CONSUMER DEBT COLLECTION AND THE FDCPA LAWYERS

Current Issues In Consumer Law

Consumer Debt Collection

and the FDCPA

The Credit Law Institute in conjunction with

The Conference On Consumer Finance Law

August 8-9, 2006

The Hilton Hawaiian Village, Honolulu, Hawaii

MIKE VOORHEES & SHARON VOORHEES

SHELTON VOORHEES LAW GROUP

Attorneys at Law

7701 S. Western Ave., Suite 201

Oklahoma City, OK 73139

405-682-5800

Fax: 405-601-0677

WWW.LAWOFFICEOKC.COM

The Fair Debt Collection Practices Act is found at 15 U.S.C. § 1692, will be referred to as the Act or FDCPA, and will be referred to by section number only. The Oklahoma Rules of Professional Conduct are found at Title 5 O.S., App. 3-A, will be referred to as the Rules, and will referred to by rule number only.

There is an overlap of various provisions of the FDCPA and the Rules, and this paper will point out a few things to worry about.

In addition, there are included in this paper some ethical issues that could have and should have been easily avoided.

COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

Rule 4.2., Communication with Person Represented by Counsel, provides: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

This Rule applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract or negotiation or transaction, who is represented by counsel concerning the matter to which the communication relates. This Rule does not prohibit communication with a represented party, or an employee or agent of such a person, concerning matters outside the representation. In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. The prohibition of communication with a represented person only applies, however, in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that a lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances.

Under Oklahoma law, the rule prohibiting attorneys from engaging in ex parte communications with certain employees of a party organization includes employees below the level of corporate management, since the comment to rule refers separately to both persons having a managerial responsibility on behalf of the organization and persons whose statements may constitute an admission on the part of the organization. Weeks v. Independent School Dist. No. I-89 of Oklahoma County, OK., Bd. of Educ., 230 F.3d 120, (C.A.10 Okla. 2000), certiorari denied 121 S.Ct. 1959, 149 L.Ed.2d 755.

Plaintiff's attorney was not prohibited from communicating ex parte with any former employees of defendant corporation, under rule relating to communication with parties represented by counsel. Fulton v. Lane, 829 P.2d 959 (Ok 1992).

The FDCPA contains a specific prohibition on communicating with a debtor represented by an attorney. Section 1692c provides in part that, without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address unless the attorney fails to respond within a reasonable period of time.

Naturally, once the debt collector attorney is aware that the consumer debtor is represented by an attorney, if the validation notice was not previously given to the debtor, it should be sent to its attorney. Blum v. Fisher and Fisher, 961 F. Supp. 1218 (N.D. Ill. 1997). The validation provision allows the debt collector to send a validation notice to the attorney for the represented consumer rather than to the consumer himself.

The debt collector must be shown to have had "actual knowledge" the debtor was represented by an attorney. Raimond v. McAllister & Associates, Inc., 50 F. Supp. 825 (N.D. Ill. 1999).

A consumer's attorney notified the creditor of representation and settled the debt. The creditor then retained a debt collector who wrote to the consumer seeking payment of the balance of the debt not knowing of the consumers' representation and payment. Summary judgment was granted for the defendant: An agent cannot be imputed with information that his principal failed to give him. See, Jones v. Weiss, 95 F. Supp. 2d 105 (N.D.N.Y. 2000).

The consumer must demonstrate actual knowledge by the debt collector of the consumer's legal representation to establish a violation. Hubbard v. National Bond & Collection Assocs., Inc., 126 B.R. 422 (D. Del. 1991).

Once it is known that the consumer debtor is represented by an attorney, the debt collector can not communicate directly with the consumer unless the attorney expressly authorizes it or fails to respond to communications within a reasonable period of time. What period of time is reasonable? The best procedure is to always follow up with a communication to let the attorney know that you believe he or she has not responded within a reasonable time and that you will communicate with the consumer if you do not have a response by a certain date. Providing too short of a deadline, such as demanding a response within 24 hours may not be found to be reasonable when defending a FDCPA suit.

