Can a creditor's attorney send a debtor a 'Final Notice Before Action' form?

Plain-English summary

An attorney who represented creditors asked whether he could properly use a form entitled "Final Notice Before Action," which he attached to his inquiry. The form recited an unpaid debt, demanded payment by a stated date, warned that suit would be brought without further notice, and was captioned "THIS IS A LEGAL TEN DAY NOTICE," followed by a creditor's affidavit and a notary block.

The committee concluded that use of the form violated Canon 9 because it was manifestly designed to mislead parties not represented by counsel. The committee also cited Opinion 178 of the American Bar Association Committee on Professional Ethics.

Currency note

This opinion was issued in 1968, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 9 on communicating with parties and the duty not to mislead unrepresented persons. A lawyer's duties toward an unrepresented person are now addressed by Rule 4-4.3. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer collecting a debt send an unrepresented debtor a form that looks like a court paper?

A: Under this opinion, no, where the form is designed to mislead. The committee found the "Final Notice Before Action" form, labeled "THIS IS A LEGAL TEN DAY NOTICE," was manifestly designed to mislead debtors who were not represented by counsel and violated Canon 9.

Q: What rule did the committee apply?

A: The committee applied the former Canon 9 and cited ABA Opinion 178. The duty not to mislead an unrepresented person now appears in Rule 4-4.3 of the Rules Regulating The Florida Bar.

Background and rules framework

The opinion applied the former Canon 9, which governed a lawyer's dealings with parties and the duty not to mislead persons who were not represented by counsel. A lawyer's obligations toward an unrepresented person are now addressed by Rule 4-4.3 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 4.3.

Citations and references

Rules of Professional Conduct:

• Canon 9 [Canons of Professional Ethics; duty toward unrepresented persons now in Rule 4-4.3]

Other opinions cited:

• ABA Committee on Professional Ethics Opinion 178: misleading collection forms

See also

• FL Bar Ethics Op. 68-46: Dealing With an Unrepresented Party
• FL Bar Ethics Op. 69-25: Title Agent Disclosure Duties

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-26/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-26-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 68-26
June 7, 1968
Advisory ethics opinions are not binding.
An attorney representing a creditor may not send a debtor a form styled "Final Notice Before Action" because the form clearly is designed to mislead parties not represented by counsel.
Canon: 9
Opinion: ABA 178
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar inquires as to whether he may properly use a form entitled "Final Notice Before Action," a copy of which is attached to this opinion. We think that the use of this form is violative of Canon 9 because it is manifestly designed to mislead parties not represented by counsel. See also Opinion 178 of the American Bar Association Committee on Professional Ethics.
FINAL NOTICE BEFORE ACTION
__Creditor
versus
____Debtor
To the above Debtor:
You are hereby notified that the above named creditor claims an unpaid indebtedness against you in the amount of _ dollars ($_). Furthermore, the same is past due and that legal demand has been made upon you for payment according to the terms of your note dated _ in favor of _ and now legally owned and held by above creditor, who is located at ______, City of __, State of _.
You are further notified that in the event that you do not make full and complete settlement of said claim or provision for adjustment thereof on or before the _ day of _ A.D., 19, at A.M. o'clock of said day, that suit will be brought without further notice for the entire amount specified above together with all costs and attorney fees or other expense of said action as provided by the terms of your note.
THIS IS A LEGAL TEN DAY NOTICE
Dated this __ day of _, in the Year of Our Lord, One Thousand Nine Hundred and _.

Attorney
AFFIDAVIT ON ABOVE CLAIM
STATE OF__
COUNTY OF__
CITY OF__
__, being first duly sworn, states that he is the Creditor mentioned in above notice and that there is due him from above mentioned debtor the sum of $__.
___(SEAL)
Subscribed and sworn to before me this
day of __, 19

Notary Public