Let it be remembered that on December 28, 2015, the Consumer Financial Protection Bureau (CFPB), a bureaucracy manufactured by the Dodd-Frank Act of 2010, put to final rest the long established, fundamental principle that an attorney licensed to practice law by the highest court in the lawyer’s state had earned the title of a “learned professional”, one entrusted to use his or her best independent judgment when zealously pursuing a client’s claim.
In place of this time honored but now discarded concept, the CFPB, in a precedent-shattering act, entered a stipulated final order and judgment against the Georgia based law firm of Frederick J. Hanna and Associates and three of its attorneys. In doing so, the CFPB restrained the methods by which these lawyers can represent clients in debt collection matters even though each is still licensed to practice law by the Georgia Supreme Court.
This far reaching and unprecedented order enjoins the firm and its attorneys from threatening or filing suit on behalf of a client unless the lawyer first obtains and reviews an extensive list of enumerated account documents presumably received by way of confidential communications from a client. The order does not even attempt to distinguish or qualify what licensed attorneys must review, regardless of the nature of the debt incurred and regardless of whether the debt was acknowledged by the debtor through a partial payment or written admission.
The order further prohibits the lawyers, as well as outside counsel engaged to file suits by the Hanna firm in other states, from presenting any affidavit not based on “personal knowledge”. However, the edict offers no definition of personal knowledge nor does it address the “business records” exception to the hearsay rule of evidence. Instead, the order confers broad and unfettered discretion on a designated CFPB bureaucrat, known as the “Enforcement Director”, to decide what is sufficient “personal knowledge”. This task was heretofore delegated to elected or appointed Judges sworn to decide cases in a fair and impartial manner based on the evidence presented by the parties.
It appears that the CFPB has supplanted the state bar in decreeing rules for the practice of law by consumer collection attorneys. Surely, this is a discomforting thought to those, including this author, who took an oath administrated by the highest court of the state; an oath that requires all attorneys to practice law in conformity with court rules adopted by Judges empowered to suspend or revoke the license of an attorney who violates rules of practice or ethical standards.
In 21st Century America, adherence to the attorney’s sworn oath administered by the court only goes so far. In this new age, all consumer collections attorneys must now also obey the dictates of a Washington DC bureaucrat who works for an agency empowered to protect the lawyer’s opposing party, a scenario that begs the question as to what happens when a creditor client instructs a lawyer to file suit even if the attorney does not possess each of the documents contained in the CFPB bureaucratically created checklist