All states have adopted some form of the "attorney-client privilege" and the "work product doctrine." The "attorney-client privilege" generally is codified such that "a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client." This privilege protects not just conversations between the client and the lawyer directly, but also conversations involving representatives of either the client or the lawyer, as well as conversations with lawyers representing another party (concerning a matter of common interest between them). An attorney's "mental impressions, conclusions, opinions, or legal theories" are protected as intangible work-product.

In most bankruptcy cases, creditors are required to file a Proof of Claim to preserve claims in a bankruptcy case. The Official Form B-10 provides: "I declare under penalty of perjury that the information provided in this claim is true and correct to the best of my knowledge, information, and reasonable belief." Signing a Proof of Claim is an assertion of personal knowledge of the facts alleged in the Proof of Claim. Federal Rule of Bankruptcy Procedure 3001(f) provides that a properly filed Proof of Claim is prima facie evidence as to the claim's validity. Under Bankruptcy Code section 502(a), a Proof of Claim is deemed allowed unless an objection is filed.

The phrase "to the best of my knowledge, information, and reasonable belief" is also a standard governing complaints and other pleadings, as well as affidavits. However, a Proof of Claim, similar to an affidavit, is prima facie evidence of the facts asserted therein. The burden is on an objecting party-in-interest to rebut the factual assertions contained in a Proof of Claim filed in accordance with Fed. R. Bankr. P. Rule 3001. Accordingly, the factual assertions contained in the Proofs of Claim are outcome determinative.

In a recent case from the U.S. Bankruptcy Court for the Southern District of Texas, In re Gabriel G. Rodriguez, 2013 WL 2450925 (Bankr. S.D. Tex. June 5, 2013), the lawyer for a creditor signed the creditor's Proof of Claim. Litigation ensued regarding the legitimacy of the facts set forth relating to the claim asserted in the Proof of Claim, and the debtor sought to depose the creditor's lawyer – as the signer of the Proof of Claim with respect to those facts.

The creditor and the creditor's lawyer asserted the attorney-client privilege and the work-product doctrine as the basis for the creditor's lawyer's refusal to answer a substantial number of questions regarding the claim asserted in the Proof of Claim. The court ruled that the Texas attorney-client privilege and the federal work-product privilege govern these issues.

The protection afforded by the attorney-client privilege may be waived either by consent or offensively. Generally, there are three elements for the application of offensive waiver: (1) the party asserting the privilege must be seeking affirmative relief; (2) the privileged information must be outcome determinative; and (3) disclosure of the confidential communication must be the only means by which the aggrieved party may obtain the evidence.

The court found that because the Proof of Claim seeks the allowance of the claim therein asserted and the facts of the Proof of Claim are determinative as to its allowance, the disclosure of the confidential communication from the person who signed the Proof of Claim is the person who must give the evidence regarding the content therein, and the attorney-client privilege had been waived. Similarly, because the creditor's lawyer signed the Proof of Claim, therein making factual assertions, the lawyer became a fact witness. As a result, the court held "questions which would normally be an improper intrusion into areas protected by the work-product privilege may now be proper questions seeking the basis for factual assertions made by a fact witness."

This article is presented for informational purposes only and is not intended to constitute legal advice.