Can a collection lawyer give creditor-clients pre-printed forms with his name on them to send to debtors threatening to put the matter in his hands?

Plain-English summary

Opinion E-72-2 considered a proposed method for expediting commercial collections. A lawyer in that field would furnish forms (with or without charge) to existing and new clients; each form carried the attorney's name and address on all parts. The client kept the top part, sent the middle portion to the attorney with instructions to proceed after a set number of days, and mailed the bottom portion to the debtor with notice that, unless payment was made, the matter would be placed directly in the hands of the named lawyer.

The committee concluded the procedure would violate professional ethics for several reasons. First, it would not let the lawyer exercise personal judgment on whether to accept employment, since acceptance implies the lawyer knows the circumstances and can judge whether the matter is mere harassment or is warranted, and a lawyer may not submit the exercise of his judgment to the control of others (DR-109; EC 3-3). Second, by furnishing the forms and authorizing use of his name and address, the lawyer would in effect permit himself to be used in the unauthorized practice of law, which a lawyer may not aid (DR 3-101). Third, it would be a form of solicitation, furnishing items of value to clients and prospects to retain or secure their business. Fourth, it would be advertising, circulating the lawyer's name and address to each debtor, contrary to the then-existing ban (EC 2-9). Fifth, a lawyer may not publicize himself or permit others to do so by circulating cards, letterheads, or devices.

The committee added that the arrangement falsely creates the public impression that the attorney has been retained on the claim, uses the attorney's name as a club in a demand letter, and misleads the public into believing the attorney has counseled with the claimant. It closed by emphasizing that lawyers should conduct themselves to reflect public confidence in the integrity and fairness of the legal system (EC 4-2), and noted its opinions are advisory and subject to Supreme Court review.

Currency note

This opinion was issued in 1972, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and also before Bates v. State Bar of Arizona (1977) addressed lawyer advertising. It applies the former Code's DR 3-101 (aiding unauthorized practice), DR-109 and EC 3-3 (independent judgment), and EC 2-9 (advertising ban). The current counterparts are SCR 20:5.5 / Model Rule 5.5 (unauthorized practice of law) and SCR 20:7.3 / Model Rule 7.3 (solicitation of clients). Subsequent rule amendments, court decisions, or later opinions have changed the advertising analysis substantially. 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 give creditors forms with his name to mail to their debtors?

A: Under this opinion, no. The committee found the arrangement would violate professional ethics, including by aiding the unauthorized practice of law and by improperly soliciting and advertising.

Q: Why is lending the lawyer's name to a creditor's demand a problem?

A: The committee said it falsely implies the lawyer was retained and counseled on the claim, uses the lawyer's name "as a club" in a demand letter, and denies the lawyer the chance to judge whether the claim is warranted or mere harassment.

Q: How does the arrangement aid unauthorized practice?

A: By authorizing creditors to use the attorney's name and forms, the lawyer permits himself to be used in the unauthorized practice of law, which a lawyer may not aid under DR 3-101.

Background and rules framework

The opinion applied the former Code's DR 3-101 (unauthorized practice), DR-109 and EC 3-3 (independent professional judgment), and EC 2-9 (advertising) to a collection lawyer's form arrangement with creditor-clients. The current counterparts are SCR 20:5.5 / Model Rule 5.5 (unauthorized practice of law) and SCR 20:7.3 / Model Rule 7.3 (solicitation of clients).

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 / SCR 20:5.5 (unauthorized practice of law); former Code DR 3-101
• Model Rule 7.3 / SCR 20:7.3 (solicitation of clients); former Code EC 2-9, DR-109, EC 3-3

See also

• WI Ethics Op. E-82-11: Dual Business Practice and a Collection Agency
• WI Ethics Op. E-83-3: Announcing the Hiring of a Lay Person

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-72-2.pdf