NUMBER 392 1950
Question. The opinion of your Committee is requested as to which or all of the following are professionally proper:
On the letterhead of an attorney, in which there is enclosed a summons, as indicated in said letter, is typewritten in the body thereof, addressed to the defendant named in the summons, the following:
Enclosed is a summons in an action which I propose to bring on the claim of my client therein endorsed, and shall appreciate a notice of appearance therein.
Very truly yours,
[Signature by attorney]
Kindly forward the within summons, which sets forth my client’s claim to your representative for possible adjustment and thereby avoidance of litigation.
As I have been unable to find you in and you may be busy, I enclose a summons in an action which I propose to bring and shall appreciate an appearance.
Answer. Under Section 551a of the Penal Law it is a misdemeanor to circulate or distribute a form which when filled out simulates a summons. Collection notices modeled on the form of summons come within this section.
The three forms submitted in the question use the proposed summons as the basis for the demand of payment. The use of any one of the forms enclosing a summons, if not a violation of the section, would certainly be a violation of its spirit if addressed to an average individual or corporation, as it might create the impression that there was a legal compulsion to answer. In such circumstances all of the proposed forms would be professionally improper.
However, we do not mean to suggest that it would be improper to mail a summons to a proposed defendant providing said defendant had previously been advised thereof and had indicated a willingness to accept service.