.jpg)
Ethics issue
One final thought, even though the trustee may be insinuating that there was perjury or malfeasance going on that doesn't mean that she or he is going to be able to prove the case. I had a similar situation just a few months ago at the end of the day we ended up agreeing to dismiss the case with prejudice. No perjury charges were filed nothing happened after that.
Sent from my iPhone
On Dec 29, 2011, at 4:43 PM, "Nancy Clark" wrote:
> How about a little changeyou are appearing at a continued 341(a) hearing. The original 341(a) revealed the sale of the property. The trustee asks for documents related to the sale. And are asked to cover the continued hearing. Again, the trustee already has the petition, the questionnaire and the prior testimony. But the trustee starts with the line of questioning that could lead to a perjury charge. You are caught by surprise because the debtor and the attorney have cooperated. Does your appearance attorney have to stop the questioning? Would you have an obligation to instruct your appearance attorney to stop any questioning if it relates to perjury?
>
>
>
> Thank you,
>
> Nancy B. Clark
>
>
>
> 100 N. Barranca Ave, Suite 250
>
> West Covina, CA 91791
>
> Tele: (626) 332-8600
>
> Fax: (626) 332-8644
>
> www.blclaw.com
>
>
>
>
>
>
>
>
John D. Faucher
> Sent: Thursday, December 29, 2011 4:36 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Ethics issue
>
>
>
>
>
> I would never let a debtor go to a 341 hearing on his/her own. But like Paul suggests, that's more for the debtor's comfort than for the expert legal maneuvering I expect to engage in. I guess I also want to make sure that someone speaks the language so when the trustee asks for amendments, she's not met with a blank stare. Appearance attorneys do this very well for me.
>
> I have had only one case where I needed to object to a trustee's questioning I objected based on "assumes facts not in evidence." The trustee immediately said I was out of line, because this wasn't an evidentiary hearing and the rules of evidence dont apply. When I pointed out that he had put my client under oath, given warnings about perjury, and was keeping a transcript, he then threatened to stop the proceeding and haul my client in for a 2004 exam. We ended up working things out, and the client didn't need to answer a trick question.
>
> In that particular case, I did a good thing for the client. In most of them, though, it would be counterproductive to speak up.
>
>
>
> John D. Faucher
>
> Hurlbett & Faucher, LLP
>
>
>
> On 12/29/11 4:21 PM, "Paul Horn" wrote:
>
>
>
> This is an interesting topic. I have wondered this myself, what is the role of the attorney at the 341 meeting. If attorney speaks up he might come across as possibly as leading the answer. Are we there just for clients>
>
>
> Paul Horn
>
> Attorney at Law
>
> Certified Public Accountant
>
> To: cdcbaa@yahoogroups.com
> Sent: Thursday, December 29, 2011 4:13 PM
> Subject: RE: [cdcbaa] Ethics issue
>
>
>
> I want to stress this is not my case but I am curious as to whether as the attorney appearing at the hearing you should even attempt to stop the interview for fear that the debtor may be brought up on criminal perjury charges. In ten years this has never happen to me but I listened to questioning of a debtor recently that made me thing of this.
>
>
>
> Thank you,
>
> Nancy B. Clark
>
>
>
> 100 N. Barranca Ave, Suite 250
>
> West Covina, CA 91791
>
> Tele: (626) 332-8600
>
> Fax: (626) 332-8644
>
> www.blclaw.com
>
>
>
>
>
>
>
>
>
nancybonaccorso
> Sent: Thursday, December 29, 2011 4:06 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Ethics issue
>
>
>
>
>
> You appear with your client at the 341(a) hearing. You review the petition prior to the debtor testifying to make sure that you are on the same page as the debtor. The debtor fills out one of the customary questionnaires provided at the 341(a) hearing. The trustee starts the hearing and asks your client whether he has sold, transfered or given any property within the last four years. Your client testifies that he as not. Then the trustee brings out the smoking gun and asks the debtor whether he ever owned or participated in any way in the sale of a particular property for which he received a specific amount of money. Your client now discloses that he has. He states that he was part of the sale of a property six months prior to filing in which he received a significant amount of money from the sale of the property.
>
> You know that your client is in trouble for not disclosing the sale of the property and the funds received. You tell the trustee that you will amend the schedules and correct the issues.
>
> The trustee is not satisfied and asks the debtor why he perjured himself on the petition, the questionnaire and in his testimony and starts laying the foundation for a perjury charge by showing each document to the debtor, making him read the question on the petition aloud and reading the answer.
>
> What do you do? Can you stop the train wreck that is about to happen. At what point if any do you instruct your client not to answer any further questions for fear of a criminal perjury charge? Thoughts...
