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The Attorney Demand Letter
I recently received a letter in the mail from an attorney saying that I had broken the law by sending a fax to his business, and that if I did not send a check to him for $1,500 that he would sue me. Is this for real? It sounds like a scam. Should I write back, send the check, or just ignore it?
Steven Shelton Responds:
There are really two questions here. First, assuming that you received this through the U.S. postal service, the letter probably is for real. (If it came via email, it is probably a scam.) Although I don’t have all of the facts in this particular case, it sounds as if the attorney believes that you sent his client an unsolicited advertisement via fax (a “junk fax”) in violation of the Telephone Consumer Protection Act (47 U.S.C. 227). Under this act, the recipient of the junk fax could sue for a minimum of $500 per fax. My guess is that it’s not a scam.
What you should do really depends upon the circumstances; I can’t really make a recommendation without a formal consultation. In general, if you sent the fax (or paid someone to send it for you), you will be liable and the best thing to do is probably to settle. If, however, you had nothing to do with the fax (perhaps the plaintiff is confusing you with another business of a similar name, for instance), then you will need to talk with the plaintiff’s attorney to straighten out the confusion, and if that fails, force the plaintiff to prove his case in court. Either way, the first step you should take is to consult an attorney who will be able to recommend the best course of action.
One thing you should not do—in this situation or any other—is simply ignore the letter. If someone has taken the time to send a demand letter, then he is most likely serious about pursuing this issue. This is even more true if he hired an attorney to do it for him. If you simply ignore the letter, the plaintiff’s next step will almost certainly be to file a lawsuit. If that happens, your cost to resolve the suit—be it through a settlement, a win at trial, or a loss at trial—will rise dramatically. (Remember: even if you win at trial, you will probably have to pay your own legal fees.)
In my practice, I almost always send a demand letter before I file suit. This accomplishes two things: it gives the defendant a chance to “do the right thing” and resolve the conflict responsibly, and it avoids the costs of litigation. Usually, I offer a settlement figure that is substantially less than what I intend to seek at trial as an incentive to settle quickly. If the defendant ignores the letter and I have to file suit, then the cost of the settlement to avoid a trial typically doubles . . . and I work the additional costs into the settlement figure (such as filing fees and expenses for service of process). This approach is not at all unusual. Thus, the worst thing you could do is to ignore the letter. At a minimum, you should contact your attorney to determine whether you have any liability and how to respond.
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Information presented on this site is intended for educational purposes only and does not constitute—and should not be considered a substitute for—legal advice. Neither use of this website nor communications through it (including but not limited to messages in forums or answers in the “Ask a Lawyer” section) create an attorney-client relationship. For legal assistance, contact a lawyer.