Can a lawyer draft a warning letter for a rental-agency client that threatens to bring criminal charges against a renter who fails to return rented property?
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This page answers the general question as of 1981. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquirer was local counsel for a nationwide rental agency that leases items of personal property. The client had learned that several states required rental contracts to warn customers that failing to return rental equipment in time could result in criminal sanctions, and asked the inquirer about New Jersey law; the inquirer had advised the client and did not pose that legal question to the Committee. The client then asked the attorney to prepare a form letter for use with defaulting renters advising them of the criminal sanctions that might be imposed under New Jersey law, with reference to N.J.S.A. 2C:20-9 on theft by failure to make required disposition of property.
The inquirer was aware of DR 7-105, which barred a lawyer from presenting, participating in presenting, or threatening to present criminal charges to obtain an improper advantage in a civil matter, and said it was with that rule in mind that he had initially hesitated to include the penalty provisions in the proposed warning letter.
The Committee concluded that it would be unethical for the inquirer to prepare a form default letter that included a threat to present criminal charges if the default was not cured, because preparing such a letter would constitute participation by the attorney in presenting or threatening to present criminal charges. The inquirer had also submitted an alternate form letter for the client's use that opened by stating the renter had failed to return the rented property as agreed.
Currency note
This opinion was issued in 1981, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. It applied DR 7-105, which was not carried forward into the RPCs; Opinion 595 later concluded the principle barring threats of criminal charges to gain civil advantage nonetheless remains in effect in New Jersey. Treat this page as historical context, not current guidance.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: Could the lawyer draft a default letter threatening criminal charges?
A: No. The opinion concluded it would be unethical to prepare a form letter threatening to present criminal charges if the default was not cured, because that is participation in threatening criminal charges.
Q: Did it matter that a criminal statute actually applied?
A: The opinion treated the threat itself as the problem under DR 7-105, regardless of the inquirer's separate advice to the client about N.J.S.A. 2C:20-9.
Background and rules framework
The opinion applied DR 7-105, which prohibited a lawyer from presenting, participating in presenting, or threatening to present criminal charges to obtain an improper advantage in a civil matter. That rule was not carried forward into New Jersey's Rules of Professional Conduct, but Opinion 595 later held its core principle remains in effect. The Committee treated drafting the threat letter as participation barred by the rule.
Citations and references
Rules of Professional Conduct:
- Former NJ DR 7-105 (threatening criminal charges to gain civil advantage); not carried into the RPCs, but its principle held to survive in NJ ACPE Opinion 595
Statutes:
- N.J.S.A. 2C:20-9 (theft by failure to make required disposition of property received)
See also
Source
- Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp473-1.html
- Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page
Original opinion text
Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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