Utah Bar Journal

Listening in on the conversation of my colleagues, I began to sympathize with other classes of people who are the victims of discrimination. Prejudice is prejudice because it deals in untrue generalizations. There undoubtedly are aggressive, greedy collection lawyers, but most attorneys who do collections work are both decent and professional. During my career, I have had the opportunity to practice in several different areas of law, including but not limited to, complex contract litigation, securities, personal injury, divorce, and, finally, collections. In each of these areas of practice, I met and had the pleasure of working with highly competent and professional attorneys. No area of practice has a corner on good or bad lawyers. I have also discovered that success in the collections arena can require just as much judgment and skill as in any other area of practice. In order to succeed as a collection lawyer one has to master a different set of problems than does the lawyer who spends his whole career on one case, but that is not to say that those problems are less challenging. Quantity has a quality all its own.

By definition, collection lawyers deal with parties who can not or will not pay their debts. Here again one must be careful to distinguish between prejudice and fact. If the old saying that “you can’t squeeze blood out of a turnip” were true of all delinquent debtors, the collection attorney would soon starve. The success of collection actions demonstrates that, given sufficient motivation, many delinquent debtors can find the resources to meet their obligations. And the successful collection professional soon learns that there is nothing to gain from pursuing the party who truly has nothing. Accurately and efficiently determining which of these two categories applies to the case at hand is a skill of no small moment.

Over my career, I have had clients who could easily pass higher costs along to their remaining customers. Some of those clients are tempted to categorize all their delinquent accounts as “turnips.” As Kramer pointed out in an episode of Seinfeld, “Big companies write off this stuff all the time.” To which Seinfeld replied something like, “I don’t even know what it means to ‘write it off.’” What it means is this: the paying customers of businesses that fail to distinguish between debtors who will not pay and debtors who can not pay are going to pay more. As a collection lawyer, I see this group of paying customers as my real constituency. Yes, I represent my client, but if I am successful, the real beneficiaries are my client’s future customers who will pay less for the client’s goods and services – at least those future customers who actually pay for the goods or services they receive.

The American economy runs on contracts. If contracts become unenforceable, businesses will refuse to accept contracts in exchange for their goods and services. “I will be glad to help you. Bring cash.” This trend is already underway. If we think the economy is contracting now, wait until cash-only becomes the rule. Collection lawyers tend to favor the efficient enforcement of contractual obligations. However, the area of practice that deals in delaying the enforcement of clear and applicable contract terms continues to flourish, in spite of Rule 11 of the Utah Rules of Civil Procedure and Rules 3.1 and 3.2 of the Rules of Professional Conduct. I do not suppose this is the area of practice court and bar officials should prefer over collection attorneys.

Of course, the history of collections contains stories of abuses. Sometimes these abuses arise from the mistaken impression among collectors that the delinquent debtor is somehow wicked and needs to be punished. Collection lawyers are not in the business of educating jerks. The average debtor is much like the average person of any other class – usually good, but with notable exceptions. My success and the interests of the debtor are both served by keeping the focus on how to get the bill paid. Having access to the judicial process, if promises are not kept, I can take concrete action. I am not limited to writing another demand letter. I never make idle threats. If no productive options are available, it is time to close the case. Nothing is gained by punishing people who cannot pay. It’s the money, stupid! In this context, most collection lawyers I know are in favor of the strict, consistent enforcement of the provisions of the Federal Fair Debt Collections Practices Act. Lax enforcement invites bad actors. Collection lawyers, bound by ethics rules and subject to judicial supervision, do not benefit from unfair or abusive practice even if non-judicial collectors seem to. Nor should those who make their living through the powers granted by the law seek to be excused from applying it as it is written. All should be required to play by the same rules.

I am happy to be known as a collection lawyer. I provide a service to my client: my client sends me paper and I send my client money. Most attorneys cost the client money and send the client paper. I provide a service to the debtor: in my practice I am called on to deal with many unrepresented persons. I try to treat them with respect and fairness. It is almost always in my client’s interest to strike a deal that enables the debtor to cooperate in the payment of the debt, and I have met many genuinely decent people who happen to be delinquent debtors. I provide a service to society: parties and persons, both great and small, benefit from knowing that contracts are enforced in our society. I provide a service to persons who actually pay their debts: I am trying to keep them from paying the freight for the people who can pay but do not want to. I do not intend to hang my head in any meeting of the bar, including those filled with consumer advocates. I feel right at home.