Is a Lawyer a Debt Collector, and Should You Sue the Lawyer If You Can When Sued For Debt?

As many people know, original creditors are treated differently than debt collectors. The Fair Debt Collection Practices Act (FDCPA) applies, by and large, just to debt collectors and gives original creditors a relatively free ride. So where do lawyers fit in? And should you sue them if you can?

Lawyers Can Be Debt Collectors

Lawyers are not protected under the FDCPA. They can be, and as a practical matter the one suing you probably is, a debt collector. However, if the lawyer is representing an original creditor and acting in its name, he will be treated as an original creditor. If you are being sued by a debt collector, chances are good that the lawyer is also a debt collector, you can pretty much count on it. He can be sued for things he does wrong.

Before you go suing the lawyer, though, there are two things you should know: one has to do with your legal rights, and the other is more of a practical consideration.

Respondeat Superior

There is a concept in the law that makes people responsible for the things people who are acting as their agents do. This is known as “respondeat superior.” With a few exceptions, an employer is liable for the actions of an employee. That means a client is responsible for the actions of his or her lawyer. In general, this means that a debt collector is responsible for anything that its attorney does. Or to put it differently, you don’t need to sue the lawyer to attack the debt collector.

Should you do it anyway, though?

Tactical Considerations

Whether or not it makes sense to sue the lawyer is not an easy decision. I know you take the lawsuit personally-it represents a large threat to your personal and financial well-being. Naturally you want to strike back, personally, at the human person you see on the other side. The question is, though, is this the decision most likely to give you the most benefit? Is it most likely to cause them to drop the case and leave you alone?

I don’t know. Most of the time, the lawyers suing you regard your case from a purely business perspective attempting to maximize their profit and minimize the cost of suing you. And much of my approach to debt litigation has been to suggest that people exploit this business perspective by making your case unprofitable. That is relatively easy to do, although of course this isn’t always enough. If you sue the lawyer, you change her motivation. Then, instead of it being a merely business decision, you increase the personal stakes for the lawyer. It makes things unpleasant for the lawyer, no doubt, but it also motivates them to work much harder in many cases. You have multiplied your enemies.

A Final Legal Consideration

If you are suing the lawyer, your claim is not exactly a “counterclaim.” Instead, what you would probably do is counterclaim under the FDCPA against the debt collector and bring a third-party suit (within the same lawsuit) against the lawyer. The pleading is just called a third-party suit and names the lawyer as third-party defendant and states your claim in the same way the counterclaim did. Then the lawyer has to be served a summons. None of this is specially difficult, but it is time-consuming. Given the questionable benefit of suing the lawyer, I rarely thought it was worth spending the extra time. You’ll have to decide what makes sense to do in your case.

Book Review – The Lawyer’s Song: Navigating the Legal Wilderness

In his 2010 book entitled “The Lawyer’s Song: Navigating the Legal Wilderness” (“the Song”), Hugh Duvall sings a heartfelt tune about what it means – and what it ought to mean – to be a lawyer. Written from the perspective of a lawyer-litigator, the Song is intended to reach two main audiences. For non-lawyers, the Song is meant to provide “a window into the complex intellectual, emotional and ethical frontier of [the legal] profession.” For lawyers, it is an affirmation of all that is good in the legal profession – a melody meant to “charge us up and to speed us on our way.” Mr. Duvall performs to both audiences with admirable aplomb.

A quick and engaging read, the Song pursues its purpose in a refreshingly creative style. Each chapter (or verse) focuses on a key theme of legal practice; and each is presented in two parts. The first is a vignette of a story set in 1842 Oregon in which a woman hires a guide to lead her through the backcountry in search of her husband. With the chapter’s theme as a springboard, the second part dives into a non-fictitious account of the various ways in which the issues presented in the vignette affect the day-to-day lives of present-day lawyers.

Within its verses, the Song sings of the hard realities of legal practice. These include the risk and challenge of law school, the long lonely hours of legal practice, the anguish of a case fought and lost, and the betrayal of a thankless client. These darker notes are important for any law student or aspiring lawyer to hear – especially one bedazzled by the gloss of legal practice as it appears on the big screen.

Floating above the bass register are the treble notes of the more ennobling aspects of legal practice. These include the sanctity of the lawyer-client relationship, the humility of faithful service, the decorum of loyalty, and the thrill of victory. These higher notes give the Song a more edifying tenor for those who are uncertain or otherwise cynical about the inherent dignity of a legal career, or those otherwise in need of affirmation.

