Do you need to speak hypothetically with your BK attorney? or can u speak freely?

[illlitius]

This article here tells you to be careful how you talk to your lawyer
(lawcollective.org/article.php?id=160)

It basically tells you to speak in hypotheticals with your attorney. In other words, it tells you to talk around certain subjects/questions without admitting anything as material facts but at the same, still being able to discuss key matters that are needed to be discussed.

However, the article is based on criminal law and bankruptcy/civil law is an entirely different matter.

When I am speaking to my bankruptcy attorney, do I need to speak in hypotheticals or can I literally speak freely with any information regarding my BK case?

So if I were to fax my attorney (for our consultation) a word document, could it literally spell out my case (and my entire financial situation with all the facts) without having to worry about it affecting my case? Even before he is my attorney?

Or should I put a disclaimer that states "Everything in this is hypothetical until we go over specific items that may or may not be factual"?

Thanks in advance.

[Babybear]

Interesting question. I am curious to see the responses. I believe it is confidential once he is hired to represent you. However on a side note I will just say that I didnt always like the honest answers I recieved to some information I gave my attorney. I for example mentioned that I spent money on a credit card and since it had been after I saw him and he advised me not to use the cards anymore since I was considering bankruptcy and I used it, he said that it was a good thing I didnt hire him yet because that purchase could be seen as a problem for me and may not be dischargable. Well I didnt like that much. I also mentioned that one company reduced my credit for 11k to 4 k suddenly and he commented that if I am not looking at bankruptcy than it was a good business decision for them. I was like..whose side are you on. I didnt say it but I felt judged by him and like maybe this guy was a little tooo ethical to get me a discharge. I guess they all have their ways of doing business. I want an attorney who is on my side regardless of what the truth is and what I may have done wrong. Maybe I expect too much.

[despritfreya]

What you tell the attorney during the initial consultation and everything thereafter if you retain the attorney is protected by attorney-client privilege. The privilege belongs to the client and only the client can waive it. An attorney is ethically bound to protect the privilege unless he/she believes a crime is about to occur. I would not be asking questions (e mail) prior to the consultation for two reasons 1) The consultation is set for a reason. Don’t bother the attorney before hand. Bring your questions to the meeting. 2) It may not be protected by the privilege, especially if you decide not to show up for the consultation.

Now, as a practical matter, do not talk in hypotheticals. I, as the attorney, need to know everything that could impact the case. It is my job to catch the issues BEFORE the case is filed so that my client understands what can happen. I go through the worst case scenarios. If those scenarios don't materialize then that is wonderful. If they do, the client is fully aware of them before hand and we have formulated a plan to deal with them.

I get very irritated with clients who do not disclose, disclose, disclose.

I had one client who conveniently failed to inform the Firm of a multi-million dollar fraud judgment. Before I met with the client to go over the worksheets I did a quick County Recorder search and found it. The client was quite surprised when I hit him/her with it when he/she showed up. As it turns out the client was not going to disclose this detail because the client thought “it was not important” (Yah right).

Had another potential client who, during the initial consultation, failed to disclose that the District Court had issued an Order directing that he/she could not file a bk without getting the District Court's ok and that if anyone helped this person file a bk that person (attorney) would be subject to sanctions. During the consultation I stepped out for a few minutes as I suspected something was up. Ran the name and up popped the Court Order. Sent the guy packing.

You need to arm your attorney with as much information as possible so that your attorney can properly advise you. The advice you get is only as good as the information you give.

Des.

[tobee43]

des, with the greatest and most utmost respect to you.......you may be one of the LAST existing honest forthright and caring atty's left in the world....

i have to tell you....we had one atty that was attempting to tell us that we had to ...and he insisted .....we MUST pay an unsecured debt...come later to find out, he and the opposing atty were hunting buds....and we had to go to another atty to fight the ap...which was tossed out in a ny minutes...so much for being candid and honest with our atty. he was selling us out even tho i continued to argue the point the creditor was not a secured creditor.....his response...was..i'm so sorry when a client MUST pay...and i said..i'm not going to...i have a unsecured line with this bank...secured by receivables...and there are none and now you're saying i owe it...NOT....

you get irritated because you are one of the rare atty's whom actually care about their clients....unfortunately, the world of law is not full of des's...LOL!!

the atty we hired i opened up very slowly and cautiously....when i felt comfortable enough, i only disclosed what the firm absolutely needed to represent us in the most honest and truthful way possible....however, i will admit to you...i did not disclose everything because i was so burnt from the last experience ...i felt it was like just a "need" to know basis....however, and i need to make this clear, i was not attempting to hide anything...personally to me it's so important to be truthful...lies are too difficult to remember. but trust nowadays is a hard one...one would love to put all their faith in one's atty...but in the "real" word....des's are far and few in between.

