LEGAL ETHICS OPINION 1861    MAY A LAWYER SERVING AS A BANKRUPTCY TRUSTEE COMMUNICATE WITH THE DEBTOR WITHOUT CONSENT BY THE DEBTOR’S LAWYER?

 

 

            In this hypothetical, a Virginia lawyer is appointed to serve as trustee in a Chapter 7 bankruptcy case.  The trustee’s duties are established by 11 U.S.C. §704, and include investigating the debtor’s financial affairs and, if advisable, opposing the discharge of the debtor.  The trustee is authorized to retain counsel to represent the estate, but typically does not do so unless the proceeding becomes contested.  The debtor in this case is represented by a lawyer who has not consented to the trustee communicating directly with the debtor.  

 

QUESTION PRESENTED

 

Does Rule 4.2 prohibit a bankruptcy trustee, who is also a lawyer, from communicating directly with a debtor who is represented by counsel?         

 

APPLICABLE RULES AND OPINIONS

 

The applicable Rule of Professional Conduct is Rule 4.2.[1]

 

ANALYSIS

 

The lawyer/trustee in this situation is neither a party to the case nor representing a client.  His function is to “collect and reduce to money the property of the estate for which he serves, and to close up the estate as expeditiously as is compatible with the best interests of parties in interest.”[2]  He acts as the representative of the bankruptcy estate and has the capacity to sue and be sued.[3]  Thus, he acts as a fiduciary[4], although he will be named as a party to the action if he is sued as representative of the estate. 

 

A lawyer acting as a fiduciary may be disciplined for actions taken in that role if the same actions would have warranted discipline if the relationship had been a traditional attorney-client relationship.[5]  In LEO 1585, the Committee applied this standard to a lawyer/trustee who faced a conflict of interest between two bankruptcy estates/debtors for which he was serving as trustee.  The Committee applied the conflict of interest rules, despite the fact that the lawyer was serving only as trustee to both parties, and opined that the trustee must resign as trustee in both cases in order to comply with his ethical responsibilities. 

 

In light of the purposes of Rule 4.2[6], and especially because of the fact that a lawyer/trustee may be in a position to take advantage of a debtor if he is permitted to communicate with the debtor without the presence of the debtor’s counsel, the Committee opines that a lawyer who serves as a bankruptcy trustee in a Chapter 7 proceeding may not communicate with a represented debtor unless the debtor’s lawyer consents or the communication is authorized by law.  Examples of communications that are authorized by law are notices that, by statute or court rule, must be sent to the debtor personally, or a scheduled and noticed proceeding such as a meeting of creditors pursuant to 11 U.S.C. §341.

A wide variety of communications between Chapter 13 trustees and debtors are authorized by law, pursuant to 11 U.S.C. §1302(b)(4)[7]. Accordingly, Rule 4.2 does not bar a Chapter 13 trustee from communicating with a represented debtor to the extent that the communications are authorized or mandated by the statute.

 

This opinion is advisory only and is not binding on any court or tribunal.

 

Committee Opinion

February 21, 2012