Can a lawyer send an unrepresented debtor a collection letter that spells out, step by step, the legal consequences of not paying?

Plain-English summary

The inquiry presented a detailed collection letter from a lawyer to a debtor, walking the debtor step by step through the consequences of non-payment: a likely 35% increase from court costs and attorney's fees, entry of a judgment, an abstract of judgment creating a lien and some publicity, post-judgment discovery and compelled disclosure under oath, possible contempt and confinement, subpoenas to associates, employees, and family, and eventual seizure and sale of property. The Committee was asked whether the letter violated the Code.

The Committee concluded that it did, under DR 7-104(A)(2). It held that it is improper for a collection letter to state in extensive detail the legal results of non-payment. While an attorney may write an opposing party who is not represented by counsel, the letter should not undertake to advise that party as to the law or his status as a litigant. The Committee said the proper procedure is to limit the communication as nearly as possible to a statement of the proposed action and a recommendation that the adverse party obtain his own attorney, citing its Opinions 201, 279, and 335 and ABA Opinion 58.

Currency note

This opinion was issued in 1975, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. A lawyer's dealings with an unrepresented person are now governed by Texas Rule 4.03, whose ABA analog is Model Rule 4.3. 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 Treat this page as historical context, not current guidance.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: Could a lawyer's collection letter spell out the consequences of not paying?

A: No. The Committee held it is improper for a collection letter to state in extensive detail the legal results of non-payment, and that the letter in question violated DR 7-104(A)(2).

Q: Could the lawyer write the unrepresented debtor at all?

A: Yes. The Committee said an attorney may write an opposing party who is not represented by counsel, but the letter should not advise that party as to the law or his status as a litigant.

Q: What did the Committee say the letter should contain instead?

A: It said the letter should be limited as nearly as possible to a statement of the proposed action and a recommendation that the adverse party obtain his own attorney.

Background and rules framework

The opinion interprets DR 7-104(A)(2) of the former Texas Code of Professional Responsibility, which barred a lawyer from giving advice to an unrepresented person whose interests conflict with the client's, other than the advice to secure counsel. The Committee applied that rule to a detailed collection letter and identified the dividing line as advising the debtor on the law versus stating the proposed action. The modern analog is Texas Rule 4.03, with ABA Model Rule 4.3.

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with an unrepresented person), as the modern analog
• DR 7-104(A)(2) (former Texas Code of Professional Responsibility)

Other opinions cited:

• Tex. Comm. on Professional Ethics, Ops. 201, 279, 335: writing an unrepresented opposing party
• ABA Opinion 58: limiting communication with an unrepresented adverse party

See also

• TX Ethics Op. 488: Advising a Client to Contact a Represented Creditor Directly
• TX Ethics Op. 401: Attorney Serving a Collection Agency Arrangement

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-380/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_380.pdf

Original opinion text

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

QUESTION PRESENTED

Does the following letter violate the Code of Professional Responsibility?

"You have not responded to our earlier requests that you make arrangements now, through this office, for payment of the sums due our client. Five days from date of this letter, we intend to recommend to our client that legal action begin against you. We do not expect to write you any further letters. You can prevent legal action by making prompt payment of the amount due to this office at this time.
If suit is brought, you may expect that the amount of the claim against you will be raised to include court costs and attorney's fees. That may increase the amount of your debt by approximately 35%. Prompt payment by you can avoid that additional expense.
If you do not pay when you are served with suit papers, you may expect a judgment to be entered against you. In that event, you may also expect an abstract of that judgment to be made a matter of public record. That normally results in some publicity of the fact that a judgment is taken against you and in the creation of a lien upon your real property.
If you should then choose not to pay the judgment promptly, you may expect that discovery proceedings will be initiated and that you will be compelled to answer under oath, fully disclosing all information as to your income, properties, business, and business relationships. If you do not willingly disclose that information in the proper manner, you may expect that we shall apply to the Court for an order to be entered compelling you to disclose all of that information. If you should disobey the orders of the Court, you may expect that we will ask the Court to hold you in contempt of court and confine you in the County Jail until such time as you have complied with the orders of the Court. In such event, you may expect the Court to award additional court costs and attorney = s fees against you, further raising your indebtedness by at least another $125.00.
If you do not satisfy the indebtedness at that point, you may further expect that subpoenas may be served upon your business associates, employees and members of your family to obtain further information so that the judgment against you may be satisfied. Such proceedings also further raise the indebtedness.
If the indebtedness is not satisfied at that point, then you may expect appropriate legal action to be taken to have the Sheriff or Constable seize and sell any of your property which may be available under the law to satisfy our client's judgment. The Sheriff's fees and publication costs will also be added to your indebtedness. You may also expect any of the various legal procedures mentioned to be used periodically until such time as you have satisfied the debt. Other legal procedures may be used as well.
By giving you the foregoing information, we do not intend to be offering any legal advice to you. You should obtain legal advice from your own attorney. It is our intention, however, to fully disclose to you the position which will be taken on behalf of our client. It would appear to be in your best interests to make immediate arrangements through this office for the prompt satisfaction of the debt."

STATEMENT OF FACTS

COLLECTION LETTER

It is improper for a collection letter to state in extensive detail the legal results of non- payment.

DR 7-104 (a) (2)

Yes, this letter violates the Code. (DR 7-104 (a) (2) ) An attorney may write the opposing party who is not represented by an attorney, but the letter should not undertake to advise him as to the law or his status as a litigant. (Op. 201, 279, 335; ABA Op. 58) The proper procedure for an attorney would be to limit the communication as nearly as possible to a statement of the proposed action and to a recommendation that the adverse party obtain his own attorney. (Op. 335; ABA Op. 58)

Tex. Comm. On Professional Ethics, Op. 380 (1975)