Ezel / Ethics Opinions / ISBA
ISBA December 1, 1986

After suing to collect on a bounced check, can the lawyer refer it to the prosecutor or threaten criminal charges to pressure the debtor into paying?

Short answer: The opinion concluded the lawyer may return the check and tell the client of the client's own right to file a criminal complaint, but 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 1986. 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 1986
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 Not binding precedent.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 represented a client trying to collect on an NSF check, filed suit, and found the sheriff could not obtain service on the defendant. The committee was asked whether the lawyer could send the check back to the client and advise the client of a 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 committee applied former Rule 7-105, under which a lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an advantage in a civil matter. Citing its Opinions 550 and 142, it reaffirmed that threatening to present criminal charges to collect insufficient-funds checks is improper. On these facts, the committee said the lawyer could return the check and advise the client that the client may press criminal charges on the client's own if the client chooses, but the lawyer could not "participate in presenting" such charges to gain an advantage in the civil aspect of the matter.

The committee located the harm not in the client's filing of a criminal complaint but in the lawyer's participation in that act to gain a civil advantage. Quoting Ethical Consideration 7-21 (and In re Lewelling), it explained that using the criminal process to coerce settlement of private civil claims subverts that process, may deter the target from asserting legal rights, and diminishes public confidence in the legal system.

Currency note

This opinion was issued in December 1986, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rule (Rule 8.4(g)), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can the lawyer send the bounced check to the State's Attorney for the client?

A: The opinion concluded the lawyer may not present or participate in presenting criminal charges to gain an advantage in the civil matter; doing so would violate former Rule 7-105.

Q: Can the lawyer tell the client that the client may file criminal charges?

A: Per the opinion, yes; the lawyer may return the check and advise the client of the client's own right to press criminal charges, because the bar is on the lawyer's participation to gain civil advantage.

Q: Where did the committee locate the ethical harm?

A: Not in the client's filing of a complaint, but in the lawyer's participation in presenting charges to gain an advantage in the civil collection matter.

Background and rules framework

The opinion applied former Illinois Code Rule 7-105 (presenting or threatening criminal charges to gain a civil advantage) and the rationale of Ethical Consideration 7-21. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 8.4(g), within ABA Model Rule 8.4 on misconduct.

Citations and references

Rules of Professional Conduct:

  • Illinois Code Rule 7-105 (presenting criminal charges for civil advantage, applied in the opinion)
  • Ethical Consideration 7-21
  • Illinois RPC 8.4(g) (2010 equivalent per the Board's affirmation)
  • MR 8.4 (misconduct)

Cases:

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

Other opinions cited:

  • ISBA Opinions 550 and 142: threatening criminal charges to collect insufficient-funds checks

See also

Source

Get today's answer for your situation

You just read a 1986 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.