As much as the Song serves to demystify some of the realities of legal practice, at the same time it also serves to enshroud it in a cloud of romanticism. For example, laced into the narrative are some pretty rosy assumptions about what it is that drives people to pursue a career in law. As Mr. Duvall puts it:

Ours is a profession to which we were called. We were always aware of its presence. The feeling. The thought. The notion that we would become lawyers…It was one’s essence. One’s being. There was no real choice involved at all.

It would be nice if this were true. But the reality is that all sorts of people go to law school (and eventually become lawyers) for far lesser reasons. Some go to law school to please their parents. Others go because they want money, security and prestige. Still others go because they don’t know what else to do with themselves. Yet once on the conveyor belt, the pressure to identify as a lawyer gets stronger and stronger. Years later, well into their careers, all too many wake up and realize that what they are doing is not their calling – that this is not their song.

The romanticism of the Song also surfaces in other verses. For example, in the verse about “passion”, Mr. Duvall notes that “[w]e cannot meet the rigorous challenges we regularly confront without passion for our work.” Lawyers, just like anybody else, are much better equipped to do their jobs when fuelled by passion. Yet the truth is that on the whole lawyers aren’t exactly known for their passion for their work. In fact, many plod their weary ways through their entire careers without much enthusiasm for their jobs at all.

While Mr. Duvall may be romantic, he is not blind. As he notes, many lawyers do such things as “take shortcuts to the prejudice of the client”, “make as much money as possible”, “gain attention for personal aggrandizement”, and “run a business as opposed to a law practice.” It is clear that Mr. Duvall is fully aware that such “imposters” exist among our ranks; the simple fact of the matter is that they are not part of his intended audience.

While such “imposters” may well not deserve admission to Mr. Duvall’s performance, I contend that they constitute a third audience that must not only attend, but also listen extra carefully. For it is to this audience that the Song carries a special – albeit implicit – message. And that message is this:

If you are not in harmony with the basic values of your profession, you must do something about it or your career and life will ever be dissonant.

In listening to the Song, should anyone find themselves scoffing or otherwise rolling their eyes in cynicism at its lyrics, then it may well be that they belong to this third audience. Should they recognize the special message the Song has for them, and should they be inspired to take corrective action, Mr. Duvall will have truly outdone himself.

Bravo, Mr. Duvall!

Productivity Profiles – The Lawyer

People are productive in many ways. There are a few — what I would call archetype productive — roles that are generic and performed by anyone without having the archetypical background. Think, for example about the lawyer. We are all at one or other moments in our lives a lawyer.

The term lawyer has a general use, in practice the activities of a lawyer is split up into two “careers;” that of the barrister and the solicitor.

“Solicitors have more direct contact with the clients, whereas barristers often only become involved in a case once advocacy before a court is needed by the client.” (Wikipedia).

This difference can be compared with that of the medical specialist and the more general physician “… a solicitor, like a general practitioner is the regular point of contact for a client, who will only be referred to a barrister (or … a consultant) for specialist advisory or advocacy services. … barristers tend to be instructed in complex litigation and in certain other specialist fields.” (wikipedia).

The difference in focus will bring a difference in productivity. The Solicitor operates more as a client relation manager. The barrister is the one involved in the plea and engaged in the process of convincing.

In business, the lawyers type of productivity is visible in a few situations, like that during discussions for example about a business case. “a devil’s advocate” can be anyone who pleas in favor or against (criticizes) a decision in order to assess the risk, impact or weakness of the decision to be taken.

Often, as lawyers are trained and educated in the world of language and where language is their main tool, lawyers are very skilled in presentation.
We only have to think about the recent democratic elections which both candidates having a background in law.

“…Rodham … specialized in patent infringement and intellectual property law,while also working pro bono in child advocacy; she rarely performed litigation work in court.” (wikipedia – Hillary Clinton)

“Obama taught constitutional law… worked as an associate attorney … worked on cases where the firm represented community organizers, pursued discrimination claims, and on voting rights cases. He also spent time on real estate transactions, filing incorporation papers and defending clients against minor lawsuits.” (wikipedia – Barack Obama)

From the democratic elections it is hard not to remember the archetypical productive roles of both Hillary and Obama, both with a background in law and both practising the productive role of the lawyer: which is to plea for their case in order to attract the public (vote or attention).

This is what people do when being productive, it is one of the most important roles. Whether in the office or at home.

Think about it.

H.J.B.