Can an Illinois lawyer's demand letter cite a statute's criminal penalties, and can it offer to drop criminal prosecution if the civil demand is paid?

Plain-English summary

A lawyer represents an employee with a claim under the Illinois Wage Payment and Collection Act, which has both civil and criminal components (820 ILCS 115/14). The lawyer asked whether a demand letter to the employer may state that the alleged violation carries criminal and civil liability, and whether it may offer to avoid a report to law enforcement if the employer pays.

The committee starts from Rule 8.4(g), which makes it misconduct to "present, participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter." Illinois retained this prohibition even though the Model Rules drafters deliberately omitted it, so the committee says ABA Formal Opinion 92-363 does not control the analysis. Drawing on Illinois disciplinary and federal authority (In re Ditkowsky; In re Zeas; In re Lavelle; In re Denison; Nieves v. OPA, Inc.; and ISBA Opinion 12-01), the committee explains that a violation requires a clear threat to present criminal charges, communicated to the target, with a clear link to gaining a civil advantage.

Applying that standard, the committee concludes that accurately reciting the statute, or enclosing a copy, does not by itself violate Rule 8.4(g), and a lawyer may even state that the alleged act could result in criminal liability. What the letter must not do is threaten criminal prosecution, or state that prosecution can be avoided by paying, because offering to forgo prosecution in exchange for satisfying the civil demand is the prohibited link between criminal charges and civil advantage. The committee says the demand letter should be limited to the civil matter and state only that civil remedies will be pursued.

In practice

Under this opinion, a demand letter in an Illinois wage (or similar) claim may quote or attach the governing statute even where that statute carries criminal penalties, and may note that the conduct could be criminal, without violating Rule 8.4(g). The opinion treats two moves as crossing the line: threatening to present criminal charges, and offering to withhold prosecution or a report to law enforcement if the civil demand is paid. The committee's guidance is to confine the letter to the civil claim and the civil remedies the lawyer will pursue.

Common questions

Q: Can a demand letter cite a statute that carries criminal penalties?

A: Yes. The committee concludes that accurately reciting the relevant statute, or enclosing a copy, is not by itself a Rule 8.4(g) violation, even when the statute has a criminal component.

Q: Can the lawyer say the conduct could be a crime?

A: Yes. The opinion says a lawyer may state that the alleged act or omission could result in criminal liability, so long as the lawyer does not present, participate in presenting, or threaten to present criminal charges.

Q: Can the lawyer offer to drop criminal charges if the employer pays?

A: No. The committee concludes a lawyer should not agree to withhold criminal prosecution in exchange for payment, because that creates the clear link between threatened criminal charges and a civil advantage that Rule 8.4(g) forbids.

Q: Does ABA Formal Opinion 92-363 change the answer in Illinois?

A: No. The committee notes the Model Rules drafters deliberately omitted this prohibition, but Illinois kept it in Rule 8.4(g), so the ABA opinion does not influence the Illinois analysis.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 8.4(g), an Illinois-specific provision barring the presentation or threat of criminal or disciplinary charges to obtain an advantage in a civil matter. Because the Model Rules omit this clause, there is no direct Model Rule counterpart; the committee distinguishes ABA Formal Opinion 92-363 on that basis. The committee grounds its line-drawing in Illinois disciplinary decisions and in Nieves v. OPA, Inc., which found no violation where independent criminal charges already existed and the lawyer neither filed nor threatened to file additional charges.

Citations and references

Rules of Professional Conduct:

• IL RPC 8.4(g) (threatening criminal or disciplinary charges for civil advantage; no Model Rule counterpart)

Statutes:

• 820 ILCS 115/14 (Illinois Wage Payment and Collection Act, civil and criminal liability)

Cases:

• Nieves v. OPA, Inc., 948 F. Supp. 2d 887 (N.D. Ill. 2013), no violation where charges were independent and pre-existing
• In re Ditkowsky, 2012 PR 00014; In re Zeas, 2014 PR 00069; In re Denison, 2013 PR 00001

Other opinions cited:

• ABA Formal Op. 92-363 (distinguished; Model Rules omit the prohibition)
• ISBA Advisory Opinion 12-01 (NSF check; presenting criminal charges for civil advantage)

See also

• ISBA Ethics Op. 12-01: Presenting an NSF Check to the State's Attorney
• ISBA Ethics Op. 23-01: Out-of-State Lawyer Sending a Demand Letter to an Illinois Business

Source

• Landing page: https://www.isba.org/ethics/opinions/2003