[frogger]

Now, as a practical matter, do not talk in hypotheticals. I, as the attorney, need to know everything that could impact the case. It is my job to catch the issues BEFORE the case is filed so that my client understands what can happen. I go through the worst case scenarios. If those scenarios don't materialize then that is wonderful. If they do, the client is fully aware of them before hand and we have formulated a plan to deal with them.

That, I agree with. All of those little skeletons need to come out when talking to your attorney in order that proper planning can happen. When you sign off on your bk paperwork, you are signing that it is the truth. If not, then you could have a world of problems, including fraud and debt that can never be discharged. Man up, throw it out there, and deal with your problems.

[HHM]

Attorneys aren't stupid and neither is the system. If you actually speak to an attorney in hypothetical's, most won't give you the time of day. After all, the "free" consult is a two way street, it is for the prospective client to find out in a general way that BK is the right option and for the attorney to try to get you as a client. The role of the consult is NOT to educate the client on the finer points of BK law. If that is what you want, then pay a $300 consult fee

[despritfreya]

If you actually speak to an attorney in hypothetical's, most won't give you the time of day.

Very well said. When someone comes into the office on a consult and is evasive in this manner, I know something is up.

Des.

[BKAttyMI]

If you don't disclose everything to me up front and I'm sitting next to you at your 341 hearing, both you AND I look like idiots if that creditor shows up or if the Trustee brings up an issue you decided "not" to disclose to me. At my petition signing meeting with clients, I discuss perjury and lying under oath, and you'd be surprised how many things come out when I start discussing these principles.

Hiding assets is another hot button issue for me, we had a client that had a "secret" vacation property in the South that s/he had decided not to disclose. At their signing meeting, they started turning red and sweating when perjury was discussed and they ended up disclosing the secret property. This of course took them out of a Chapter 7, then they had the nerve to ask for a full refund after all the work had been done.

[LifeInCA]

Clarification please

Sorry to seem dumb...Can an attorney here clarify this:

Is what you say to an attorney during a consultation privileged/confidential? Or is that ONLY if you hire him/her? It seems that from the replies it is only privileged/confidential IF you retain them. And that anything said in a consultation, could, in theory, be shared with others. I think this is a potentially important thing to know for many.

Thanks...
LifeInCA

[Jacey]

Wouldn't it be a great world if everyone was ethical? I was also almost burned at the stake by a dishonest law office, and I still don't know the reason why.

[HHM]

Sorry to seem dumb...Can an attorney here clarify this:

Is what you say to an attorney during a consultation privileged/confidential? Or is that ONLY if you hire him/her? It seems that from the replies it is only privileged/confidential IF you retain them. And that anything said in a consultation, could, in theory, be shared with others. I think this is a potentially important thing to know for many.

Thanks...
LifeInCA

Incorrect. Even at a consultation, there is an expectation of privacy. So anything you say at a consultation is confidential. Privilege is much more technical in nature...so I will not go into the issues with privilege here as it won't make a difference. In short, privilege has to do with whether an attorney can be compelled (i.e. court order, testify, etc) to disclose the information. From your perspective, the information disclosed during a consultation is confidential meaning the attorney cannot divulge the information without authorization or without being ordered to by a court or other administrative body.

However, realize that in a bankruptcy consultation scenario, much of what is discussed (the client's financial circumstances) is already out there in a non-confidential manner. Your financial circumstances may be "private" information but it is neither confidential nor privileged. A court can order you to turn over credit card statements, etc. For example, if a the debtor owns 2 pieces of real estate and as part of BK planning the debtor stupidly quit claims the interest in the 2nd property to her aunt and then tells the attorney...although the information is confidential vis-a-vis the attorney (the attorney cannot disclose without reason to do so), the transaction exists as a matter of public record with the county where the property is located, so the fact the debtor owed a 2nd piece of property and transferred it is not made confidential because you told an attorney about it.

Bottom line, the attorney is ethically bound to maintain your confidence.