The only time continued communication with the consumer might be allowed is when they refuse to provide the name of their attorney. Our firm policy is, if they state they have an attorney, to request that they provide the attorney's name. If they still refuse to do so, we request they have their attorney contact us. If there is still no contact within a reasonable amount of time, it should not be a violation to assume they really don't have an attorney and contact them directly. Of course, it is very important that your file be carefully documented regarding all such contacts. All telephone calls must be carefully documented, including what both parties to the call said and that the debt collector provided the fair debt warning to the consumer.

DEALING WITH UNREPRESENTED PERSON

Rule 4.3., Dealing with Unrepresented Person, provides: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. A lawyer shall not give advice to such a person other than the advice to secure counsel, if the interests of such person are, or have a reasonable possibility of being, in conflict with the interests of the client.

An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

An attorney who represented the bankruptcy petitioner's creditor and failed to advise the pro se petitioner to obtain advice of an independent lawyer before giving her advice regarding her bankruptcy violated the disciplinary rule which prohibits an attorney, in dealing with a person who is not represented by counsel, from implying that lawyer is disinterested or from giving advice if there is conflict, where there was conflict of interest between creditor and petitioner, as attorney had filed suit against petitioner on his client's behalf and attorney did not explain this to petitioner. State ex rel. Oklahoma Bar Ass'n v. Berry, 969 P.2d 975 (OK 1998).

The Act contains a specific section regarding false or misleading representations. Section 1692e provides in part that a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.

Some attorneys in their validation notices and/or other collection letters make threats of certain specified legal action or paint pictures of doom and gloom to result from debtor's nonpayment. Such collection letters can run afoul of both Rule 4.3 and the FDCPA.

The consumer collection attorney must also understand that both Rule 4.3 and the FDCPA suggest and/or presume that the debtor is susceptible to "misunderstandings" and really is a "least sophisticated consumer."

Rule 4.3 suggests that the unrepresented consumer debtor may somehow misunderstand the role of the attorney consumer debt collector as that of being "disinterested in loyalties" or a "disinterested authority on the law."

The language "grace period about to expire" did not suggest to the least sophisticated consumer that he had less than 30 days to dispute the debt. In addition, stating that the consumer "may eliminate the possibility of additional costs" was "no threat whatsoever, false or otherwise." See Goldberg v. Transworld Systems, Inc., 164 F.3d 617 (2d Cir. 1998).

In evaluating the debt collector's conduct under the "unsophisticated" or "least sophisticated consumer" standard, the courts view such conduct objectively from the perspective of a consumer whose circumstances make him relatively more susceptible to harassment, oppression or abuse. Indeed, the debt collector's and the debtor's own respective individual perceptions of harm are irrelevant as the courts view the debt collector's conduct through the eyes of this theoretical "least sophisticated consumer," who according to various decisions are "uninformed, naive, trusting and below intelligence," "not a Philadelphia lawyer" or even an average everyday common consumer and are "closer to the bottom of the sophistication meter."

Therefore, in dealing with the "unsophisticated or least sophisticated" consumer debtor who is typically unrepresented, the attorney debt collector, while on the one hand under Rule 4.3 is prohibited from giving "advice," on the other hand is required by the FDCPA to provide the debtor certain "information or disclosures." For example, from an ethical standpoint, a debt collector's demand letter to an unrepresented party containing a detailed explanation of legal consequences of non payment constitutes giving advice on the law.

From the standpoint of the FDCPA, an attorney may not represent or imply that certain specific legal remedies specified in § 1692e(4) may result from nonpayment of a debt, unless each such remedy is both lawful and is actually intended to be taken. In Cacace v. Lucas, 775 F. Supp. 502, (D. Conn. 1990), the defendant attorney sent a demand letter to the plaintiff stating that:

"If litigation is started it can cause:-attachment of your real estate or checkbook - payment of the court costs - payment of the above creditors - reasonable attorney's fees, if permitted by contract or statute."

