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

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