[woeisme]

Interesting thread. I did have one situation where I wish I had pushed a question with a "hypothetical" to get a good answer out of my BK lawyer though. Prior to filing CH 13, we had 2 old vehicles, both with 100,000+ miles on them. I hadn't found this site yet, but was thinking I should get at least 1 newer vehicle to get us through the 5-years of CH 13, so asked my BK lawyer if I could do this. He was required by law to tell me that if I already considered my financial situation to be insolvent where I was going to need to file BK that I should not take on any additional debt. Not understanding that he HAD to tell me that, was not allowed to tell me that it was a shrewd planning move that was not illegal or anything, I thought my CH 13 was going to be denied if I got a car loan in the months prior to filing, so did NOT get a newer car. Now of course I know this was a terrible mistake, and tell anyone on here considering CH 13 to pre-plan, pre-plan, pre-plan! But in a world where the BK lawyers are required by law not to give the best advice to their clients... why wouldn't one consider talking in the hypothetical? Maybe I would have gotten a different answer if I had asked "hypothetically, if I bought a new car prior to filing, would that be the death of my CH 13 filing?" rather than saying "would you advise me to get a new car now that I know I need to file a CH 13 instead of a 7?" Or maybe not... who knows?

[HHM]

Frankly, I think that attorney was a little too conservative with regard to the advising regarding new debt. This is where the role on hypotheticals get reversed...nothing says that an attorney cannot advise you in "hypothetical." In your scenario a good attorney would probably talk to you about the condition of the vehicles, ask whether, given those circumstances you would betting a newer car anyway (wink wing, nod nod), etc. However, the client needs to be forthcoming with the facts and not edit themselves.

[despritfreya]

Sorry to seem dumb...Can an attorney here clarify this:
Is what you say to an attorney during a consultation privileged/confidential? Or is that ONLY if you hire him/her?

I think you got this from me when I said:

"What you tell the attorney during the initial consultation and everything thereafter if you retain the attorney is protected by attorney-client privilege."

Sorry. I did not phrase it correctly. I should have said something along these lines:

What you tell the attorney during the initial consultation is protected. Once retained, all communication is also protected. Adding to this, follow up communication resulting from the consultation is protected.

As HHM points out, it is the expectation of privacy/privilege that can be the key.

Des.

[illlitius]

First of all, thank you everyone for your replies and contributing to this thread.

...I want an attorney who is on my side regardless of what the truth is and what I may have done wrong. Maybe I expect too much.

You dont' expect too much. It is only natural for a client to want their attorney on their side. ;)

Frankly, I think that attorney was a little too conservative with regard to the advising regarding new debt. This is where the role on hypotheticals get reversed...nothing says that an attorney cannot advise you in "hypothetical." In your scenario a good attorney would probably talk to you about the condition of the vehicles, ask whether, given those circumstances you would betting a newer car anyway (wink wing, nod nod), etc. However, the client needs to be forthcoming with the facts and not edit themselves.

HHM, That would be an ideal attorney, one who will tell you what is best for you and your case and willing to maneuver around legalities properly by speaking in hypotheticals or something similar (without hurting either himself or your case). But then I'd have to know for sure my attorney would do this for me before I speak freely.

....You need to arm your attorney with as much information as possible so that your attorney can properly advise you. The advice you get is only as good as the information you give.

Des.

Des, I agree with you, BKattyMI, HHM, Frogger and everyone else on discussing everything with my attorney, but the questions is, how am I going to discuss everything.


Okay so basically... I do want to tell my attorney everything. I think with my case, I should be able to tell him everything and it wouldn't affect what he can offer/advise or bind him in any way that would compromise my case.

However, maybe because this is the first time talking to one, my fear is admitting a piece of information as fact that I shouldn't have brought up (and that he wouldn't have wanted me to bring up)...and now by me bringing it up, it now somehow affects what he can 1) suggest/advise me to do or 2) how we proceed with my case (limiting our options or binding us in a certain direction). Does this make any sense?

Whereas, in that same scenario if I were to have discussed my entire case and gone over the exact same details but this time make a disclaimer in the beginning and tell him, if there is something that you don't believe you should know that can hurt my case or limit our legal options, please let me know and I will 're-think'/erase this piece of information as if it never existed. If every other piece of information is okay, I will then admit them as fact and re-draft my document/our conversation accordingly. (Or a disclaimer saying something along these lines)

Could making a disclaimer such as this before going over everything make a difference and allow us more legal leverage and maneuvering? (As HHM pointed out it shouldn't matter if dealing with a good attorney, but what about one who you just met?)