The court found that those statements were misleading because the start of litigation by itself cannot cause any of the effects stated in the letter. The court thus found the statements to be in violation of §1692e(4) which prohibits "the representation or implication of non-payment of any debt will result in...the seizure, garnishment, attachment or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action." Moreover, whether the inclusion of notice of contractually-allowed attorneys fees in the collection demand was misleading, when such fees only might be incurred in the future, was a question for the finder of fact.

In Blum v. Fisher and Fisher, 961 F. Supp. 1218, (N.D. Ill.1997), the court held that the statutory list of FDCPA deceptive debt collection practices is not exhaustive. A single act of deception is sufficient to trigger liability under the FDCPA. Inclusion in the debt collection letter of a note stating the consumer-mortgager might be able to continue living on mortgage property rent-free for seven months after foreclosure may have created a false or misleading impression which lulled the unsophisticated consumer into inaction. Inclusion in the debt collection letter of partial remedies available to debtor-mortgager may have created a false or misleading impression that the collection lawyer was looking out for the interests of the debtor and lulled the unsophisticated consumer into inaction.

RESPECT FOR RIGHTS OF THIRD PERSONS/HARASSMENT OPPRESSION AND ABUSE

Rule 4.4., Respect for Rights of Third Person, provides: In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons.

An attorney's filing of a parental rights termination petition after receiving an adverse ruling on similar petition in another county violated professional conduct rules prohibiting frivolous litigation and conduct prejudicial to the administration of justice. State ex rel. Oklahoma Bar Ass'n v. Patmon, 939 P.2d 1155 (OK 1997).

Rule 4.4 dovetails with § 1692d which provides in part that a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.

Although a debt collector's conduct may not fall under one of the six specific prohibitions, courts will examine the conduct to determine if it violates the general prohibition against harassment, oppression or abuse.

The case of United States of America v. Central Adjustment Bureau, Inc., 667 F. Supp. 370 (N.D. Texas 1986), contains a lengthy discussion of numerous activities, words and phrases which violate the Act. The defendant in that case violated almost every provision of the Act. The results included an injunction and a civil fine of $150,000.00. The government alleged and proved that the defendant and many of its employees consistently and repeatedly violated the Act. Without a doubt, the "F" word is a violation, and so are most of the four letter words you tell your children to never say. Some of the racial slurs included: "I don't know why they let people like you (blacks) go to school in the first place", "You people (blacks) think you can get a free ride in society", "You (blacks) call each other brother because you don't know who your father is", and "Don't put off payment until manana because isn't that what you people (Hispanics) do anyway, put off things until manana". Other terms and phrases found to be violations included: "bitch", "hell", "damn", "stupid", "idiot", "liar", "deadbeat", "crook", "pay this damn bill", "it's people like you that screw up this world because you don't pay your bills", "take her car", "serve an arrest warrant and arrest her at work and create a scene", and "low-down son of a bitch". The evidence even established a pattern of continuing the calls after the debts had been paid. The defendant made repeated phone calls to the same debtor, sometimes as many as 4-5 phone calls per day. In one instance, the collector called the consumer debtor at work 5 times in one day and then 3 times at home that same day. One of the consumer debtors testified that a collector yelled at her and claimed that he could cause her to lose her job at the bank. Another debtor testified that a collector claimed that she would be dragged to court like a common debtor and then stated "I don't know why they lent you the money anyway". Other consumer debtors testified to language such as "it was crooks and people like us that give credit a bad name", and then stated that Central Adjustment would put them both in jail and take their home and car. Another consumer debtor testified that a collector stated that "by the time I get finished with you are going to need three jobs". Another consumer debtor testified that she was threatened with the prospect of her daughter's college credits being revoked. Other factors the Court used in ordering the penalties included that the training of new collectors was nonexistent; supervisors engaged in the activities which violated the Act; supervisors condoned the actions by the employees; not a single employee was ever disciplined for violations; and violators were promoted.

