NJSBA Family Law Section

Original Message------

List-mates, 

So a client has surprised me with a bankruptcy filing, ch. 13. We are in the middle of his divorce, and he owes me a lot of money. I am listed as his creditor. He didn't bother informing me either. I received notice from the bankruptcy court. 

Client wants me to continue representing him, I want him to sign a substitution of attorney or I will be filing a motion to withdraw. The way I see it, we now have a conflict of interests. Moreover, I looked up his petition in PACER and he's not truthful with the information listed. As a matter of fact, should the opposing counsel get her hands on it, it's not going to look good for him. Client does not see the problem here, I on the other hand, have a big problem having to work with him considering that he went behind my back, lied, and clearly expects me to work for free. If this is not a breakdown of trust and communication, then my name is Minnie Mouse. Or am I wrong here?

Thank you for any comments and suggestions.

Natalia Teper

agree. give him ONE chance to fix it, and if he agrees, talk to his bankruptcy attorney.

otherwise, file your motion.

and consider going into court to oppose his bankruptcy petition, for the false statements.

ugh. it happens once in a while. 

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Robert Davies Esq.
Hackensack NJ
(201)820-3460

Original Message:
Sent: 11-17-2016 19:21
From: Lisa Radell
Subject: surprise bankruptcy mid divorce

Run Forest! RUN!

Sent from my Verizon Wireless 4G LTE smartphone

Original Message------

Run Forest! RUN!

Sent from my Verizon Wireless 4G LTE smartphone

Original Message------

No you're right. its a conflict. Tell him to get other counsel.

Don't forget the filing created an automatic stay of the divorce.

ccs

 
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Original Message------

If you are within time allowed by court rule, I would definitely ask the client to consent to letting you withdraw as counsel.  If client doesn't consent or if you are past the point in the matter allowing for consent per the rule, I would file the motion to withdraw based on the conflict.  I do not see a breach of client confidentiality since client listed you as a creditor on a document filed with a court in a matter not under seal or otherwise not available to the public.

As to the false statements client may have made on the bankruptcy petition.  I would strongly urge you to review the rules on client confidentiality as to information you received in your capacity as client's divorce attorney before you make any decisions about communicating with the client's bankruptcy attorney or with the bankruptcy court.  I realize I don't have all the facts but I am thinking you might find a duty to advise your client to speak with his bankruptcy attorney and correct the false statements but that you cannot do anything more without breaching your duty to client.

Sent from my iPad

Original Message------

Even of you are technically out of time to file the Substitution without filing a motion, some judges will let you do it anyway.

If it was me, I would file the Substitution, as the quickest way out to get rid of this guy.  The worst that can happen as to that issue is that your judge will kick it back and tell you to file your motion to be relieved.

Original Message------

List-mates, 

So a client has surprised me with a bankruptcy filing, ch. 13. We are in the middle of his divorce, and he owes me a lot of money. I am listed as his creditor. He didn't bother informing me either. I received notice from the bankruptcy court. 

Client wants me to continue representing him, I want him to sign a substitution of attorney or I will be filing a motion to withdraw. The way I see it, we now have a conflict of interests. Moreover, I looked up his petition in PACER and he's not truthful with the information listed. As a matter of fact, should the opposing counsel get her hands on it, it's not going to look good for him. Client does not see the problem here, I on the other hand, have a big problem having to work with him considering that he went behind my back, lied, and clearly expects me to work for free. If this is not a breakdown of trust and communication, then my name is Minnie Mouse. Or am I wrong here?

Thank you for any comments and suggestions.

Natalia Teper

Original Message------

List-mates, 

So a client has surprised me with a bankruptcy filing, ch. 13. We are in the middle of his divorce, and he owes me a lot of money. I am listed as his creditor. He didn't bother informing me either. I received notice from the bankruptcy court. 

Client wants me to continue representing him, I want him to sign a substitution of attorney or I will be filing a motion to withdraw. The way I see it, we now have a conflict of interests. Moreover, I looked up his petition in PACER and he's not truthful with the information listed. As a matter of fact, should the opposing counsel get her hands on it, it's not going to look good for him. Client does not see the problem here, I on the other hand, have a big problem having to work with him considering that he went behind my back, lied, and clearly expects me to work for free. If this is not a breakdown of trust and communication, then my name is Minnie Mouse. Or am I wrong here?

Thank you for any comments and suggestions.

Natalia Teper

Yes. But do not send adversary in motion any reason why you wish to withdraw. Get permission from judge that protects you from disclosing any confidential info.

