Opinion #163. Prohibition on Invocation of Criminal Process to Assist in Collecting Bills

Issued by the Professional Ethics Commission

Date Issued: November 4, 1998

Question

The Commission has been contacted by an attorney who does collection work to determine whether Bar Rule 3.6(c) would prevent him from notifying a debtor who has given his client a bad check that he is subject to criminal penalties. He complains that he is at a competitive disadvantage because collection agencies not subject to the Bar Rules can successfully threaten persons who have written bad checks with prosecution if they do not promptly pay what is owed. The Commission is treating the letter in question as an inquiry about whether the criminal process may be invoked to any extent to assist in collecting bills.

Opinion

Bar Rule 3.6(c) provides that:

A lawyer shall not present, or threaten to present, criminal, administrative, or disciplinary charges solely to obtain an advantage in a civil matter.

Rule 3.6(c) was taken from DR 7-105 of the A.B.A. Model Code of Professional Responsibility. Regarding the policy of the rule, ethical consideration (EC) 7-21 states that:

EC 7-21. The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the process is designed for the protection of society as a whole. Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process; further, the person against whom the process is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system.

The procedure for notifying persons who have issued dishonored checks of their legal responsibility to pay the face amount of the check is set forth in 14 M.R.S.A. § 6071. The form of the notice is prescribed by § 6073. A person receiving such a letter who does not respond within 10 days is subject to a penalty of up to $50 plus attorneys’ fees and costs. Ibid.

A criminal penalty for negotiating a worthless instrument is established by 17-A M.R.S.A. § 708 (Supp. 1997-98). Giving a notice of dishonor prescribed by 11 M.R.S.A. § 3-1503 is a prerequisite to a finding of guilt.

As can be seen from the foregoing, the civil and criminal processes proceed on independent tracks although the notice of dishonor is similar. There is therefore no legal requirement that an attorney attempting to effect a collection advise the debtor that he is also subject to criminal penalties. Under such circumstances, the sole purpose of the reference to the criminal process would seem to be a veiled offer to withhold support for criminal prosecution in exchange for payment of the debt.

What if the inquiring attorney were to report the matter to the District Attorney or other appropriate law enforcement authorities and did not communicate directly with the debtor except to send a copy of his letter? In Decato’s Case, 379 A.2d 825 (N.R 1977), the New Hampshire Court held that since reporting is to be encouraged, arguably such a complaint would not have been made “solely” for the purpose of securing advantage in the civil matter.

On the other hand, it could be argued that even reporting the check violation to government authorities would violate Rule 3.6(c) which prohibits even “presenting” a criminal charge to gain civil advantage. Professor Wolfram suggests, however, that the rule should not be read to discourage attorneys from reporting conduct. Wolfram, Modern Legal Ethics, p. 717 (Practitioner’s ed. 1986). See also A.B.A. Professional Ethics Inq. Op. #1484 (Dec., 1981)(law firm may proceed with civil action while at the same time assisting with presenting the facts to criminal prosecutors). In Wolfram’s view:

The report should be discrete, without putting pressure on the prosecutor to take action; *should not be conveyed to the person charged*; and should not by its timing suggest a punitive or extortionate intent. (Emphasis added).

Ibid.

The Commission adopts Professor Wolfram’s interpretation of the rule. Merely reporting the bad check violation to the authorities should not be deemed to violate Rule 3.6(c) even though the creditor’s attorney might incidentally benefit if restitution were to result. Since notifying the debtor that his conduct was being reported is irrelevant to the process, however, any attempt to do so would violate the rule since its sole purpose would be to convey an implied suggestion that he should pay up before it is too late.

Finally, it should be noted that the inquiring attorney’s complaint that the inhibitions imposed by the Bar Rules place him at a disadvantage when compared with collection agencies could be replicated in many other areas where the Bar Rules impose ethical obligations on attorneys not applicable to non-lawyers. One of the trade-offs for the privileges attached to their status as professionals is that attorneys must be prepared to accept that non-lawyers competing in areas which overlap with the practice of law are not subject to equivalent rules of professional conduct.

Concurring Opinion

A minority of the Commission concurs in the result reached by the majority, because the inquiry specified that the sole purpose of reporting the dishonored check was to induce payment and that the inquiring attorney knew there would be no prosecution. The minority does not agree that a violation of Rule 3.6(c) necessarily occurs whenever an attorney reports a crime to a prosecuting authority and notifies the perpetrator that the report has been made or notifies such a person that a report will be made. Notifying the perpetrator does not inevitably demonstrate that the attorney’s purpose was “solely” to obtain an advantage in a civil matter, as the rule requires. The majority opinion treats Rule 3.6(c) as if it prohibited an attorney from presenting or threatening to present charges whenever one of the purposes is to obtain an advantage in a civil matter. That is not what the rule says.


Enduring Ethics Opinion