IT'S A CRIME TO THREATEN CRIMINAL PROSECUTION IN RETURN FOR FINANCIAL GAIN

Question (by e-mail): My wife and I have been involved in litigation for nearly a year in what can be best described as a nasty divorce. I am a physician, and for a number of years before we separated, my wife worked in my office and kept our books. She prepared all income tax returns and handled all investments. Because we have not been able to come to terms, she recently told me that unless I settled on her terms, her lawyer had advised her to play "hardball" -- that is, reporting me to the taxing authorities in an effort to cause me expense of an audit and taking out a criminal warrant for me for domestic violence based on an altercation she and I had months before we separated. My lawyer received a letter from my wife’s lawyer stating that if I settled according to their terms, my wife would sign a release and would not prosecute me or report me to the taxing authorities. My wife wants 75% of what we acquired, and I don't think it's fair for them to use the threat of criminal prosecution as leverage to try to get me to settle with them. On the other hand, even though I have done nothing wrong, I know that their threats will cause me additional expense and keep me in litigation for a long time. Is there anything I can do?

Answer: Yes. First, lawyers are specifically prohibited by the rules of professional conduct from using or threatening to bring criminal charges where, as here, the purpose is to secure an advantage in resolving a civil matter. If this was not the rule, there would be threats of criminal prosecution – with basis or not – in every divorce case in order to try to gain an economic advantage.

Second, this type conduct is in itself a crime in most states which is called misprision of a felony or compounding a felony – that is, a positive act that is used to conceal a crime. Here, assuming there is probable cause that you are guilty of tax evasion and domestic violence, if your wife and her lawyer deliberately conceal this information in order to extract money or other concessions from you, that constitutes misprision of felony.

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