Attorney telling people about details of a case

[highlife]

An attorney representing a creditor has been telling his friends (who live in our community) details about our BK case. These people have absolutley no connection to our case. Evidently he just likes spilling the dirt on us. It is causing lots of problems for us. Is this any type of bar or other ethical/legal violation? Or, is there no real penalty for him just being a slimy a-hole? Would really love to find a way to stop this. The people he told are now telling others as well. Like I don't have enough issues to deal with right now!

[HHM]

Bankruptcies are public record. No real option unless he is disclosing truly confidential information, which in the BK scenario is just your SSN number.

[tobee43]

a quick search into client atty " privilege"....

"General requirements under United States law

Although there are minor variations, the elements necessary to establish the existence of the attorney client privilege are:

1. The asserted holder of the privilege is (or sought to become) a client; and
2. The person to whom the communication was made:
1. is a member of the bar of a court, or his subordinate, and
2. in connection with this communication, is acting as an attorney; and
3. The communication was for the purpose of securing legal advice.[3]

There are a number of exceptions to the privilege in most jurisdictions, chief among them:

1. the communication was made in the presence of individuals who were neither attorney nor client, or disclosed to such individuals,
2. the communication was made for the purpose of committing a crime or tort,
3. the client has waived the privilege by, for example, publicly disclosing the communication.

A corollary to the attorney-client privilege is the joint defense privilege, which is also called the common interest rule.[4] The common interest rule "serves to protect the confidentiality of communications passing from one party to another party where a joint defense or strategy has been decided upon and undertaken by the parties and their respective counsel."[5]

An attorney speaking publicly in regard to a client's personal business and private affairs can be reprimanded by the bar and/or disbarred, regardless of the fact that he or she may be no longer representing the client. Airing of a client's or past client's dirty laundry is viewed as a breach of fiduciary responsibilities.

The attorney-client privilege is separate from and should not be confused with the work-product doctrine.
[edit] When the privilege may not apply

When an attorney is not acting primarily as an attorney but, for instance, as a business advisor, member of the Board of Directors, or in another non-legal role, then the privilege generally does not apply.[6] Accordingly, the attorney-client privilege is probably not available when an attorney is acting as a tax return preparer. Tax preparation is a service intended to result in disclosure to the Internal Revenue Service and some United States courts have held that the work papers and discussions with clients relative to the preparation of tax returns are not protected.

The privilege protects the confidential communication, and not the underlying information. For instance, if a client has previously disclosed confidential information to a third party who is not an attorney, and then gives the same information to an attorney, the attorney-client privilege will still protect the communication to the attorney, but will not protect the communication with the third party.

The privilege may be waived if the confidential communications are disclosed to third parties.

Other limits to the privilege may apply depending on the situation being adjudicated; for instance, the crime-fraud exception can render the privilege moot when communications between an attorney and client are themselves used to further a crime or fraud. In Clark v. United States, the US Supreme Court writes that "A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told."[7] The crime-fraud exception also does require that the crime or fraud discussed between client and attorney be carried out to be triggered[8]. US Courts have not yet conclusively ruled how little knowledge an attorney can have of the underlying crime or fraud before the privilege detaches and the attorney's communications or requisite testimony become admissible.[9]

If a Trustee secures counsel for the administration of a trust, the Trustee can not exclude the communication from the trust's Beneficiaries. The logic since the Beneficiaries are the principals of the Trustee who is simply acting as their agent in regard to the trust and the attorney client communication.

Courts have occasionally revoked the privilege after the death of the client if it is deemed that doing so serves the client's intent, such as in the case of resolving testamentary disputes among heirs.


In the federal courts:

If a case arises in the federal court: system, the federal court will apply Rule 501 of the Federal Rules of Evidence to determine whether to apply the privilege law of the relevant state or federal common law. If the case is brought to the federal court under diversity jurisdiction, the law of the relevant state will be used to apply the privilege. If the case involves a federal question, the federal court will apply the federal common law of attorney-client privilege; however, Rule 501 grants flexibility to the federal courts, allowing them to construe the privilege "in light of experience and reason."

if it were me, i would be a bit taken back.

[HHM]

Tobee, that is good and all, but this is a creditor attorney that is a party in her case, not her attorney.

This attorney talking about the case is no different than if a neighbor logged on to pacer and downloaded the documents and started blabbing, unfortunately, nothing the debtor can do.

[BrokeinMD]

I would make the inquiry with the State Bar Association and document the damage he's doing to you because it doesn't smell ethical at all to me.

[biotechsolution]

HHM is right, everything about a BK is public record, except your SSN. If it wasn't they wouldn't publish it in a newspaper.

