A call for debt collection reforms
THE GLOBE'S recent Spotlight series raised important questions about debt collection in Massachusetts, a situation that the legal profession takes quite seriously. While the District Court personnel who oversee small-claims sessions generally do an excellent job with less than ideal resources, clearly there is room for improvement.
One of the most glaring problems identified in the series is the apparent failure of many parties to receive notice that small-claims actions have been filed against them. Consumers who may owe money are unquestionably entitled to fair notice that a suit has been filed, and unscrupulous parties should not be able to provide stale addresses deliberately to the court and then obtain default judgments.
An amendment to current small-claims rules may be required to ensure that notice requirements are meaningful. In terms of professional debt collectors, requiring them to serve personal notice on an individual who allegedly owes money may be necessary.
The Spotlight series also drew attention to the apparent lack of good information for people who are forced to navigate small-claims sessions without an attorney. Although the court currently provides information about its procedures, it may not be as clear and helpful as possible. Even lawyers sometimes bemoan the confusion they see when they handle small-claims cases.
The Spotlight articles properly called into question the conduct of a small but not insignificant number of collection agencies and attorneys routinely appearing in small-claims court, sometimes seeming to take over the sessions from court personnel.
To address these problems, the Massachusetts Bar Association has begun talks with court officials about ways the system can be improved so that citizens who must go to small-claims court without a lawyer are able to present their arguments fairly. The association is also exploring measures to assist consumers who become involved in court proceedings, including a user-friendly guide for debtors to inform them of their rights and assist them in the court process.
Collection agencies and their attorneys have every right to pursue people who owe money, but they must do so lawfully. Lawyers in particular are governed by ethical rules that clearly prohibit some of the conduct described in the Globe series. If some lawyers are not obeying the rules, they should face disciplinary charges. Such behavior is an embarrassment to the overwhelming majority of lawyers in Massachusetts who are honest and ethical.
For their part, some courts may need to be more diligent in ensuring that small-claims sessions maintain the appearance of impartiality at all times. Although some of the criticisms leveled at clerk-magistrates in the series may be more a matter of appearance than reality, appearance matters. Parties who go into court should never have any reason to believe that the court is predisposed to rule against them.
The debt collection problems identified in the Spotlight series are not unique to Massachusetts. But, they are real and create challenges that the courts and the legal profession need to address.
Warren Fitzgerald is president of the Massachusetts Bar Association and a partner in the Boston law firm Meehan, Boyle, Black & Fitzgerald. 
