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Bar News - September 18, 2009

ABA Files Amicus Brief on Limits on Bankruptcy Advice

The American Bar Association argues in an amicus curiae brief filed with the US Supreme Court that applying the "debt relief agency" provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act to lawyers restricts their ability to provide appropriate advice to clients and risks subjecting privileged communications to discovery.

The ABA, in its Sept. 1 filing, argues that including lawyers under the agency definition would violate historic state regulation of lawyers and subjects attorneys to rules and liabilities that directly conflict with their ethical responsibilities.

According to the brief in Milavetz, Gallop & Milavetz, P.A. v. United States, the statutory prohibitions on advising clients to incur new debt could prevent lawyers from giving legal counsel that could "ultimately stave off the need to file for bankruptcy" or otherwise be in the client’s best interest. Enforcement of the restrictions on advice would require making privileged communications subject to discovery, in violation of attorney-client privilege, the ABA said.

Read the ABA brief.

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