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Prepetition retainer for anticipated nondischargeability litigation?
The proposed new rules of professional conduct in front of the CA
HSupreme Court eliminate earned upon receipt unless it is for a true retainer - only for lawyer availability.
Furthermore flat fees, while allowed, cannot be deposited into the general account without disclosing to the client their right to require it be deposited into the trust account.
They are not thinking in terms of BK debtor lawyers.
Mark Jessee
Sent from my iPhone
> On Jun 2, 2017, at 5:27 PM, Jason Wallach jwallach@ghplaw.com [cdcbaa] wrote:
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> Huh is all I can say about taking all the prepetition retainer as earned on receipt, and not even having a trust account. I sure dont document my retainer agreements as earned on receipt.
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> The case you are talking about is Hathaway Ranch and Carl Rheuban with Joe Eisenberg and Judge Z. I always, including recently, viewed that as an invalid earned on receipt ruling, not about a security interest.
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> Time for the weekend.
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> Jason
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> JASON WALLACH
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> jwallach@ghplaw.com
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> Gipson Hoffman & Pancione, APC
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> 1901 Avenue of the Stars
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> Suite 1100
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> Los Angeles CA 90067-6002
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> Office: (310) 556-4660
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> Fax: (310) 556-8945
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> Website: www.ghplaw.com
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> Sent: Friday, June 02, 2017 5:22 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] RE: Prepetition retainer for anticipated nondischargeability litigation?
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> Most people do NOT deposit basic retainer in trust account but treat it as earned on receipt. Lots of BK lawyers dont even have a trust account Those who do are supposed to xfer funds immediately before the petition is filed.
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> As for taking a lien, there is a very well known case (but of course I cannot remember the name) where VZ ordered Joe Eisenberg to return title to RP which Joe took as a retainer. There are other cases where the liens have been deemed invalid since no pre-petition consideration.
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> This is one of those absurd problems with BK law.
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> David A. Tilem
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> Certified Bankruptcy Specialist Since 1997
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> Law Offices of David A. Tilem
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> 206 N. Jackson St., #201
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> Glendale, CA 91206
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> Tel: 818-507-6000 * Fax: 818-507-6800
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> Toll Free: 888-BK PRO 4U (888-257-7648)
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> www.TilemLaw.com
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> The pages comprising this transmission may contain CONFIDENTIAL INFORMATION from Law Offices of David A. Tilem. This information is intended solely for use by the individual or entity named as the recipient hereof. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this transmission is prohibited. If you have received this transmission in error, please notify us by telephone immediately so we may arrange and correct this transmission.
>
>
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> Sent: Friday, June 02, 2017 4:47 PM
> To: cdcbaa@yahoogroups.com
> Cc: Jason Wallach
> Subject: [cdcbaa] RE: Prepetition retainer for anticipated nondischargeability litigation?
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> Thanks, Dave.
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> What about the attorneys perfected security interest, i.e. documented and filed UCC-1? It is then property of the estate subject to a lien. Relief from stay?
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> And why doesnt that property of the estate theory also result in disgorgement of any trust deposit remaining of our very reasonable retainer deposit for basic services? Custom? Habit? Courtesy?
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> Have a nice weekend.
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> Jason
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> JASON WALLACH
>
> jwallach@ghplaw.com
>
> Gipson Hoffman & Pancione, APC
>
> 1901 Avenue of the Stars
>
> Suite 1100
>
> Los Angeles CA 90067-6002
>
> Office: (310) 556-4660
>
> Fax: (310) 556-8945
>
> Website: www.ghplaw.com
>
>
>
>
>
> Sent: Friday, June 02, 2017 4:42 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] RE: Prepetition retainer for anticipated nondischargeability litigation?
>
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> Funds in your trust account remain property of the Debtor and hence property of the estate.
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> David A. Tilem
>
> Certified Bankruptcy Specialist Since 1997
>
> Law Offices of David A. Tilem
>
> 206 N. Jackson St., #201
>
> Glendale, CA 91206
>
> Tel: 818-507-6000 * Fax: 818-507-6800
>
> Toll Free: 888-BK PRO 4U (888-257-7648)
>
> www.TilemLaw.com
>
>
>
>
>
>
>
>
>
>
>
>
>
> The pages comprising this transmission may contain CONFIDENTIAL INFORMATION from Law Offices of David A. Tilem. This information is intended solely for use by the individual or entity named as the recipient hereof. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this transmission is prohibited. If you have received this transmission in error, please notify us by telephone immediately so we may arrange and correct this transmission.
>
>
>
> Sent: Friday, June 02, 2017 11:08 AM
> To: cdcbaa@yahoogroups.com
> Cc: Jason Wallach
> Subject: [cdcbaa] Prepetition retainer for anticipated nondischargeability litigation?
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> Prospective Ch 7 client has disputed claims that may lead to a Section 523 adversary proceeding.
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> PC has enough funds to give a litigation retainer as well as a (flat) Chapter 7 retainer (and also turn over some to Trustee).
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> Is there a statutory or other problem with receiving such a retainer; holding it in a trust account pending the actual litigation; and then using it on account of the defense of the adversary proceeding?
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> I assume it gets turned over to the Trustee if there is no adversary proceeding (would be separate from and in excess of any exemption including a wildcard).
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> Assume proper disclosure and documentation, perhaps including a UCC-1?
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> Experiences, recommendations, advice? On or off list.
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> Thanks and happy Friday!
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>
>
> JASON WALLACH
>
> jwallach@ghplaw.com
>
> Gipson Hoffman & Pancione, APC
>
> 1901 Avenue of the Stars
>
> Suite 1100
>
> Los Angeles CA 90067-6002
>
> Office: (310) 556-4660
>
> Fax: (310) 556-8945
>
> Website: www.ghplaw.com
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>
The post was migrated from Yahoo.
Interesting question I hope others respond to the list serve.
Without a wild card exemption, how would the litigation retainer not be
property of the estate? Any prepetition transfer would trigger 547 and 548
analyses.
Best regards
Larry Webb
California Board of Legal Specialization
Certified Specialist in Bankruptcy Law
P 805.987.1400
F 805.987.2866
C 805.750.2150
The post was migrated from Yahoo.
Prospective Ch 7 client has disputed claims that may lead to a Section 523 adversary proceeding.
PC has enough funds to give a litigation retainer as well as a ("flat") Chapter 7 retainer (and also turn over some to Trustee).
Is there a statutory or other problem with receiving such a retainer; holding it in a trust account pending the actual litigation; and then using it on account of the defense of the adversary proceeding?
I assume it gets turned over to the Trustee if there is no adversary proceeding (would be separate from and in excess of any exemption including a wildcard).
Assume proper disclosure and documentation, perhaps including a UCC-1?
Experiences, recommendations, advice? On or off list.
Thanks and happy Friday!
JASON WALLACH
jwallach@ghplaw.com
Gipson Hoffman & Pancione, APC
1901 Avenue of the Stars
Suite 1100
Los Angeles CA 90067-6002
Office: (310) 556-4660
Fax: (310) 556-8945
Website: www.ghplaw.com
[ghp_logo]
The post was migrated from Yahoo.