Zealous Advocacy or Exploitative Shakedown?: The Ethics of Shoplifting Civil Recovery Letters

(2015) 36 Windsor Review of Legal and Social Issues 1

Ottawa Faculty of Law Working Paper No. 2015-14

50 Pages Posted: 22 Feb 2015 Last revised: 22 Jul 2016

See all articles by Amy Salyzyn

Amy Salyzyn

University of Ottawa - Faculty of Law; University of Ottawa - Common Law Section

Date Written: February 20, 2015

Abstract

Twenty years ago, Canadian retailers imported the American practice of sending letters to alleged shoplifters and their parents demanding the payment of several hundred dollars as “civil recovery.” In the United States, this practice is backed by state legislation that explicitly provides retailers with a statutory cause of action against shoplifters. In Canada, however, no similar legislation exists. Instead, Canadian retailers have attempted to justify their “civil recovery” claims by relying on common law torts. In order to give their demands increased authority, many retailers retain lawyers to send out their “shoplifting civil recovery letters” (“SCRLs”).

This article supplements existing critiques of lawyers who send SCRLs and makes the case for greater law society regulation through a detailed analysis of the common law claims advanced in SCRLs and a consideration of whether advancing such claims violates a lawyer’s ethical obligations.

This article concludes that lawyers who send SCRLs act unethically by advancing legal and factual claims for which there is no good faith basis. In order to combat this problem, law societies should take action by publishing practice directions on the topic of SCRLs and by disciplining lawyers who violate their professional obligations when sending SCRLs.

Keywords: ethics, lawyers, demand letters, civil recovery, shoplifting, Canada

Suggested Citation

Salyzyn, Amy, Zealous Advocacy or Exploitative Shakedown?: The Ethics of Shoplifting Civil Recovery Letters (February 20, 2015). (2015) 36 Windsor Review of Legal and Social Issues 1; Ottawa Faculty of Law Working Paper No. 2015-14. Available at SSRN: https://ssrn.com/abstract=2567909

Amy Salyzyn (Contact Author)

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur St
Ottawa, Ontario K1N6N5
Canada

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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