Robert E. Goldstein, Esq.
Drescher & Cheslow, P.A.
(732) 972-1600
[email protected]

Visit my website: www.mydivorcelawyernj.com


Original Message------

File a motion to withdraw 

Sent from my iPhone

Yes, I amend my response on this point. I wouldn't reference the bankruptcy listing me as a creditor in the motion to withdraw even though it is a public document. Just a generic "conflict has arisen making me unable to continue, blah, blah, blah". If adversary or judge seek more details, I would ask for ex parte review of docs related to conflict. And I see the conflict only as being a creditor, not possessing information contradicting the petition. Judge can then decide whether to disclose to adversary. Going this route is arguably not necessary since bankruptcy is a matter of public record but better safe than sorry. Also, isn't the adversary going to be notified of the bankruptcy filing for automatic stay purposes?

As to posting on this list serve. In this case, it might have been better to simply ask if any colleagues would be willing to discuss experiences with being named as a creditor in a bankruptcy off list. Nothing to indicate the case is active or potentially false statements involved. But hindsight is 20/20 so I do not offer this as a criticism, just as food for thought.

Anne

Sent from my iPad


Original Message------

Yes. But do not send adversary in motion any reason why you wish to withdraw. Get permission from judge that protects you from disclosing any confidential info.

Robert E. Goldstein, Esq.
Drescher & Cheslow, P.A.
(732) 972-1600
[email protected]

Visit my website: www.mydivorcelawyernj.com

Original Message------

Yes, I amend my response on this point. I wouldn't reference the bankruptcy listing me as a creditor in the motion to withdraw even though it is a public document. Just a generic "conflict has arisen making me unable to continue, blah, blah, blah". If adversary or judge seek more details, I would ask for ex parte review of docs related to conflict. And I see the conflict only as being a creditor, not possessing information contradicting the petition. Judge can then decide whether to disclose to adversary. Going this route is arguably not necessary since bankruptcy is a matter of public record but better safe than sorry. Also, isn't the adversary going to be notified of the bankruptcy filing for automatic stay purposes?

As to posting on this list serve. In this case, it might have been better to simply ask if any colleagues would be willing to discuss experiences with being named as a creditor in a bankruptcy off list. Nothing to indicate the case is active or potentially false statements involved. But hindsight is 20/20 so I do not offer this as a criticism, just as food for thought.

Anne

Sent from my iPad

Original Message------

File a motion to withdraw 

Sent from my iPhone

Original Message------

Talk with bankruptcy counsel - "Peter Zimnis (BK Esq)" <[email protected]> is my go-to guy, but there are others in the area.

If client is willing to affirm the debt to you, it could end up a net positive in that he can't file a bankruptcy afterward. Just be 100% sure he can't back out on the affirmation of the debt / can't amend his petition after affirming it.

If client is not willing to affirm the debt, then yes - I agree - you need to get out.


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David Perry Davis, Esq.
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   www.FamilyLawNJ.pro
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112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax:    609-737-3222

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I have language in family matter retainers which incorporates the Court rule on substitution of attorney by consent and by motion. I do not ask clients to sign a Substitution of Attorney up front; I only prepare as needed and with the client's voluntary and informed consent at the time. I would be concerned that a challenge to this blanket consent up front practice would succeed.

But I am curious to hear other opinions about this practice.

TGIF, Anne

Anne Cralle, Esq.

Sent from my iPad


Original Message------

List-mates, thank you all very much for your help ranging from practical to ethical advice. I am grateful, and appreciate all of it. I understand the risks of posting on this list serve and perhaps I should have been more circumspect with my facts here. Another one to be added to the "live and learn" pile. 

Moving forward, I recall someone telling me a while back that this particular lawyer has every client sign a substitution of attorney at the beginning of the case, to be used just in case in times of need. This supposedly helps him/her avoid the awkward conversation like the one I will be having soon - telling client you want out of the case. Then again, I can't imagine too many people reacting well to being told "Guess what, you no longer have a lawyer. Remember that substitution form you signed a while back?" This just seems off to me.  

What's your take on this practice? 

Thank you again

Natalia Teper 

Folks:

Before you post sensitive qustions on here, think whether your adversary may be reading it. At least check first as to who is a member on this listserve. 

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Robert Goldstein Esq.
Manalapan NJ
(732)972-1600

Original Message:
Sent: 11-17-2016 18:55
From: Natalia Teper
Subject: surprise bankruptcy mid divorce

List-mates, 

So a client has surprised me with a bankruptcy filing, ch. 13. We are in the middle of his divorce, and he owes me a lot of money. I am listed as his creditor. He didn't bother informing me either. I received notice from the bankruptcy court. 

Client wants me to continue representing him, I want him to sign a substitution of attorney or I will be filing a motion to withdraw. The way I see it, we now have a conflict of interests. Moreover, I looked up his petition in PACER and he's not truthful with the information listed. As a matter of fact, should the opposing counsel get her hands on it, it's not going to look good for him. Client does not see the problem here, I on the other hand, have a big problem having to work with him considering that he went behind my back, lied, and clearly expects me to work for free. If this is not a breakdown of trust and communication, then my name is Minnie Mouse. Or am I wrong here?

Thank you for any comments and suggestions.

Natalia Teper