>
> Thanks,
> Nancy B. Clark
> Borowitz & Clark, LLP
>
>
>
>
>
One final thought, even though the trustee may be insinuating that there was perjury or malfeasance going on that doesn't mean that she or he is going to be able to prove the case. I had a similar situation just a few months ago at the end of the day we ended up agreeing to dismiss the case with prejudice. No perjury charges were filed nothing happened after that.Sent from my iPhoneOn Dec 29, 2011, at 4:43 PM, "Nancy Clark" <nclark@blclaw.com> wrote:
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of John D. FaucherSent: Thursday, December 29, 2011 4:36 PMTo: cdcbaa@yahoogroups.comSubject: Re: [cdcbaa] Ethics issue I have had only one case where I needed to object to a trustee's questioning I objected based on "assumes facts not in evidence." The trustee immediately said I was out of line, because this wasn't an evidentiary hearing and the rules of evidence dont apply. When I pointed out that he had put my client under oath, given warnings about perjury, and was keeping a transcript, he then threatened to stop the proceeding and haul my client in for a 2004 exam. We ended up working things out, and the client didn't need to answer a trick question. In that particular case, I did a good thing for the client. In most of them, though, it would be counterproductive to speak up.
The post was migrated from Yahoo.
charsetndows-1252
Again, it is interesting. It has never come up for me, but watching these posts, and the fact pattern, shouldn't we be aware that once the trustee mentions (or infers?) perjury, we should recess and advise client re the existence of the fifth amendment. If client wants to proceed, that is ok, but if there is a later criminal prosecution, who is going to draw the line between what the documents showed and what the debtor testified to?
Better course is demand a recess, advise the client, then resign or make sure client has good counsel on the criminal issues.
Jason
Jason Wallach
jwallach@gladstonemichel.com
On Dec 29, 2011, at 5:03 PM, Patrick T. Green wrote:
>
> Nancy:
>
>
>
> I will interested to hear others thoughts. Mine are: (1) definitely stop the client from answering further questions. (2) By taking the fifth or terminating the hearing. It is not a courtroom, the tee is not a judge (although some think they are) so he cannot hold the client in contempt. It is time for damage control, which starts with referring client to criminal counsel and withdrawing from representation.
>
>
>
> If you have any questions or concerns please contact me.
>
>
>
> Pat
>
>
>
> Patrick T. Green
>
> Attorney at Law
>
> 1010 E. Union St. Suite 206
>
> Pasadena, CA 91106
>
> Tel: 626-449-8433
>
> Fax: 626-449-0565
>
> Email: pat@fitzgreenlaw.com
>
>
>
>
>
>
>
>
>
>
>
Nancy Clark
> Sent: Thursday, December 29, 2011 4:13 PM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Ethics issue
>
>
>
>
>
> I want to stress this is not my case but I am curious as to whether as the attorney appearing at the hearing you should even attempt to stop the interview for fear that the debtor may be brought up on criminal perjury charges. In ten years this has never happen to me but I listened to questioning of a debtor recently that made me thing of this.
>
>
>
> Thank you,
>
> Nancy B. Clark
>
>
>
> 100 N. Barranca Ave, Suite 250
>
> West Covina, CA 91791
>
> Tele: (626) 332-8600
>
> Fax: (626) 332-8644
>
> www.blclaw.com
>
>
>
>
>
>
>
>
>
nancybonaccorso
> Sent: Thursday, December 29, 2011 4:06 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Ethics issue
>
> &nbs p;
>
>
>
> You appear with your client at the 341(a) hearing. You review the petition prior to the debtor testifying to make sure that you are on the same page as the debtor. The debtor fills out one of the customary questionnaires provided at the 341(a) hearing. The trustee starts the hearing and asks your client whether he has sold, transfered or given any property within the last four years. Your client testifies that he as not. Then the trustee brings out the smoking gun and asks the debtor whether he ever owned or participated in any way in the sale of a particular property for which he received a specific amount of money. Your client now discloses that he has. He states that he was part of the sale of a property six months prior to filing in which he received a significant amount of money from the sale of the property.
>
> You know that your client is in trouble for not disclosing the sale of the property and the funds received. You tell the trustee that you will amend the schedules and correct the issues.
>
> The trustee is not satisfied and asks the debtor why he perjured himself on the petition, the questionnaire and in his testimony and starts laying the foundation for a perjury charge by showing each document to the debtor, making him read the question on the petition aloud and reading the answer.
>
> What do you do? Can you stop the train wreck that is about to happen. At what point if any do you instruct your client not to answer any further questions for fear of a criminal perjury charge? Thoughts...
