Mark,
Great response and analysis of the issues. Everyone should take note and save, and maybe suggest as a point of discussion during an MCLE.
Lou Esbin
>
>
>
> Daniela:
>
> My two cents: The question is simple to answer in theory, but not
> so simple to answer when it comes to practical application. It is
> none of the client's business if the attorney files a bankruptcy
> unless the client is a creditor or potential creditor of the attorney
> when the bk was filed. Under those circumstances the client must be
> listed and notified because the client is a creditor and because that
> would mean there was at least a potential conflict of interest
> depending on the nature and circumstances of the debt being incurred.
> Assuming the attorney self employed and not an employee of a firm,
> the attorney's contingency fees and reimbursement of any costs due are
> of course assets that would need to be disclosed in Schedule B along
> with other assets of the attorney's practice, but that alone does not
> require notice to the client. If the attorney does not owe the
> client any money and has not committed any malpractice then the client
> is not a creditor and need not be notified. However, if there is any
> potential claim of malpractice, failing to list and notify that client
> leaves the attorney potentially exposed to having that debt excepted
> from discharge under 523(a)3 if it is an asset case, or if there is a
> basis for any 523(a)(2),(4) or (6) claim. Any clients with any
> forseable claim against the attorney must be listed and noticed. For
> everyone else, especially if it is a potential asset case, I would
> analyze the attorney's potential exposure taking into account, the
> extent of the attorney's e&o coverage, the type of cases handled,
> history of malpractice actions, the general quality of the attorney's
> work, and the attorney's office adminstrative procedures to determine
> the likelyhood of any potential claims from past or current clients.
> This has to be weighed against the potential negative impacts on the
> attorney's future practice if the clients would be inclined to
> discontinue using the attorney's services if notified of the
> attorney's bankruptcy. Even though it might not engender confidence
> in the current and former clients, the safest way to avoid 523(a)3
> exposure is to probably to list every former and current client for
> which the malpractice statute of limitations has not expired.
>
> This is also a potential malpractice trap for bankruptcy counsel, so
> I would advise the attoney who is the potential client of all of this
> in writing.
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868
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> On Sun 3/01/10 9:27 AM , Daniela Romero dromerolaw@... sent:
> Hi mates:
> Hope everyone is starting the year off healthy, wealthy and a little
> wiser.
> Question for those wiser than I (which doesn't take much, but
> hopefully I'll get there):
> Does an attorney, who is representing a client on a contingency
> basis, have a duty to disclose his filing of personal bankruptcy to
> his client? (filed during representation). Not sure if the
> contingency basis matters, but this is how he posed the question to
> me.
> Based upon Rule of Professional Conduct? case law?
> Thanks,
> Daniela P. Romero
> Law Office of Daniela Romero, APLC
> 1015 N. Lake Ave., Ste. 115
> Pasadena, CA 91104
> Telephone:626-817-2611
> Facsimile: 626-628-1781
> email: dromerolaw@... [1]
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> Links:
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> [1] mailto:dromerolaw@...
> [2] mailto:?subjectDoes an attorney have a duty to disclose his
> filing of a personal bankruptcy to a
> client?
> [3] mailto:
cdcbaa@yahoogroups.com?subjectDoes an attorney have a
> duty to disclose his filing of a personal
> bankruptcy to a client?
> [4]
>
http://groups.yahoo.com/group/cdcbaa/me ... TM3ZzZsZmI
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