One day, a real stinker lands on your desk. A lawyer has sent you a letter threatening a lawsuit in a week if you do not take immediate action. What do you do?
Well, of course you should call a lawyer - and we are not just saying that because we are lawyers. You have some critical decisions to make, and you need to get good information about where you stand.
Blowing it off would be terrible. Firing back a taunting reply would be even worse.
A good lawyer can size up your legal situation, figure out your defenses and how much it will cost to defend. Then you can decide whether it's better for you to make an offer, or fight it out in court.
Even if you decide to take the case to court, you may want to have your lawyer respond to the threat letter anyway. There are some strong reasons for doing this.
At the least, a smart, well-crafted reply can signal to the lawyer that he or she can expect some formidable opposition. But a good reply letter can also point out flaws in the case that could send the lawyer back for a rethink. Or, even better, stop the lawsuit in its tracks.
This year, we fired off a threat letter to a company. The letter we got back was the worst of all worlds. It was full of errors in grammar and the law, and the tone was taunting and bullying. The letter told us that the company had hired a bad lawyer we could run circles around. We couldn't wait to take the case to court.
On the flipside, a long-time client of ours got a threat letter this year that caused the client great angst. After looking at it closely, we determined that there was no serious case, and the lawyer was just trying to squeeze some money. Based on that, the client decided the best move was to tell the lawyer to get lost.
Here is how we replied, with identification removed:
Apparently, someone without any knowledge of the law is using your good name to send silly threat letters to [our client]. For a number of reasons, I know you could not possibly be the author of the attached letter:
- Just last week, you talked to the actual [owner of the company]. A lawyer of your caliper would not then have addressed a letter to [someone] who has not worked at [the company] for a long time.
- A lawyer such as yourself, who has worked extensively with health records, knows to a certainty that there is no private right of action for any HIPAA violation, nor can a third party violate that law.
Given a real lawyer's responsibility under Rule 4.1 of [the state's] Rules of Professional Conduct not to make a false statement of law, a lawyer of your ability would never accuse [the company] of violating something the letter mistakenly calls "HIPPA," particularly without stating how such a violation could possibly have occurred when [the company] is not a medical professional in a confidential relationship with anyone [you mention]....
- A lawyer like you would be aware of [the state's] Anti-SLAPP Law, which, given that these are all statements made in a public forum about an issue of public interest, would give [the client] immediate relief and allow for attorney's fees and expenses. That seems like too high a risk for a real lawyer to take.
So if you know the author of the letter, I encourage you to urge the writer to get good counsel, but to otherwise leave [the client] alone. Unless they really do feel like filing a lawsuit, in which case, I will talk to them in court, but not one second before.
Cornell Dolan, P.C."
The lawyer went away and never sued as he'd threatened.
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