[BrokeinMD]

This isn't neighbor chit chat. This is an attorney for the creditor harrassing the debtor in a back door kind of way. I'd tell my attorney and file a complaint with the State.

[tobee43]

Tobee, that is good and all, but this is a creditor attorney that is a party in her case, not her attorney.

This attorney talking about the case is no different than if a neighbor logged on to pacer and downloaded the documents and started blabbing, unfortunately, nothing the debtor can do.

yes, but aren't ALL atty bound by that?? we all know i live on another planet...LOL!!

one would like at least hope, in an ideal world, (and of course i know we do not live in one), one would act more professional. of course, i understand that atty's speak amongst themselves. i have heard thousands of discussions, but never a "name" used. i just think it not really a great thing...even IF it's the opposing atty. but, as you point out, it doesn't mean a hill of beans.

[HHM]

You're overlooking requirement #1 " The asserted holder of the privilege is (or sought to become) a client; and"

The OP is not a client of the attorney in question and the fact that someone filed BK, or even released details that are available on the petition is not confidential info.

I would still report this creditor to the state bar, but don't expect any results. The BK is public record. There is no expectation of confidentiality. If someone wants to drive up and down your block with a bull horn shouting that so and so filed BK (assuming the statement is true), they can. Sorry.

[tobee43]

Your overlooking requirement #1 " The asserted holder of the privilege is (or sought to become) a client; and"

The OP is not a client of the attorney in question and the fact that someone filed BK, or even released details that are available on the petition is not confidential info.

I would still report this creditor to the state bar, but don't expect any results. The BK is public record. There is no expectation of confidentiality. If someone wants to drive up and down your block with a bull horn shouting that so and so filed BK (assuming the statement is true), they can. Sorry.

i understand, i just think we all view ethics different. legally, of course, i know you are correct, there was no law broken no breach of client-atty privilege in this situation...is the law always fair? no. is justice, law...nope.

so, i know your correct. i just find that it's atty's like that, or that act in that manner, give atty's a bad name.

as we know, there are many excellent, ethical, atty's that put their integrity first, we know they are out there, (and here), however, when someone has an experience such as this, it many times taints their concept and views of all attys. which is unfair to the profession.

[msm859]

i understand, i just think we all view ethics different. legally, of course, i know you are correct, there was no law broken no breach of client-atty privilege in this situation...is the law always fair? no. is justice, law...nope.

so, i know your correct. i just find that it's atty's like that, or that act in that manner, give atty's a bad name.

as we know, there are many excellent, ethical, atty's that put their integrity first, we know they are out there, (and here), however, when someone has an experience such as this, it many times taints their concept and views of all attys. which is unfair to the profession.

I agree. I would call the attorneys office and "politely" request that he be more professional and not spread your dirty laundry as gossip. If he has a conscience I suspect he will stop. If he doesn't and everything he is saying is true, then you are out of luck.

[tobee43]

I agree. I would call the attorneys office and "politely" request that he be more professional and not spread your dirty laundry as gossip. If he has a conscience I suspect he will stop. If he doesn't and everything he is saying is true, then you are out of luck.

msm859, i think if the behavior continued i would still give the state bar a call...whether, it's law or not...it's unbecoming to an officer of the court. and whether it's in the actual "legal" rules or not....even actually true statements being exchanged or NOT......i'm certain if one dug deep enough and researched long enough,....maybe in the illinois rules of professional conduct...or maybe one could also find a law defining and which would be applicable in the civil code sections containing the areas of i.e. harassment, slander...etc... or something to apply to the big mouth..

[tobee43]

IN THE SUPREME COURT OF THE STATE OF ILLINOIS




RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer SHALL NOT:


(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;


(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;


(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

Adopted July 1, 2009, effective January 1, 2010.


and on a personal note ...opposing atty's butt would be mine... or at the least i would cause they a bit crumbs in their bed..i would ask my atty to fight..3.4.( f) ...tooth and nail.....and further, f (2) i believe certainly would apply, one would argue.

[frogger]

Tobee, that is good and all, but this is a creditor attorney that is a party in her case, not her attorney.

This attorney talking about the case is no different than if a neighbor logged on to pacer and downloaded the documents and started blabbing, unfortunately, nothing the debtor can do.

That's right. He is an attorney, however he is not the OP's attorney.

[tobee43]

That's right. He is an attorney, however he is not the OP's attorney.

"RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL"


under that rule...it's all about the conduct of the opposing party's atty. an atty has conduct rules....maybe not "laws" but "rules" they must abide by. in this case, i don't think the atty is withing conduct of the Illinois rules of professional conduct. really does not matter who's atty they are..just my most humble opinion...and frogger we all know what they say bout those..LOL!!