"So You Got My Letter": A Small Businessman's Guide To Dealing With Obnoxious Letters From Lawyers

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29 Responses

  1. Ken says:

    Excellent advice throughout. My "shut the hell up" posts apply with equal force to civil situations.

    With respect to point one, I think that the "what's all this about" is not necessarily to be taken as a literal statement that the person has not read your letter. It's more of an opening rhetorical device by a person who is accustomed to dealing with disputes and problems by trying to talk his way out of them. I encounter it with clients all the time — from reasonably reputable businessmen to career con men, they think they can talk their way out of it, but focus on the potential persuasive impact of their words, not on their probative impact in a lawsuit or prosecution against them. (Hence the recent client who, after hiring us, went to the police station to sign for some property, fell victim to a detective saying "Gee, you look like an upstanding citizen, why are you here?" trick, and talked to the detective for two hours.)

    Second: thank God you're back. The natives were getting restless.

  2. Jim Clay says:

    Assuming that the neurosurgeon actually was in the right, isn't it an indication that our system is fundamentally FUBAR that having a lawyer matters more than being in the right?

  3. Patrick says:

    Well Jim, my client firmly believed that the neurosurgeon was in the wrong. All I did was help him to explain why.

  4. TJIC says:

    Great post.

    Especially loved #10.

    I got my first demand letter 8 or so years back, and it freaked me out for weeks.

    It took a while to realize that letters are worth, approximately, the paper they're written on.

  5. Paul Baxter says:

    My small personal story. I once got "the letter". It wasn't really "the letter", though. It was "a letter" from a customer who was convinced that I had damaged her property through negligence of some sort. The letter contained some vague threats of a vaguely legal nature. Between the letter and my own experience of talking with the customer I knew two things: she was a bit crazy and she was poor.

    Though my situation was a bit different than the plumber's, what I did was call a lawyer who I knew personally and ask him if he would be willing to give me some advice over a dinner that I would pay for. He assured me that he would be happy to since during the day he had to give advice to people he didn't even like for minimal compensation.

    The result was that he advised me to ignore the letter until such time as the other party actually did something. Worked out pretty well for me.

  6. Piper says:

    I'd definitely say that #10 is easier said than done. Especially if you haven't gone through 1-9 yet. Thanks Patrick.

  7. Ken says:

    One of the reasons #10 is so key is that failure to obey #10 generally makes you violate #1-#9.

  8. Charles says:

    Paul Baxter –

    Your attorney advised you to go about your life as normal because you received a letter from a whiny customer. Greg received a letter, on letterhead, from an attorney purporting to represent an insurance company seeking six figures in damages. If you had brought that letter to your friend, he'd have pulled out his Rolodex and referred you to a lawyer prepared to respond formally to that letter.

  9. d-day says:

    I’ve never “lost” a case, for the plaintiff or the defendant, in which I faced a layperson on the other side.

    Me too.

    (“Losing” is a relative term: every time I litigate against laypeople, I feel like a loser because it’s like beating up a twelve year old.)

    SUPER me too. Ugh.

  10. Paul Baxter says:

    Charles-
    I'm sure you're right. My only real point was that I sought legal advice when faced with a potential legal problem.

  11. anonymouse says:

    Patrick – I am aware of and understand your obligation to diligently serve your client, but despite that knowledge, I am intrigued by my visceral reaction to a post that clearly showed that you were aware that Greg was potentially hanging himself, but took advantage by allowing it to happen and in fact encouraged it by stalling and giving him more time to communicate damaging information.

    My thought was that rather than take advantage of Greg and write this post afterward, could you not have jumped straight to #8 (kudos for being kind enough to tell him that his insurance company should be dealing with this) and hung up as quickly as possible? Even though "the right thing" with respect to your client was to act exactly as you did and extract as much information as possible, it does fit with the idea that "you don't have to be an asshole to practice law, but it helps".

