2.2.1 Obtaining Clients

According to a 2017 Consumer Financial Protection Bureau national survey of consumer experiences with debt collection in a one-year period, creditors or other collectors sued more than ten million consumers.²⁷ Most empirical studies have found that only 1% to 2% of these consumers are ever represented by a lawyer,²⁸ leaving millions of unrepresented consumers in collection actions across the country.

Traditional types of networking can help develop a client base, using word of mouth to garner interest through former clients, family, friends, and other attorneys that you may meet through the local bar association or other professional organizations. Websites, blogs, LinkedIn profiles, Facebook pages for your law practice, and other social media can help you increase the visibility of your services. Website optimization and search engine marketing (for example, Google AdWords) can also be helpful to drive online traffic to your website.

Lawyers who do debt defense report that by far the greatest sources of clients are legal aid clinics, lawyer referral centers, and pro bono representation offices. While the actual debt defense may be taken as a low-fee or pro bono case, taking such a case often leads to the discovery of affirmative claims against the debt collector. These affirmative claims can then be brought as counterclaims or free-standing claims in a subsequent lawsuit after the debt defense case is terminated in favor of the consumer.²⁹

Across the country a number of legal aid organizations and bar associations are representing clients in debt defense cases.³⁰ Private practitioners may be able to co-counsel cases with legal aid offices, volunteer with lawyer-for-a-day clinics, or represent clients who are not income-qualified for free legal services. In addition, legal aid offices may not represent clients in debt defense cases, and they may welcome the ability to refer these cases to private attorneys. A close working relationship with local legal aid offices may be key to developing a practice in this area.

Consumers who have been sued may also ask for help from lawyers in general practice, bankruptcy lawyers, family law attorneys, personal injury attorneys, and others. For example, personal injury lawyers will have clients with unpaid medical bills. Family law lawyers will often have clients who were supporting one household and are now supporting two households. Getting one’s name around to these attorneys should produce a steady supply of clients.

A key referral source is bankruptcy attorneys, whom the consumer attorney should consider contacting in person. Consumers being sued, or those with serious debt delinquencies, often go to bankruptcy attorneys, and many of these consumers are dissuaded from proceeding with a bankruptcy because their debt load is too low—relative to the costs of filing bankruptcy—or bankruptcy is not a good option for some other reason. Bankruptcy attorneys should be only too happy to refer such cases to a consumer attorney willing to explore other debt defense options.

Other sources of referrals are court clerks and even judges who on a daily basis see unrepresented consumers unable to adequately represent their interests in court. Effectively handling a few cases in a court can lead to many others. It is also worth exploring whether you can assist the local court in providing education to consumers and court personnel about collection actions. An attorney can even offer to hold a debtors’ defense clinic.

Finally, in many states it is not improper or unethical for an attorney to solicit potential clients so long as the solicitation does not contain any misrepresentations about the lawyer’s qualifications, fees, or ability to achieve a certain result. Obviously, lawyers must strictly adhere to all ethical rules and guidelines regarding the content of solicitations, the manner in which solicitation is permitted, and record-keeping. Case information can be obtained at the courthouse (and/or online) and standard letters then sent to defendants in collection cases. These tasks can be carried out by non-attorneys. Although the response rate may be fairly small, this approach can be very helpful in building a clientele, and a number of consumers who do respond may have FDCPA or other consumer claims that can be pursued.

With some effort, attorneys should have little trouble finding potential clients. The more significant issue is developing a business model that takes into account whether representation makes economic sense for the client and the lawyer. Who would pay $1000 to a lawyer to defend them in a $500 lawsuit? That is where fee-shifting and affirmative claims may come into play, as discussed in § 17.1, infra.