OPINION 279
March 1964

COLLECTION LETTERSMISREPRESENTING A PARTY NOT REPRESENTED BY COUNSEL. It is not unethical for a member who represents a creditor to write a letter to a debtor offering to settle for a stated sum and stating truthfully that he has been instructed to file suit immediately, even though the letter also encloses what is said to be a copy of a petition prepared for filing against the debtor.

Canon 9. Art. 438c, Penal Code.

Question

Attorney S, representing C, sent a printed or mimeographed collection letter to M, stating that he had been employed by C and that he had been instructed by C to file suit immediately in order to reduce M's debt to judgment. S stated that he was authorized to accept $250.00 in settlement if paid within 15 days. The letter also said that attached to it was a self-explanatory copy of the petition which had been prepared for filing. Enclosed with the letter was what appeared to be the first page of a printed or mimeographed form of the petition, with blanks filled in naming C as plaintiff and M as defendant, and indicating, at least partially, the nature of the claim. Is a communication of this nature ethical?

Opinion

The duty to client of a lawyer when acting as an advocate is to represent the client zealously "within and without the bounds of the law" (A.B.A. Canon 15), meaning that this duty of the advocate is limited by the statutes, procedural rules, tort rules, and the Canons of Ethics (see Casenote, 38 Tex. L. Rev. 107). The committee does not find that S has acted outside the bounds of the law. No specific canon of ethics or procedural rule has been violated. Threatening to bring a civil suit is generally permissible (see e.g., N.Y. County Lawyers' Assn. Opinion No. 540) and if the threat is not within the scope of canon 9 by reason of being misleading to one not represented by a lawyer (see N.Y. City Bar Assn. Opinion No. 540) and if other and improper threats are not involved. Art. 438c, Penal Code of Texas (Simulation of Legal process) does not seem to be violated (compare N.Y. City Bar Assn. Opinions No. 233 and No. 157).

The committee has assumed that the statements in the letter, such as the statement that S had been instructed to file suit, are true; for Canon 9 would not be violated if a party not represented by counsel is mislead by a false statement, knowingly made, that the creditor has instructed his attorney to file suit on the debt. (9-0)