Welcome to the little known world of "check diversion," an insidious practice that private companies like ACCS peddle to local district attorneys. The proud American Corrective Counseling Services website (http://accs-inc.com/index.html) shows exactly how prosecutors can get in on the game, in which state and city law enforcement officials permit a private collection agency to use their authority to collect debts and penalties from citizens by using threats and disingenuous claims. The practice promoted by ACCS is clever, serves a public interest, relieves the schedules of over-worked prosecutors, and is presumptively legal. The practice is also deceptive and unethical, and because its practitioners entice law enforcement officials into participating, it is corrupting as well.

Check diversion works like this. ACCS arranges with a local prosecutor to use his or her name and authority to collect on rubber checks that have been written to local establishments. ACCS tracks down the records of bad checks and sends out letters to the check-bouncing consumers, threatening criminal charges and possible imprisonment if they don't remit the amount owed plus a penalty, usually about a hundred dollars. (In some cases, the fees actually exceed the maximum permitted by law.) Incredibly, the letters often include the prosecutor's official seal and letterhead, and do not disclose that they are really from a private collection agency. It is the same with collection phone calls: according to targets of ACCS and similar outfits, the collectors, who also get a cut of the penalties and have a strong motivation to be as persuasive as possible, often represent themselves as being part of a prosecutor's office. The threats of prosecution can be wildly exaggerated, because writing a bad check is only criminal if it is intentionally done with the purpose of deceiving another. Thus the misrepresentations are thick and many.

One can see why this is appealing to prosecutors, who have better things to do than track down small amounts of cash owed by careless check-writers. The money gets back to the merchant, and the prosecutor gets a cut of the extorted penalty. Certainly there is nothing wrong with ensuring that consumers make good on bad checks. The problem is that the methods used by ACCS can involve threats and deception regardless of whether there has been any fraud. Attorneys in law enforcement and their agents own an exception to the ethical prohibition against lawyers engaging in misrepresentation, but only when investigating crimes.

Debt collection is not criminal investigation.

But Congress, ever ready with a bill if the lobbying is hard enough, is considering passing a provision that will exempt "check diversion" from consumer protection laws. An amendment to HR 3505 accomplishes this, and that bill is currently being reviewed by the Senate banking committee. Consumer advocates are vigorously opposing the measure while trying to get the word out to the public about this highly offensive practice, but lobbyists for the check diversion industry are supported by cash and enticing rationalizations. What's the matter with collecting on bad checks? Why shouldn't such a time-consuming task be taken off the backs of prosecutors, so they can spend their time catching drug dealers, bank robbers and murderers?

It will not be the first time, or the last, that Congress has made the unethical explicitly legal. But a practice that endorses deception and threats to pressure consumers whose only crime may be that they didn't balance their checkbook should not be tolerated, even if it accomplishes some worthwhile objectives in the process. The ACCS website peddles a practice that, for all its benefits, runs afoul of one of the oldest ethical rules of thumb: the end doesn't justify the means.

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