Wednesday, July 25, 2012
Here at Shenwick & Associates, one of the most common things we do for clients is the filing of proofs of claim in bankruptcy cases. We have written extensively before about proofs of claim here and here, but essentially a proof of claim is a written statement setting forth the creditor's claim against the debtor and filed with the Bankruptcy Court (or, in certain "megacases" with many creditors, the Debtor's claims agent).
Recently, a question arose about who could sign a proof of claim. A client wanted to file a proof of claim on his mother's behalf, and had a durable power of attorney for his mother. Was that sufficient? Could we sign it on her behalf, since we had been retained, but did not hold a power of attorney on her behalf?
Rule 9010(c) of the Federal Rules of Bankruptcy Procedure provides:
"Power of Attorney. The authority of any agent, attorney in fact, or proxy to represent a creditor for any purpose other than the execution and filing of a proof of claim or the acceptance or rejection of a plan shall be evidenced by a power of attorney conforming substantially to the appropriate Official Form. The execution of any such power of attorney shall be acknowledged before one of the officers enumerated in 28 U.S.C. §459, §953, Rule 9012, or a person authorized to administer oaths under the laws of the state where the oath is administered."
So it is clear that attorneys may sign proofs of claim without the need for a power of attorney. In re Roberts, 20 B.R. 914, 917, n. 2 (Bankr. E.D.N.Y. 1982) also supports the proposition that an attorney may sign a proof of claim, citing to Collier on Bankruptcy (one of the leading treatises on bankruptcy law), which says that a "separate power [of attorney] is not necessary for the filing of a proof of claim."
However, although attorneys may sign proofs of claim, that doesn't mean that they should. In In re Duke Investments, No. 10-36556, 2011 WL 2462681 (S.D. Tex. June 17, 2011), the Court almost disqualified an attorney who had signed his client's proof of claim. The Court refused to disqualify the attorney from representing his creditor-client in the chapter 11 case because the attorney was not a "necessary witness" to the merits of the claim, but the Court admonished attorneys against signing clients' proofs of claim in the future because of the risk that the attorney may become a necessary fact witness at his client's trial. The Court instead recommended attorneys have their clients sign the proof of claim. Following the Court's advice will allow attorneys to completely protect themselves from being disqualified as a necessary fact witness under similar facts. Attorneys should take notice of the holding in Duke when considering the obligations and duties owed to clients and avoid the potentially harmful but common practice of signing their clients' proofs of claim.
For more information about proofs of claim and preserving your rights to payment in bankruptcy, please contact Jim Shenwick.
Posted by James Shenwick