In Rutyna v. Collection Account Terminal, Inc., 478 F. Supp. 980 (N.D. Ill. 1979) the Court was presented with a collection demand letter stating:

"You have shown that you are unwilling to work out a friendly settlement with us to clear the above debt.

Our field investigator has been instructed to make an investigation in your neighborhood and to personally call on your employer.

The immediate payment of the full amount, or a personal visit to this office, will spare you this embarrassment."

The Court held:

"Without doubt defendant's letter has the natural (and intended) consequence of harassing, oppressing, and abusing the recipient. The tone of the letter is one of intimidation, and was intended as such in order to effect collection. The threat of an investigation and resulting embarrassment to the alleged debtor is clear....Defendant's violation of § 1692d is clear."

In Rosa v. Gaynor, 784 F. Supp. 1, (D. Conn. 1989), the defendant Ohio

attorney sent a letter to a Connecticut debtor which stated in part:

"The above account has been referred for collection in full.

***

Otherwise, we may be forced to proceed with a lawsuit. After judgment, any remedy may be filed against you that is available to attorneys in your area. This may include garnishment, levy on real or personal property, or calling you into court for a debtor's examination."

The court entered summary judgment for the plaintiff, finding that the letter misrepresented the immediacy of litigation and that aside from the fact that Gaynor was not licensed to practice in Connecticut and therefore not authorized to file suit, the list of possible remedies was "particularly intimidating, and particularly extraneous for any purpose other than bullying plaintiff."

There is a distinction between advocacy for the client and vexatious practices of attorneys in debt collection. A Kansas attorney was ultimately suspended from practicing law, partly based on the following type of letters sent for collection purposes:

"OH THE JOY OF BEING SUED!!

______________________________

How do you explain to the neighbors and the kids when the Sheriff's car pulls up front and an officers hands you the summons?

OR, how do you explain a garnishment to the boss, and the other fellows at work??

I don't know, but I guess you do; at least you didn't bother to answer my letter. You do not need to send me your check immediately to pay your account because I am not going to bother you any more - - - but the Sheriff will.

Oh yes, I will see you in court.

You owe _____________ $___________________

PAY ME NOW!!!"

This communication not only would be considered unethical, but today would also certainly violate the FDCPA. The attorney was suspended for conduct involving deceit and misrepresentation which adversely reflected on the attorney's fitness to practice law. State v. Zeigler, 538 P.2d 643 (Kan. 1975).

SUPERVISING NONLAWYER STAFF/UNAUTHORIZED PRACTICE OF LAW

Rule 5.3., Responsibilities Regarding Nonlawyer Assistants, provides: With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

The lawyer must supervise work done by lay personnel as agents of the lawyer, and stands responsible for its product. State ex rel. Oklahoma Bar Ass'n v. Braswell, Okla., 663 P.2d 1228 (1983).

An attorney violated the rules requiring lawyers who directly supervise a nonlawyer to make reasonable efforts to ensure that nonlawyer's conduct is compatible with the lawyer's professional obligation, and prohibited inducing another to violate the rules of professional conduct and assist a person in the unauthorized practice of law by permitting her secretary to file a misleading motion. State ex rel. Oklahoma Bar Ass'n v. Patmon, Okla., 939 P.2d 1155 (1997).

Most collection law firms rely heavily on the assistance of non-attorneys such as collectors, skip tracers, and paralegals in both their litigation and non-litigation collection activities. Therefore, all non-attorneys in a firm must be aware of and follow the applicable rules of professional conduct in their debt collection activities to avoid ethical ramifications for the partners and/or supervising attorneys within the firm.

Moreover, with regard to non-attorney employee debt collectors and the FDCPA, the doctrine of respondeat superior applies. Therefore, an FDCPA violation or alleged violation by a non-attorney debt collector (collector, paralegal, secretary, skip tracer, etc.) employed by a law firm can easily result in a suit or claim against both the individual non-attorney debt collector and the law firm entity employer.

