May a county attorney (prosecutor) use the threat of criminal charges to collect a private debt, such as a bad check?

Plain-English summary

The facts, drawn from a transcript, were that a buyer gave an automobile dealer two down-payment checks, one of which was returned marked "No Account." The checks were handed to an assistant county attorney, who had the maker brought to his office and threatened to file criminal charges unless the maker agreed to pay the checks off in installments. The maker agreed to weekly payments and fell behind, and the assistant county attorney wrote at least two letters threatening criminal prosecution if payments were not resumed, including a letter stating that a warrant would issue if a stated sum was not received by a date certain.

The committee concluded the conduct was unethical. It noted that Oklahoma statute prohibited the county attorney from engaging in the private practice of law and that the courts had treated such practice as against public policy. It emphasized that a county attorney is a quasi-judicial officer who must be fair and impartial and stand indifferent as between the accused and any private interest, and that he could not do so while using his office as a collection agency. Quoting Oklahoma criminal decisions, the committee said a prosecuting attorney should not permit a penal statute to be used as a means of making private collections or compelling a monetary settlement of a private claim under threat of prosecution. It tied the analysis to Canon 6, which makes it unprofessional to represent conflicting interests, and observed that county attorneys had been suspended or disbarred for using the office as a collection agency. The committee held the assistant county attorney had acted unethically and was subject to disciplinary action.

Currency note

This opinion was issued in 1952, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. Canon 6, the conflicting-interests rule applied here, and the statute the committee cited belong to that earlier framework; the current rules on prosecutorial responsibilities, conflicts, and the use of criminal process to gain advantage in a civil matter are stated differently today. Subsequent rule amendments and 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: Why was it improper for the prosecutor to collect the debt this way?

A: The committee reasoned that a county attorney is a quasi-judicial officer who must stand indifferent between the accused and any private interest, and that he cannot be fair and impartial while using his office as a collection agency, which it tied to Canon 6's bar on representing conflicting interests.

Q: Did the opinion rely on anything besides the ethics canons?

A: Yes. It cited an Oklahoma statute prohibiting the county attorney from engaging in the private practice of law and Oklahoma court decisions holding that using a penal statute to make private collections is repugnant to the proper use of criminal process.

Q: What consequence did the opinion identify?

A: The committee stated the assistant county attorney had acted unethically and was subject to disciplinary action by the bar, noting that prosecutors had been suspended or disbarred for using the office as a collection agency.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics, adopted in Oklahoma, which makes it unprofessional to represent conflicting interests, in the setting of a prosecutor's quasi-judicial duty of impartiality. It also relied on Title 19 of the Oklahoma Statutes (the county attorney's bar on private practice) and Oklahoma criminal decisions. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 6 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): it is unprofessional to represent conflicting interests.

Statutes:

• Title 19 Okla. Stat. Ann. § 185b: the county attorney shall not engage in the private practice of law.

Cases:

• Aldridge v. Capps, 56 Okl. 678, 156 P. 624 (1916), county attorney barred from private civil practice
• Hall v. State, 24 Okl. Cr. 197, 217 P. 229, criminal process not to be used for private collection
• Weitz v. State, 24 Okl. Cr. 56, 215 P. 962
• Steeley v. State, 17 Okl. Cr. 252, 187 P. 821, prosecutor's duty of impartiality and conflicting interests

See also

• Okla. Bar Ethics Op. 52: Law office used as a collection agency branch
• Okla. Bar Ethics Op. 112: Mayor taking a fee interest in city litigation
• Okla. Bar Ethics Op. 137: Former county attorney in a collision damage suit

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-156/

Original opinion text

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

Adopted October 8, 1952

QUERY

The Central Committee has asked the Ethics Committee for an opinion on a factual situation hereinafter briefly set forth, which facts are contained in a transcript of proceedings in which all parties concerned were examined; for obvious reasons names are omitted or fictitious names are used.

