The New York times ran a piece last week that's been on my mind ever since. Debt collection agencies are collecting debts from the dead, or, near as can be. They call people who are the executors or heirs or administrators of the recently deceased, and suggest that the deceaseds' outstanding bills should be paid, regardless of whether state law actually gives them the right to collect.

I worked a bit in legal services, a bit ago. The particular unit I worked in was Elder Law. Elder Law means two or three different things, depending on who you're talking to. It sometimes means probate and family law, medicare planning - making sure that the middle-class elderly are well taken care of, and unable to run through their own assets at the end of their lives. It sometimes means high-end tax planning, making well-timed exempt gifts, setting up trusts, ensuring that second wives and stepchildren recieve only their due - making sure that the well-off elderly find themselves aging comfortably and leaving well-off heirs. Elder Law, in legal services - means guardianship defense, food stamps, eviction and nursing home eviction, public housing, and social security benefits. When I was there, at the beginning of last fall, it was beginning to be about bankruptcy, foreclosure, and consumer debt.

Calls came in nearly every day from people that we couldn't represent; there just aren't enough resources to help people who have even the slimmest chance of helping themselves. People would call, old, sick, alone, and panicked.

"They won't stop calling. They say they'll take my house.'

"I don't want my children to know."

"I'm scared to pick up the phone."

In Massachusetts, like most states, there are laws governing the behavior of creditors. There are also laws which govern what kinds of income creditors can reach. (The following is not a full statement of the law, and is not legal advice. I'm not a lawyer; I'm a law student. If you're in trouble, look into legal services in your own state. I think that's enough of a disclaimer for now)

There is no magic to owing money; creditors have no more right to harass a debtor than anyone else does. If they are told to stop calling, they must stop calling. They can seek judgment in court, but most of our clients, and people seeking our services, had only income from public benefits. Many types of these benefits cannot be attached to pay a settlement. So, even if a court did grant a judgment against our clients, the elders still wouldn't have to pay."Judgment Proof" is the phrase.

So that was all we could do for them. A paralegal, or a law student, would ask them about all the sources of their income. We'd write it down, take it to the attorneys, verify that they are judgment proof - then call back, and say:

"Just tell the creditors to stop calling you; you don't have to pay them. They can take you to court, but you still don't have to pay. If they keep calling, call us back."

And even the above went too far. Because of legal ethics, we had to be very careful what we said, to these people who were left on their own, to avoid forming a lawyer-client relationship.*

I had to be twice as careful, because, despite supervision, I had to endeavor to not actually give anything that could be construed as legal advice. The practice of law without a license is an easy trap for a law student to fall in.

The New York Times article, above, is shocking to me. It shouldn't be. But it is. There are lawyers. And it's their job to collect these debts, these uncollectible debts. It's not overt misconduct to try to represent a client's interests (here, the client is the creditor, or the debt-holder, etc), even when the legal argument in favor of your opponent (here, the debtor)is more secure. It happens all the time.

But it is unethical, and it is improper, and it is misconduct, to make a false statement of law to a third party in the representation of your client. The above sentence, in english, means "Lawyers are NOT allowed to lie, about the law, to other people." And the acts of people supervised by lawyers - paralegals, etc - are imputed to lawyers.

And I can't quite figure out exactly...how the lawyers can possibly be appropriately vague in the representations they make to the debtors, and precise enough in the instructions to the paralegals/collectors - to make sure that no one makes a false statement of law? (In the article, it seems that everyone toes the line - but really - can it possibly be avoided?)

There are also ethical principles about when attorneys deal with people who don't have legal representation of their own; it's not misconduct to deal heavy handedly with an unrepresented individual, but it's definitely against the spirit of the rules to run a business THAT DEPENDS on your opponents being unrepresented.

It bugs me.

It bugs me a lot.

A law degree, and a license to practice law - they make you into kind of ...well, being a lawyer makes you a tool. You're meant to be a tool, to an extent. People hire you because you're a tool. You have the training to do things that people (and companies) can't do on their own. You're not just a professional, but an advocate. And as an advocate, you take sides.

And in taking sides, it's your goal to tip the balance to one side or the other. That's what you do. That's what you're trained to do, and obligated to do.  Your obligation is to take your skills, and knowledge, and judgment - all of these things acquired through a bajillion dollars of debt and a half bajillion hours of study - and tip the balance.

And because of that ... there are rules. And there are principles. And all kinds of things that I'm, in general, too shallow, narcissistic, and uninvested in the profession to care about.

But there's something twisted up in the profession; something that we're starting to see more and more. There's John Yoo and the Justice Department Torture Squad, churning out Harvard-scented arguments legitimizing the stripping of the constitutional restraints on executive power, and pissing on the rule of law. And there are these dead debt-collection lawyers, vultures, dancing along the line between professional and un. There are lawyers for banks/mortgage service companies, pushing through foreclosures, even though they don't even know who technically holds title to the house. There are lawyers working in bankruptcy mills, with a hundred paralegals beneath them, charging people $2,000-4,000 without ever actually meeting them, talking to them, or doing an iota of work on their case.

And those are lawyers who aren't technically doing anything wrong.

There's no conclusion here. I'm tired and old, and I don't know what I've gotten myself into. Take me back to legal services, please. Let me help somebody.

*Edit, 3/10/2009 - The reason that we had to avoid forming a lawyer/client relationship with these people who we didn't have the resources to help  is because all kinds of obligations and liabilities attach once the relationship is formed - conflict of interest rules and malpractice liabilty, being chief among them.