• August 17, 2016

SpankingU.S. District Court Judge Patrick J. Schiltz (D. Minn.) must have stunned Derrick Weber of Messerli & Kramer when Mr. Weber sought sanctions against his adversary, Bennett Hartz, along with Hartz’s client, Ms. Bendickson. The Court, in response, came down on Weber like a ton of bricks.

The case involved debt collection by Messerli & Kramer and its alleged agreement by phone to take money from  the bank account of the alleged debtor, Ms. Bendickson. Having allegedly received her authorization by phone, Messerli then withdrew the money by printing out paper checks to itself, endorsing them to itself, and depositing them.

Bendickson’s lawyer, Hartz, questioned the legality of this circuitous financial transaction and Weber, in return, essentially challenged Hartz’s right to question the transaction, threatening Hartz and his client with sanctions. When Hartz asked to hear the recorded telephone conversation, Weber refused and, instead sought sanctions against Hartz and Bendickson.

[I]t is absurd to argue, as Messerli [& Kramer] does, that Bendickson should be sanctioned because she did not immediately dismiss her complaint after Messerli drew her attention to a single, dubious, highly qualified, non‐binding bulletin issued by the CFPB  [that is, supposed legal authority for Messerli’s position]— especially when Messerli unreasonably refused to allow her attorney to listen to the recording that was the linchpin of its defense…if the Court were forced to sanction anyone, the Court would sanction Messerli [& Kramer], not Bendickson…It is probably true, as Messerli [& Kramer] repeatedly points out, that it acted within its rights in refusing to provide the recording to Hartz and in running to court. But the question of what a lawyer has a right to do is not the same as the question of what a lawyer should do. This Court expects that members of its bar will treat each other civilly and make every effort to resolve disputes before inflicting costs on their own clients, their opponents, and the Court. Messerli’s behavior fell well short of this expectation.

(Emphasis added.)

Unfortunately, I do not have the time nor, I confess, the intellectual horse power to plumb the deepest depths of complexity of those superficially straightforward bolded sentences other than to say that I suspect all thoughtful readers will concur with them.

Legal rights, express written authorized permission, are, and by definition, must be, incomplete to guide our conduct. They must exist in a context, in a shared community of understanding, and those who see them stripped of context and community miss this fundamental and critical point.

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