The furnishing of deceptive forms under §1692j creates the same civil liability as other FDCPA violations. Once again, under this section, an attorney must never provide letterhead to his or her creditor client so that the client can make it appear that a debt collection letter has been sent by the attorney's office! This could be a violation of the Rules which prohibit an attorney from assisting a non-member of the bar in the unauthorized practice of law.

Generally, the courts in the past had limited the bona fide error defense to clerical mistakes. Now, mistakes of law may qualify as bona fide errors under the FDCPA in certain circumstances. Taylor v. Luper, 74 F. Supp. 2d 761 (S.D. Ohio 1999). The court found that a bona fide error defense applied to a mistake of law. The reason was that there was a division in the case law on the ability to collect fees in such a case. The Court seemed to base its decision on a policy that the ethical rules can not require an attorney to zealously advocate for his client, then place him in violation of the FDCPA for doing so. Even though the Court's ultimate decision was that the fees were not recoverable, the attorney did not commit a fair debt violation by putting forth this argument for his client when the decisions were divided.

Rule 5.5., Unauthorized Practice of Law, provides: A lawyer shall not:

(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. Likewise, it does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in governing agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.

REASONABLENESS OF FEES

Rule 1.5 provides: (a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, whether the client is to be liable for reimbursement of litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery showing the remittance to the client and the method of determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the result obtained, other than actions to collect past due alimony or child support; or

(2) a contingent fee for representing a defendant in a criminal case.

(e) A division of fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;

(2) the client is advised of and does not object to the participation of all of the lawyers involved; and

(3) the total fee is reasonable.

When handling a debt collection matter, the attorney should promptly establish an understanding as to the fee with the client. If hourly, the rate can be stated. A fixed amount or estimated amount can also be stated. While a written contract for the attorney's fee reduces the possibility of any misunderstanding in any case, note that contingent fee contracts are required to be in writing. The reasonableness component prohibits unreasonably high fees, and all fees charged are subject to Rule 1.1 - that the attorney be competent in the area of representation.

CANDOR WITH THE TRIBUNAL

Rule 3.3 provides: (a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take the following remedial measures:

(A) when a client has offered false evidence, the lawyer shall promptly call upon the client to rectify the same; if the client refuses or is unable to do so the lawyer shall promptly reveal its false character to the tribunal; or

(B) when a person other than a client has offered false evidence, the lawyer shall promptly reveal its false character to the tribunal.

(b) The duties stated in paragraph (a) are continuing, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Normally, the attorney is responsible for preparation of pleadings and other litigation documents, but does not necessarily have personal knowledge of the matters contained therein, which are based on the knowledge of the client or someone on the client's behalf. If the attorney makes an assertion in an affidavit or statement in open court, it may properly be made only if the attorney either knows the statement to be true or believes it is true, based on reasonably diligent inquiry. In addition, it is possible that failing to disclose can be equivalent to an affirmative misrepresentation. The attorney is required by Rule 1.2(c) not to counsel a client to commit, or assist the client in committing, a fraud. If a person who is not the client provides false evidence to the attorney, the attorney must refuse to offer it even if the client wishes to do so.

Where conflict arises is when false evidence is offered by the client. In that case, the attorney has a duty to keep the client's information confidential but also has a duty of candor to the court. The best method of proceeding would be for the attorney first to attempt to persuade the client that the evidence should not be offered or if it already has, to disclose that it was false. If that is ineffective, the lawyer must take reasonable remedial measures.

Another issue is presented in ex parte proceedings, in which the opposing party has no opportunity to present its position. In that case, the attorney should disclose any material facts know to the attorney and which the attorney believes are necessary to an informed decision by the court. In State ex rel. Oklahoma Bar Ass'n. v. Todd, 833 P.2d 260 (Okla. 1992), it was deemed appropriate for the attorney to receive a six-month suspension because of failure to inform the judge at a default judgment hearing that the client had been reimbursed for the amount of actual damages. In that case, the attorney had no prior conduct warranting discipline and had others to vouch for his general honesty.

ETHICAL DILEMMA EASILY AVOIDED

In Maryland, it is unethical for a lawyer to microwave a cat. The General Counsel for the Oklahoma Bar Association has suggested that it would probably also be unethical in Oklahoma.

