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Vol 12, Num 1 l April 2014

Technology and Intellectual Property

► In This Issue:

Think Long and Hard Before You Sign Your Client’s Proof of Claim Form

ABI

by Jay L. Welford
Jaffe Raitt Heuer & Weiss, P.C.
Southfield, Mich.

Until recently, most attorneys gave little thought as to whether they should be signing proofs of claim in bankruptcy cases on behalf of their clients. If it was more convenient to have an attorney do so, attorneys followed their clients’ wishes and complied. However, based on a recent bankruptcy court decision, it may no longer be preferable to have an attorney sign a proof of claim form on behalf of a client. In an unreported Texas bankruptcy court decision, In re Rodriguez,[1] the court held that the execution of proofs of claim by an attorney constituted a waiver of the attorney client and work product privileges related to the matters set forth in the proofs of claim.

The case began as a hotly contested involuntary proceeding. The petitioning creditors’ proofs of claim sought damages in excess of $70 million and were based on state law tort theories. The claims were objected to and were combined with other matters into an adversary proceeding. The proofs of claim had been signed by the claimants’ attorney. As a result, the debtor deemed the attorney to be a fact witness, and a deposition of the attorney was scheduled. More than 100 different questions were objected to and not answered, based on the assertion by the claimants’ counsel of the attorney client and work product privileges. A motion to compel was thereafter filed, thus framing the issues for the court.

The court found various categories of questions that were not subject to any privilege and therefore had to be answered by the attorney. They included: (1) questions related to communications that discussed the factual assertions in the underlying proofs of claim; (2) questions regarding documents reviewed and the people with whom the attorney spoke relating to matters set forth in the proofs of claim; (3) questions related to the factual basis for the proofs of claim; (4) questions related to the documents used in support of the proofs of claim; (5) questions related to the attorney’s awareness of certain facts or events at relevant time periods upon which the proofs of claim were based; and (6) questions related to the terms of the attorney’s fee arrangement with the client/claimants.

The court began its analysis, stating that the signing of a proof of claim is an assertion “that the information provided … is true and correct to the best of [the signer’s] knowledge, information and belief.” While the court recognized that this standard is the same one applicable to an attorney’s signing of a complaint, the court stated that a complaint is not prima facie evidence of the facts asserted therein, while a proof of claim is, under applicable bankruptcy law. The court also analogized to existing precedent, which holds that attorneys are subject to examination based on information set forth in affidavits executed by them. By signing the affidavits, the attorneys became fact witnesses, such that they could not hide behind an attorney/client or work-product privilege. The same, the court stated, holds true for attorneys who execute proofs of claim.

With respect to the work-product doctrine, normally the doctrine shields an attorney’s mental impressions, conclusions, opinions and legal theories. While the court found that the work-product doctrine would preclude questioning regarding legal opinions, legal research and the thought process of the attorney, the factual underpinnings of the legal theories were subject to disclosure.

The case is a wake-up call to attorneys. Just as the filing of a proof of claim may constitute a waiver of the right to a trial by jury in bankruptcy court, the signing of a proof of claim by an attorney may create added complications to the attorney’s representation of the client in the matter. The attorney becomes both a fact witness and counsel of record. Further, the scope and cost of litigating the claim’s validity will increase if issues of privilege and work product need to be litigated as threshold issues. Finally, the Rodriguez decision requires that attorneys and clients be cognizant of proof-of-claim filing deadlines in order to avoid any need for the attorneys to sign the proofs of claim when clients are unavailable to sign at the time the proofs of claim are due.

 

1. In re Rodriguez, 2013 WL 2450925 (Bankr. S.D. Tex. June 5, 2013).

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