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Advisory Opinion 26

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State Disciplinary Board
Advisory Opinion No. 26
November 21, 1980

Ethical Propriety of a Lawyer Sending Statutory Notice to Drawer of Bad Check Pursuant to the provisions of Rule 4-223 of the Rules and Regulations for the Organization and "Government of the State Bar of Georgia (219 Ga. 873, as amended), the State Disciplinary Board of the State Bar of Georgia, after a proper request for such, renders its opinion concerning the proper interpretation of the Code of Professional Responsibility of the State Bar of Georgia.

Question Presented:

Is it ethically improper for a lawyer to send a statutory notice to the drawer of a bad check that states that unless said drawer pays the amount of the check in full within a specified period he will be subject to criminal prosecution?

The ethics authority applicable to this inquiry is Rule 3-107 (Canon &), EC-21 and DR 7-105(A) of the Code of Professional Responsibility (Standard 49 of Rule 4-102 of the Georgia Bar Rules).

DR 7-105(A) (Standard 49) provides as follows:

"DR 7-105 - Threatening Criminal Prosecution

(A) a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter".

The ethical consideration under this section states the following:

EC 7-21 The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole. Threatening to use, or using, the criminal process to coerce adjustment or private civil claims or controversies is a subversion of that process; further, the person against whom the criminal process is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system" Also applicable to this inquiry is Section 26-1704(a) of the Georgia Code Annotated, which provides as follows:

"Bad Checks"

(a) A person commits criminal issuance of a bad check when he makes, draws, utters, or delivers a check, draft, or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee. For the purposes of this section, it is prima facie evidence that the accused knew the instrument would not be honored if:

(1) The accused had no account with the drawee at the time the instrument was made, drawn, uttered, or delivered; or,

(2) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after the delivery and the accused, or someone for him shall not have paid the holder thereof the amount due thereon, together with a service charge not to exceed $5 or five percent of the face amount of the instrument, whichever is greater, within 10 days after receiving written notice that payment was refused upon such instrument. For purposes of of this subsection (2):

(A) Notice mailed by certified or registered mail, evidenced by return receipt, to the address printed on the instrument or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the person making, drawing, uttering, or delivering said instrument whether such notice shall be returned undelivered or not.

(B) The form of notice shall be substantially as follows:

"You are hereby notified that a check or instrument numbered _____, issued by you on _____ (date), drawn upon _____, (name of bank), and payable to _____, has been dishonored. Pursuant to Georgia Law, you have 10 days from receipt of this notice to tender payment of the full amount of such check or instrument plus a service charge of $5.00 or 5 percent (of the face amount of the check), whichever is greater, the total amount due being $_____ and _____ cents. Unless this amount is paid in full within the specified time above, the holder of such check or instrument may turn over the dishonored check or instrument and all other available information relating to this incident to the District Attorney or Solicitor for criminal prosecution.'

(C) Any party holding a worthless check or instrument and giving notice in substantially similar form the that provided in subparagraph (B) shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such notice."

It should be noted that the State Bar directory rule and disciplinary standard provide that a lawyer should not threaten criminal prosecution solely to gain advantage in a civil matter (emphasis added). Before the drawer of a bad check drawn on his bank can be found in violation of Section26-1704 of the Criminal Code, he must be given written notice that payment of the check was refused by the bank. He must then fail to make payment to the holder of the bad check within ten days of the date he received written notice. Thus, notice sent pursuant to Section 26-1704 of the Georgia Code Annotated does not constitute an abuse of the criminal process in order to gain advantage in a civil matter. Rather, the notice allows the drawer of the bad check to avoid criminal liability by making the check good within ten days of the date he receives notice that the check was not honored by the bank. The notice is sent to the issuer of the bad check to make him aware that the instrument had not been honored by the bank and to allow him a reasonable time to correct what could be a valid mistake in accounting made by the drawer himself or by the bank.

Accordingly, it is the opinion of the State Disciplinary Board that it is not ethically improper for a lawyer to send notice to the drawer of a bad check pursuant to the provisions of Section 26-1704 of the Georgia Code Annotated.

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