October 31, 1983
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.
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.