It was easy to forget this year that anything outside of Hunstein and Reg F existed. While many of us were focused on compliance, compliance, compliance, the world of accounts receivable management kept going. Collection agencies kept collecting, and litigation kept churning. Some things, such as the disciplinary actions filed earlier this year by Maryland and Virginia against consumer attorney Ernest Paul Francis, were highly fascinating.
The Maryland and Virginia disciplinary actions resulted from the conduct Mr. Francis exhibited in representing his client: a consumer who had been sued by American Express (Amex) for an outstanding credit card bill. After American Express filed suit, Mr. Francis brought a suit alleging violations of the Fair Debt Collections Practices Act (FDCPA) against Amex’s attorneys. As a result of his actions in the FDCPA case, on March 23, 2021, the state of Virginia revoked Mr. Francis’s license to practice law, and the state of Maryland followed on August 24, 2021.
What did he do?
Mr. Francis stipulated that he:
- Made substantive decisions regarding the case without his client’s consent;
- Submitted offers that were his “standard demands”; he never discussed them with his client as he did not have time to make customized demands in Fair Debt Collection Practices Act cases;
- Rejected settlement offers and did not inform his client until a later date that offers were made;
- Submitted court filings with factual representations he knew to be false;
- Threatened bar complaints against defense counsel and frivolously opposing motions (such as a motion for pro hac vice admission, after he had previously agreed to the admission);
- Violated the ethics rules, including his scope of representation, communications, meritorious claims and contentions, and truthfulness in statements to others.
The judge in the Virginia disciplinary action found that:
- Acrimonious litigation could have been avoided had Mr. Francis adequately communicated with his client;
- Mr. Francis pursued the litigation beyond the point at which his client had any interest;
- Mr. Francis’s failures amounted to reckless indifference to the law;
- The record against Mr. Francies was replete with incivility.
In addition to the above, the consumer testified that he would not have accepted money from Amex since he was the one who owed American Express, not the other way around. He further testified that he never took issue with the amount he owed Amex and confirmed he suffered no harm that would justify the litigation and did not want the relief sought in the case.
The Maryland Petition for Disciplinary Action, which includes the Virginia action can be found here.
Not all consumer attorneys act this way; far from it. However, those who have spent any considerable time filing collection lawsuits or defending FDCPA claims have surely had their suspicions regarding whether settlement offers have been conveyed to a consumer.
When I read the disciplinary action in this case, I couldn’t help but think of a counterclaim case I litigated as a novice collection attorney. It was a simple, straightforward credit card collection case, and a consumer attorney filed a counterclaim. There were no actual damages alleged, and during the court of 18 months of litigation, the consumer rejected several settlement offers conveyed to his attorney.
Although I knew attorneys had an ethical duty to convey settlement offers to their clients, I had long suspected that my client’s offers had not been conveyed since no actual damages were alleged, and my client had been offering to pay the consumer and forgive the entirety of the $3,000.00 debt. It was basically free money for the consumer, and my client and I couldn’t understand why the offers were rejected.
After one of these rejections, I filed a motion asking the judge to order us to mediation - with the consumer and my client present. The judge granted my motion but included a stipulation that he would be the mediator (later, I found out he was tired of reading our disputes and back and forth motions). At the mediation, the consumer happily accepted the forgiveness of the debt and payment from my client of $1,000.00, total.
Three things happened after that, each of which is seared into my memory: (1) I overheard the consumer telling someone he was “so excited” because “he had just won his case!”; (2) His attorney, who got a check for $1,000 for 18 months of significant litigation, looked like he had just been forced to eat a pile of glass; and (3) my client was ecstatic because the litigation was over, and we had been offering well more than $1,000 for over a year to make the case go away. At the end of the day, it appeared my suspicions were correct; the attorney never conveyed our previous offers to his client.
I bring that story up to share that this phenomenon is not new and likely won’t disappear. However, disciplinary actions like that filed against Mr. Francis should remind us that while this conduct may occur often, it is not ok, and may violate ethics rules regardless of how a consumer attorney attempts to justify it.
I am certainly not suggesting that defense attorneys and collection attorneys wage war on consumer attorneys when they suspect offers are not being conveyed. However, I am suggesting that people remember these disciplinary actions and that ethics rules apply to consumer attorneys too and sometimes it is worth it to go outside the norm and pursue correcting something that isn’t right.