Can a creditor's lawyer send a debtor a collection letter that offers settlement, truthfully says suit will be filed immediately, and encloses a copy of a petition prepared for filing?

Plain-English summary

Attorney S, representing creditor C, sent debtor M a printed or mimeographed collection letter stating that S had been employed by C and instructed to file suit immediately to reduce M's debt to judgment, and that S was authorized to accept $250 in settlement if paid within 15 days. The letter said a self-explanatory copy of the petition prepared for filing was attached, and enclosed was what appeared to be the first page of a printed or mimeographed petition form, with blanks filled in naming C as plaintiff and M as defendant and partly indicating the claim. The question was whether such a communication was ethical.

The Committee concluded the letter was not unethical. It framed the advocate's duty as representing the client zealously within, and not outside, the bounds of the law, limited by statutes, procedural rules, tort rules, and the canons. It found that S had not acted outside those bounds and that no specific canon or procedural rule was violated. Threatening to bring a civil suit is generally permissible unless the threat falls within Canon 9 by misleading a person not represented by counsel, or unless other improper threats are involved, and the Committee found Article 438c of the Texas Penal Code (Simulation of Legal Process) did not seem to be violated. The Committee expressly assumed the letter's statements, such as that S had been instructed to file suit, were true; Canon 9 would be violated if an unrepresented party were misled by a knowingly false statement that the creditor had instructed suit. The Committee ruled 9-0.

Currency note

This opinion was issued in 1964, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 letter say the lawyer has been instructed to file suit?

A: Under this opinion, yes, if the statement is true. The Committee assumed the statements were true and held the letter was not unethical; a knowingly false statement to that effect would violate Canon 9.

Q: Can the letter enclose a copy of the petition prepared for filing?

A: The Committee found that enclosing what was said to be a copy of the prepared petition did not, on these facts, make the letter unethical or violate Article 438c (Simulation of Legal Process).

Q: When would such a letter cross the line?

A: The Committee said Canon 9 would be violated if the unrepresented debtor were misled by a false statement, knowingly made, or if other improper threats were involved.

Background and rules framework

The opinion interprets former Texas Canon 9, which governed a lawyer's dealings with a party not represented by counsel, and considers Article 438c of the Texas Penal Code on Simulation of Legal Process. The modern analog for the canon is ABA Model Rule 4.3, governing a lawyer's dealings with an unrepresented person.

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with an unrepresented person), as the modern analog
• Texas Canon 9 (former canon)
• A.B.A. Canon 15 (zealous representation within the bounds of law), cited in the opinion

Statutes:

• Art. 438c, Penal Code of Texas (Simulation of Legal Process)

Other opinions cited:

• N.Y. County Lawyers' Assn. Opinion No. 438: threatening a civil suit is generally permissible
• N.Y. City Bar Assn. Opinion No. 540: misleading an unrepresented person
• N.Y. City Bar Assn. Opinions No. 233 and No. 157: simulation of legal process

See also

• TX Ethics Op. 281: Delinquent-Tax Attorney Representing a Defendant in His Own Tax Suit
• TX Ethics Op. 278: Prosecutor's Post-Acquittal Letters to the Jurors

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-279/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_279.pdf

Original opinion text

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

QUESTION PRESENTED

Attorney S, representing C, sent a printed or mimeographed collection letter to M, stating that he had been employed by C and that he had been instructed by C to file suit immediately in order to reduce M's debt to judgment. S stated that he was authorized to accept $250.00 in settlement if paid within 15 days. The letter also said that attached to it was a self-explanatory copy of the petition which had been prepared for filing. Enclosed with the letter was what appeared to be the first page of a printed or mimeographed form of petition, with blanks filled in naming C as plaintiff and M as defendant, and indicating, at least partially, the nature of the claim. Is a communication of this nature ethical?

18 Baylor L. Rev. 351 (1966)

COLLECTION LETTERS - MISLEADING A PARTY NOT REPRESENTED BY COUNSEL.
It is not unethical for a member who represents a creditor to write a letter to a debtor offering to settle for a stated sum and stating truthfully that he has been instructed to file suit immediately, even though the letter also encloses what is said to be a copy of a petition prepared for filing against the debtor.

Canon 9; Art. 438c, Penal Code.

The duty to client of a lawyer when acting as an advocate is to represent the client zealously "within and not without the bounds of the law" (A.B.A. Canon 15), meaning that this duty of the advocate is limited by the statutes, procedural rules, tort rules, and the Canons of Ethics (see Casenote, 38 Tex. L. Rev. 107). The committee does not find that S has acted outside the bounds of the law. No specific canon of ethics or procedural rule has been violated. Threatening to bring a civil suit is generally permissible (see e.g., N.Y. County Lawyers' Assn. Opinion No. 438) if the threat is not within the scope of Canon 9 by reason of being misleading to one not represented by a lawyer (see N.Y. City Bar Assn. Opinion No. 540) and if other and improper threats are not involved. Art. 438c, Penal Code of Texas (Simulation of Legal Process) does not seem to be violated (compare N.Y. City Bar Assn. Opinions No. 233 and No. 157).

The committee has assumed that the statements in the letter, such as the statement that S had been instructed to file suit, are true; for Canon 9 would be violated if a party not represented by counsel is mislead by a false statement, knowingly made, that the creditor has instructed his attorney to file suit on the debt. (9-0.)

Tex. Comm. On Professional Ethics, Op. 279 (1964)