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A.J.
A.J., Attorney
Category: Bankruptcy Law
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Experience:  Experienced consumer bankruptcy attorney.
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for Savylawyer, I spoke with the trustee. He stated that

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for Savylawyer,

I spoke with the trustee. He stated that all was fine and that my wife could answer any questions via mail as he knows of her condition.

My wife found her sister hanging in a closet on February 16th of 2012.

When I called this attorney back she told me that my wife would have to appear and so would I as she said that the Trustee was wrong and that my wife should be "over it" since it was almost a year.
I have emailed her boss three times and have not received one reply. I was never told who my attorney would be at the meeting I had attended. I was informed that I was told something and it was confirmed vehemently by both the attorney (her husband) and The Trustee.
She is making some very serious errors as far as I can see. She saw my wife at the office in October and has now come to the medical conclusion that she is fine to appear in court. Panic Disorder is an illness. I know as that is my area (chemistryNeuro)although I am not practicing now I keep abreast of the developments. She is also suffering from PTSD.

Why would an attorney over-ride the decision of a Trustee and claim she was doing us a favor in a subsequent letter by refiling a third time? I have already been deposed.

I have already spoken with two friends and they find it appalling and that I could report this not only to the Bar but the State.

An attorney or anyone else would have to bring a medical doctor to examine my wife and make that determination.

Yesterday, she has had the audacity to ask my wife to call her although she already has

my wife's phone number.

Sorry for all this, but surely she has gone way beyond ethical practice and the boss not answering three emails sent to him is also a mystery.

Do you feel she has crossed the line and does the degree which states "associate attorney" have any meaning as physicians aid does in mine.

Thanks in advance. Be savy now:)
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  A.J. replied 1 year ago.
Hello again! I will do my best to be "Savy" and live up to my chosen name ;)

First, let me say how sorry I am that you and expecially your wife are having to deal with such a traumatic situation. I can only imagine the degree to which finding a loved one having ended their life will effect someone long term, and I can certainly understand being appalled at being told to "get over it." While I will get to the actual ethics involved in a moment, I certainly would agree that such language and lack of empathy is unprofessional.

Now, let me see if I can answer your questions, hopefully I am understanding your questions but please let me know if I miss something or you need clarification:

(1) Generally a debtor does need to appear at the section 341 hearing to be interviewed by the trustee. This is not just for the trustee's benefit, but gives creditors the opportunity to appear and ask questions as well (although creditors almost never appear). There is no clause in the bankruptcy code the allows the need for an "appearance" by a debtor to be waived, but where there is a documented medical condition that prevents a debtor from appearing (And a significant mental health condition could qualify) a trustee can permit the hearing to be held by phone or through some alternative means, so long as certification by way of an oath (Generally a written and notarized oath supplied by the trustee) is given by the debtor. Creditors would still be allowed to ask questions in the manner permitted by the trustee. Again, an oath is still reuired of the debtor, but a trustee can allow this where there is a documented medical condition, and answers to questions can be gained by some way other than an in person meeting. If you as the other debtor do not have a documented medical condition, you would still be required to appear in person.

Now, I cannot speak to why your attorney would be unwilling to try and work with the trustee to get the hearing done either over the phone or in writing. An in person hearing is certainly more effecient for the trustee and the attorney, but if the trustee has already expressed a willingness to work with you as the debtor to accomadate your wife's medical condition, I am not sure why that would not be acceptable to an attorney. Different attorneys have different approaches to dealing with clients, unfortunately. It is always the client's perogative to seek alternative counsel, so long as counsel has been compensated for any work they have done, ultimately it is important that the client be satisfied that their attorney is representing the best interests of the client.

(2) The question of whether or not something has crossed an ethical line such that it is a violation of an attorney's ethical responsibilities is almost always a difficult question, particularly where the question is one of treatment of the client. You could make an argument, based on the information provided, that reasonable dilligence is not being excersized by the attorney. Rule 1.3 reuires an attorney in Arkansas to act with "reasonable diligence and promptness in representing a client". The "comment" included with this rule states:

"A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued."

As you can see, although a lawyer must pursue a case zealously, they may have some professional discretion. What is unclear to me is why your attorney believes that an in person appearance is in the interests of you or your wife as client's, that is unfortunately something you will have to discuss with her. If such an issue were taken to the Supreme Court's Committee on Professional Conduct (Which is where formal complaints of ethical violations are taken, web address is courts.arkansas.gov/administration/professional-conduct), it would be a close call whether or not they would see this as an ethical breach. If nothing else, it would be worth giving the attorney the opportunity to respond to your concern that an ethical obligation has been breached and raising the possibility of a formal complaint before actually doing so. Sometimes, conflicts that seem insurmountable between attorney and client can be resolved without further conflict when everyone understands just how frustrated each party is.

I can certainly understand why you would be frustrated and would want to seek alternative representation, but it is worth first trying to resolve the issue with this attorney before pursuing other options or filing a bar complaint. Hopefully, with a little bit of patience by each party, your goal of getting through the bankruptcy as easily as possible can be met, and without your wife having to appear in person.

I hope this helps, but let me know if you need any clarification. Otherwise, please remember to RATE my answer so that I can receive credit for my work. Do not hesitate to request me in the future if have any additional questions.
A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4296
Experience: Experienced consumer bankruptcy attorney.
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