Ezel / Ethics Opinions / DCBAR
DCBAR April 2007

Can a lawyer's debt-collection demand letter cite the criminal bad-check statute and warn that the matter may be referred for prosecution?

Short answer: The opinion concludes that D.C. Rule 8.4(g) bars a lawyer from threatening criminal charges solely to obtain an advantage in a civil matter, but the mere citation of, or reference to, the criminal bad-check statute in a collection demand letter is not a per se violation. A statement that the lawyer may refer the matter for prosecution if the debt is paid with a knowingly insufficient check is also permitted, unless it is phrased in a way likely to mislead or confuse the recipient (Rule 4.1), and a non-pretextual motivation defeats the 'solely for advantage' element.

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This page answers the general question as of 2007. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

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Plain-English summary

Opinion 339 (adopted April 2007) responds to a commercial collection lawyer who often receives bad checks from debtors. Under D.C. Code section 22-1510, a drafter who fails to cure a bounced check within five days of notice creates prima facie evidence of intent to defraud. The lawyer asked whether a standard collection demand letter may cite those criminal provisions and advise the recipient that the matter may be referred for prosecution if a bounced check is not funded.

The governing rule is D.C. Rule 8.4(g), which makes it misconduct to "seek or threaten to seek criminal charges . . . solely to obtain an advantage in a civil matter." The Committee notes this prohibition was dropped from the ABA Model Rules but retained in the District's Rules, where the Jordan Committee described the targeted conduct as "tantamount to common law blackmail." Drawing on prior Opinion 220, the opinion stresses that the operative word is "solely": the question is whether obtaining civil advantage is the only purpose of the threat, which calls for a narrowing construction. Here the inquirer articulated a plausible non-pretextual motivation, his experience that creditors often pay with unfunded checks and his wish to avoid the resulting cost and inconvenience, and the Committee accepts that stated motivation at face value. Given that motivation, a reference to the potential for a criminal referral is not made "solely" for civil advantage and does not violate Rule 8.4(g).

The opinion adds limits. A lawyer may not use the asserted alternate motivation as a pretext to include threatening language merely to intimidate unsophisticated recipients. Rule 4.1 separately bars misleading statements, so a letter that omits qualifying information or overstates the criminal exposure could become misleading in context; the opinion cautions against "high-pressure tactics" and confusing conduct. Although not required, the potential for confusion may be reduced by a disclaimer advising the recipient of the right to contest the debt and noting that the criminal law concerns the means of payment, not whether a payment is due. The opinion also notes that an extortionate threat could implicate Rule 8.4(b) and the District's blackmail statute, and that lawyers must not exert or suggest improper influence over the criminal process.

In practice

Under the D.C. rules as they stood at the time of the opinion, a collection demand letter may cite the criminal bad-check statute and may state that the lawyer may refer the matter for prosecution if a bounced check is not funded, without per se violating Rule 8.4(g), provided the lawyer acts with a genuine non-pretextual motivation rather than solely to gain civil advantage. The opinion concludes that the mere citation of a criminal statute, or a reference to a criminal sanction that does not mischaracterize it, is permissible.

The opinion concludes that Rule 4.1 still bars misleading wording, that the threat may not be a pretext to intimidate unsophisticated recipients, and that a cautious practitioner will consider adding a disclaimer about the right to contest the debt. Because the opinion predates later rule developments, verify the current D.C. rules and the cited statute before relying on specific requirements.

Common questions

Q: Can a debt-collection letter mention that writing a bad check is a crime?

A: The opinion concludes yes. The mere citation of, or reference to, the criminal bad-check statute is not a per se violation of Rule 8.4(g), so long as it does not mischaracterize the sanction.

Q: Can the letter say the lawyer may refer the matter for prosecution?

A: The opinion concludes yes, where a bad check is knowingly used and the lawyer has a genuine, non-pretextual reason rather than acting solely to gain advantage in the civil matter. It must not be phrased in a way likely to mislead or confuse.

Q: What makes such a threat a violation of Rule 8.4(g)?

A: The opinion concludes the violation turns on the word "solely": a threat made solely to obtain an advantage in the civil matter is prohibited, as is using a claimed alternate motivation as a pretext to intimidate unsophisticated recipients.

Q: Does the opinion recommend a disclaimer?

A: The opinion concludes a disclaimer is not required, but notes that a cautious practitioner may reduce the potential for confusion by advising the recipient of the right to contest the debt and clarifying that the criminal law concerns the means of payment, not whether payment is owed.

Background and rules framework

The opinion interprets D.C. Rule 8.4(g) (seeking or threatening criminal charges solely to obtain an advantage in a civil matter), a provision dropped from the ABA Model Rules but kept in the District's Rules, read with Rule 4.1 (truthfulness in statements to others) and Rule 4.3 (dealing with an unrepresented person, here the debtor). It also flags Rule 8.4(b) (criminal acts, including extortion or blackmail under D.C. Code section 22-3252). It applies the criminal bad-check provisions of D.C. Code section 22-1510 and builds on prior Opinion 220.

Citations and references

Rules of Professional Conduct:

  • D.C. RPC 8.4(g) / (no Model Rule counterpart; threatening criminal charges solely for civil advantage)
  • D.C. RPC 4.1 / Model Rule 4.1 (truthfulness in statements to others)
  • D.C. RPC 4.3 / Model Rule 4.3 (dealing with an unrepresented person)
  • D.C. RPC 8.4(b) / Model Rule 8.4 (criminal acts reflecting on fitness)

Statutes:

  • D.C. Code section 22-1510 (bad checks; cure period and prima facie intent)
  • D.C. Code section 22-3252 (blackmail)

Other opinions cited:

  • D.C. Ethics Op. 220 (threatening a disciplinary referral)
  • ABA Formal Ops. 92-363 and 94-383 (threats of prosecution in civil matters)

See also

Source

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