In Part 1 of this article, we looked at the origins of the so-called “meaningful involvement” doctrine by reviewing the decisions that established its existence without defining its scope. Now, we will consider whether and when it may be appropriate for collection attorneys to disclaim any “meaningful involvement” in their communications with consumers.    

Disclaiming Meaningful Involvement

Can a collection attorney avoid liability under the “meaningful involvement” doctrine by including a disclaimer in the collection letter, informing the consumer that no attorney of the firm has conducted any meaningful review of the file? The answer is unclear.

In Greco v. Trauner, Cohen & Thomas, 412 F.3d 360 (2d Cir. 2005), the letter was on the law firm letterhead, but was not signed by any attorney.  On the front of the letter, in addition to the language required by section 1692g of the FDCPA, the following statement was included: “At this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account.  However, if you fail to contact this office, our client may consider additional remedies to recover the balance due.”  Id. at 361.  The Court rejected plaintiff’s claim that the letter violated the FDCPA, noting that an attorney can send a collection letter to a consumer “without being meaningfully involved as an attorney within the collection process, so long as that letter includes disclaimers that should make clear even to the ‘least sophisticated consumer’ that the law firm or attorney sending the letter is not, at the time of the letter’s transmission, acting as an attorney.”  Id. at 364.  The Court held that “the defendant’s letter included a clear disclaimer explaining the limited extent of their involvement in the collection of Greco’s debt.”  Id. at 365; see also Jones v. Dufek, 830 F.3d 523 (D.C. Cir. 2016) (no FDCPA violation where law firm used Greco disclaimer on front of letter stating: “Please be advised that we are acting in our capacity as a debt collector and at this time, no attorney with our law firm has personally reviewed the particular circumstances of your account.”).

Portions of the CFPB’s recent consent order with the Works & Lentz law firm suggest that the Bureau approves of the use of a Greco-type disclaimer in some circumstances.  In the Findings and Conclusions recited in the Order, the CFPB alleged that the firm had violated the FDCPA by, among other things, sending letters to consumers that “did not include any disclaimer to alert Consumers that no attorney had review their account prior to the initial demand being mailed.”  See In the Matter of: Works & Lentz, Inc., et al., Administrative Proceeding File No. 2017-CFPB-0003 (“Order”) para. 12-14, 18-23.  The Consent Order mandates that in the future, whenever the firm sends a letter to a consumer and no attorney has been “meaningfully involved in reviewing the Consumer’s account” and no attorney has “made a professional assessment of the delinquency,” the letter must “

  1. Clearly and prominently disclose that no attorney has reviewed the Consumer account at issue;
  2. State in the signature block that the letter is from the Collection Department; and
  3. Omit the name of any attorney and the phrase “Attorney at Law” from the signature block of any Demand Letter.”  Id. at para. 44. 

At best, then, the Order suggests an attorney can send a collection letter without being “meaningfully involved” in an account, but it provides no definitive guidance for how attorneys can discharge their “meaningful involvement” obligations.  Nowhere in the Order does the CFPB explain what is required for an attorney to be “meaningfully involved in reviewing the Consumer’s account” or what an attorney must do in order to make “a professional assessment of the delinquency” on an account. 

Including a disclaimer of attorney involvement in a collection letter does not always insulate an attorney from liability under the FDCPA.  For example, in Gonzalez v. Mitchell N. Kay, 577 F.3d 600 (5th Cir. 2009), the letter was sent on law firm letterhead but was not signed.  The front of the letter included the section 1692g notice, and directed the reader to “Please see reverse side for important information.”  Id. at 602.  On the back of the letter was a notice stating: “At this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account.”  Id.  The court noted that the debtor “would not learn that the letter was from a debt collector unless the consumer turned the letter over to read the “legalese” on the back. The disclaimer on the back of the letter completely contradicted the message on the front of the letter-that the creditor had retained the Kay Law Firm and its lawyers to collect the debt.”  Id. at 607.  The Court therefore reversed the district court’s holding that the plaintiff had failed to state a claim for relief under the FDCPA.

Similarly, in Lesher v. The Law Offices Of Mitchell N. Kay, 650 F.3d 993 (3d Cir. 2011), the Court held that settlement letters sent on a law firm’s letterhead with the Greco disclaimer on the reverse side of the letter violated the FDCPA.  According to the Court, “the least sophisticated debtor, upon receiving these letters, may reasonably believe that an attorney has reviewed his file and has determined that he is a candidate for legal action.”  Id. at 1003.  The letters “raise[d] the specter of potential legal action,” and were therefore false and misleading because the firm was not acting in a “legal capacity” when it sent the letters. Id

Where does all of this leave us?

The answer is a clear as mud. The “meaningful involvement” doctrine does not appear in any statute, rule, or regulation. What exactly does it require of attorneys who seek to comply with it? When can attorneys disclaim it? What, if anything, should clients insist upon from their collection attorneys? This judicially-created doctrine has been around for the twenty-four years, and has been widely embraced by many courts and by regulators. Despite this, collection attorneys are still at a loss as to what they must do to comply with these unwritten requirements, and it remains unclear whether a “disclaimer” of attorney involvement will always be accepted. Collection attorneys and their clients must continue to do their best to piece together all available authority on how to comply with this amorphous doctrine. 

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