A Debtor's Communications with Her Attorney Discovered

[...]this article provides recommendations to both debtor's attorneys and trustees for positioning themselves with respect to this dispute. [...]the communication must be made to an attorney in his/her professional capacity. [...]the purpose of the communication must be to secure legal advice o...

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Bibliographic Details
Published in:American Bankruptcy Institute journal 2017-10, Vol.36 (10), p.38
Main Authors: Hull, Nathaniel R, Segal, Stephen B
Format: Article
Language:English
Subjects:
Attorneys
Bankruptcy
Bankruptcy laws
Client relationships
Common law
Communication
Confidentiality
Cooperation
Creditors
Debtors
Disclosure
Federal court decisions
Federal Rules of Bankruptcy Procedure
Federal Rules of Evidence
Fines & penalties
Futures trading
Perjury
Personal bankruptcy
Petitions
Privileged communication
Questionnaires
Trustees
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Summary:[...]this article provides recommendations to both debtor's attorneys and trustees for positioning themselves with respect to this dispute. [...]the communication must be made to an attorney in his/her professional capacity. [...]the purpose of the communication must be to secure legal advice or assistance.12 The burden of proving these elements rests with the party asserting the privilege.13 To assert the existence of a confidential communication, generally a "privilege holder must prove the [that] communication was (1) intended to remain confidential and (2) under the circumstances was reasonably expected and understood to be confidential. A debtor has no reasonable expectation that information will be kept confidential if it must be disclosed in bankruptcy filings and where the Debtor has no reasonable expectation of confidentiality, the attorney/client privilege is unavailable. [...]it has been previously held that the information disclosed to an attorney for the assembly of a bankruptcy petition and schedules does not fall within the scope of the attorney/client privilege.17 A True Case-by-Case Approach In a thoughtful opinion, a bankruptcy court recently observed that blind adherence to the "conduit" theory "would equate an attorney with a bankruptcy petition preparer whose primary responsibility is to transcribe a debtor's financial information onto the Debtor's bankruptcy petition and schedules.
ISSN:1931-7522