Opinion 88-20
(June 1988)

You have asked the Professional Guidance Committee for advice in your inquiry of May 9, 1988. The inquiry was presented to the Professional Guidance Committee at its meeting in June. This will constitute the formal opinion of the Committee.

Your inquiry asks whether it is appropriate for you; as counsel to a business client seeking collection of a debt, to send a letter to the issuer of a "bad check" threatening the filing of a criminal complaint.

The Rules of Professional Conduct which are now in effect in Pennsylvania make no direct reference to communications by lawyers threatening prosecution. This is directly contrary to the Code of Professional Responsibility which specifically prohibited such threats where they were intended to "obtain an advantage in a civil matter", see DR7-105.

Despite the change which would appear to have occurred as a result of the omission in the Rules of any reference to threatening communications, the Committee is of the opinion that letters from lawyers threatening criminal prosecutions are inappropriate and that the tenor of the Rules prohibit them. Rule 4.3(b) for instance, prohibits a lawyer from giving advice to any person whose interest is adverse to their clients. Rule 4.1 requires that lawyers be truthful in their statements to others. The Committee believes that those sections are intended to have lawyers be precise and candid in any representations made to individuals with an adverse interest.

Advice that a criminal prosecution will be pursued may not be entirely accurate since private criminal complaints may still be subject to the discretion of the District Attorney (at least in Philadelphia County). That is, the District Attorney's Office may refuse to issue a private criminal complaint and argue against its issuance should you petition the court to obtain such a complaint. In short, the issuance of a private criminal complaint is not in the exclusive control of private counsel.

The Committee does, of course, recognize that lawyers regularly send letters intended to convey to recalcitrant debtors that they are at risk unless they make prompt payment of their obligations. Certainly, statements intended to alert a debtor that his creditor may seek legal redress or initiate legal proceedings is not inappropriate and as has heretofore been the case are within the bounds of the Rules of Professional Conduct.

CAVEAT: The foregoing opinion is advisory only and is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or any court. It carries only such weight as an appropriate reviewing authority may choose to give it.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.