By Justin O’Dell
We left Dick and Jane with a discussion regarding a business opportunity for Dick. For purposes of our continued character development, we will assume that Dick decided to go for the job and take the new position and ownership interest in the company.
As expected, a threatening letter arrived from the attorney for his old company. The letter references the existing covenant not to compete and contains several threats about litigation. Of course, the letter concludes with the very lawyerly “GOVERN YOURSELF ACCORDINGLY!” which always seems to be written in all caps. Dick is nervous and wondering what to do. Should he ignore it? Should he respond? Should he hire a lawyer to respond?
First and foremost, it is critical that Dick respond, particularly if something in the letter makes an accusation or otherwise requests a response. Georgia law contains an evidentiary rule related to failure to answer a business letter. O.C.G.A. § 24-14-23 states that “In the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise, the party shall be presumed to admit the propriety of the acts mentioned in the letter of the party’s correspondent and to adopt them.” Thus, if Dick fails to respond he may make admissions as to actions and allegations which could be harmful down the road.
Second, Dick should not respond without a lawyer. Many times, individuals believe that they are right and that if they can just explain it adequately to the other party, the other party will see things correctly and agree. In reality, adversaries have most likely made up their minds about a situation by the time they have seen a lawyer. Rarely, if ever, will a letter filled with admissions and explanations accomplish anything toward changing the mind of an adversary. Instead, the letter might make certain admissions or provide other evidence that becomes critical to the case at a later date. By speaking with a lawyer, it is likely that Dick can obtain help in narrowing down a proper response.
Finally, it is possible for Dick to consult with a lawyer about a response, but then draft the response himself. Most jurisdictions place limitations on lawyers “ghostwriting” pleadings and other matters to be filed by litigants with the Court. However, there would not be any ethical or other legal prohibition on a lawyer helping a person draft and send a legal response letter in the hopes of avoiding litigation.
For next month, we will see if Dick escapes a lawsuit. . .