In the case of Attorney Grievance Commission of Maryland v. Protokowicz, 619 A.2d 100, (Md. 1993), the attorney was representing someone in a divorce. During the divorce, the attorney separated from his wife and moved in with his client. The client's divorce was quite acrimonious. During one evening, both attorney and client became intoxicated and went to the client's spouse's home to search for some papers while the spouse was out of town. The papers they intended to find and take had evidentiary value in the pending divorce action. They broke into the home, searched it, and killed the family kitten in the microwave, leaving it on the kitchen floor for the spouse and children to find when they returned home. The attorney pled guilty to two misdemeanors: breaking and entering a dwelling house and cruelty to animals, but claimed he "inadvertently" started the microwave with the kitten in it. The attorney was suspended indefinitely, with the right to apply for reinstatement not less than one year from the date of the order.

In another case, an attorney was charged with using a means which had no substantial purpose other than to embarrass, delay, or burden a third person during his representation of a client. In this case, In the Matter of Robert A. Burns, 657 N.E. 2d 738, the Respondent had been representing a client in a lawsuit against a former attorney who was represented by counsel. The former attorney had engaged in extreme provocations, including ongoing intimidation and reprehensible behavior toward the Respondent's client. During a recess in a hearing, the Respondent made comments directly to the former attorney defendant. The comments included remarks such as "if you file anything with the bankruptcy court against me, I'll be asking for attorney fees and punitive damages"; " . . the next time you write my client a letter, I'm not going to file anything with the Court, I'm going to come over to your house and I'm going to hit you in the head with a baseball bat"; ". . . that's my promise to you, right here on the record. I'm going to come over to your house and beat you half to death with a baseball bat."

Afterward, Respondent told the former attorney not to communicate directly with his client, and they had the following exchange, which the Respondent was aware was being recorded:

"Burns: You'll communicate through me or you won't communicate at all. Do you understand me?

Former attorney: Are you threatening me physically?

Burns: Oh, you've got it. You are exactly correct. I'm threatening you physically. You'll either follow the rules or you'll have to deal with me. Do you understand? And if I have to tell you that again, you're going to go out of here in a hospital van. Don't press your luck, . . . Don't press you luck. Because you're not going to like me if I'm angry. You won't walk away from it, I guarantee you. Don't look grave to me, because if you do, you're a . . (obscenity). I swear to God.

Former attorney: You'd better kill me.

Burns: Oh, believe me, I will. Believe me, I will. And I will get a medal for it."

The Supreme Court of Indiana found that the aggressive nature of the comments and acts of the Respondent went clearly beyond acceptable standards of professionalism, and suspended him from the practice of law for thirty days.

Two other cases demonstrate that inappropriate sexual behavior with a client can also cause a problem with your license to practice law. In the case of Attorney Grievance Commission of Maryland v. Goldsborough, 624 A.2d 503 (Md. 1993), the Respondent was retained in a personal injury case by a female client. On more than one occasion, the attorney would pull the client across his knee and spank her lightly several times. During the investigation, it was learned that the Respondent had engaged in similar inappropriate behavior with another client, and also that one of his secretaries was spanked by him about once a week. The Respondent then made misstatements of material fact during the investigation by the Bar. The Respondent argued that certain of the disciplinary rules were unconstitutional. Finally, he argued as a mitigating factor that all of the media attention had already ruined his reputation - another argument not bought by the Court of Appeals. Part of the reason for the discipline was Respondent's failure to ever realize his behavior was wrong. The Court looked at the Respondent's excellent reputation as a lawyer, but stated that his conduct exemplified the arrogance which frequently underlies sexual harassment and abuse. The Respondent was indefinitely suspended from practicing law, with the ability to apply for reinstatement no earlier than two years from the date of the opinion, and only if he could persuade the Court the conduct which resulted in suspension would not be repeated.

