Courts are split on whether questionnaires filled out by a client in preparation for filing a bankruptcy petition are protected by the attorney/client privilege. Bankruptcy Judge Paul G. Hyman Jr. of West Palm Beach, Fla., parted company with the Seventh Circuit and ruled that questionnaires are presumptively privileged.
A chapter 13 debtor was being sued for allegedly violating her fiduciary duties as trustee for a trust. The beneficiaries filed a motion under Bankruptcy Rule 2004 and sought production of the questionnaires, worksheets and notes she wrote for her lawyer that were used in the preparation of her petition, schedules and statement of affairs.
To compel production, the creditors relied on a 1991 decision from the Seventh Circuit, U.S. v. White, which established a bright-line rule holding that the attorney/client privilege does not apply to information disclosed to an attorney to assemble a bankruptcy petition and associated schedules.
Judge Hyman disagreed, saying that requiring turnover would be “contrary to the purpose of the attorney-client privilege.” He analogized bankruptcy cases to ordinary civil litigation where courts protect draft interrogatory answers.
In favor of the creditors, Judge Hyman went on to rule that the questionnaires did not qualify for protection as work product under Bankruptcy Rule 26 and F.R.C.P. 26(b)(3).