Rule 4.3 violation?

[oceanblue68]

North Carolina

I am plaintiff pro se in adversary proceeding to discharge student loans under 523a8b undue hardship.

Defendants attorney sent me this email.

I would like to know if you think he is giving me legal advice.

He tells me to participate in the IBR/consolidation or TPD discharge and dismiss my case. He says if I need to I can later open it back up, dismiss without prejudice.

I had filed a consolidation application and he asked me to send it to him to expedite. I was thinking of cancelling the consolidation due to all I heard about Nelnet. But after getting the attorney's "advice" I decided not to and consolidation was best thing.

He keeps saying he cant advise me, but in my opinion that is what he is doing!! He is telling me what to do. Your opinions are appreciated.

Do you think this is self serving and only for his needs? I feel misled. Now my case will be closed. I have a strong case to discharge and feel I would have won.

I pursued administrative relief and now I dont have the option to file a law suit later! I am so upset by this!

"
I will look into the status of your consolidation application. From what you sent me, it appears that you submitted the application to Nelnet, rather than sending it to me so I could send it on for expedited review, as I had suggested you do. I will check with my contact at Education, but you may need to check with Nelnet since you submitted the application to them. In any event, I will let you know what I hear from Education.

In response to your other questions, I can only point you to the information that is available to you online, including at this website: https://studentaid.ed.gov/sa/repay-loans/deferment-forbearance. I cannot give you legal advice or tell you what you should do with your student loan debt, or otherwise act as your advocate, because I represent Education as a defendant in the lawsuit you brought against them.

However, I again want to make you aware of your consolidation/IBR option and, especially, your TPD option, in part because those options may give you much of the relief you seeking in your complaint and may save us all, including the court, the time and effort required by litigation. To that end, I have attached the TPD application, which includes at Section 4 the required physician’s certification. I understand you are having difficulty having a doctor complete the certification. Do you know if Dr. R worked with a psychiatrist or another medical doctor (MD or DO) in rendering her March 15, 2015 evaluation? If she did, she may fill out the certification, sign it and have the psychiatrist or medical doctor co-sign it at the bottom saying they endorse the diagnosis and prognosis. Maybe this is something you’ve already looked in, but I don’t know and so am suggesting you look into it because a TPD discharge is a fairly quick process and, if approved, would be entered right away and then become final after 3 years (assuming no issues during the 3-year review period). Consolidation/IBR is a good option, especially for borrowers who don’t qualify for TPD, but the loan forgiveness does not take effect for 25 years (although there may be $0 owed during that time if the borrower’s income level qualifies).


I would like you to consider pursuing your administrative options instead of continuing with your lawsuit. Again, I cannot advise you on what to do or not do. However, I believe that your resources would be better spent on pursuing administrative relief through either consolidation/IBR or TPD rather than on litigation. Therefore, I propose that you dismiss your adversary proceeding without prejudice (which means that you could refile the lawsuit should you so choose later) and pursue administrative relief. Should you choose to do this, I would be happy to remain a point of contact on behalf of Education, so as to facilitate Education’s review of your application(s), although please note that I do not make administrative decisions for Education.

Regards,

 

[quincy]

North Carolina

I am plaintiff pro se in adversary proceeding to discharge student loans under 523a8b undue hardship.

Defendants attorney sent me this email.

I would like to know if you think he is giving me legal advice.

He tells me to participate in the IBR/consolidation or TPD discharge and dismiss my case. He says if I need to I can later open it back up, dismiss without prejudice.

I had filed a consolidation application and he asked me to send it to him to expedite. I was thinking of cancelling the consolidation due to all I heard about Nelnet. But after getting the attorney's "advice" I decided not to and consolidation was best thing.

He keeps saying he cant advise me, but in my opinion that is what he is doing!! He is telling me what to do. Your opinions are appreciated.

Do you think this is self serving and only for his needs? I feel misled. Now my case will be closed. I have a strong case to discharge and feel I would have won.

I pursued administrative relief and now I dont have the option to file a law suit later! I am so upset by this!

"
I will look into the status of your consolidation application. From what you sent me, it appears that you submitted the application to Nelnet, rather than sending it to me so I could send it on for expedited review, as I had suggested you do. I will check with my contact at Education, but you may need to check with Nelnet since you submitted the application to them. In any event, I will let you know what I hear from Education.

