Ezel / Ethics Opinions / ISBA
ISBA 2012

Can an Illinois lawyer collecting on a bounced check refer it to the state's attorney for criminal prosecution to pressure the debtor in the civil suit?

Short answer: No. The lawyer may return the check and tell the client the client may pursue criminal charges on the client's own, but the lawyer may not present or participate in presenting criminal charges to gain an advantage in the civil collection matter.

Apply this to your situation

This page answers the general question as of 2012. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2012
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer represents a client trying to collect on a bounced check. The lawyer filed suit but the sheriff could not serve the defendant. The inquiry asked whether the lawyer could send the check back to the client and advise the client of the right to file a criminal complaint, and whether the lawyer could send the check to the state's attorney and ask, on the client's behalf, that a criminal complaint issue.

The opinion applies Illinois Rule 8.4(g), which makes it professional misconduct for a lawyer to "present, participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter." Drawing on ISBA Opinions 550 (1976) and 142 (1956), the opinion concludes that the lawyer may return the check and tell the client the client may press criminal charges if the client chooses, but the lawyer may not participate in presenting those charges to gain leverage in the civil collection.

The opinion explains the reasoning: the harm is not the client's filing of a criminal complaint but the lawyer's participation in it to gain a civil advantage, which it describes as a subversion of a criminal process designed to protect society rather than to settle private disputes. The opinion adds that the lawyer should advise the client not to threaten criminal charges to obtain payment, because the Illinois Criminal Code makes it an offense ("compounding a crime") to receive consideration in return for a promise not to prosecute. See 720 ILCS 5/32-1.

In practice

The opinion holds that, under Rule 8.4(g), a lawyer collecting on an NSF check may decline to be the conduit for criminal charges: returning the check to the client and informing the client of the client's own right to pursue charges is permitted, but the lawyer's presenting or participating in presenting charges to advance the civil claim is prohibited. The opinion also notes the lawyer should counsel the client against trading non-prosecution for payment, given the compounding-a-crime statute.

Common questions

Q: Can an Illinois lawyer send a bounced check to the state's attorney to push the debtor to pay?

A: No. The opinion concludes that asking the state's attorney to issue a criminal complaint on the client's behalf is "participating in presenting" criminal charges to gain a civil advantage, which Rule 8.4(g) prohibits.

Q: What can the lawyer do instead?

A: The lawyer may return the check to the client and advise the client that the client may press criminal charges personally if the client chooses. The line the opinion draws is between the client's own decision to file and the lawyer's participation aimed at the civil case.

Q: Can the client offer to drop criminal charges in exchange for payment?

A: The opinion advises the lawyer to tell the client not to threaten criminal charges to obtain payment, because the Illinois Criminal Code's compounding-a-crime provision (720 ILCS 5/32-1) makes it an offense to take consideration for a promise not to prosecute.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 8.4(g), Illinois's express prohibition on presenting or threatening criminal or disciplinary charges to gain a civil advantage. The Model Rules do not contain an identical free-standing provision; comparable conduct is addressed under Model Rule 8.4 (misconduct) and Rule 3.4 (fairness to opposing party). The opinion also relies on the Illinois compounding-a-crime statute, 720 ILCS 5/32-1.

Citations and references

Rules of Professional Conduct:

  • Illinois RPC 8.4(g) (presenting/threatening criminal or disciplinary charges for civil advantage)
  • MR 8.4 (misconduct); MR 3.4 (fairness to opposing party and counsel)

Statutes:

  • 720 ILCS 5/32-1 (compounding a crime)

Cases:

  • In re Lewelling, 296 Or. 702, 678 P.2d 1229 (Or. 1984), attorney suspended for threatening criminal charges to gain civil advantage

Other opinions cited:

  • ISBA Op. 550 (1976); ISBA Op. 142 (1956): threatening criminal charges to collect NSF checks is improper

See also

Source

Get today's answer for your situation

You just read a 2012 opinion on this question. Ezel checks the current Illinois Rules of Professional Conduct and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.