>
> Thanks,
> Nancy B. Clark
> Borowitz & Clark, LLP
>
>
>
>
charsetndows-1252
Again, it is interesting. It has never come up for me, but watching these posts, and the fact pattern, shouldn't we be aware that once the trustee mentions (or infers?) perjury, we should recess and advise client re the existence of the fifth amendment. If client wants to proceed, that is ok, but if there is a later criminal prosecution, who is going to draw the line between what the documents showed and what the debtor testified to?Better course is demand a recess, advise the client, then resign or make sure client has good counsel on the criminal issues.Jason
Jason Wallach
The post was migrated from Yahoo.
Nancy-
A debtor at the 341(a) cannot take the 5th. If the debtor does take the
5th. The Trustee has to stop the 341(a) and call the UST in at that time.
Lesley
On Thu, Dec 29, 2011 at 5:03 PM, Patrick T. Green wrote:
> **
>
>
> Nancy:****
>
> ** **
>
> I will interested to hear others thoughts. Mine are: (1) definitely stop
> the client from answering further questions. (2) By taking the fifth or
> terminating the hearing. It is not a courtroom, the tee is not a judge
> (although some think they are) so he cannot hold the client in contempt.
> It is time for damage control, which starts with referring client to
> criminal counsel and withdrawing from representation.****
>
> ** **
>
> If you have any questions or concerns please contact me.****
>
> ** **
>
> Pat****
>
> ** **
>
> Patrick T. Green****
>
> Attorney at Law****
>
> 1010 E. Union St. Suite 206****
>
> Pasadena, CA 91106****
>
> Tel: 626-449-8433****
>
> Fax: 626-449-0565****
>
> Email: pat@fitzgreenlaw.com****
>
> ** **
>
> ** **
>
> ** **
>
> ** **
>
> ** **
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *Nancy Clark
> *Sent:* Thursday, December 29, 2011 4:13 PM
> *To:* cdcbaa@yahoogroups.com
>
> *Subject:* RE: [cdcbaa] Ethics issue****
>
> ** **
>
> ****
>
> I want to stress this is not my case but I am curious as to whether as the
> attorney appearing at the hearing you should even attempt to stop the
> interview for fear that the debtor may be brought up on criminal perjury
> charges. In ten years this has never happen to me but I listened to
> questioning of a debtor recently that made me thing of this.****
>
> ****
>
> Thank you,****
>
> Nancy B. Clark****
>
> [image: Description: untitled]****
>
> 100 N. Barranca Ave, Suite 250****
>
> West Covina, CA 91791****
>
> Tele: (626) 332-8600****
>
> Fax: (626) 332-8644****
>
> www.blclaw.com ****
>
> ****
>
> ****
>
> ****
>
>
> ****
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *nancybonaccorso
> *Sent:* Thursday, December 29, 2011 4:06 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] Ethics issue****
>
> ****
>
> ****
>
> You appear with your client at the 341(a) hearing. You review the petition
> prior to the debtor testifying to make sure that you are on the same page
> as the debtor. The debtor fills out one of the customary questionnaires
> provided at the 341(a) hearing. The trustee starts the hearing and asks
> your client whether he has sold, transfered or given any property within
> the last four years. Your client testifies that he as not. Then the trustee
> brings out the smoking gun and asks the debtor whether he ever owned or
> participated in any way in the sale of a particular property for which he
> received a specific amount of money. Your client now discloses that he has.
> He states that he was part of the sale of a property six months prior to
> filing in which he received a significant amount of money from the sale of
> the property.
>
> You know that your client is in trouble for not disclosing the sale of the
> property and the funds received. You tell the trustee that you will amend
> the schedules and correct the issues.
>
> The trustee is not satisfied and asks the debtor why he perjured himself
> on the petition, the questionnaire and in his testimony and starts laying
> the foundation for a perjury charge by showing each document to the debtor,
> making him read the question on the petition aloud and reading the answer.
>
> What do you do? Can you stop the train wreck that is about to happen. At
> what point if any do you instruct your client not to answer any further
> questions for fear of a criminal perjury charge? Thoughts...
>
> Thanks,
> Nancy B. Clark
> Borowitz & Clark, LLP****
>
> ****
>
>
>
Lesley B. Davis, Esq.
Lesley Davis Law
21601 Vanowen Street, Suite 208
Canoga Park, CA 91303
lesleydavislaw@gmail.com
424-234-3558 Direct
818-337-2191 Fax
Not intended as a substitute for a writing. Notwithstanding the Uniform
Electronic Transactions Act or the applicability of any other law of
similar substance or effect, absent an express statement to the contrary
hereinabove, this email message, its contents, and any attachments hereto
are not intended to represent an offer or acceptance to enter into a
contract and are not otherwise intended to bind the sender, Lesley Davis
Law, any of its clients, or any other person or entity.
