Can a collection lawyer tell a debtor who wrote a bad check that the debtor faces criminal penalties if the bill is not paid?

Plain-English summary

A collection attorney asked whether Bar Rule 3.6(c) prevented him from notifying a debtor who had given his client a bad check that the debtor was subject to criminal penalties, complaining that collection agencies not bound by the Bar Rules could freely threaten prosecution to force payment. The Commission treated the inquiry as asking whether the criminal process may be invoked to any extent to assist in collecting bills. Rule 3.6(c) (taken from DR 7-105 of the ABA Model Code) bars a lawyer from presenting, or threatening to present, criminal, administrative, or disciplinary charges solely to obtain an advantage in a civil matter; the Commission quoted EC 7-21 on why coercing civil claims through the criminal process subverts both processes.

The Commission explained that Maine's civil and criminal tracks for dishonored checks proceed independently (14 M.R.S.A. §§ 6071, 6073 for the civil notice; 17-A M.R.S.A. § 708 for the crime, with notice of dishonor under 11 M.R.S.A. § 3-1503 a prerequisite to guilt). Because there is no legal requirement that a collecting attorney advise the debtor of criminal exposure, the only apparent purpose of mentioning the criminal process would be a veiled offer to withhold support for prosecution in exchange for payment, which violates Rule 3.6(c).

The Commission then considered whether an attorney could instead report the matter to the District Attorney without communicating with the debtor except to send a copy of the letter. Citing Decato's Case, 379 A.2d 825 (N.H. 1977), Professor Wolfram's Modern Legal Ethics, and ABA Informal Opinion 1484, it adopted Wolfram's view that the rule should not discourage reporting: a report should be discreet, should not put pressure on the prosecutor, should not be conveyed to the person charged, and should not by its timing suggest punitive or extortionate intent. So merely reporting the violation to authorities does not violate Rule 3.6(c) even if the creditor's attorney incidentally benefits, but because notifying the debtor that the conduct is being reported is irrelevant to the process, any attempt to do so would violate the rule as a veiled "pay up before it is too late" message. The Commission added that the complaint about competitive disadvantage versus collection agencies reflects a trade-off of professional status, since non-lawyers are not bound by equivalent rules. A concurring minority agreed with the result on these facts (the sole purpose being to induce payment, with no expected prosecution) but disagreed that notifying the perpetrator necessarily shows the "sole" purpose required by the rule.

Currency note

This opinion was issued in 1998, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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, deadline, or requirement mentioned here.

Common questions

Q: Can a collection lawyer tell a debtor a bad check could lead to criminal charges?

A: The opinion concluded not as a direct communication to the debtor. Because no law requires advising the debtor of criminal exposure, doing so to induce payment is a veiled threat barred by Rule 3.6(c).

Q: Is reporting the bad check to a prosecutor allowed?

A: The opinion concluded yes, if done properly. Following Professor Wolfram, a report should be discreet, not conveyed to the person charged, and not timed to suggest extortion; such a report does not violate the rule even if the client incidentally benefits.

Q: What turns a permissible report into a violation?

A: Telling the debtor about it. The opinion concluded that notifying the debtor that the conduct has been or will be reported is irrelevant to the reporting process and serves only to suggest the debtor should pay, which violates Rule 3.6(c).

Background and rules framework

The opinion interprets Maine Bar Rule 3.6(c), which prohibits a lawyer from presenting or threatening to present criminal, administrative, or disciplinary charges solely to obtain an advantage in a civil matter. The rule was taken from DR 7-105 of the ABA Model Code of Professional Responsibility (its policy stated in EC 7-21). The ABA Model Rules of Professional Conduct have no direct successor to DR 7-105. The opinion applied the rule against the backdrop of Maine's civil bad-check statute (14 M.R.S.A. §§ 6071, 6073) and criminal statute (17-A M.R.S.A. § 708).

Citations and references

Rules of Professional Conduct:

• DR 7-105, ABA Model Code of Professional Responsibility (and EC 7-21)
• Maine Bar Rule 3.6(c)

Statutes:

• 14 M.R.S.A. §§ 6071, 6073 (civil notice for dishonored checks)
• 17-A M.R.S.A. § 708 (negotiating a worthless instrument)
• 11 M.R.S.A. § 3-1503 (notice of dishonor)

Cases:

• Decato's Case, 379 A.2d 825 (N.H. 1977), reporting not made "solely" for civil advantage

Other authorities:

• Wolfram, Modern Legal Ethics 717 (Practitioner's ed. 1986)
• ABA Informal Opinion 1484 (Dec. 1981).