In response to your other questions, I can only point you to the information that is available to you online, including at this website: https://studentaid.ed.gov/sa/repay-loans/deferment-forbearance. I cannot give you legal advice or tell you what you should do with your student loan debt, or otherwise act as your advocate, because I represent Education as a defendant in the lawsuit you brought against them.

However, I again want to make you aware of your consolidation/IBR option and, especially, your TPD option, in part because those options may give you much of the relief you seeking in your complaint and may save us all, including the court, the time and effort required by litigation. To that end, I have attached the TPD application, which includes at Section 4 the required physician’s certification. I understand you are having difficulty having a doctor complete the certification. Do you know if Dr. R worked with a psychiatrist or another medical doctor (MD or DO) in rendering her March 15, 2015 evaluation? If she did, she may fill out the certification, sign it and have the psychiatrist or medical doctor co-sign it at the bottom saying they endorse the diagnosis and prognosis. Maybe this is something you’ve already looked in, but I don’t know and so am suggesting you look into it because a TPD discharge is a fairly quick process and, if approved, would be entered right away and then become final after 3 years (assuming no issues during the 3-year review period). Consolidation/IBR is a good option, especially for borrowers who don’t qualify for TPD, but the loan forgiveness does not take effect for 25 years (although there may be $0 owed during that time if the borrower’s income level qualifies).


I would like you to consider pursuing your administrative options instead of continuing with your lawsuit. Again, I cannot advise you on what to do or not do. However, I believe that your resources would be better spent on pursuing administrative relief through either consolidation/IBR or TPD rather than on litigation. Therefore, I propose that you dismiss your adversary proceeding without prejudice (which means that you could refile the lawsuit should you so choose later) and pursue administrative relief. Should you choose to do this, I would be happy to remain a point of contact on behalf of Education, so as to facilitate Education’s review of your application(s), although please note that I do not make administrative decisions for Education.

Regards,

The attorney has made it clear to you that he does not represent you. The attorney has made it clear that he is an attorney for the defense. The attorney has made it clear that he thinks you should abandon the lawsuit and seek administrative relief.

As the plaintiff, you need to know what your purpose is in pursuing a legal action.

I think you made a mistake in handling this matter pro se.

Here is a link to the North Carolina Bar Rule 4.3, which includes ethics opinions: https://www.ncbar.gov/for-lawyers/ethics/rules-of-professional-conduct/rule-43-dealing-with-unrepresented-person/

 

[oceanblue68]

Reply

Thanks for thinking I made a mistake handling pro se. I said I have a strong case for undue hardship that means I have no $. When one has no $ they do it themselves. Hiring an attorney for this type of case costs $1000's.

I dont think it matters that he told me he doesnt represent me he still advised me and lied to me. He said I could reopen my case and that is not true. Look at this case.

“In re Matter of the Marriage of Foran Washington State 9th district 1992, the Washington Supreme Court considered the enforceability of a pre-nuptial agreement which had greatly benefited one party who had been represented, at the expense of the other, who had not. The agreement had been drafted by the lawyer for the husband-to-be. The day before the parties were to leave for their wedding trip, they came in to read and sign the agreement. The lawyer advised the wife-to-be that he was not her lawyer, and that she should seek the advice of another lawyer. She declined and signed the agreement. At the time of the divorce some years later, the wife challenged the agreement, which was found to be
unenforceable. The Washington Supreme Court upheld that determination.

One reason for its ruling was that the then prospective wife “did not have sufficient time to consult with independent counsel. . The only realistic choice would have been to postpone the wedding .” The court discussed the reason for providing such an opportunity. Its reasoning is apt to the issue of a lawyer negotiating a deal with an unrepresented client that significantly favors the lawyer’s client. “The purpose of independent counsel is more than simply to explain just how unfair a given proposed contract may be; it is for the primary purpose of assisting the subservient party to negotiate an economically fair contract.”
[A]n attorney should advise the unrepresented party to seek independent counsel before the attorney discusses the transaction with that party. It was not enough in this case that Cody told Bohn that he was not acting as her attorney. This information does not sufficiently convey to the general public the adversarial stance an attorney must take toward those having interests different from the client's own interests. Moreover, if the attorney undertakes to tell part of the story to an unrepresented party with whom the attorney's client is doing business, the attorney must take reasonable steps to tell the whole story, not just the self-serving portions of it.
Contracts – Construction – What Constitutes – In General. Construction of a contract determines the legal effect of the terms of the contract based on its context and applicable legal policies. Marriage of Foran.
Attorney and Client – Conflict of Interest – Communication With Nonclient – Scope of Disclosure. An attorney's communication with a nonclient with whom a client is doing business must reasonably include the whole story, not just the self-serving portions of the story. Marriage of Foran

