Can a Florida lawyer send a statutory worthless-check notice on a client's behalf without it being an improper threat of criminal prosecution?

Plain-English summary

The committee was asked whether an attorney may send a "notice of worthless check" prescribed by Section 832.07(1)(a), Florida Statutes, on behalf of a client, both where the client received the dishonored check and where the check had been received to be held in trust for a client. DR 7-105(A) provides that a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.

The committee receded from its earlier Opinion 77-6 (since withdrawn), which a sharply divided committee had used to answer the inquiries in the negative, and a majority now answered both in the affirmative. The majority read the operative language of DR 7-105(A) as the phrase "solely to obtain an advantage in a civil matter." It concluded that sending a statutorily prescribed notice in the course of representing a client, in order to preserve the client's legal rights and remedies, where the client could appropriately send the notice himself, is not action taken solely to obtain a civil advantage and so does not fall within the rule's proscription.

The committee conditioned its conclusion: the attorney sending the letter must clearly and carefully indicate that notice is being given on behalf of a client, and the content of the letter must be limited to the language of the applicable statute.

Currency note

This opinion was issued in 1985, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer send a worthless-check notice for a client?

A: The opinion concluded that an attorney may send the statutorily prescribed worthless-check notice on a client's behalf, both when the client received the check and when the check was held in trust for the client.

Q: What conditions did the committee attach?

A: The opinion concluded the letter must clearly indicate that notice is given on behalf of a client, and its content must be limited to the language of the statute.

Q: Why isn't this a prohibited threat of criminal prosecution?

A: The opinion concluded the conduct is not undertaken "solely to obtain an advantage in a civil matter" within DR 7-105(A), because the notice preserves the client's legal rights and the client could appropriately send it himself.

Background and rules framework

The opinion interprets former CPR DR 7-105(A), which barred presenting or threatening criminal charges solely to gain an advantage in a civil matter, and the worthless-check notice statute, Section 832.07(1)(a), Florida Statutes. The Model Rules carried no direct successor to DR 7-105; the closest current rule is Model Rule 4.4 on respect for the rights of third persons. (Florida later addressed threats in Rule 4-3.4(g)-(h).)

Citations and references

Rules of Professional Conduct:

• CPR DR 7-105; DR 7-105(A)

Statutes:

• Section 832.07(1)(a), Florida Statutes (notice of worthless check)

Other opinions cited:

• Fla. Ethics Opinion 77-6 (since withdrawn), from which this opinion recedes

See also

• FL Bar Ethics Op. 89-3: Threatening Criminal Prosecution in a Civil Matter
• FL Bar Ethics Op. 94-5: Threatening a Grievance Complaint Against Opposing Counsel

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-85-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-85-3-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 85-3
August 1, 1985
Advisory ethics opinions are not binding.

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.

CPR: DR 7-105, DR 7-105(A)
Opinion: 77-6
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."