Another case showed the attorney to be a slow learner. In Iowa Supreme Court Board of Professional Ethics and Conduct v. Ralph William Hill, 540 N.W. 2d 43 (Iowa, 1995), the attorney first had his license to practice law suspended for three months because he had sexual relations with a client in his office. Only a year later, he was disciplined for neglecting an appeal. In 1992 he made sexual advances toward another client, and this time was suspended for 12 months. His defense - he had been a clergyman for 18 years, and the ministerial experience made him a "hands-on" counselor! The Court stated that any future conduct of this nature by the attorney would surely result in a revocation of his license, and that if he wished to continue to be a member of the legal profession he needed to be a "hands-off" counselor.

When an attorney who has been disbarred applies for reinstatement, the Courts look not only to conduct since the disbarment, but also to the conduct that caused the disbarment, as the Oklahoma Supreme Court did in denying such an application in In the Matter of Reinstatement of Scott William Katz, 907 P.2d 1029 (Okla. 1995). One of the things the Court looked at was that the comments made by Katz at the petition hearing showed no recognition by Katz that what he had done merited discipline. Also, after disbarment, he had continued a pattern of harassment of lawyers and judges by filing multiple complaints, and had pled nolo contendere to a charge of practicing law without a license. As part of the hearing, more than a hundred letters, pleadings, motions, and affidavit written by Katz were introduced. Most contained threats against judges and other attorneys, some even asking for criminal charges to be filed against other attorneys and judges. An employee for the Florida Bar Association testified Katz had filed so many bar complaints that they had to implement special proceedings to handle the filings. Katz was sanctioned by the federal courts for filing "scandalous, libelous, and impertinent matters." At the hearing, he introduced what he claimed was a "letter of recommendation", but the text of the letter was: "Thank you for the invitation to join you at Ben's for dinner on the 3rd. I regret, however, that due to a previous commitment I must decline your kind offer. Thanks again for thinking of me."

In addition, Katz had left a prior reinstatement hearing during a break and did not return, claiming he had a conversation with one of the investigators, who denied that conversation. The panel denied reinstatement based on a finding that Katz had "a history of being absolutely vitriolic in his treatment of judges before whom he practiced in Florida", and that the multitudes of lawsuits he had been involved in was "scandalous". The Court denied reinstatement and commended that Katz' "disrespect for the legal system is apparent". At the hearing on assessment of costs, Katz contested costs of the transcript and depositions, assert long distance charges were "bogus," that copying receipts were unverified, and that the law did not require him to pay for publication expenses. The costs were, in total assessed against Katz and ordered paid.

All of these cases demonstrate fairly extreme behavior on the part of the attorneys disciplined therein. Most of these ethical dilemma can easily be avoided by basic common sense. Also, we would like to give credit to Dan Murdock and the General Counsel's office of the Oklahoma Bar Association for providing cases referenced in this section.

FRIVOLOUS FILINGS BY THE DEBTOR

Occasionally the debt collector attorney will run up against a "least sophisticated consumer" who is willing to work really hard to confuse the issues. In a case in the District Court of Cleveland County, Oklahoma, one of these cases surfaced. It was a simple foreclosure action. The debtors filed multiple lengthy pleadings, including a Motion to Strike, with allegations therein about the FDCPA. It is attached for your reading pleasure. Finally, the Court granted a Permanent Injunction against the debtors, finding, in part, that the debtors had filed unauthorized and fictitious documents in an attempt to cancel the debt; that they prepared documents to create a fictitious debt in an amount in excess of Forty Million Dollars, then declared a default on that fictitious debt, harassed the creditor and threatened to file a UCC Financing Statement and sell the fictitious debt to unsuspecting third parties; and engaged in a sham legal process. The Permanent Injunction is also attached. The docket sheet alone was 12 pages long, and the court files were about four inches thick due to all the filings, appeals, and even maritime pleadings filed by the debtors.

The lesson here is that you never know what you might be getting into as a debt collector, and that you should be prepared for anything and everything in response to a debt collection lawsuit.

Consumer Debt Collection and the FDCPA