Legal information is a factual statement that requires no interpretation—what a particular statute says,

or what a court’s procedural rules require. Legal advice, on the other hand, is an opinion—an

interpretation based upon the lawyer’s knowledge, experience, and training. Legal advice refers to the

written or oral counsel about a legal matter that would affect the rights and responsibilities of the

person receiving the advice. Legal advice proposes a specific course of action a client should take. For

instance, it's the difference between telling someone what to do (legal advice) as opposed to how to do

it (legal information).

Failing to leave out the fact that my case would terminate with prejudice not telling the “whole story”.

I am considering asking for an injunction for the Judge to render the contract unenforceable.

 

[quincy]

North Carolina

... But after getting the attorney's "advice" I decided not to and consolidation was best thing ...

... He keeps saying he cant advise me ...

..." ...From what you sent me ... In any event, I will let you know what I hear from Education ... In response to your other questions, I can only point you to the information that is available to you online ... I represent Education as a defendant in the lawsuit you brought against them ...

... I would like you to consider pursuing your administrative options instead of continuing with your lawsuit. Again, I cannot advise you on what to do or not do ... I propose that you dismiss your adversary proceeding without prejudice ..."

If you believe the attorney has violated one of the Rules of Professional Conduct (specifically Rule 4.3), you can file a complaint with the State Bar or you can report the violation to the presiding judge (file a motion for sanctions). Although there are sanctions that can be imposed for violations, these sanctions affect the lawyer only - and the sanctions are imposed only if evidence of the violation is found to be "clear, cogent and convincing."

I see problems based on what you have posted, especially in what I have quoted from your post above.

You say that the attorney "keeps saying he can't advise" you and it also appears that the attorney was responding "to your other questions." You contacted the attorney with questions and the attorney responded to the questions you asked.

You can do what you feel you need to do. The attorney might have said more to you than was smart but whether it was a Rule violation, and whether there will be sanctions, is a question mark.

Here is a link to the North Carolina State Bar on filing a grievance: http://www.ncbar.gov/public/filing.asp

 

[FlyingRon]

What court are you pursuing this. If this is Federal court, none of the NC rules are going to apply to the attorney conduct. It's not even required he be admitted to the NC Bar.

 

[quincy]

What court are you pursuing this. If this is Federal court, none of the NC rules are going to apply to the attorney conduct. It's not even required he be admitted to the NC Bar.

State Bar Professional Rules on misconduct still apply to attorneys in their states. For sanctions, federal courts* apply the rules of the states where the court sits as well as the Federal Rules of Civil Procedure.

A link to the Federal Practice Manual for Legal Aid Attorneys on sanctions:

http://federalpracticemanual.org/chapter4/section2



*edit to clarify that, according to the Federal Judicial Center, "Eighty-one federal districts (95% of all district) courts have a local rule informing attorneys practicing before the district courts which professional standards of conduct they are required to abide by ... The local rules of 68 districts (76% of federal districts with attorney conduct rules) incorporate the relevant standards of the state in which the district is located." The majority of states adopt the local rules in general or adopt the state's attorney rules of conduct specifically.

 

[oceanblue68]

Response

This is an adversary proceeding to discharge student loans via undue hardship. It is in Federal court.

The defendant is Dept of Ed and the attorney is a Dept of Justice NC attorney.

I would appreciate some further help as I am not sure I am following what has been said regarding if he is held by NC state bar rules or not?

I plan on filing an injunction to reverse this consolidation. I already wrote it havent sent it.

In Bohn Vs Cody the court said that the attorney should have told the opposing party to seek legal counsel. This attorney did not do that. Attorneys cannot answer opposing partys questions. They need to tell you to seek legal counsel.

