May Maryland State’s Attorneys Offices Provide Their Letterhead to Debt Collectors?

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.
Click on the following links to compare Model Rules 8.4(c) (which makes it professional misconduct to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”) and 5.5(a) (which states that “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”) with the identically worded Maryland Rules of Professional Conduct 8.4(c) and 5.5(a).
Because the language in the Maryland Rules of Professional Conduct 8.4(c) and 5.5(a) (and those of many other states) is verbatim identical to the language of 8.4(c) and 5.5(a) of the Model Rules, it will be interesting to see if prosecutors’ offices who may have been engaged in this practice will voluntarily cease and desist.
Although the language of the Model Rules and the Maryland Rules may be identical, it would be up to the Maryland Attorney Grievance Commission — not the American Bar Association — to try and enforce the Maryland version of the Model Rules.  Obviously, any opinions or interpretations of the American Bar Association regarding the ABA Model Rules may be persuasive for the interpretation of the Maryland Rules of Professional Conduct.  But absent voluntary compliance, the Maryland Rules of Professional Conduct are enforced by way of a formal complaint filed by the Attorney Grievance Commission, and a formal holding of the Maryland Court of Appeals.