See also

• ABA Formal Op. 92-363: Threats of Prosecution in a Civil Matter
• NY State Bar Op. 772: Threatening Criminal Charges in a Civil Matter

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89580

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: November 4, 1998

Question

The Commission has been contacted by an attorney who does collection work to determine whether Bar Rule 3.6(c) would prevent him from notifying a debtor who has given his client a bad check that he is subject to criminal penalties. He complains that he is at a competitive disadvantage because collection agencies not subject to the Bar Rules can successfully threaten persons who have written bad checks with prosecution if they do not promptly pay what is owed. The Commission is treating the letter in question as an inquiry about whether the criminal process may be invoked to any extent to assist in collecting bills.

Opinion

Bar Rule 3.6(c) provides that:

A lawyer shall not present, or threaten to present, criminal, administrative, or disciplinary charges solely to obtain an advantage in a civil matter.

Rule 3.6(c) was taken from DR 7-105 of the A.B.A. Model Code of Professional Responsibility. Regarding the policy of the rule, ethical consideration (EC) 7-21 states that:

EC 7-21. The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the process is designed for the protection of society as a whole. Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process; further, the person against whom the process is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system.

The procedure for notifying persons who have issued dishonored checks of their legal responsibility to pay the face amount of the check is set forth in 14 M.R.S.A. § 6071. The form of the notice is prescribed by § 6073. A person receiving such a letter who does not respond within 10 days is subject to a penalty of up to $50 plus attorneys? fees and costs. Ibid.

A criminal penalty for negotiating a worthless instrument is established by 17-A M.R.S.A. § 708 (Supp. 1997-98). Giving a notice of dishonor prescribed by 11 M.R.S.A. § 3-1503 is a prerequisite to a finding of guilt.

As can be seen from the foregoing, the civil and criminal processes proceed on independent tracks although the notice of dishonor is similar. There is therefore no legal requirement that an attorney attempting to effect a collection advise the debtor that he is also subject to criminal penalties. Under such circumstances, the sole purpose of the reference to the criminal process would seem to be a veiled offer to withhold support for criminal prosecution in exchange for payment of the debt.

What if the inquiring attorney were to report the matter to the District Attorney or other appropriate law enforcement authorities and did not communicate directly with the debtor except to send a copy of his letter? In Decato?s Case, 379 A.2d 825 (N.R 1977), the New Hampshire Court held that since reporting is to be encouraged, arguably such a complaint would not have been made ?solely? for the purpose of securing advantage in the civil matter.

On the other hand, it could be argued that even reporting the check violation to government authorities would violate Rule 3.6(c) which prohibits even ?presenting? a criminal charge to gain civil advantage. Professor Wolfram suggests, however, that the rule should not be read to discourage attorneys from reporting conduct. Wolfram, Modern Legal Ethics, p. 717 (Practitioner?s ed. 1986). See also A.B.A. Professional Ethics Inq. Op. #1484 (Dec., 1981)(law firm may proceed with civil action while at the same time assisting with presenting the facts to criminal prosecutors). In Wolfram?s view:

The report should be discrete, without putting pressure on the prosecutor to take action; should not be conveyed to the person charged; and should not by its timing suggest a punitive or extortionate intent. (Emphasis added).

Ibid.

The Commission adopts Professor Wolfram?s interpretation of the rule. Merely reporting the bad check violation to the authorities should not be deemed to violate Rule 3.6(c) even though the creditor?s attorney might incidentally benefit if restitution were to result. Since notifying the debtor that his conduct was being reported is irrelevant to the process, however, any attempt to do so would violate the rule since its sole purpose would be to convey an implied suggestion that he should pay up before it is too late.

Finally, it should be noted that the inquiring attorney?s complaint that the inhibitions imposed by the Bar Rules place him at a disadvantage when compared with collection agencies could be replicated in many other areas where the Bar Rules impose ethical obligations on attorneys not applicable to non-lawyers. One of the trade-offs for the privileges attached to their status as professionals is that attorneys must be prepared to accept that non-lawyers competing in areas which overlap with the practice of law are not subject to equivalent rules of professional conduct.

Concurring Opinion

A minority of the Commission concurs in the result reached by the majority, because the inquiry specified that the sole purpose of reporting the dishonored check was to induce payment and that the inquiring attorney knew there would be no prosecution. The minority does not agree that a violation of Rule 3.6(c) necessarily occurs whenever an attorney reports a crime to a prosecuting authority and notifies the perpetrator that the report has been made or notifies such a person that a report will be made. Notifying the perpetrator does not inevitably demonstrate that the attorney?s purpose was ?solely? to obtain an advantage in a civil matter, as the rule requires. The majority opinion treats Rule 3.6(c) as if it prohibited an attorney from presenting or threatening to present charges whenever one of the purposes is to obtain an advantage in a civil matter. That is not what the rule says.