May a lawyer cite or threaten the criminal penalties for unpaid supplies or bad checks in a civil demand letter, and if not, may the lawyer have the client send such a letter instead?

Plain-English summary

A lawyer asked whether it is unethical to advise an adverse party of the specific criminal sanctions under N.M. Stat. Ann. Section 48-210.1 (supplies) or Section 30-36-5 (worthless checks) in demand letters, and if so, whether the lawyer could instead advise the client to send such a letter directly to the adverse party.

The committee explained that former Rule 7-105(A), patterned on the ABA Model Code, directly addressed the question by barring a lawyer from presenting, participating in presenting, or threatening to present criminal charges solely to gain an advantage in a civil matter. It quoted Ethical Consideration EC-7-21's rationale: using the criminal process to coerce settlement of private civil claims subverts that process, may deter the recipient from asserting legal rights, and diminishes public confidence in the legal system. Surveying other jurisdictions, the committee noted opinions holding it improper to threaten or even allude to criminal sanctions in demand letters (Virginia Op. 715; Vermont Op. 82-10), and contrasting opinions permitting such references where a statute prescribes a notice form that includes them (Utah Op. 71; Florida Op. 85-3). Because New Mexico's Worthless Check Act prescribes no particular form of notice, the committee concluded such references would have been improper under former Rule 7-105(A).

Turning to the Rules of Professional Conduct effective January 1, 1987, the committee noted they carry no specific counterpart to former Rule 7-105(A) because, per the ABA, the targeted misconduct is proscribed more narrowly by other rules. It concluded that the conduct violates new Rule 16-804(D) (conduct prejudicial to the administration of justice), reasoning that the same subversion-of-process and loss-of-confidence concerns behind former Rule 7-105(A) apply, and that to the extent such threats imply an ability to influence a prosecutor improperly, the conduct might also violate Rule 16-804(F). Because the lawyer is himself barred from making such threats, the committee concluded it would also be improper to advise the client to make them in a letter directly from the client (citing Oregon Op. 450 and Michigan Op. CI-776).

Currency note

This opinion was issued in 1987, as New Mexico moved from the former Code of Professional Responsibility (former Rule 7-105(A)) to the Rules of Professional Conduct (Rule 16-804), effective January 1, 1987; the opinion applies both. It predates the State Bar of New Mexico's November 3, 2008 revisions to the Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The cited statutes and rules may have changed. 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 lawyer mention the criminal penalty for a bad check in a civil collection letter?

A: The opinion concluded no; referring to or threatening criminal sanctions in a demand letter for supplies or worthless checks was improper under former Rule 7-105(A) and under new Rule 16-804(D).

Q: Does it matter that the new Rules dropped the specific bar on threatening criminal charges?

A: No. The committee concluded the conduct still violates Rule 16-804(D) (conduct prejudicial to the administration of justice), because the ABA dropped the specific provision only on the view that the misconduct is covered more narrowly by other rules.

Q: Is it improper if the lawyer just states that writing a bad check is illegal, without threatening prosecution?

A: The committee endorsed the Vermont opinion's view that even an indirect reference to illegality in a demand letter has the same effect as a threat and is equally improper, given that New Mexico's Worthless Check Act prescribes no notice form requiring such a reference.

Q: Can the lawyer avoid the rule by having the client send the demand letter?

A: No. The committee concluded that because the lawyer is himself prohibited from making the threat, it would also be improper to advise the client to do so in a letter directly from the client.

Background and rules framework

The opinion applied former Rule 7-105(A) (no threatening criminal charges solely to gain a civil advantage) and its rationale in Ethical Consideration EC-7-21, then carried that principle into Rule 16-804(D) and (F) of the Rules of Professional Conduct effective January 1, 1987. The successor provision corresponds to current Model Rule 8.4(d) (conduct prejudicial to the administration of justice).

