Attorneys are people too. In the midst of negotiating/litigating on behalf of clients, attorneys also manage their own day-to-day lives. Attorneys sign leases, enter into contracts, negotiate with vendors and otherwise engage in discussions that are personal in nature. It may be tempting for attorneys to seek leverage by boasting their title as “esquire” or to disclose the attorney’s affiliation with a particular law firm. But, to do so may trigger legal and ethical implications.
In a recently filed complaint in the Eastern District of Pennsylvania, a couple is alleging that an attorney who sent correspondence on his firm’s letterhead was acting in his official capacity as an attorney of the firm, rather than on his own behalf. The couple alleges that after they backed out of a real estate deal with the attorney, he began sending letters demanding certain payments. This correspondence included an assertion that he would “instruct one of his associates to draft and file a complaint” against the couple if they failed to remit payment. Importantly, each letter came on official firm letterhead, as opposed to a personal letter signed with an “esquire”.
The couple has now set forth several claims based on consumer protection laws, including the Federal Debt Collection Practices Act (“FDCPA”). As consumer finance attorneys will note, the FDCPA covers law firms under the definition of “debt collector”, and is broadly interpreted in favor of consumers. This means that courts will typically err on the side of accepting the consumer’s lay understanding of a letter, rather than the technical explanation from its sender. In essence, it appears the law firm will have an uphill battle in disputing the claims that this letter is covered by the FDCPA, despite it likely having no knowledge of its existence prior to the suit.
It is therefore incumbent upon any law firm to remind its attorneys that there is a distinction between the title “attorney-at-law” and “attorney-at-firm”. In addition to basic conflict issues, this particular attorney likely did not realize that his firm would qualify as a “debt collector” subject to the FDCPA. Simply put, adding a law firm name to a letter packs an extra punch above the “esquire”, but is also accompanied by additional responsibilities and potential liabilities.
Firms should consider reminding its attorneys that they are bound by at least two sets of rules and responsibilities (a) as attorneys licensed in particular states and (b) as attorneys affiliated with a law firm. These two hats come with different obligations, and one must be careful not to improperly blend the two. Any attempt to drop the “esquire” in personal matters should not suggest it is sent from the firm unless explicit permission was given. While some may roll their eyes at an attorney for using his law degree to suggest authority, others may opt to use the accompanying obligations of such authority to flip the leverage and unexpectedly put the attorney and law firm on the defensive.