Updated on
Author: Contributor: Sergei Lemberg
Can a Debt Collector Pretend to Be a Lawyer?
No, under the FDCPA a debt collector cannot misrepresent themselves as an attorney. This would be considered unauthorized practice of the law. Debt collectors can be fined for this sort of behavior.
15 U.S.C. Section 1692 (e)(3) prohibits debt collectors from masquerading as attorneys. This is part of the FDCPA’s effort to stop debt collectors from taking advantage of less sophisticated consumers. There are two ways debt collectors attempt to mislead consumers this way. The first is by having an attorney draft the form letter that gets sent to consumers, making it appear as though a lawyer is involved in collecting the consumer’s debt, when the attorney is not actually involved in the collection efforts.
The second way is more common. The collection agency mass mails a form letter with a law firm’s letterhead and an attorney signature on the bottom. Like in the first example, consumers draw the conclusion a lawyer is involved, but all they did was write the letter. The attorney never reviewed the details of their specific case.
Irwin v. Mascott is a court case regarding one such violation. Attorney Mascott would occasionally review spreadsheets of collections data containing amounts owed and other information. He never reviewed the details of individual cases, made decisions to send letters, or engage in other work for a specific claim. He only reviewed the details of a consumer’s case in the rare event the collection agency decided to file a lawsuit.
The court held, “If the attorney did not first conduct an individual review of the debtor’s case, or if the attorney did not determine if a particular letter should be sent, or if the attorney did not know the identity of the person to whom the letter was sent, the communication from the attorney is false and misleading under Section 1692e(3).”
In still another case, Clomon v. Jackson (988 F.2d 1314, 1321 2d Cir.1993), the second circuit court of appeals affirmed a ruling of the district court that an attorney violated the FDCPA when debt collection letters were sent out with his signature, despite the fact that he had never reviewed the cases. The court acknowledged that there are times when collection agencies mass mail the same letter signed by an attorney to consumers with a debt, but stated there would be “very few” instances where such communications did not violate the FDCPA. This correspondence is misleading, as it would lead a reasonable person to jump to the conclusion they were being sued. “For this reason, there will be few, if any, cases in which a mass-produced collection letter bearing the facsimile of an attorney’s signature will comply with the restrictions imposed by Section 1692e.”
Are There Any Exceptions?
There are always exceptions! In Lilly v. RAB Performance Recoveries, the collection agency got around this provision of the FDCPA by including a disclaimer at the bottom stating that no attorney had reviewed the client’s account. However, the law is constantly in flux, and other courts have ruled differently on this specific issue.
The bottom line is, if you have received a debt collection notice signed by an attorney, it may violate the law. Stand up to debt collectors who use nefarious tactics to collect debts from unsuspecting consumers.
About the author:
Contributor: Sergei Lemberg
Sergei Lemberg is a consumer rights attorney, practicing since 2006, whose practice focuses on consumer law, class actions and personal injury litigation. He is known for a United States Supreme Court case (Facebook v. Duguid) defending consumers from autodialers under the Telephone Consumer Protection Act of 1991 to send unsolicited text messages. He is also the author of Defanging Debt Collectors, a book that teaches consumers how to battle debt collectors and win.
See more posts from Contributor: Sergei Lemberg