What he did was tell me to drop my case and pursue consolidation knowing full well that this would end the case. I took his advice and pursued the consolidation. And now he files a Motion to Dismiss.

Is this attorney held acountable to NC state rules then or not? He is a State attorney as well isnt he since he works for NC DOJ?

 

[oceanblue68]

Here is my motion for injunction - Critique is wanted!! How can I make it better? What do you think??




Per rule 7065 Rule 65 F.R.Civ.P I ask for a permanent injunction --

1. Exhibit A contract between K**** and Nelnet – consolidation of loans

between ECMC and Department of Education.

Attorney should tell the pro se individual that they should seek the advice of counsel before entering

into any agreement that they partake in, facilitate, etc.

2. Prior to this conversation herein with Mr. * I had been considering withdrawing my

consolidation as all I have been reading on it and Nelnet. I was weighing my options. It is clear I

wanted my adversary case left open.

3. After Mr. S* email EXHIBIT B confirmed to me that the consolidation was the way to go. I

was taking his advice. I ask the court for an injunction ordering Department of Education/Nelnet to

reverse the consolidation making it as if one had never occurred. This was not an independent decision

I made.

It was with the advice of opposing attorney. As you can see in the email Mr. * even gave me legal

advice advising that I close my case and go the administrative routes of TPD and consolidation.

Furthermore, Mr. * asked for my application to facilitate the process. He did not suggest I speak to

counsel first. He wanted the application then and there and so I sent it to him then and there.

The word attachment as shown herein is my sending the consolidation application. Mr. * has

already admitted 10/24/2016 to the court that he did receive the application and facilitated the process.


----
“In re Matter of the Marriage of Foran Washington State 9th district 1992, the Washington Supreme Court considered the enforceability of a pre-nuptial agreement which had greatly benefited one party who had been represented, at the expense of the other, who had not. The agreement had been drafted by the lawyer for the husband-to-be. The day before the parties were to leave for their wedding trip, they came in to read and sign the agreement. The lawyer advised the wife-to-be that he was not her lawyer, and that she should seek the advice of another lawyer. She declined and signed the agreement. At the time of the divorce some years later, the wife challenged the agreement, which was found to be
unenforceable. The Washington Supreme Court upheld that determination.

One reason for its ruling was that the then prospective wife “did not have sufficient time to consult with independent counsel. . The only realistic choice would have been to postpone the wedding .” The court discussed the reason for providing such an opportunity. Its reasoning is apt to the issue of a lawyer negotiating a deal with an unrepresented client that significantly favors the lawyer’s client. “The purpose of independent counsel is more than simply to explain just how unfair a given proposed contract may be; it is for the primary purpose of assisting the subservient party to negotiate an economically fair contract.”

(LANDIS BOHN, ET AL, Petitioners, v. GEORGE CODY, ET AL, Respondents 1992 Washington State). --

[A]n attorney should advise the unrepresented party to seek independent counsel before the attorney discusses the transaction with that party. It was not enough in this case that Cody (attorney) told Bohn that he was not acting as her attorney. This information does not sufficiently convey to the general public the adversarial stance an attorney must take toward those having interests different from the client's own interests. Moreover, if the attorney undertakes to tell part of the story to an unrepresented party with whom the attorney's client is doing business, the attorney must take reasonable steps to tell the whole story, not just the self-serving portions of it. A reasonable factfinder could also infer that Cody's (attorney) misleading statements would foreseeably harm the Bohns.


Contracts – Construction – What Constitutes – In General. Construction of a contract determines the legal effect of the terms of the contract based on its context and applicable legal policies. Marriage of Foran.
Attorney and Client – Conflict of Interest – Communication With Nonclient – Scope of Disclosure. An attorney's communication with a nonclient with whom a client is doing business must reasonably include the whole story, not just the self-serving portions of the story. Marriage of Foran

Failing to leave out the fact that my case would terminate with prejudice not telling the “whole story”.

In fact, Mr. * lied to me and told me that I could RE-OPEN, RE-FILE this case at a later date if I so

chose to. However, by way of his Motion to Dismiss that is not true as he is asking to dismiss this case

WITH prejudice not WITHOUT. The complete opposite of what Mr. * advised me of.


