The Florida Bar
Sending a statutorily prescribed notice of worthless check on behalf of a client does not constitute an impermissible threat of criminal prosecution. Provided, however, the notice letter must clearly indicate that notice is given on behalf of a client, and the content of the letter must be limited to the statutory notice.
August 1, 1985
August 1, 1985
CPR: DR 7-105, DR 7-105(A)
Statute: F.S. §832.07(1)(a)
Chairman Francis stated the opinion of the committee:
An attorney inquires whether it is ethically permissible for an attorney to send a "notice of worthless check" as prescribed under Section 832.07(1)(a), Florida Statutes, on behalf of a client in either of the two following factual situations:
(A) When a client of a lawyer receives a check which is returned for insufficient funds; or
(B) When a check is received by the attorney to be held in trust for a client when the same is returned for insufficient funds.
DR 7-105 provides:
(A) A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.
When previously presented with this question (Florida Ethics Opinion 77-6 [since withdrawn]), a majority of a sharply divided Committee answered both inquiries in the negative. However, the Committee in that opinion stated:
There would, of course, be no prohibition against the client sending the letter on his own behalf and the Committee sees no ethical impropriety in the attorney advising the client as to the existence and employment of the statute by the client directly.
We recede from the previous Florida Ethics Opinion 77-6 [since withdrawn], and a majority of the Committee answers both inquiries in the affirmative. However, the attorney sending the letter must clearly and carefully indicate that he is giving such notice on behalf of a client, and the content of the letter must be limited to the language of the applicable statute.
The majority of the Committee is of the opinion that the operative language of DR 7-105(A) as it relates to the questions posed herein is the phrase "solely to obtain an advantage in a civil matter." Sending a statutorily prescribed notice in the course of representation of a client in order to preserve the client's legal rights and remedies (when it is clear that a client himself may appropriately send such notice) does not fall within the proscription of DR 7-105. The Committee is of the opinion that it is not the intent of DR 7-105 to prohibit the giving of such notice in the described factual circumstances, because such action is not being taken "solely to obtain an advantage in a civil matter."