What limits did Ethics Opinion 39 place on lawyers working with debt collection agencies?

Plain-English summary

The committee issued guidelines for lawyers representing or doing legal work for debt collection agencies. It said the lawyer’s activities had to remain separate from the agency’s activities to avoid misleading the public, abusive collection practices, and unauthorized law practice. Its restrictions covered shared signs, office addresses, telephone numbers, advertising and descriptions of the lawyer’s agency relationship.

The guidelines also required protection of client confidences and lawyer direction of agency employees during litigation. They restricted agency use of lawyer-signed documents and signature devices, required lawyer review and signing of completed form letters and pleadings, and prohibited supplying lawyer letterhead for general pre-lawsuit collection letters. The opinion was issued under the former North Dakota Code of Professional Responsibility.

Currency note

This opinion was issued in 1984 under the former North Dakota Code of Professional Responsibility. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Could a lawyer use the collection agency’s sign, address, or telephone number?

A: The guidelines barred those shared identifiers in the circumstances described in paragraph 1.

Q: Could an agency send general pre-lawsuit letters on a lawyer’s letterhead?

A: No. Paragraph 8 prohibited a lawyer from furnishing letterhead to the agency for that use.

Q: Who had to review and sign collection form documents?

A: Paragraph 6 required lawyer review and signing of the completed form.

Background and rules framework

The opinion applied disciplinary rules under North Dakota’s former Code of Professional Responsibility, including DR 2-102(E) on professional identification, DR 4-101(D) on confidences, and DR 3-101(A) on unauthorized practice. It also listed restrictions on staff conduct and collection-agency practices.

Citations and references

North Dakota Code of Professional Responsibility:

• DR 2-102(E), lawyer and agency identification.
• DR 4-101(D), client confidences.
• DR 3-101(A), unauthorized practice.
• DR 1-102(A)(5), signature use and staff conduct.
• DR 6-101(A)(2), letterhead for pre-lawsuit letters.

See also

• ND Ethics Op. 1984-01: collection letterhead

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/Opinion84-39.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

SBAND News

ETHICS OPINION
NO. 39

Debt Collection Procedures

In order to prevent the possibility of
allowing unauthorized practice of law
and misleading the public regarding its
dealings with attorneys, it is imperative
that the activities of attorneys be
separate from — and be perceived by
the public to be separate from — the ac-
tivities of debt collection agencies in
particular and creditors’ collection at-
tempts in general. The blurring of the
distinction between the actions of a
lawyer seeking to collect on a claim for
a client and the actions of a debt collec-
tion agency seeking to collect an ac-
count for a creditor may lead to abuses
of debtors and adversely reflect upon
-he legal profession. To prevent the
possibility of (a) misleading the public,
or (b) abusing debtors, or (c) allowing
the unauthorized practice of law the
following guidelines have been
established by this committee, pursuant
to the N.D. Code of Professional
Responsibility. They are to be used by
attorneys in connection with debt col-
lection work.

1. An attorney who represents, or per-
   forms legal work for a debt collection
   agency may not do any of the
   following:

A. An attorney may not list his or
her name in, or on, any building
office sign, building tenants’ di-
rectory, office sign or door sign of
the debt collection agency if an
attorney is engaged both in the
practice of law and in the debt col-
lection agency business. (DR 2-102
(E) )

B. An attorney may not indicate
on his or her letterhead, office
sign or shingle, or professional
card, that the attorney is in any way
associated with a debt collection
agency. (DR 2-102(A) (1), (3), (4)3
DR 2-102 (E) )

C. An attorney may not identify
himself or herself as a lawyer in any

publication relating to the opera-
tion of a debt collection agency,
unless it is in connection with an
article stating or interpreting appli-
cable law. (DR 2-102 (B) )

D. An attorney may not have, or
use, the same telephone number as
that used by a debt collection
agency. (DR 2-102 (E) )

E. An attorney may not use the
same office address as that used by
the debt collection agency. (DR
2-102 (E) )

F. An attorney may not permit his
or her name to be used in con-
nection with any oral or written
advertisment or solicitation for
business by a debt collection agen-
cy. (DR 2-102; DR 2-102 (E) )

2. An attorney who represents or per-
   forms legal work for a debt collection
   agency shall exercise reasonable care
   to ensure that confidences and secrets
   of the attorneys’ clients are not disclos-
   ed by employees of the debt collection
   agency to any person not authorized by
   the client to receive such information.
   (DR 4-101 (D); EC 3-4; EC 3-6) )

3. Except for purposes of effecting serv-
   ices of legal process according to law,
   no attorney shall permit any corre-
   spondence, pleadings, garnishment,
   summons, execution, releases, or other
   documents which bear his or her signa-
   ture (or a facsimile thereof) to be used,
   or mailed, by persons who are not in
   the exclusive employ of the attorneys
   law office. This applies to attorneys
   representing either a creditor or a debt
   collection agency.

4. An attorney who represents or per-
   forms legal work for a debt collection
   agency shall monitor and direct the role
   of employees of the debt collection
   agency so that no_ inappropriate
   unauthorized negotiations on the debt
   are conducted during the pendency of
   a legal action being handled by the at-
   torney. (EC 3-6, DR 3-101)

5. An attorney who represents, or per-
   forms legal work for, a debt collection
   agency shall be responsible for all acts
   of the attorney’s own lay employees,

and the attorney may not permit, ex-
pressly, by implication or by non-
action, lay employees to engage in
conduct which, if engaged in by an at-
torney, would be in violation of the
Code of Professional Responsibility.
This applies to attorneys representing
either a creditor or a debt collection
agency.

6. Form letters, pleadings, or other
   legal documents shall be reviewed and
   signed by any attorney who represents
   or performs legal work for a creditor or
   a debt collection agency in the com-
   pleted form in which they are to be
   sent, served or delivered. (DR 1-102 (A)
   (4), (5); EC 3-6) )

7. An attorney who represents or per-
   forms legal work for, a creditor a debt
   collection agency shall not deliver to,
   or otherwise make available to, lay per-
   sons who are not in the exclusive
   employ of the attorney’s law office (a)
   rubber stamp signatures, (b) reproduc-
   ed signatures, (c) ~~ mechanized
   signatures or (d) other facsimile
   signatures of the attorney, for purposes
   of allowing use of the same on demand
   letters, original pleadings, or on any
   other documents used in debt collec-
   tion (EC 3-6; DR 1-102 (A) (5); DR
   3-101 (A))

8. No attorney shall furnish a creditor
   or debt collection agency with said at-
   torney’s letterhead in any form, for use
   in writing general pre lawsuit collection
   letters. (EC3-6, DR3-101, DR6-101 (A)
   (2) )

9. An attorney shall not aid, abet or
   assist any debt collection agency in the
   violation of the provisions of ND.
   N.D.C.C. 13-04 or relevant state regula-
   tions promulgated by the N.D. Depart-
   ment of Banking and _ Institutions,
   prescribing prohibited practices of
   debt collection agencies. Similarly, an
   attorney shall not aid, abet or assist a
   debt collection agency in the violation
   of any other state or federal laws, rules
   or regulations governing debt collec-
   tion agency practices. (DR3-101 (A);
   DR 1-102 (A) (6) )

Linda Catalano
Chairwoman, Ethics Committee

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