Can a lawyer send a debtor a demand letter that encloses a copy of the summons and complaint the lawyer says will be filed if the debt is not paid?

Plain-English summary

The Committee was asked whether an attorney could write to a client's debtor demanding payment of an alleged debt and enclose with the letter a copy of a summons and complaint the attorney said would be filed if payment was not made within five days.

The Committee concluded the procedure was in bad taste and professionally improper. It reasoned that a person not conversant with legal papers might be led to believe the enclosed form was process in an action, that is, something more than a mere demand for payment. On that basis the Committee disapproved the sending of a form of summons and complaint with the demand letter.

Currency note

This opinion was issued in January 1969, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. The Committee was applying the Canons of Professional Ethics then in force. The concern it identified, that a communication might mislead a layperson into thinking a demand was formal legal process, is now addressed by RPC 4.1 (truthfulness in statements to others), RPC 4.3 (dealing with an unrepresented person), and RPC 8.4(c). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Why is enclosing a copy of the summons and complaint with a demand letter improper?

A: The Committee held it could mislead a debtor unfamiliar with legal papers into believing the enclosed form was actual process rather than a demand, and it disapproved the practice.

Q: Did the Committee say a lawyer cannot warn a debtor that suit will be filed?

A: No. The opinion addressed only the enclosure of a form summons and complaint; the Committee disapproved sending that form, not the act of demanding payment itself.

Background and rules framework

The Committee decided this question under the Canons of Professional Ethics in force in 1969; it characterized the conduct as in bad taste and professionally improper without tying it to a numbered Canon. In current New Jersey terms, a communication that could lead an unrepresented person to mistake a demand for formal court process implicates RPC 4.1, RPC 4.3, and RPC 8.4(c).

Citations and references

Other authorities:

• Canons of Professional Ethics (in force in 1969)

See also

• NJ ACPE Op. 142: Insurance Carrier's Form of Consent to Settle
• NJ ACPE Op. 145: Producing Attorney-Client Letters

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp144-1.html

Original opinion text

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

92 N.J.L.J. 53
January 23, 1969

OPINION 144

Form of Process - Warning to Debtor

Inquiry has been made as to whether it is proper for an attorney to write to a client's debtor demanding payment of a sum alleged to be due his client and enclosing with the letter a copy of a summons and complaint which the attorney says will be filed if payment is not made within five days.

In our opinion such procedure is in bad taste and professionally improper. Furthermore, a person not conversant with legal papers might be led to believe that the form enclosed was a process in an action and something more than a mere demand for payment. Accordingly, the sending of a form of summons and complaint is disapproved.