FACTS

The facts summarized brieflly [sic] are as follows:

Joe Doakes purchased an automobile from a dealer, giving said dealer two checks for the down-payment, each check was for $217.50; both checks were dated March 17, 1951. One check had in the lower left hand corner “Bal. $32.00”. One check was run through the bank and returned marked “No Account”. Both of these checks were handed to the Assistant County Attorney, who sent a constable for the maker of the checks, and which constable took the maker to the Assistant County Attorney’s office, there the Assistant County Attorney threatened to file criminal charges against Joe Doakes, the maker of the checks, unless he would agree to pay off said checks by monthly payments. Joe Doakes agreed to pay him $50.00 per week, and he did pay certain weekly payments; however, he got behind on several occasions and the Assistant County Attorney wrote him at least two letters in which he threatened criminal prosecution if the payments were not resumed and kept to date. For instance in the letter of September 14, 1951, he wrote in part “if I have not received the $42.00 by Friday, September 21st, the warrant will be issued”.

OPINION

Title 19 Okl.St.Ann. § 185b, provides that the county attorney shall not engage in the private practice of law. Not only is it prohibited by statute, but our court has said that it is against public policy for the county attorney to engage in the practice of law in civil cases other than in such cases as is by statute made his duty to act. See Aldridge v. Capps, 56 Okl. 678, 156 P. 624, 625.

A county attorney is a quasi judicial officer and he must be fair and impartial. 27 C.J.S. District & Pros. Attys § 14(1). When he uses his office as a collection agency he cannot be fair and impartial and represent the citizens of a state.

Our court in Hall v. State, 24 Okl.Cr. 197, 217 P. 229, said:

“… but a prosecuting attorney should not permit private individuals to use this penal statute as a means of making private collections or to compel the accused to make a monetary settlement of a private claim, or, failing to do so, suffer the odium and danger of a criminal prosecution. Such practice is especially repugnant to our conception of the proper use of criminal process, and is unethical when perpetrated by a private prosecutor, either with or without the consent of the prosecuting attorney. Weitz v. State, 24 Okl.Cr. 56, 215 P. 962.

(1, 3) 3. The impropriety of an attorney who is employed by and professionally represents a private person as his attorney, in a transaction concerning property later directly involved in criminal prosecution in acting as a special prosecutor in that prosecution, is manifest. In Weeks on Attorneys at Law, § 282a, it is said:

‘The prosecuting attorney is a sworn minister of justice whose duty it is to see that the innocent are protected as well as that the guilty are brought to punishment, and who must stand indifferent as between the accused and any private party.’

We think no argument is necessary to demonstrate that a special prosecutor is a special assistant to the county attorney for the particular case in which he appears, with like duties and qualifications. 22 R.C.L. Prosecuting Attorneys, § 7.

In Steeley v. State, 17 Okl.Cr. 252, 187 P. 821, the court, quoting with approval from People v. Gerold, 265 Ill. 448, 107 N.E. 165, Ann.Cas.1916A, 636, said:

“The rule has long been firmly established that an attorney cannot represent conflicting interests or undertake to discharge inconsistent duties. …

‘This rule is a rigid one, designed not only to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties.’ 1 Thornton on Attorneys, § 174.

Again quoting from the Steeley Case:

‘Such an officer (county attorney) is acting in a quasi judicial capacity, and he and those associated with him should represent public justice and stand INDIFFERENT AS BETWEEN THE ACCUSED AND ANY PRIVATE INTEREST. … The canons of ethics of the American Bar Association and various state associations in this country are in accord on this subject….”‘

As pointed out above the county attorney might be required to choose between conflicting duties. Canon 6 of the Canons of Ethics of the Oklahoma Bar makes it unprofessional to represent conflicting interests.

There are cases where disciplinary action of suspension or disbarment of a county attorney for using his office as a collection agency. See 7 C.J.S. Attorney and Client § 23, p. 760, Notes 61 and 62.

The assistant county attorney having used his office improperly has acted in an unethical manner is subject to disciplinary action by the Bar Association of the State of Oklahoma.