(CN) - Prosecutors who contract out their letterhead to private companies for debt-collection letters violate ethics rules, the American Bar Association said Wednesday.
The ABA Formal Ethics Opinion 469 says the demand letters usually cite the criminal law violated by the consumer - such as bouncing a check - and advise how the consumer can avoid prosecution by paying the debt, and fees, by attending a debtor education course.
"Typically, no lawyer in the prosecutor's office reviews the case file to determine whether a crime has been committed and prosecution is warranted or reviews the letter to ensure it complies with the Rules of Professional Conduct prior to the mailing," the 4-page opinion states.
Written by the ABA's Standing Committee on Ethics and Professional Responsibility, the opinion letter said that law practices that "fall short of their higher calling" sometimes take hold in district attorneys' offices that are "driven by budgetary exigencies."
"It is such practices that have created the need for this opinion," the opinion states. "A prosecutor who enters into the type of agreement described in this opinion violates Model Rule 8.4(c), which provides that 'It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.'"
The committee said that in a 1943 formal opinion, the ABA concluded it would be unethical for a lawyer to allow a client to use his stationery to deceive a debtor into believing the debt was referred to a lawyer.
It also said that the New Jersey Committee on the Unauthorized Practice of Law and Advisory Committee on Professional Ethics concluded that a lawyer who sold his name and letterhead to a collection agency for a monthly fee had violated Rule 8.4(c).
The committee said prosecutors' sale of letterhead is "even more deceptive" than these two examples "because they misuse the criminal justice system by deploying the apparent authority of a prosecutor to intimidate an individual."
"They carry with them the implication that the prosecutor or associates in the prosecutor's office have reviewed the facts and found that a crime has been committed and criminal prosecution is warranted," the letter states. "To create such a false impression violates Rule 8.4(c)."
The practice also violates Model Rule 5.5 because prosecutors are aiding and abetting the unauthorized practice of law, the committee said.
"A nonlawyer may negotiate, adjust, and settle a debt on behalf of a creditor, but a nonlawyer cannot give legal advice, institute litigation, or threaten to sue on behalf of another," the opinion states.
The committee cited a 1932 opinion that a lawyer impermissibly delegated his professional functions to a corporate client when he provided it signed letterhead to send to debtors.
The opinion concludes the sale of prosecutor letterhead "is even more abusive" than this example "because it gives the impression that the machinery of the criminal justice system has been mobilized" against the debtor and that he faces prosecution and jail unless he pays.
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