charset="ISO-8859-1"
I agree that this has been a very fruitful discussion, and that a CLE on
these issues would be warranted.
I had the sad experience of appearing for an LA attorney, not on this list,
for a hearing in Santa Barbara. The debtor showed up and told me that he
didnt know why he was there. He had talked to the attorney, but claimed
not to have signed the petition nor authorized the filing of a bankruptcy.
"Brain freeze" describes my state quite well. I went ahead with the meeting
anyway, and allowed the so-called debtor to testify to the fact that this
wasn't his signature and that he did not agree with the filing of a
petition. I'm still not sure what the best course would have been, both for
him and for my liability, but I never even thought about the notion of not
going forward with the meeting.
Thinking about alternatives in this very rote procedure is a good thing.
John D. Faucher
Hurlbett & Faucher, LLP
5743 Corsa Ave., Suite 208
Westlake Village, CA 91362
(818) 889-8080
Fax: (805) 367-4154
http://www.hurlbettfaucher.com/
3324 State Street, Suite O
Santa Barbara, CA 93105
(805) 963-9111
This electronic mail message and any attached files are confidential,
contain information intended for the exclusive use of the individual or
entity to whom it is addressed, and may be legally privileged. If you are
not the intended recipient, please immediately reply to John Faucher (at
818/889-8080 or
john@hf-bklaw.com )
indicating that you received this message and then delete the message
without delay. Thank you for your cooperation.
Disclosure Under U.S. IRS Circular 230: The recipient may not use any tax
advice contained in this communication, including any attachments, for the
purpose of avoiding federal tax related penalties or promoting, marketing or
recommending to another party any particular transaction or matter.
On 12/29/11 5:32 PM, "Patrick T. Green" wrote:
>
>
>
>
>
> It is really good that Nancy has raised this issue. It not only raises the
> issue of what is the correct thing for the attorney to do, but also what it
> means to be an appearance attorney or use an appearance attorney.
>
> It is important to remember that appearance attorneys may get paid by the
> real attorney, but for the purposes of the hearing at which they appear, the
> appearance attorney is acting as attorney for the client, not the > attorney and has all the responsibility and liability that they would have if
> the client were their client. So the first duty is damage control by
> stopping the questioning. Then of course any appearance attorney with any
> sense at all will want to get the client back to the real attorney as
> quickly as possible.
>
> Having not faced the situation Nancy describes, I am sure my first reaction
> would have been a momentary brain freeze. Now that I have had the luxury of
> thinking about it while safely sitting in my office, I know I will be much
> better prepared should it happen to me.
>
> We need a CLE on bk malpractice and ethics so we will have had the opportunity
> to see some of the pitfalls in our practice so we can reduce our chances of
> getting caught with our pants down.
>
> 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
>
>
>
>
>
>
> Armen Shaghzo
> Sent: Thursday, December 29, 2011 5:03 PM
> To:
cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Ethics issue
>
>
>
> 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
>>
>>
>>
>>
f
>> 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>>> 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
>>>
>>>
>>>
>>>
>>>
>>>
>>>
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
>>>
>
>
>
>
>
charset="ISO-8859-1"
I agree that this has been a very fruitful discussion, and that a CLE on these issues would be warranted. I had the sad experience of appearing for an LA attorney, not on this list, for a hearing in Santa Barbara. The debtor showed up and told me that he didn’t know why he was there. He had talked to the attorney, but claimed not to have signed the petition nor authorized the filing of a bankruptcy. "Brain freeze" describes my state quite well. I went ahead with the meeting anyway, and allowed the so-called debtor to testify to the fact that this wasn't his signature and that he did not agree with the filing of a petition. I'm still not sure what the best course would have been, both for him and for my liability, but I never even thought about the notion of not going forward with the meeting. Thinking about alternatives in this very rote procedure is a good thing. John D. Faucher
The post was migrated from Yahoo.