Summary: It is not permissible for a lawyer to allow a client to send form letters on the lawyer’s letterhead to customers who have delinquent invoices. Similarly, it is not permissible for a lawyer to send letters to the client’s delinquent customers without performing a conflicts check and other due diligence customary when opening a new matter.
Facts: A lawyer inquires whether a client can use the lawyer’s letterhead to send letters to the client’s delinquent customers threatening a lawsuit if the overdue invoices are not paid.
Discussion: A law firm’s letterhead is a communication concerning a lawyer’s services. See Mass. R. Prof. C. 7.1, comment 5. “Firm names, letterhead, and professional designations are communications concerning a lawyer’s services. A firm may be designated by the names of all or some of its current members. . . .” Id. Under Rule 7.1, “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” A nonlawyer’s use of a lawyer’s letterhead would be a false and misleading communication, in violation of Rule 7.1, as it suggests that the individual signing the letter is a lawyer and a member of the firm.
It would of course be permissible for a lawyer to send out letters to a client’s delinquent customers, provided that before sending those letters the lawyer follows the procedures typically used when opening new client matters. First, for each of the client’s customers who is to receive a letter, a conflicts check must be done to confirm that the client’s customer is not a current client of the firm, see Mass. R. Prof. C. 1.7, and is not a former client of the firm in the same or a substantially related matter. See Mass. R. Prof. C. 1.9.
Second, the lawyer’s duty of competence requires the lawyer to make at least a preliminary inquiry into the legal and factual basis of the claims asserted by the client against the customer. Mass. R. Prof. C. 1.1. This is particularly important since the proposed letter threatens litigation against the customer. See Mass.R.Prof.C. 3.1 (claims asserted in litigation must have a basis in law and fact). Failure to verify the factual basis of the client’s claims may result in the letter to the client’s customer containing a misrepresentation in violation of Mass. R. Prof. C. 4.1 (“[A] lawyer shall not knowingly . . . make a false statement of material fact . . . to a third person”.) “Misrepresentations can . . . occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.” Mass. R. Prof. C. 4.1, Comment 1.
Third, if the customer is not represented by counsel, the lawyer’s letter must make the lawyer’s role in the matter clear and avoid giving the customer legal advice. Mass.R.Prof.C. 4.3. In addition, depending on whether the client’s customers are “consumers” as defined under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o (“Act”), compliance with the Act may be required. See Nancy Kaufman, Can We Talk: Communicating with Unrepresented Persons, Massachusetts Board of Bar Overseers (2003), https://bbopublic.massbbo.org/web/f/talk.pdf (last viewed October 7, 2024).
Finally, to avoid a possible violation of Mass. R. Prof. C. 4.2, it would be prudent for the lawyer to ask the client whether the customer receiving the letter is represented by counsel. See Mass. R. Prof. C. 4.2 (prohibiting a lawyer’s communication about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter without the consent of the other lawyer). Knowledge of the fact of the representation may be inferred from the circumstances. See Mass. R. Prof. C. 4.2, Comment 8.
The Committee recognizes that it is common for lawyers to authorize their secretaries to sign the lawyer’s name on correspondence. Customarily, the secretary’s initials appear below the signature to show that someone else has signed on the lawyer’s behalf. Unlike clients, however, secretaries are agents of the lawyer and subject to the lawyer’s supervision. Under the Rules of Professional Conduct, lawyers are responsible for making “reasonable efforts to ensure” that their secretaries’ conduct is “compatible with the professional obligations of the lawyer,” Mass.R.Prof.C. 5.3(b), and lawyers may in some circumstances be responsible for conduct of their secretaries “that would be a violation of the Rules of Professional Conduct if engaged in by the lawyer.” Rule 5.3(c). See also Rule 5.3. Comment 2 (“A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment . . . and should be responsible for their work product.”) Accordingly, this common practice does not raise the same ethical concerns as letting a client use the lawyer’s letterhead.
This advice is from a committee without governmental authority.