Bankruptcy Trustees Sometimes Contact the Debtor, Bypassing the Lawyer

04 Aug Bankruptcy Trustees Sometimes Contact the Debtor, Bypassing the Lawyer

In most bankruptcy cases, the trustee is a lawyer, and the debtor almost always has a lawyer who represents him or her. There is an expectation that the trustee/lawyer will not contact the debtor directly; rather, the trustee/lawyer will work through the debtor’s lawyer, and will refrain from direct contact with the debtor. This expectation arises from the well-known lawyer ethics rule forbidding a lawyer from contacting the client of another lawyer.

However, a minority of trustees will contact bankruptcy debtors, most commonly by letter or telephone, even though the debtor has a lawyer. This unpleasant practice actually appears to be legal in most federal court districts. The reason is that the lawyer ethics rules allow a lawyer, who is a party in the case, to contact another party in the case, even if the parties have lawyers. Under the bankruptcy law, the trustee is a party in the case. Thus, the argument goes, the trustee may contact the debtor because they are both parties in the case.

The fact that it may be legal does not make the debtor or the debtor’s lawyer feel any better about this odious practice. For the trustee/lawyer to contact the debtor directly is subversive of the attorney/client relationship, and it may even allow the trustee to gain the upper hand in cases which are in dispute, if the trustee succeeds in obtaining information by browbeating the debtor outside the presence of his or her lawyer.

However, the solution to this potential problem is simple: the debtor simply needs to remember that he or she is under no obligation to communicate directly with the trustee. In fact, it is important for the debtor never to do it. Any trustee communications to the debtor should simply be referred to the debtor’s lawyer.

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Craig W. Andresen is a consumer bankruptcy lawyer in Bloomington, Minnesota, with 22 years’ experience in consumer and small business bankruptcy cases. He is the Minnesota chair of the National Association of Consumer Bankruptcy Attorneys, and is a member of the Minnesota State Bar Association’s Bankruptcy Section. Mr. Andresen lectures often on the topic of consumer bankruptcy at local and national legal seminars.
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