Over the last several days, much has been written about Ted Kennedy. As a young lad growing up on Cape Cod, the Kennedy’s were an undeniable part of my life. And while I did not take to the street to witness the motorcade that traveled up from Hyannis Port to Boston, and I did not stand in line with the thousands who waited to pay respects at the Kennedy library, I found myself watching the funeral, and later in the day the burial televised from Arlington National Cemetery. I am not unmindful that this is a bankruptcy blog. So I ask this: is there much that people facing bankruptcy can learn about the life of Edward M. Kennedy? I think there is and this is what I write about today.
Archive for August, 2009
Power(lessness)
Thursday, August 13th, 2009
When the money stuff is not going the way you hoped, or planned, there can be a sense that things are just beyond your control. And sometimes they are. Sometimes people lose jobs, get sick or get divorced. Sometimes bad things happen to good people. And sometimes, decisions we made that seemed really good at the time based on the information we had have been revealed by the light of time as regrettable. Right now, many that are facing financial problems are experiencing regret. That regret, and the emotions that it brings along with it can be utterly paralyzing.
In a way, it’s odd. At one time, we had the power to make the decisions that brought us to the stage of life we find ourselves in. Yet somehow, we cannot seem to find the power to get ourselves to move forward from it. We end up wallowing. (more…)
If Only You Knew…
Wednesday, August 12th, 2009
Let’s assume that you work for a company and things are not going well. You start negotiating a severance. Does the employer have an obligation to share with you its intention to seek bankruptcy protection? Maybe. If you ask. But what if you don’t ask? What if they don’t tell? What if perhaps, you really should have assumed that bankruptcy was an option that might be considered even though it’s not mentioned at all during the negotiations? These issues were faced by the 7th Circuit in the case of Smith v. Duffy, decided on August 3. They answered the questions but rather than discuss them, I’ve posted the Court’s decision here.
I will share one thought. The case discusses, among other things, the duty of candor that parties owe each other – and uses the attorney-client relationship as an illustration of when that duty of candor not only arises, but is expected. But it also does so by reminding us when that duty of candor simply doesn’t exist.
The case of a special relationship, such as the lawyer’s fiduciary obligation to his client, is really just a special case of the general proposition that context can create a duty of candor. The lawyer’s specialized knowledge invites the client to repose trust in what the lawyer tells him, and the client’s expectation would be shattered if the lawyer could be uncandid with impunity, as is normal in arm’s length dealings between buyers and sellers.
I encourage you to read this case, and put yourself in the shoes of the now very disgruntled employee. Ask yourself – when entering into an arm’s length negotiation, are you equipped to handle the negotiations yourself? Or might you find a benefit by having someone by your side who has a legal duty to be candid with you. Perhaps better said – are you better off being told what you want to hear? Or are you better off hearing what you need to know?
Read the case and think about that the next time you think about buying a home, or refinancing or modifying your real estate mortgage. And most definitely think about it if your boss calls you into your office and wants to discuss your departure from the company.
A Discussion About “Professional Courtesy”
Tuesday, August 11th, 2009
A few months ago, I terminated representation of a particular client. There are many reasons representation ends – and from a factual standpoint, they are no one’s business except me and the client. The reasons for that are quite simple: I am duty bound to keep the confidences of my client. My fired client then went to another attorney who, after meeting with him, decided to call me.
“Why did you fire the client?” I was asked.
“You know that I cannot disclose the reasons why.” I replied.
“Oh, is that how you want to play?!” was the intemperate response. The conversation then got a tad ugly, and the new attorney insinuating all sorts of nice things. None of which were true – and none of which I could discuss.
And all I could do was sit there in silence. (more…)