WTF
This is profoundly fucked up.
The practice of charging people who write bad checks and allowing their cases to be dismissed in exchange for paying back the money is already ethically questionable; it can be viewed as the prosecutor acting as a sort of debt collection agency. But the practice described in this NYT article goes beyond the pale. It cuts out the middle man and just lets debt collection companies use the prosecutor's letterhead to give the color of law to obnoxious threats of legal action.
I don't understand how this can possibly be legal. And I don't understand how the prosecutors who sign off on this "program" can sleep at night. There are numerous problems here, starting with the fact that this isn't simply a way of "ensuring restitution for victims," it's a way to give new tools to for-profit debt collection agencies. Not only are these vultures getting a cut of the money paid back to the "victims," they're extorting money for a class on budgeting. I say extort because there's no way that's NOT extortion. Ms. Yartz, one of the victims of this scam job interviewed by the Times, makes a good point- if writing this bad check was a criminal act, why does she need a class on budgeting, which suggests that she was simply negligent about her finances?
See, there's an element of intent in any crime. In many jurisdictions, such as Maryland, there is a presumption that if you pass a check and there are insufficient funds to cover it, you knew that there were insufficient funds. But the thing about presumptions is that they can be rebutted. It's not as simple as "the check is bad, you are guilty." Moreover, if you have a convincing argument and/or evidence that it was an innocent mistake, especially if you have repaid the money, and if you don't have a criminal record, a prosecutor is in all likelihood either not going to charge you or will dismiss the case once you've made the check good.
It would still be terrible to let a debt collection agency threaten prosecution under your letterhead even if you had a history of indicting every bad check case ever. But the fact that 99% of these cases would never be charged at all even if they were reviewed by a prosecutor makes this even worse.
I firmly believe that the only reason this sort of conduct isn't explicitly forbidden by the ABA model rules on professional conduct is that the ABA couldn't anticipate that a prosecutor would make a practice of sub-contracting his authority to a non-lawyer to facilitate extortion.
The practice of charging people who write bad checks and allowing their cases to be dismissed in exchange for paying back the money is already ethically questionable; it can be viewed as the prosecutor acting as a sort of debt collection agency. But the practice described in this NYT article goes beyond the pale. It cuts out the middle man and just lets debt collection companies use the prosecutor's letterhead to give the color of law to obnoxious threats of legal action.
I don't understand how this can possibly be legal. And I don't understand how the prosecutors who sign off on this "program" can sleep at night. There are numerous problems here, starting with the fact that this isn't simply a way of "ensuring restitution for victims," it's a way to give new tools to for-profit debt collection agencies. Not only are these vultures getting a cut of the money paid back to the "victims," they're extorting money for a class on budgeting. I say extort because there's no way that's NOT extortion. Ms. Yartz, one of the victims of this scam job interviewed by the Times, makes a good point- if writing this bad check was a criminal act, why does she need a class on budgeting, which suggests that she was simply negligent about her finances?
See, there's an element of intent in any crime. In many jurisdictions, such as Maryland, there is a presumption that if you pass a check and there are insufficient funds to cover it, you knew that there were insufficient funds. But the thing about presumptions is that they can be rebutted. It's not as simple as "the check is bad, you are guilty." Moreover, if you have a convincing argument and/or evidence that it was an innocent mistake, especially if you have repaid the money, and if you don't have a criminal record, a prosecutor is in all likelihood either not going to charge you or will dismiss the case once you've made the check good.
It would still be terrible to let a debt collection agency threaten prosecution under your letterhead even if you had a history of indicting every bad check case ever. But the fact that 99% of these cases would never be charged at all even if they were reviewed by a prosecutor makes this even worse.
I firmly believe that the only reason this sort of conduct isn't explicitly forbidden by the ABA model rules on professional conduct is that the ABA couldn't anticipate that a prosecutor would make a practice of sub-contracting his authority to a non-lawyer to facilitate extortion.