his relation to the crime victim was "such as to make it proper for him to do so." We believe such a relation exists under these circumstances. The prosecutor is a public servant who stands to gain nothing personally by informing a member of the public of his civil remedies.
It is improper for the prosecutor to volunteer the information, however, when he is motivated by a desire for publicity or a desire to harass or injure the criminal. Thus, American Bar Assocation Code of Professional Responsibility, Ethical Consideration 2-3 further provides:
"Whether a lawyer acts properly in volunteering advice to a layman to seek legal services depends upon the circumstances... The advice is proper only if motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations. Hence, the advice is improper if motivated by a desire to secure personal publicity, or cause litigation to be brought merely to harass or injure another..."
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
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