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When District Attorneys Become Bill Collectors

November 19, 2012

The Times' comment that "the district attorneys are essentially renting out their stationery" may have been a bit sensationalized. Nonetheless, the partnership between the civil "victim" and the prosecutor does seem grossly unwarranted. Many bad checks are the simple result of one's negligent handling of his bank account. To allow a debt collector to initiate, or even just inspire, an accusatory letter from a prosecutor's office without a prosecutor independently assessing the basis to invoke the police power raises fundamental questions of propriety. An October 24, 2012 Times article, "New Federal Rules for Debt Collectors," reported that debt collection agencies will come under the federal supervision of the Consumer Financial Protection Bureau on January 2, 2013. But you don't see consumer protection agencies going after DAs-turned-bill-collectors ... at least not yet.

In some jurisdictions, private citizens are permitted to prosecute misdemeanor offenses where they have fallen victim and where the DA's office has declined to prosecute the case. Should we as a society be putting that kind of power in the hands of the citizenry, even if it is dressed up as an official program of the local DA's office? In a sense, the Supreme Court has weighed in on this option. In 1987, the U.S. Supreme Court in Young v. U.S ex rel. Vuitton et Fils S.A., et al. dealt a deathblow to private lawyers being empowered by the courts to prosecute criminal contempts of trademark injunctions. As the court's majority opinion saw it, "[B]etween the private life of the citizen and the public glare of criminal accusation stands the prosecutor. That state official has the power to employ the full machinery of the state in scrutinizing any given individual. ... [f]orced immersion in a criminal investigation ... is a wrenching disruption of everyday life."

Just as in the "private" prosecutions frowned on in Vuitton, delegating the investigative aspect of the prosecution function to private litigants, as in the case of debt collection programs, is problematic in the extreme. Beyond the ethical and constitutional concerns which the process arguably raises, there is an important public policy question at play: Should prosecutors be permitted to partner with companies to confront citizens with in terrorem dunning letters directly threatening criminal prosecution -- when all that may be at stake is an honest citizen's careless management of his or her checkbook?

Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He also teaches Professional Responsibility at Fordham Law School. The author is a regular columnist for Law.com. The views expressed are his personal opinions.

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