State Bar of Michigan
home member area contact us


ethics



 print this page


for members
SBM general information

member directory

admissions, ethics, and
   regulation


diversity & inclusion

justice initiatives

member services

practice management
   resource center


public policy resource
   center


publications and
   advertising


research and links

sections & committees


ethics for members
ethics developments
ethics opinions
TAON (trust accounts)


from the courts
opinion searching
virtual court


for the public
public resources
media resources


giving opportunities
a lawyer helps
access to justice
   campaign

Ethics Opinion

print this page

CI-976

October 31, 1983

SYLLABUS

    A lawyer may by written collection letter threaten to institute civil proceedings against an individual or entity for failure to pay certain indebtedness owned to a client.

    Where a lawyer attaches an unfiled summons and complaint to a collection letter, the lawyer should state, in a conspicuous manner, in both the letter and the summons and complaint that the attached summons and complaint has not been filed.

    References: MCPR DR 7-105(A), DR 6-101(A)(2); CI-332, CI-776; ABA i1367, i1427.

TEXT

A lawyer has prepared a form collection letter including a standard summons and complaint, which the lawyer intends to forward to various debtors whose checks to clients for goods and/or services have been returned for insufficient funds. The collection letter provides, in pertinent part, that unless the debtor has fulfilled his/her payment obligations to the client within the prescribed number of days, the lawyer will recommend filing suit. There is no indication on the summons and complaint enclosed with the debtor letter that the document has not been filed.

May the lawyer "threaten" civil action to collect the debts?

A lawyer may not threaten criminal action in a collection letter for the purposes of coercing the debtor into paying the indebtedness in question. MCPR DR 7-105(A); CI-776, CI-332, ABA i1427.

In ABA i1367, the ABA Committee reviewed a question concerning the mass mailing collection letters signed by paralegals on the lawfirm letterhead. The ABA Committee concluded that DR 6-101(A)(2) requires a lawyer who uses collection letters to ascertain that the letters are prepared and dispatched under his/her direct supervision. In particular, the lawyer must personally exercise care and independent judgment in ascertaining that each letter is accurate and appropriate as to the account of the debtor at the time it is mailed. In this inquiry, the lawyer must have the letters and attachments are prepared and dispatched under the lawyer's direct supervision and the lawyer must personally determine that each letter is accurate and appropriate as to the account of the debtor when it is mailed.

If the lawyer attaches the proposed summons and complaint to the collection letter, the communication should be clear that the matter has not been filed in court. It should be made clear that the debtors do not have to answer or respond in any way to the Summons and Complaint; that such Summons and Complaint has no legal status; and that there can be no other consequence for ignoring such Summons and Complaint other than the institution of a law suit to which the debtor will have an opportunity to answer. This will avoid a misleading communication.

 
     

 

follow us
Follow Us on Facebook Follow Us on LinkedIn Follow Us on Twitter Follow the SBM Blog

 

©Copyright 2014

website links
Contact Us
Site Map
Website Privacy Statement PDF
Staff Links

SBM on the Mapcontact information
State Bar of Michigan
306 Townsend St
Lansing, MI 48933-2012
Phone: (517) 346-6300
Toll Free: (800) 968-1442
Fax: (517) 482-6248