This e-mail message and any attachments are confidential and may be
attorney-client privileged. If you are not the intended recipient, please
notify Lesley Davis Law immediately by telephone at (424) 234-3558 or by
e-mail to lesleydavislaw@gmail.com and destroy all copies of this message
and any attachments.
IRS Circular 230 Disclosure: In order to comply with requirements imposed
by the Internal Revenue Service, we inform you that any U.S. tax advice
contained in this communication (including any attachments) is not intended
to be used, and cannot be used, for the purpose of (i) avoiding penalties
under the Internal Revenue Code or (ii) promoting, marketing, or
recommending to another party any transaction or matter addressed herein.
Nancy-
A debtor at the 341(a) cannot take the 5th. If the debtor does take the 5th. The Trustee has to stop the 341(a) and call the UST in at that time.
Lesley
On Thu, Dec 29, 2011 at 5:03 PM, Patrick T. Green <pat@fitzgreenlaw.com> wrote:
Nancy:
I will interested to hear others thoughts. Mine are: (1) definitely stop the client from answering further questions. (2) By taking the fifth or terminating the hearing. are) so he cannot hold the client in contempt. It is time for damage control, which starts with referring client to criminal counsel and withdrawing from representation.
If you have any questions or concerns please contact me.
Pat
Patrick T. Green
Attorney at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
Email: pat@fitzgreenlaw.com
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Nancy Clark
Sent: Thursday, December 29, 2011 4:13 PMTo: cdcbaa@yahoogroups.comSubject: RE: [cdcbaa] Ethics issue
I want to stress this is not my case but I am curious as to whether as the attorney appearing at the hearing you should even attempt to stop the interview for fear that the debtor may be brought up on criminal perjury charges. In ten years this has never happen to me but I listened to questioning of a debtor recently that made me thing of this.
The post was migrated from Yahoo.
would be unfair to the appearing attorney. I would put it on second call and call the attorney for instructions. If it is not your case you should either be fully aware of what is going on or in the alternative not take the matter on. Either way, without the authorization of the attorney of record and then conferring with the client, you may be stepping into a minefield if you just sit there without intervening. Whether you're appearing once or as attorney of record our obligation is to the client first.
Sent from my iPhone
On Dec 29, 2011, at 4:43 PM, "Nancy Clark" wrote:
> How about a little changeyou are appearing at a continued 341(a) hearing. The original 341(a) revealed the sale of the property. The trustee asks for documents related to the sale. And are asked to cover the continued hearing. Again, the trustee already has the petition, the questionnaire and the prior testimony. But the trustee starts with the line of questioning that could lead to a perjury charge. You are caught by surprise because the debtor and the attorney have cooperated. Does your appearance attorney have to stop the questioning? Would you have an obligation to instruct your appearance attorney to stop any questioning if it relates to perjury?
>
>
>
> Thank you,
>
> Nancy B. Clark
>
>
>
> 100 N. Barranca Ave, Suite 250
>
> West Covina, CA 91791
>
> Tele: (626) 332-8600
>
> Fax: (626) 332-8644
>
> www.blclaw.com
>
>
>
>
>
>
>
>
John D. Faucher
> Sent: Thursday, December 29, 2011 4:36 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Ethics issue
>
>
>
>
>
> I would never let a debtor go to a 341 hearing on his/her own. But like Paul suggests, that's more for the debtor's comfort than for the expert legal maneuvering I expect to engage in. I guess I also want to make sure that someone speaks the language so when the trustee asks for amendments, she's not met with a blank stare. Appearance attorneys do this very well for me.
>
> I have had only one case where I needed to object to a trustee's questioning I objected based on "assumes facts not in evidence." The trustee immediately said I was out of line, because this wasn't an evidentiary hearing and the rules of evidence dont apply. When I pointed out that he had put my client under oath, given warnings about perjury, and was keeping a transcript, he then threatened to stop the proceeding and haul my client in for a 2004 exam. We ended up working things out, and the client didn't need to answer a trick question.
>
> In that particular case, I did a good thing for the client. In most of them, though, it would be counterproductive to speak up.
