The Legal Intelligencer has posted an interesting article about a recent Pennsylvania ruling that says lawyers cannot use their own firm’s letterheads when sending out collection letters unless the lawyer has reviewed the file and is prepared to file a lawsuit.
U.S. Magistrate Judge Andrew J. Smyser ruled that two letters from a New York lawyer amounted to clear violations of the Fair Debt Collection Practices Act because the use of law firm letterhead gave the false impression that a lawyer was working on the case and planning to sue.
“The least sophisticated consumer would be likely to believe upon receiving a communication from an attorney for the lender that the debt collection process has entered into a phase where the lender through its attorney will begin to use procedures established by law and known to attorneys to collect the debt,” Smyser wrote in his 22-page opinion in Lesher v. Law Offices of Mitchell N. Kay .
Symser argues that a lawyer’s letterhead automatically implies a threat of litigation since it is communication from an attorney. However, he also says that just because the letter had an attorney’s letterhead then it automatically didn’t violate the FDCPA because it contained the following sentence: “At this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account.” Because of that statement, Symser feels that it is clear that the letter didn’t give the impression of impending legal action.
The suit alleged that the use of law firm letterhead to collect consumer debts – when there has not been attorney involvement or attorney review before collection letters are sent to consumers – is a violation of Section 1692e(3) and (5).
It also alleged a violation of Section 1692g on the grounds that Kay’s collection letter created a false sense of heightened urgency and intimidation, and that there had not been a meaningful review of the plaintiff’s account.
In court, the plaintiff’s, Darwin Lesher, case is based on…
the notion that no matter how innocuous or benign the substance of the letter, an implied threat of litigation will exist because the letter came from an attorney. Plaintiff provides this court with no legal support for this proposition, and … fails to point to anything in the substance of either of the defendant’s letters which would violate Section 1692e(5) by suggesting such a threat,”
The defendant argued that the plaintiff was making too big of a deal about the use of a letterhead and ignoring the overall communication process between the lawyer and the recipient of the letter.
In the final ruling, Symser concluded that:
The use of law firm letterhead created a deceptive meaning.
“Although an attorney may be acting solely in the capacity of a debt collector and may not be communicating any explicit representation of a future course of action, when the attorney acting as a debt collector uses law firm letterhead the attorney acting as a debt collector plainly is communicating to the debtor in his or her capacity as an attorney,” Smyser wrote.
“Therefore, since it is an attorney’s communication, the implication is not avoidable that a threat of litigation is being presented to the debtor,” Smyser wrote.
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