ETHICS OPINION 586-1971 RELATION OF LAWYER TO COLLECTION AGENCY CLIENT

NUMBER 586

QUESTION.

 

I have a collection agency as a client, They have been giving me their claims which were ready for suit along with the particulars concerning those claims.

 

Now they would like me to send the debtors a collection letter prior to suit. However, the particulars as to each claim are not to be given to me until it is determined that suit must be instituted. If a debtor calls me after receiving the foregoing letter I am to call my client’s office and tell them to call the debtor to discuss the particulars of the claim with him. The individual in my client’s office who are to make the calls are to be under my direction. Would it be permissible for such individuals to say with respect, to the claim that they are from my office?

 

ANSWER.

 

In the consideration of the question submitted, the Committee has assumed that the individuals referred to in the foregoing statement of facts are laymen, and that the word ‘particular’ in that statement as submitted means the facts constituting the claims therein referred as they are stated to be by the claimants who assert such claims.

 

The practice described in the foregoing statement of facts is not permissible, It is deceptive. The representation to be made by individuals in the office of the collection agency described by you as your client that they are from your office would, if made, be false in fact. In view of the purpose for which such representation would be made, it would be material and it would be made for the purpose of inducing the alleged debtors to act in reliance on it by making the payments demanded. If you actually directed those individuals in the making of the proposed calls you would be a more active participant in the deception that you would be if you were to do no more than knowingly countenance the deception. The Committee expresses no opinion as to whether any such direction by you could constitute effective control of the individuals making such calls, but effective control, if possible, could not make truth out of falsehood.

 

The Committee considers the proposed practice fraudulent. DR 7-102 (A)(5) and (7) provide as follows:

 

(A) “In his representation of a client, a lawyer shall not:

(5) “Knowingly make a false statement of law or fact.

(7).”Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent”.

 

If the proposed practice is viewed as the delegation by you of a task to individuals who are in the relation to you of lay clerks although not in your employ, the proposed practice is still impermissible. EC 3-6 is in part as follows:

 

“A lawyer often, delegates tasks to clerks, secretaries and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product.”

 

It. does not appear from the statement of facts submitted by you that there is any direct relationship between you and the several claimants at all. You refer to the collection agency as your client and to the claims of the claimants as “their claims”. In that view of the case, you propose to permit the use of your name in the furtherance of the business of a collection agency without any direct client-attorney relationship between you and the claimants who are the real parties in interest and with no authority from anyone to act in relation to such claims except authority from the collection agency, to write collection letters.

 

Any such use of your name by a collection agency ‘was expressly condemned by Former Canon 35 of the Canons of Professional Ethics in the fallowing language:

 

“The professional services of lawyers should not be contracted or exploited by any lay agency, personal or corporate, which intervenes between client and lawyer,”

 

The Committee is of the opinion that the same condemnation Is implicit in Canon 5 of the Code of Professional Responsibility and the Ethical Considerations related thereto.

 

The Committee confines itself to the question submitted to it as hereinabove set forth and expresses no opinion, therefore, as to the propriety of the proposed practice of your sending collection letters to debtors in ignorance of the facts constituting the claims which are the subject of such letters and in ignorance, therefore, as to whether such claims are warranted under existing law. In that connection, your attention is invited to DR 7-102 (A)(2).

 

The Committee does not advise on questions of law. No. opinion is expressed, therefore, as to whether the proposed practice would result in your client’s engaging in the unlawful practice of the law or as to whether it is so engaged. In that connection, your attention is invited to Sections’ 478 and 495 of the Judiciary Law. No opinion is expressed as to a possible violation of Section 492 of that Law on your part.

 

Your attention is invited, however, to DR 3-101 (A) which is as follows:

 

“A lawyer shall not aid a non-lawyer in the unauthorized practice of the Law”

 

March 22, 1971