>
>
>
> John D. Faucher
>
> Hurlbett & Faucher, LLP
>
>
>
> On 12/29/11 4:21 PM, "Paul Horn" wrote:
>
>
>
> This is an interesting topic. I have wondered this myself, what is the role of the attorney at the 341 meeting. If attorney speaks up he might come across as possibly as leading the answer. Are we there just for clients>
>
>
> Paul Horn
>
> Attorney at Law
>
> Certified Public Accountant
>
> To: cdcbaa@yahoogroups.com
> Sent: Thursday, December 29, 2011 4:13 PM
> Subject: RE: [cdcbaa] Ethics issue
>
>
>
> I want to stress this is not my case but I am curious as to whether as the attorney appearing at the hearing you should even attempt to stop the interview for fear that the debtor may be brought up on criminal perjury charges. In ten years this has never happen to me but I listened to questioning of a debtor recently that made me thing of this.
>
>
>
> Thank you,
>
> Nancy B. Clark
>
>
>
> 100 N. Barranca Ave, Suite 250
>
> West Covina, CA 91791
>
> Tele: (626) 332-8600
>
> Fax: (626) 332-8644
>
> www.blclaw.com
>
>
>
>
>
>
>
>
>
nancybonaccorso
> Sent: Thursday, December 29, 2011 4:06 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Ethics issue
>
>
>
>
>
> You appear with your client at the 341(a) hearing. You review the petition prior to the debtor testifying to make sure that you are on the same page as the debtor. The debtor fills out one of the customary questionnaires provided at the 341(a) hearing. The trustee starts the hearing and asks your client whether he has sold, transfered or given any property within the last four years. Your client testifies that he as not. Then the trustee brings out the smoking gun and asks the debtor whether he ever owned or participated in any way in the sale of a particular property for which he received a specific amount of money. Your client now discloses that he has. He states that he was part of the sale of a property six months prior to filing in which he received a significant amount of money from the sale of the property.
>
> You know that your client is in trouble for not disclosing the sale of the property and the funds received. You tell the trustee that you will amend the schedules and correct the issues.
>
> The trustee is not satisfied and asks the debtor why he perjured himself on the petition, the questionnaire and in his testimony and starts laying the foundation for a perjury charge by showing each document to the debtor, making him read the question on the petition aloud and reading the answer.
>
> What do you do? Can you stop the train wreck that is about to happen. At what point if any do you instruct your client not to answer any further questions for fear of a criminal perjury charge? Thoughts...
>
> Thanks,
> Nancy B. Clark
> Borowitz & Clark, LLP
>
>
>
>
>
would be unfair to the appearing attorney. I would put it on second call and call the attorney for instructions. If it is not your case you should either be fully aware of what is going on or in the alternative not take the matter on. Either way, without the authorization of the attorney of record and then conferring with the client, you may be stepping into a minefield if you just sit there without intervening. Whether you're appearing once or as attorney of record our obligation is to the client first.Sent from my iPhoneOn Dec 29, 2011, at 4:43 PM, "Nancy Clark" <nclark@blclaw.com> wrote:
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of John D. FaucherSent: Thursday, December 29, 2011 4:36 PMTo: cdcbaa@yahoogroups.comSubject: Re: [cdcbaa] Ethics issue I have had only one case where I needed to object to a trustee's questioning I objected based on "assumes facts not in evidence." The trustee immediately said I was out of line, because this wasn't an evidentiary hearing and the rules of evidence dont apply. When I pointed out that he had put my client under oath, given warnings about perjury, and was keeping a transcript, he then threatened to stop the proceeding and haul my client in for a 2004 exam. We ended up working things out, and the client didn't need to answer a trick question. In that particular case, I did a good thing for the client. In most of them, though, it would be counterproductive to speak up.
The post was migrated from Yahoo.
Nancy:
I will interested to hear others thoughts. Mine are: (1) definitely stop
the client from answering further questions. (2) By taking the fifth or
terminating the hearing. It is not a courtroom, the tee is not a judge
(although some think they are) so he cannot hold the client in contempt. It
is time for damage control, which starts with referring client to criminal
counsel and withdrawing from representation.
If you have any questions or concerns please contact me.
Pat
Patrick T. Green
Attorney at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
Email: pat@fitzgreenlaw.com
The post was migrated from Yahoo.
Ah. Well that would be unfair to the appearing attorney. I would put it on second call and call the attorney for instructions. If it is not your case you should either be fully aware of what is going on or in the alternative not take the matter on. Either way, without the authorization of the attorney of record and then conferring with the client, you may be stepping into a minefield. If
Sent from my iPhone
On Dec 29, 2011, at 4:43 PM, "Nancy Clark" wrote:
> How about a little changeyou are appearing at a continued 341(a) hearing. The original 341(a) revealed the sale of the property. The trustee asks for documents related to the sale. And are asked to cover the continued hearing. Again, the trustee already has the petition, the questionnaire and the prior testimony. But the trustee starts with the line of questioning that could lead to a perjury charge. You are caught by surprise because the debtor and the attorney have cooperated. Does your appearance attorney have to stop the questioning? Would you have an obligation to instruct your appearance attorney to stop any questioning if it relates to perjury?
