Yesterday I commented on a recent decision from the Eleventh Circuit Court of Appeals, Miljkovic v. Shafritz and Dinkin, P.A. et al., noting it spelled trouble for attorneys engaged in debt collection. Miljkovic incorrectly construes the Fair Debt Collection Practices Act and its legislative history as well as two U.S. Supreme Court cases, to arrive at the mistaken conclusion that attorney litigation activity is regulated by the FDCPA, except for one minor exemption. Hours later, a trial court sitting in the Eleventh Circuit handed down a decision in CFPB v. Frederick J. Hanna & Associates, P.C., et al., which allows the Consumer Financial Protection…
Posts published in “Ethics”
Ethical Issues in Consumer Financial Services Litigation
The Annual Consumer Financial Services Conference organized by The Conference on Consumer Finance Law, and co-sponsored by the Loyola University Chicago School of Law, Maurice Wutscher and other law firms, will be held Nov. 19-20, in Chicago. The conference will include presentations by some 45 of the best and brightest speakers and practitioners in the country, on the following topics: TCPA: The New FCC Order Fair Lending and HMDA CFPB Administrative Appeals Arbitration Developments UDAAP Cybersecurity CFPB Regulation of Non-Bank Auto Finance TRID: Issues and Implementation Flood and Lender-Placed Insurance Mortgage Servicing and Bankruptcy State Regulation of Debt Collection/Debt Buyers Credit…
For several years my attorney ethics presentations and papers have emphasized that lawyer supervision and particularly non-lawyer supervision, in my experience, is an area of concern for attorneys who practice debt collection law. A recent opinion from New York’s Appellate Division, Second Department, concerning the conduct of a debt collection law firm provides an example of the harm that may result from less than robust supervision of attorneys and non-attorney staff. Attorneys who practice debt collection are probably the most “compliance-aware” branch of lawyers today. They are routinely subject to client audits of their practices’ operations and financial records. Some even have ISO…
If you are a member of the American Bar Association, check out its CLE Premier Speaker Series at www.ambar.org/freecle. Every month the series provides ABA members a free CLE seminar. This Monday has a pretty special presentation Ethical Tools to Diffuse Incivility. According to the registration page, the ABA is requesting 1.5 of Ethics CLE Credits in many states. It’s a great topic and a good way to fulfill your Ethics CLE.
Last August the American Bar Association adopted several amendments to its Model Rules of Professional Conduct. Several of these changes would impact attorneys engaged in credit and collection law, if adopted in their jurisdictions. I’ve prepared the attached whitepaper outlining the amendments. More information on the ABA’s 20/20 Commission and other amendments to the Model Rules of Professional Conduct adopted this month are available here.
Thanks to all who attended my November 9 presentation in New York on Ethics and Consumer Financial Services Law. You can obtain a copy of the powerpoint here: Ethics6. The handout can be accessed here: Avoiding ethical pitfalls 20121105.
I ran across this post at the State Bar of Michigan Blog (http://sbmblog.typepad.com). It is the first state bar organization to mention the regulation of attorneys by CFPB fiat. There you have it — go Michigan, you’re #1! You can read it for yourself here. Let me know if your State or local bar has weighed in. wellesenterprises
A City of New York regulation that sought to regulate attorneys who practiced debt collection law, was struck down Wednesday by a Federal Court sitting in the Eastern District of New York because it violated New York’s Constitutional separation of powers. In Eric Berman, P.C. v. City of New York the court found that New York City had exceeded its authority under New York law by enacting a regulation which dictated how licensed New York attorneys may provided debt collection legal services. The regulation attempted to distinguish attorneys who regularly send debt collection letters — what it described as attorneys who “regularly…
While the use of form pleadings is not unusual, it becomes dicey when attorneys seek fees from their use of forms as “original work.” But when you use a fee petition that itself is a form pleading and claim it too is “original work,” you are going to draw the ire of several federal district court judges in the Third Circuit. Yesterday, one plaintiff’s firm was front and center for a lesson on the use and abuse of form pleadings, drawing an admonishment from a Federal Judge sitting in the Eastern District of Pennsylvania that “it may not continue with…
When a law firm uses its letterhead to collect debt for its client, it “cannot disclaim the fact that he or she is engaging in the practice of law when using law firm letterhead,” states a recent joint opinion by the New Jersey Committee on the Unauthorized Practice of Law and the Advisory Committee on Professional Ethics. 1 Rejects Lawyers’ Use of Greco Disclaimers The Opinion directly contradicts the Second Circuit Court of Appeals’ decision in Greco v. Trauner, Cohen & Thomas, LLP.2 In Greco, the court explained that: attorneys can participate in debt collection in any number of ways,…
Chris Christie came into office on a promise to take the NJ Supreme Court off “its pedestal” and place it on a equal footing with the legislative and executive branches. The Star Ledger reports on the devisiveness that has permeated relations between NJ’s Governor and the Courts and its impact upon NJ’s legal system. You can read the article here.
Yesterday the Consumer Financial Protection Bureau (“CFPB”) released its proposed rule “Defining Larger Participants in Certain Consumer Financial Product and Service Market.” The proposed rule calls for the CFPB to regulate certain attorneys to protect the public welfare. Why? Becuase, Collection attorneys and law firms may collect through litigation (i.e., filing suit against consumers to collect debt). How dare those attorneys file complaints and litigate lawsuits. You can bet I’ll have a little more on the topic in a few days.