May 22, 1982
A lawyer may not send collection letters for a client on insufficient funds checks that threaten criminal charges, whether civil litigation is pending or not.
A lawyer may not draft or advise a client that it is "appropriate" for it to send collection letters that threaten criminal charges. The lawyer's involvement in relation to the sending of such letters must be limited to advising the client of its legal rights and obligations.
References: DR 1-102(A)(2), DR 7-105(A); ABA Op 95.
The inquiry concerns the propriety of a lawyer's involvement in the preparation of letters threatening criminal charges to be sent to persons whose checks to a business client for goods or services have been returned for insufficient funds.
DR 7-104(A) states:
"A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter."
The inquirer inquires whether CR 7-105(A) applies only during the course of pending civil litigation. The purpose of the rule has been described as follows:
The criminal process, which is designed to protect society as a whole, is undermined when it is used to force settlement of private claims or controversies; the criminal process will be subverted by such misuse, and the person against whom it is misused is likely to be deterred from asserting his or her legal rights, which is contrary to the purpose of the civil process that is created for the settling of private disputes.
American Bar Foundation, Annotated Code of Professional Responsibility 343 (1979). As a person can be deterred from asserting his or her legal rights by a forced settlement before suit is filed as well as by a forced settlement of pending litigation, the applicability of the rule is not limited to the latter situation.
The form letters enclosed, with this inquirer, appear to have as their sole purpose the collection of sums of money owed to the client. Therefore, you could not send out such letters yourself (whether on your letterhead or your client's) without violating DR 7-105(A).
A second relevant rule is DR 1-102(A)(2), which states: A lawyer shall not . . . circumvent a Disciplinary Rule through actions of another.: As stated in ABA Op 95, "the attorney should not advise or sanction acts by his/her client that he himself should not do." DR 1-102(A)(2) would therefore appear to preclude you from either drafting letters threatening criminal charges for your client, or advising your client that it is "appropriate" to send out such letters.
You state that you client has used such letters in the past, in other states. Subject to any legal limitations or prohibitions (e.g., laws against extortion), your client may be free to continue this practice here. However, your involvement cannot extend beyond advising the client of its legal rights and obligations.