A loan consolidation is a contract. In Mr. * Motion to Dismiss Mr. * admits that this

consolidation has completed.

Please see Mr. * last paragraph to me below, the bold underlined portion.

Email between Ms. plaintiff and defendant’s attorney Mr. * below. Mr. *

advised me (gave me legal advice) to dismiss my adversary proceeding and pursue the administrative

options. Immediately, following these words Mr. * said, “ I propose that you dismiss your adversary proceeding without prejudice (which means that you could refile the lawsuit should you so choose later) and pursue administrative relief.”

Mr. * said he wanted me to close my case, partake in the administrative options of TPD and

consolidation and stated that I could RE-FILE my case at a later date if I so choose.

I took his advice - legal advice proposes a specific course of action a client should take.

Now, today by way of his Motion to Dismiss it is clear I do not have that option available to me.

Legal information is a factual statement that requires no interpretation—what a particular statute says,

or what a court’s procedural rules require. Legal advice, on the other hand, is an opinion—an

interpretation based upon the lawyer’s knowledge, experience, and training. Legal advice refers to the

written or oral counsel about a legal matter that would affect the rights and responsibilities of the

person receiving the advice. Legal advice proposes a specific course of action a client should take. For

instance, it's the difference between telling someone what to do (legal advice) as opposed to how to do

it (legal information). Mr. * told me what to do. He told me to drop my case and proceed with

consolidation and/or TPD. I did. I chose consolidation and now my case is going to be terminated

because I took his advice.

Legal definition of propose - An offer; something proffered. An offer, by one person to another, of

terms and conditions with reference to some work or undertaking, or for the transfer of property, the

acceptance whereof will make a contract between them.
–--


email exhibits go here ***

Relief requested –

I request an injunction that said contract with Department of Ed/Nelnet is unenforceable. I request that

your order also order Department of Ed/Nelnet to immediately remove the new consolidated loans off

of all three credit bureau’s Experian, Equifax, and Transunion following your order.


From my research one has to present evidence to the court that they will win on the merits at trial.

Please see my Motion for Summary Judgment per this fact that I would succeed on the merits at

trial. Docket No. 103 in 16-0*** is where my Motion for Summary Judgment can be found.

Please also see attached EXHIBIT C Dr. R expert witness report per initial

disclosures.

The potential for irreparable harm is that without this injunction this case 16-* to discharge

$61,000 in student loans ends with prejudice.


I declare under penalty of perjury in the State of North Carolina that the declaration

herein is true and correct. Signed on this date 11/23/2016 in , North Carolina.


Respectfully Submitted,

 

[quincy]

Here is my motion for injunction - Critique is wanted!! How can I make it better? What do you think??

I am sorry you went to all of the trouble of printing out your motion for an injunction, oceanblue68. The critique you are asking for goes beyond the scope of this forum.

For assistance with your motion, you will need to seek out the help of an attorney licensed to practice in your area.

I wish you good luck going forward.

 

[oceanblue68]

Reply

I just copied and pasted it so no big deal.

I just wanted peoples opinions on what I posted. I do not want to file anything frivolous and it does not seem that it is frivolous to me. Just wanted opinions was all.

 

[quincy]

... Is this attorney held acountable to NC state rules then or not? He is a State attorney as well isnt he since he works for NC DOJ?

Following are links that relate to a May 19, 2016, case that you might want to review. What is addressed are attorney professional and ethical rules (and how and to whom they are applied). There is a link to the District Court decision, and a link to a Petition for a Writ of Mandamus that was a result of the sanctions.

From the US District Court for the Southern District in Texas, Brownsville Division, State of Texas, et al v. United States of America: http://www.scotusblog.com/wp-content/uploads/2016/05/Judge-Hanen-ethics-ruling-5-19-16.pdf

Petition for a Writ of Mandamus: https://www.nilc.org/wp-content/uploads/2016/06/TX-v-US-Govt-Mandamus-Petition-2016-06.pdf

Scotus Blog on the ruling: http://www.scotusblog.com/2016/05/u-s-appeals-sweeping-ethics-ruling-by-texas-judge/

You do not really have to read or worry about any of this. This was just added to address your question. I still recommend you locate an attorney in your area to assist you.

Good luck.