On November 12, 2014, the American Bar Association issued Formal Opinion 469, regarding the practice of some States’ Attorneys allowing debt collectors to use their letterhead for a fee. Here is what they concluded:
A prosecutor who provides official letterhead of the prosecutor’s office to a debt collection company for use by that company to create a letter purporting to come from the prosecutor’s office that implicitly or explicitly threatens prosecution, when no lawyer from the prosecutor’s office reviews the case file to determine whether a crime has been committed and prosecution is warranted or reviews the letter to ensure it complies with the Rules of Professional Conduct, violates Model Rules 8.4(c) and 5.5(a)
In recent years, some state prosecutors have been willing to “rent” their letterhead to debt collectors in exchange for a fee, as part of a “bad check diversion program.” Debt Collectors are able to threaten consumers, using official letterhead, with prosecution if they do not submit to a “diversion program.” The ABA suggests this behavior may have been “driven by budgetary exigencies.”
Some State’s Attorney’s offices in Maryland may have been involved in these practices. A bill creating a task force to investigate bad check diversion programs in Maryland failed to pass in 2013. That bill was designed to study, among other things:
the ethics of the use of private prosecution programs by State’s Attorneys, including the propriety of allowing an outside individual or entity to send letters on letterhead from the Office of the State’s Attorney, threaten prosecution by the Office of the State’s Attorney, or require or present the private prosecution program as an explicit alternative to criminal prosecution.