>
>
>
> Thank you,
>
> Nancy B. Clark
>
>
>
> 100 N. Barranca Ave, Suite 250
>
> West Covina, CA 91791
>
> Tele: (626) 332-8600
>
> Fax: (626) 332-8644
>
> www.blclaw.com
>
>
>
>
>
>
>
>
John D. Faucher
> Sent: Thursday, December 29, 2011 4:36 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Ethics issue
>
>
>
>
>
> I would never let a debtor go to a 341 hearing on his/her own. But like Paul suggests, that's more for the debtor's comfort than for the expert legal maneuvering I expect to engage in. I guess I also want to make sure that someone speaks the language so when the trustee asks for amendments, she's not met with a blank stare. Appearance attorneys do this very well for me.
>
> I have had only one case where I needed to object to a trustee's questioning I objected based on "assumes facts not in evidence." The trustee immediately said I was out of line, because this wasn't an evidentiary hearing and the rules of evidence dont apply. When I pointed out that he had put my client under oath, given warnings about perjury, and was keeping a transcript, he then threatened to stop the proceeding and haul my client in for a 2004 exam. We ended up working things out, and the client didn't need to answer a trick question.
>
> In that particular case, I did a good thing for the client. In most of them, though, it would be counterproductive to speak up.
>
>
>
> John D. Faucher
>
> Hurlbett & Faucher, LLP
>
>
>
> On 12/29/11 4:21 PM, "Paul Horn" wrote:
>
>
>
> This is an interesting topic. I have wondered this myself, what is the role of the attorney at the 341 meeting. If attorney speaks up he might come across as possibly as leading the answer. Are we there just for clients>
>
>
> Paul Horn
>
> Attorney at Law
>
> Certified Public Accountant
>
> To: cdcbaa@yahoogroups.com
> Sent: Thursday, December 29, 2011 4:13 PM
> Subject: RE: [cdcbaa] Ethics issue
>
>
>
> I want to stress this is not my case but I am curious as to whether as the attorney appearing at the hearing you should even attempt to stop the interview for fear that the debtor may be brought up on criminal perjury charges. In ten years this has never happen to me but I listened to questioning of a debtor recently that made me thing of this.
>
>
>
> Thank you,
>
> Nancy B. Clark
>
>
>
> 100 N. Barranca Ave, Suite 250
>
> West Covina, CA 91791
>
> Tele: (626) 332-8600
>
> Fax: (626) 332-8644
>
> www.blclaw.com
>
>
>
>
>
>
>
>
>
nancybonaccorso
> Sent: Thursday, December 29, 2011 4:06 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Ethics issue
>
>
>
>
>
> You appear with your client at the 341(a) hearing. You review the petition prior to the debtor testifying to make sure that you are on the same page as the debtor. The debtor fills out one of the customary questionnaires provided at the 341(a) hearing. The trustee starts the hearing and asks your client whether he has sold, transfered or given any property within the last four years. Your client testifies that he as not. Then the trustee brings out the smoking gun and asks the debtor whether he ever owned or participated in any way in the sale of a particular property for which he received a specific amount of money. Your client now discloses that he has. He states that he was part of the sale of a property six months prior to filing in which he received a significant amount of money from the sale of the property.
>
> You know that your client is in trouble for not disclosing the sale of the property and the funds received. You tell the trustee that you will amend the schedules and correct the issues.
>
> The trustee is not satisfied and asks the debtor why he perjured himself on the petition, the questionnaire and in his testimony and starts laying the foundation for a perjury charge by showing each document to the debtor, making him read the question on the petition aloud and reading the answer.
>
> What do you do? Can you stop the train wreck that is about to happen. At what point if any do you instruct your client not to answer any further questions for fear of a criminal perjury charge? Thoughts...
>
> Thanks,
> Nancy B. Clark
> Borowitz & Clark, LLP
>
>
>
>
>
Ah. Well that would be unfair to the appearing attorney. I would put it on second call and call the attorney for instructions. If it is not your case you should either be fully aware of what is going on or in the alternative not take the matter on. Either way, without the authorization of the attorney of record and then conferring with the client, you may be stepping into a minefield. IfSent from my iPhoneOn Dec 29, 2011, at 4:43 PM, "Nancy Clark" <nclark@blclaw.com> wrote:
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of John D. FaucherSent: Thursday, December 29, 2011 4:36 PMTo: cdcbaa@yahoogroups.comSubject: Re: [cdcbaa] Ethics issue I have had only one case where I needed to object to a trustee's questioning I objected based on "assumes facts not in evidence." The trustee immediately said I was out of line, because this wasn't an evidentiary hearing and the rules of evidence dont apply. When I pointed out that he had put my client under oath, given warnings about perjury, and was keeping a transcript, he then threatened to stop the proceeding and haul my client in for a 2004 exam. We ended up working things out, and the client didn't need to answer a trick question. In that particular case, I did a good thing for the client. In most of them, though, it would be counterproductive to speak up.
