11-01.

Case DateFebruary 02, 2011
CourtKansas
Kansas Ethics Opinions 2011. 11-01. KBA Legal Ethics Opinion No. 11-01February 2, 2011TOPIC: Legal exemptions on property seized through legal process.DIGEST: A lawyer is not ethically required to return property which has been properly seized through legal process after giving appropriate notice, if the lawyer learns after taking possession of the property that it was exempt from seizure, and if the owner's right to possession of the property otherwise has been, and can be, validly waived.Date of Request: November 3, 2010. REFERENCES: Rules 3.3 (Candor Toward the Tribunal), 4.1 (Truthfulness in Statements to Others) and 1.15 (Safekeeping Property). FACTS: Counsel engages in a debt collection practice. Occasionally, after an account has been garnished or property has been seized through execution (and exemption notice have been properly given, e.g. in accordance with K.S.A. 60-735), but after the objection deadline has passed and the property seized, counsel learns that the debtor claims an exemption from garnishment of execution. This Opinion assumes the following: (a) The judicial process (garnishment, attachment, execution, etc.) has been properly issued, following all the applicable provisions of law, including notice to affected parties; (b) The lawyer has no knowledge of any exemptions applicable to the seized property until after the seizure has occurred, the property has been delivered to the lawyer, and the proceeding has been concluded; (c) Applicable state or federal law allow for exemption rights to be effectively waived by the owner of those exemption rights, and all requirements for an effective waiver have been met.(fn1) QUESTION: Is it a violation of the Kansas Rules of Professional Conduct to keep (and not return) exempt property or funds seized by proper judicial process, if, after proper notice to the debtor to claim an exemption, the debtor fails timely to claim the exemption, and the attorney who seized the property did not know at the time of the seizure of any exemption, and the attorney was not made aware of the exemption until after the debtor's time to claim the exemption had passed? ANALYSIS: Rule 3.3, Kansas Rules of Professional Conduct,(fn2) provides as follows, in pertinent part: 3.3. