In Lesher v. Law Offices Of Mitchell N. Kay, PC, — F.3d —-, 2011 WL 2450964 (3d Cir. 2011), the Court of Appeals for the Third Circuit held that a law firm’s use of its letterhead in collection activities implied potential legal action, notwithstanding disclaimers to the contrary on the back of the letter.
Nor do we believe that the disclaimers included in the letters, which are printed on the backs, make clear to the least sophisticated debtor that the Kay Law Firm is acting solely as a debt collector and not in any legal capacity in sending the letters. First, in our view, the statement that “[a]t this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account” does little to clarify the Kay Law Firm’s role in collecting the debt because it completely contradicts the message sent on the front of the letters—that the creditor retained a law firm to collect the debt.FN11 Moreover, as we noted in Rosenau, the statement that the letters were “from a debt collector” is a statutorily required notification that “should not be viewed as nullifying any implication that the letter is from an attorney.” See 539 F.3d at 223 (explaining that “[b]oth common sense and case law confirm … that the categories of ‘debt collector’ and ‘attorney’ are not mutually exclusive”). ¶ As the Seventh Circuit observed in Avila, “[a]n unsophisticated consumer, getting a letter from an ‘attorney,’ knows the price of poker has just gone up.” 84 F.3d at 229. For this reason, we believe that it was misleading and deceptive for the Kay Law Firm to raise the specter of potential legal action by using its law firm title to collect a debt when the firm was not acting in its legal capacity when it sent the letters. We need not decide whether an attorney debt-collector who sends out a collection letter on attorney letterhead might, under appropriate circumstances, comply with the strictures of the Act by including language that makes clear that the attorney was not, at the time of the letter’s transmission, acting in any legal capacity. The only question before us today is whether the Kay Law Firm’s January 11 and February 15, 2009 letters to Lesher comply with the Act. For the reasons set forth above, we hold that they do not.