The post was migrated from Yahoo.
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How about a little change...you are appearing at a continued 341(a)
hearing. The original 341(a) revealed the sale of the property. The
trustee asks for documents related to the sale. And are asked to cover
the continued hearing. Again, the trustee already has the petition, the
questionnaire and the prior testimony. But the trustee starts with the
line of questioning that could lead to a perjury charge. You are caught
by surprise because the debtor and the attorney have cooperated. Does
your appearance attorney have to stop the questioning? Would you have an
obligation to instruct your appearance attorney to stop any questioning
if it relates to perjury?
Thank you,
Nancy B. Clark
100 N. Barranca Ave, Suite 250
West Covina, CA 91791
Tele: (626) 332-8600
Fax: (626) 332-8644
www.blclaw.com
The post was migrated from Yahoo.
I would still intervene. To allow the debtor to just go forward without you having a full understanding of what the trustee is talking about and the facts surrounding the allegations I as counsel would be remiss if I just sat there and allowed the interview to proceed.
Sent from my iPhone
On Dec 29, 2011, at 4:33 PM, "Nancy Clark" wrote:
> Would it even matter if you stopped the interview? The trustee already has the record by way of the petition, the questionnaire and your debtort? Lets say the debtor states that he did not really understand the question or that he never considered the property his but for some reason it was in his name and that he is trying to cooperate. Your debtor repeatedly insists that he never meant to conceal any information?
>
>
>
> Thank you,
>
> Nancy B. Clark
>
>
>
> 100 N. Barranca Ave, Suite 250
>
> West Covina, CA 91791
>
> Tele: (626) 332-8600
>
> Fax: (626) 332-8644
>
> www.blclaw.com
>
>
>
>
>
>
>
>
Paul Horn
> Sent: Thursday, December 29, 2011 4:21 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Ethics issue
>
>
>
> This is an interesting topic. I have wondered this myself, what is the role of the attorney at the 341 meeting. If attorney speaks up he might come across as possibly as leading the answer. Are we there just for clients>
>
>
> Paul Horn
>
> Attorney at Law
>
> Certified Public Accountant
>
> To: cdcbaa@yahoogroups.com
> Sent: Thursday, December 29, 2011 4:13 PM
> Subject: RE: [cdcbaa] Ethics issue
>
>
>
> I want to stress this is not my case but I am curious as to whether as the attorney appearing at the hearing you should even attempt to stop the interview for fear that the debtor may be brought up on criminal perjury charges. In ten years this has never happen to me but I listened to questioning of a debtor recently that made me thing of this.
>
>
>
> Thank you,
>
> Nancy B. Clark
>
>
>
> 100 N. Barranca Ave, Suite 250
>
> West Covina, CA 91791
>
> Tele: (626) 332-8600
>
> Fax: (626) 332-8644
>
> www.blclaw.com
>
>
>
>
>
>
>
>
>
nancybonaccorso
> Sent: Thursday, December 29, 2011 4:06 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Ethics issue
>
>
>
>
>
> You appear with your client at the 341(a) hearing. You review the petition prior to the debtor testifying to make sure that you are on the same page as the debtor. The debtor fills out one of the customary questionnaires provided at the 341(a) hearing. The trustee starts the hearing and asks your client whether he has sold, transfered or given any property within the last four years. Your client testifies that he as not. Then the trustee brings out the smoking gun and asks the debtor whether he ever owned or participated in any way in the sale of a particular property for which he received a specific amount of money. Your client now discloses that he has. He states that he was part of the sale of a property six months prior to filing in which he received a significant amount of money from the sale of the property.
>
> You know that your client is in trouble for not disclosing the sale of the property and the funds received. You tell the trustee that you will amend the schedules and correct the issues.
>
> The trustee is not satisfied and asks the debtor why he perjured himself on the petition, the questionnaire and in his testimony and starts laying the foundation for a perjury charge by showing each document to the debtor, making him read the question on the petition aloud and reading the answer.
>
> What do you do? Can you stop the train wreck that is about to happen. At what point if any do you instruct your client not to answer any further questions for fear of a criminal perjury charge? Thoughts...
