It is not uncommon for people to come in my office and ask me to write a “strongly worded letter” to their former employer after they have been fired. But that’s all they want me to do. Just write the letter.
I understand why.
They think that if I write a letter, their employer will be scared and give them some version of what they want. That’s not an unreasonable assumption. It just happens to be wrong.
Here are three reasons it’s not a good idea to hire a lawyer to write a single letter.
1. Your Employer Knows This Game.
Unless it a smaller or new employer, this is very likely not its first rodeo. This is particularly true if the company has a general counsel or an outside attorney.
Your former company many have received a dozen or more such letters. And you know what it has learned? That many of these letters contain empty threats. If the company just ignores the letter or perhaps takes the time to respond denying all claims—or even makes threats that the company will take legal action against you—the problem goes away.
So, what does the company do when it receives a strongly worded letter from your lawyer, the one that you paid good money for? The company ignores it or uses the opportunity to (figuratively) poke a stick in your eye by writing a nasty letter back.
2. It’s Never Just a Letter.
Rarely is it the case that an employer backs down after a single letter. The first letter is the opening salvo.
Next, the company will respond, usually in writing, to your attorney. To solve the problem, the attorney you hired will probably need to call the opposing counsel back or perhaps write another letter. This process could go back and forth literally for months. During that time, for your attorney to effectively solve the problem, she will need to talk to you, review documents, and potentially research case law.
But what happens when the company responds but all you’ve done is hire a lawyer to write the letter? The lawyer will pass the letter along to you. You can then try to take matters into your own hands, but this is what will happen. You’ll write the company back. The company, thinking that you are perhaps still represented by an attorney, will refuse, through its lawyer, to talk to you about substance. Why? It is against the rules of ethics for a lawyer to talk to someone represented by another lawyer.
Of course, you can get around this problem by telling the company that you no longer have a lawyer. Then it can talk to you. The problem is, now you really have no leverage. The company lawyer now knows that—because you only hired a lawyer to write a single letter—that you do not have the will or resources or will to fight this out. Game over.
3. You Probably Don’t Want the Lawyer Willing to “Just Write a Letter.”
Attorneys and law firms develop professional reputations. Is the firm or the attorney you hired known as a fighter, reasonable, knowledgeable on the law—or something less than that? This is particularly true within a practice like employment law. Lawyers who practice employment law primarily see a lot of each other and so get a sense of how individual lawyers “play ball.”
If your attorney is willing to “just write a letter,” chances are that this is not the first time he or she has done so. That can mean bad news for you. The value of a letter from a lawyer is the threat of a lawsuit, even if the lawyer never explicitly threatens to sue.
Imagine this conversation between a company president and his attorney:
Attorney: We just received a letter from a lawyer representing that accountant we fired claiming that we have exposure under the Equal Pay Act because we paid her less than our other male accountant. She wants a year’s severance.
President: [Fuming.] Yeah, well. I didn’t think she was nearly as good. [Sigh.] I don’t want to roll over on this one, but I also don’t want to spend a lot of time fighting this out either. I’m not opposed to doing what we need to do to make this go away. Do you think she’d really sue, or is this one where we can call her bluff?
Attorney: Hard to say. She’s hired Arden Smith, a lawyer I know. In fact, I’ve got a case in the Eastern District with her right now. So, I know that she’s willing to pull the trigger. Arden’s not a stick-up artist. The good news is, though, that she’s pretty reasonable. If you give me some settlement authority, maybe start with three months of severance to start, leaving a bit of gas in the tank for another round or so, I’m pretty sure we can get this done.
President: Sounds good. I don’t need the distraction.
vs.
Attorney: We just received a letter from a lawyer on behalf of that accountant we fired claiming that we have exposure under the Equal Pay Act because we paid her less than our other male accountant. She wants a year’s severance.
President: [Fuming.] Yeah, well. I didn’t think she was nearly as good. [Sigh.] I don’t want to roll over on this one, but I also don’t want to spend a lot of time fighting this out either. I’m not opposed to doing what we need to do to make this go away. Do you think she’d really sue, or is this one where we can call her bluff?
Attorney: I don’t think so. She’s hired Bob Smith, a lawyer I know. He used to practice with his sister, Arden, but he hung out a shingle last year. Now he seems to have a practice where he mostly churns out demand letters. I’ve gotten a few from him in other cases, but I’ve never actually seen him pull the trigger. I hate to say it because I Iike him personally, but professionally he’s pretty much a stick-up artist. My recommendation is that we just let this one ride. Chances are we don’t even hear from him again. If we do, I can send him a strong letter back. Then he’s almost sure to back down.
President: Sounds good. I don’t need the distraction of fighting a lawsuit. But I don’t want to pay her a dime if I don’t have to. Let’s just not even bother to respond.
Moral: If the lawyer you hire is known for crying wolf, the letter he or she writes on your behalf won’t even be worth the paper it is printed on.
Exceptions to the Rule
There are exceptions that prove the rule. The rare instances in which I agree to write a single letter for a client have three factors in common.
- First, I have some history with the company successfully resolving similar issues. That gives me credibility that can make a single letter work. The company knows me and knows that—at least in most circumstances—I’m prepared to follow through.
- Second, the “ask” is simple, like “release her from the noncompete” or “return his personal laptop that he left in the office.” This makes it less likely that there will be a need for a lot of back and forth.
- Third, the client is prepared to live with whatever the outcome is from the letter—win, lose, or draw.
However, even when those factors are present, it’s rare that I agree to just write a letter. I’d rather be Arden than Bob.
Summing It Up
Resolving a dispute with your employer requires a personal and financial commitment. In most circumstances, employers will be more than happy to pay their attorney to try to push you around—at least for a bit.
Hiring an attorney to write a single letter is almost never enough to produce results. If you’re going to fight, be prepared to fight. That doesn’t mean you have to run off and file a lawsuit, but it does mean that you should be prepared to go a few rounds with your employer. If you’re not, that’s fine. Rather than waste money by trying to dip your toe in the water in a dispute with your employer, use your energy to find a new and better job.
