Collection attorneys and the credit system

The availability of affordable credit is based on an important concept: credit is a promise to repay. In a perfect world, the credit “ecosystem” would only consist of creditors and consumers who repay their obligations.  Perfect balance.  However, when credit is not repaid, due to unforeseen hardships or other reasons, it results in higher credit costs for everyone, including those who paid their bills.  This is an imbalance that is corrected, in part, by bringing attorneys into the ecosystem.
 
Attorneys enter the system when people who are owed money need to collect it through the court system.  The court system is a level playing field where everyone gets a chance to “have their say” and the outcome is decided by an impartial judge.  Sometimes the judge decides for the creditor, and other times for the consumer, but in every case all parties are accountable, including attorneys.
 
Attorneys have to be licensed by their state bar, receive continuing legal education, obey the rules of professional conduct and follow federal, state and local laws and rules.  At the same time, attorneys have an important duty toward their clients.  “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system” – preamble, Model Rules of Professional Conduct.  The balance of the ecosystem is upset when attorneys lose their ability to effectively represent their clients.
 
{mosads}The Dodd-Frank Act of 2010 altered the framework of ecosystem.  New rules, supervision and compliance directives have created a ripple effect from Wall Street to Main Street that is putting small law firms out of business.  In contrast to “too big to fail,” these firms are “too small to succeed.” Attorneys, traditionally regulated by the judiciary, are now subject to regulators’ demands to turn over their clients’ privileged information.  Legal strategies and advice are no longer sacrosanct.  Meanwhile, courts struggle with the issue of how the federal laws apply to attorney conduct in the courtroom, and the result has been a patchwork of conflicting outcomes.  Again, the ecosystem is in need of correction.  

Restoring balance may come soon in the form of legislation.  NARCA applauds Representatives Perlmutter (D-Colo.) and Bachus (R-Ala.), both senior members of the House Financial Services Committee, for their recent introduction of H.R. 2892, the Fair Debt Collection Practices Technical Clarification Act of 2013.  This bipartisan legislation simply excludes attorneys from the Fair Debt Collection Practices Act (FDCPA) when they are engaged in litigation activities that fall under supervision of the court.  It is not an outright “carte blanche” exemption for attorneys.  The FDCPA still applies when attorneys engage in traditional collection activities, like calling or writing to consumers. This approach is consistent with the intent behind the FDCPA:
 
“The Fair Debt Collection Practices Act regulates debt collection, not the practice of law. Congress repealed the attorney exemption to the act, not because of attorneys’ conduct in the courtroom, but because of their conduct in the backroom. . . Only collection activities, not legal activities, are covered by the act. . . Actions which can only be taken by those possessing a license to practice law are outside the scope of the act,”  stated Rep. Frank Annunzio (D-Ill.), Congressional Record, 1986.
 
It is significant that all attorneys, regardless of their area of practice, must maintain bar licensure through the judiciary, receive continuing legal education, adhere to the rules of professional conduct and state and local rules of procedure and conduct themselves in a manner consistent with their responsibilities as officers of the court.  The regulation of attorneys engaged in the practice of law properly rests with the judiciary rather than the legislature.
 
Freedman is president of the National Association of Retail Collection Attorneys, a nationwide trade association comprised of over 700 debt collection law firms whose members are committed to maintaining the highest standards of ethical conduct to ensure that consumers are treated fairly and respectfully.