>
> Thanks,
> Nancy B. Clark
> Borowitz & Clark, LLP
>
>
>
>
I would still intervene. To allow the debtor to just go forward without you having a full understanding of what the trustee is talking about and the facts surrounding the allegations I as counsel would be remiss if I just sat there and allowed the interview to proceed. Sent from my iPhoneOn Dec 29, 2011, at 4:33 PM, "Nancy Clark" <nclark@blclaw.com> wrote:
The post was migrated from Yahoo.
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I would never let a debtor go to a 341 hearing on his/her own. But like
Paul suggests, that's more for the debtor's comfort than for the expert
legal maneuvering I expect to engage in. I guess I also want to make sure
that someone speaks the language so when the trustee asks for amendments,
she's not met with a blank stare. Appearance attorneys do this very well
for me.
I have had only one case where I needed to object to a trustee's questioning
immediately said I was out of line, because this wasn't an evidentiary
hearing and the rules of evidence dont apply. When I pointed out that he
had put my client under oath, given warnings about perjury, and was keeping
a transcript, he then threatened to stop the proceeding and haul my client
in for a 2004 exam. We ended up working things out, and the client didn't
need to answer a trick question.
In that particular case, I did a good thing for the client. In most of
them, though, it would be counterproductive to speak up.
John D. Faucher
Hurlbett & Faucher, LLP
On 12/29/11 4:21 PM, "Paul Horn" wrote:
> This is an interesting topic. I have wondered this myself, what is the role of
> the attorney at the 341 meeting. If attorney speaks up he might come across as
> possibly as leading the answer. Are we there just for clients comfort?
>
>
> Paul Horn
> Attorney at Law
> Certified Public Accountant
>
>
>
>
> To: cdcbaa@yahoogroups.com
> Sent: Thursday, December 29, 2011 4:13 PM
> Subject: RE: [cdcbaa] Ethics issue
>
>
>
> I want to stress this is not my case but I am curious as to whether as the
> attorney appearing at the hearing you should even attempt to stop the
> interview for fear that the debtor may be brought up on criminal perjury
> charges. In ten years this has never happen to me but I listened to
> questioning of a debtor recently that made me thing of this.
>
> Thank you,
> Nancy B. Clark
> 100 N. Barranca Ave, Suite 250
> West Covina, CA 91791
> Tele: (626) 332-8600
> Fax: (626) 332-8644
> www.blclaw.com
>
>
>
>
> nancybonaccorso
> Sent: Thursday, December 29, 2011 4:06 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Ethics issue
>
>
> You appear with your client at the 341(a) hearing. You review the petition
> prior to the debtor testifying to make sure that you are on the same page as
> the debtor. The debtor fills out one of the customary questionnaires provided
> at the 341(a) hearing. The trustee starts the hearing and asks your client
> whether he has sold, transfered or given any property within the last four
> years. Your client testifies that he as not. Then the trustee brings out the
> smoking gun and asks the debtor whether he ever owned or participated in any
> way in the sale of a particular property for which he received a specific
> amount of money. Your client now discloses that he has. He states that he was
> part of the sale of a property six months prior to filing in which he received
> a significant amount of money from the sale of the property.
>
> You know that your client is in trouble for not disclosing the sale of the
> property and the funds received. You tell the trustee that you will amend the
> schedules and correct the issues.
>
> The trustee is not satisfied and asks the debtor why he perjured himself on
> the petition, the questionnaire and in his testimony and starts laying the
> foundation for a perjury charge by showing each document to the debtor, making
> him read the question on the petition aloud and reading the answer.
>
> What do you do? Can you stop the train wreck that is about to happen. At what
> point if any do you instruct your client not to answer any further questions
> for fear of a criminal perjury charge? Thoughts...
>
> Thanks,
> Nancy B. Clark
> Borowitz & Clark, LLP
>
>
>
>
>
>
>
charset="ISO-8859-1"
I would never let a debtor go to a 341 hearing on his/her own. But like Paul suggests, that's more for the debtor's comfort than for the expert legal maneuvering I expect to engage in. I guess I also want to make sure that someone speaks the language so when the trustee asks for amendments, she's not met with a blank stare. Appearance attorneys do this very well for me. I have had only one case where I needed to object to a trustee's questioning – I objected based on "assumes facts not in evidence." The trustee immediately said I was out of line, because this wasn't an evidentiary hearing and the rules of evidence don’t apply. When I pointed out that he had put my client under oath, given warnings about perjury, and was keeping a transcript, he then threatened to stop the proceeding and haul my client in for a 2004 exam. We ended up working things out, and the client didn't need to answer a trick question. In that particular case, I did a good thing for the client. In most of them, though, it would be counterproductive to speak up. John D. Faucher
The post was migrated from Yahoo.