Citations and references

Rules of Professional Conduct:

• Former Rule 7-105(A) (no presenting or threatening criminal charges solely to obtain a civil advantage); EC-7-21
• Rule 16-804(D) (conduct prejudicial to the administration of justice); Rule 16-804(F) (stating or implying an ability to influence a government agency or official improperly)

Statutes:

• N.M. Stat. Ann. Section 48-210.1 (1978) (supplies)
• N.M. Stat. Ann. Section 30-36-5 (1978); Worthless Check Act, N.M. Stat. Ann. Section 30-36-1 et seq. (1978, as amended)

Other opinions cited:

• Virginia State Bar Op. 715 (1985); Vermont Bar Ass'n Op. 82-10: improper to threaten or allude to criminal sanctions in demand letters
• Utah State Bar Op. 71 (1979); Florida Bar Op. 85-3 (1985): references permitted where a statute prescribes a notice form including them
• Oregon State Bar Op. 450 (1980); State Bar of Michigan Op. CI-776 (1983): improper to advise the client to make the threat

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1987/1987-5.pdf

Original opinion text

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

Advisory Opinion 1987-5
An attorney has requested advisory opinions on the following questions:
1. Is it unethical for an attorney to advise an adverse party of the specific criminal sanctions of N.M. Stat. Ann. § 48-210.1 (1978) or N.M. Stat. Ann. § 30-36-5 (1978) in demand letters for payment of supplies or recovery on worthless checks, respectively?
2. If it is unethical for an attorney to make such references, may he advise his client to do so in a letter directly from the client to the adverse party?
Former Rule 7-105(A) of the New Mexico Code of Professional Responsibility, which was patterned after the A.B.A. Model Code of Professional Responsibility, directly addressed this question in the following terms:
A lawyer shall not present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter.
Effective January 1, 1987, New Mexico has adopted new Rules of Professional Conduct, patterned after the A.B.A. Model Rules of Professional Conduct. The new rules do not contain a specific counterpart to former Rule 7-105(A). The A.B.A. says that the reason this provision was not carried forward into the new Model Rules is that the misconduct to which former Rule 7-105(A) is directed is proscribed more narrowly by specific new rules. ABA/BNA Lawyers' Manual on Professional Conduct, ¶ 101:1001 (1986).
There are a number of opinions from other jurisdictions interpreting other states' versions of former Rule 7-105(A). Ethical Consideration EC-7-21 of the A.B.A.'s Model Code of Professional Responsibility explains the rationale behind Rule 7-105(A) as follows:
The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal 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 criminal process is so misused may be deterred from asserting his legal rights and thus the usefulness of 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.
A number of ethics opinions from other jurisdictions have concluded that it is improper to threaten or even allude to criminal sanctions or possible prosecution in demand letters. See, e.g., Virginia State Bar Opinion No. 715 (August 30, 1985); Vermont Bar Association Opinion No. 82-10 (undated). The Vermont opinion states that even a reference in a demand letter that it is illegal to write a bad check is improper, pointing out that although simply stating that a particular action is illegal does not involve a direct threat of prosecution, the effect of such indirect language is the same, and is equally violative of the Code.
Some jurisdictions have issued opinions that it is permissible to refer to criminal sanctions in letters written demanding honoring of worthless checks, where a statute requires notice to be given in a statutorily prescribed form includes such a reference. See, e.g., Utah State Bar Opinion No. 71 (November 16, 1979); Florida Bar opinion No. 85-3 (August 1, 1985). New Mexico's Worthless Check Act, however, does not prescribe a particular form of notice. N.M. Stat. Ann. §30-36-1 et seq. (1978, as amended).
It is our opinion, therefore, that threats or references to criminal sanctions in demand letters for payment of supplies or recovery of worthless checks would have been improper under former Rule 7-105(A).
Although the new Rules of Professional Conduct do not carry forward a specific counterpart to former Rule 7-105(A), new Rule 16-804 states:
It is professional misconduct for a lawyer to:
(D) engage in conduct that is prejudicial to the administration of justice;
(F) state or imply an ability to influence improperly a government agency or official ....
Because the rationale behind former Rule 7-105(A) was that threats of criminal prosecution for civil ends constituted a subversion of the criminal process and might deter the recipient of the letter from asserting his legal rights, thereby impairing the usefulness of the civil process, and that such threats tended to diminish public confidence in the legal system, it would appear that such conduct would be violative of new Rule 16-804(D). To the extent that such threats imply an ability to influence a prosecutor improperly to bring criminal charges, the action might also violate new Rule 16-804(F).
It is our opinion, therefore, that threats or references to criminal sanctions in demand letters for payment of supplies or recovery of worthless checks are improper under the new Rules of Professional Conduct.
Because the lawyer himself is prohibited from threatening or referring to criminal sanctions, it would also be improper for him to advise his client to do so in a letter directly from the client to the adverse party. Oregon State Bar opinion No. 450 (July, 1980); State Bar of Michigan opinion No. CI-776 (May 22, 1983).