    To be clear, I don't believe that to be the case in general and specifically not for the lawyers who blog here. I also expect that you would have risked discipline for an ethics violation if you didn't act as you did, and from a business perspective, BigState would probably look for new representation if you consistently advised opposing parties to STFU for their own protection.

    BTW, I'm going to assume that you realized posting this could make you look like an asshole, and accordingly I'm impressed that you were willing to do so in the interests of educating your readers.

    Perhaps you could expand on the ethics issue, for the further benefit of laypeople like myself: how does your ethical obligation to your client specifically preclude being a nice guy in this situation?

  12. Patrick says:

    anonymous, the answer to each of your questions (all of which distill to "Is it ever acceptable to take advantage of a mark?"), is "It depends."

    As for looking like an asshole, what makes you think I'm not an asshole?

  13. Matt says:

    Were I Patrick's client in this situation, I certainly wouldn't want him to tell the other party to shut up for his own benefit. My reaction would be along the lines of "What? You gave _free legal advice_ to someone whose interests in this matter are _antithetical to mine_, while _I_ am the one paying you?"

    Would I have legally-valid cause for a formal complaint on conflict-of-interest grounds? I don't know…I'm not a lawyer. But I'd regard myself as having morally-valid cause for, at the very least, taking all future business elsewhere. And I'd at least ask my _new_ lawyer whether my old one had acted in a way that was legally actionable.

    Lawyers don't have to be assholes. But when they're acting in their official capacities, on behalf of clients, they sometimes have to do things that would, if done on their own behalf, make them seem like assholes. The common rules of civil society require that, on occasion, we cede ground and act against our own immediate best interests. We do this all the time, in minor matters, and hardly even notice, because it's always our own choice to do so. But a lawyer acting on behalf of a client doesn't have the same right, because the interest he'd be giving up isn't rightfully his to give.

    Just like when your accountant gives 10% of his own money to charity, it's generosity, while if he gave 10% of your money to charity without you specifically ordering him to, it'd be embezzlement.

    But our instincts are still wired to hear a story like this and think "asshole". Which is another of the ever-growing list of reasons I'm glad I'm not a lawyer.

  14. anonymouse says:

    Patrick – Sorry if I've offended you by suggesting that you're not an asshole. ;-)

    Why don't I think so? Probably just because it's human nature to give the benefit of the doubt to people you agree with, and in general I share the opinions in your posts and comments.

    Mostly, though, because a full-bore asshole wouldn't take the time to write a longish blog post giving free advice to potential marks.

  15. anonymouse says:

    Matt – I am on board with the premise that I wouldn't want my lawyer helping the other side, but I remain curious as to how much of the decision is this commercial consideration (people won't hire me if I do this) and how much is legal obligation. That's brought into sharper contrast by Patrick's post today regarding
    Kirsten Powers throwing Anthony Weiner to the lions: while Greg isn't a friend, Patrick does acknowledge that he seemed to be a nice guy and that he (almost) felt sorry for him.

  16. Scott Jacobs says:

    Probably just because it’s human nature to give the benefit of the doubt to people you agree with

    Actually, that sounds like how I judge whether someone IS an asshole – agreeing with me tends to win you points towards being one.

    I hardly consider it a bad thing, though.

  17. Dody says:

    Oh dear. I'm afraid I will offend you. I love lawyers. They are the best type of friends to have. I won't say I have sued and won a lot of people. No, that would be false. I will say I have successfully defended myself in a couple cases, until…here's the real clincher, I could afford an attorney.

    The only case I have successfully won on my own involved an apartment. I was being evicted. I used every bit of brain power I had to find out what I could do to get more time…so I had money to move into another apartment. I don't know how I did it… I am not that bright honestly. May be my landlord's attorney was having a bad day. Maybe he felt sorry for me. Anyway, I ended up with 3 months rent free. That was great…

  18. mer says:

    "As for looking like an asshole, what makes you think I’m not an asshole?"
    As a non lawyer, I have to admit that my first reaction was "You're a lawyer, of course you're an asshole. Just how big of one depends on your specialty".

    :)

  19. JLR says:

    Great post. I don't think you had any obligation to keep Greg from hanging himself. If you get this kind of letter from a lawyer, and your reaction is to call the lawyer to see "what this is all about," i.e., make the whole thing go away through your powers of persuasion or intimidation, then you deserve what you get. This doesn't sound like a guy who was calling because he was freaked out and hoping it was not as bad as the letter made it sound or someone of low intelligence who was truly confused about what was going on.

    I've dealt with pro se litigants who just didn't have money and couldn't find a lawyer, and I've dealt with some who are just blowhards who think they know more than any lawyer out there. There are some pro se litigants you should feel bad for, but others not so much.

  20. RJ says:

    I'd add, if you receive a summons and complaint, answer it immediately, preferrably with counterclaims and/or crossclaims. Many attorneys are very experienced at filing default judgments but soil themselves when they find the least little opposition. This is particularly true of debt collection mills which drop a case if the defendant files an answer and counterclaim.

    If your opponent fires a shot accross your bow, it is a better tactic to return fire and show him that you too, are armed and dangerous.

    Greg, in the case of the plumber, would have been much better off to get a hired gun to deal with plaintiff's hired gun. Instead he went into a gunfight with bare fists.

  21. Frank N says:

    Ethical codes and canons aside, as one in the position of having more legal knowledge and experience, wouldn't it have been the ethical action to advise the plumber in clear, easy to understand and repeated statements that you are the attorney who has engaged to be this plumber's adversary and that everything he says will be noted and possibly used against him in the pending litigation?
    It certainly seems a bit tawdry for the "expert" to draw along the amateur in hopes of extracting a little more advantage.

  22. Patrick says:

    Frank, this was not an episode of One Adam Fucking 12. An attorney is not obliged to give Miranda warnings. That's for cops.

    Believe me, my letter to Greg did state in clear, easy to understand and repeated statements that I am the attorney engaged to be his adversary in forthcoming litigation.

    Even clearer, the letter said I'm going to sue him for ONE GODZILLION DOLLARS! It was a threatening letter.

    Since you're so naive, I'll give you a visual image:

    Suppose my letter was a dog. If my letter was a dog, it would be a huge dog named Thor, bearing a spiked collar. Thor would be at the end of a chain, teeth bared, growling in a low tone alternating with furious barks, drool flying all over the place. Behind Thor, there would be a sign reading: NO TRESPASSING! and another sign reading: BEWARE OF DOG!

    Would you hold out your hand to Thor, so that he could sniff it and make friends?

  23. Ken says:

    I think there are times when a lawyer has an ethical and/or moral obligation to clarify his relationship to the person he is addressing. For instance, I am always very careful to do so when I am representing a company and communicating with an employee, subsidiary, or agent of the company — they need to understand that I represent the company, not them.

    But I don't think a lawyer is ethically or morally obligated to talk someone out of doing something foolish that hurts them and helps the lawyer's client, so long as the lawyer doesn't mislead. When people who get a scary lawyer letter call to talk, it's not because they are confused about the lawyer's role — it's because they are trying to talk their way out.

  24. Jack says:

    Right, Ken. If I hire a lawyer, he has an ethical duty to me. Not. To. My. Adversary. Sorry Anonymous, you're just plain wrong.

  25. Ken says:

    Well, Jack, many codes do indicate that an attorney has some basic duties to third parties — but those generally include not abusing them, rather than helping them.

  26. WhangoTango says:

    Anonymouse, if you're still confused, just remember that a chief tenet of the attorney's philosophy is that he isn't bringing his own opinion or viewpoint into this; he's there solely as a technician, someone whose duty is to the machinery of the law, whose role in all of this is to (as Patrick described earlier) make his client's arguments in a legally-valid manner that yields the client's desired result.

    In other words, he's just following orders.

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