The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued a formal opinion finding that a growing practice by local prosecutors of allowing debt collection agencies to issue demand letters that suggest they originated from the prosecutor’s office violates ABA Model Rules of Professional Conduct.
“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,” Formal Opinion 469 states.
In these cases, the committee concluded that prosecutors involved in this practice violate ABA Model Rule 8.4(c) that deals with “dishonesty, fraud, deceit or misrepresentation” and Model Rule 5.5(a) that addresses unauthorized practice of law.
News reports indicate that more than 300 local district attorneys’ offices have contracted with debt-collection companies, frequently offering their seal and signature with minimal if any oversight and without determining if any crime has been committed. The letter often threatens prosecution and steers the consumer to a fee-based personal finance class. The prosecutor’s office typically gets a cut of the money generated from the finance class.
“A prosecutor who provides official letterhead of the prosecutor’s office to a debt collection company for use by that company to create a letter purporting to come from the prosecutor’s office that implicitly or explicitly threatens prosecution, when no lawyer from 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 that it complies with the Rules of Professional Conduct, violates Model Rules 8.4(c) and 5.5(a).” the formal opinion said.
The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.
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