Could a Vermont state's attorney threaten or bring criminal charges to collect a private debt for a complainant?

Plain-English summary

A state's attorney threatened and brought charges after a complainant sought payment from a debtor. The charges were dismissed when the complainant reported a repayment agreement. After nonpayment, the prosecutor considered another letter threatening to reinstate the charges.

The committee said the prosecutor's client was the state collectively, not the private complainant. Decisions to prosecute had to rest on state law-enforcement purposes rather than a third party's financial benefit. The opinion treated a threat of prosecution solely to collect a private debt as improper and discussed former DR 7-105(A)'s ban on criminal-charge threats solely for civil advantage.

The committee distinguished criminal-law purposes from using criminal charges as a collection tool. It said its analysis did not condemn restitution as a sentencing sanction or in certain pretrial diversion settings.

Currency note

This opinion was issued in 1979, before Vermont's 1999 adoption of the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 the prosecutor threaten to revive charges if a debtor broke a repayment agreement?

A: Not when the sole purpose was collecting the complainant's private debt, as in the proposed letter addressed by the opinion.

Q: Did the committee say restitution was always improper in a criminal case?

A: No. It expressly distinguished restitution as a sentencing measure or in certain pretrial diversion settings.

Background and rules framework

The opinion relied on Canon 5's treatment of a prosecutor's official relationship to third persons and discussed former DR 7-102(A)(1), DR 7-105(A), and DR 8-101(A)(2) and (3). It noted that no disciplinary rule directly covered every aspect of the full-time prosecutor's situation.

Citations and references

Former Vermont disciplinary rules:

• DR 7-102(A)(1), DR 7-105(A), and DR 8-101(A)(2), (3).

Statutes cited:

• 13 V.S.A, Sections 2014, 2073, and Section 2075.

See also

• Vermont Ethics Op. 93-01: Public defender furlough

Source

• Landing page: VBA public-office opinions
• Original PDF: Vermont Advisory Opinion 79-02
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”