Can a lawyer report a client's debtor's bounced check to the prosecutor after already winning a civil judgment?

Plain-English summary

The inquiring attorney had obtained a money judgment for a client, payable in installments under a court-approved stipulation. The defendant's check for one installment was returned for insufficient funds. The attorney asked whether presenting the returned check to the State's Attorney for criminal action would violate Rule 1.2(e), which bars a lawyer from presenting, participating in presenting, or threatening to present criminal charges to obtain an advantage in a civil matter.

The opinion concluded that Rule 1.2(e) would not be violated. It explained that the clearest and most common violation is threatening prosecution to obtain a civil advantage, as in Opinions 87-7 and 91-29, where threats of criminal action during settlement discussions were deemed violations of the Rule (or its predecessor, DR 7-105). Here, no threat was involved: judgment had already been entered, and on dishonor of the payment the matter was simply to be reported to the State's Attorney without further contact with the debtor.

The opinion distinguished Opinion 86-9, where an attorney who had filed a civil action on a dishonored check and then sought to have the State's Attorney issue a criminal complaint was told he could not participate in presenting those charges, because doing so would seek an advantage in the civil aspect of the matter. Because no civil action arose from the NSF check here and judgment was already obtained, the opinion concluded the reporting was wholly proper, regardless of whether the lawyer later took further steps to enforce the judgment civilly.

Currency note

This opinion was issued in 1993, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (pointing to Rule 8.4(g)), while noting 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 Treat this page as historical context, not current guidance.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 a lawyer report a bounced check to the prosecutor after winning a civil judgment?

A: The opinion concluded this is proper, because once judgment is obtained and no threat of prosecution is used as leverage, reporting the dishonored check is not participating in presenting criminal charges to gain a civil advantage.

Q: What makes reporting a check to a prosecutor improper under the rule?

A: The opinion concluded the violation turns on using the criminal report to obtain an advantage in a civil matter, as where prosecution is threatened during settlement (Opinions 87-7, 91-29) or where a civil action on the check is already pending (Opinion 86-9).

Q: Does it matter that the lawyer might still enforce the judgment later?

A: No. The opinion concluded the reporting was proper regardless of whether further steps were then taken to enforce the underlying judgment civilly.

Background and rules framework

The opinion interpreted Illinois Rule 1.2(e), which provided that a lawyer shall not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter, and its predecessor DR 7-105. The conduct is addressed today under Illinois Rule 8.4(g) (Model Rule 8.4, misconduct).

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 (misconduct) / Illinois Rule 1.2(e) (now 8.4(g)) (presenting or threatening criminal charges to gain civil advantage)

Other opinions cited:

• ISBA Opinions Nos. 87-7, 91-29 (threats of prosecution during settlement violate the Rule); No. 86-9 (participating in criminal complaint while civil action on the check is pending)

See also

• ISBA Ethics Op. 12-01: Criminal Charges to Collect NSF Check
• ISBA Ethics Op. 95-12: Threats; Contacting Officials
• ISBA Ethics Op. 20-03: Citing Criminal Penalties in Demands

Source

• Landing page: https://www.isba.org/ethics/opinions/9305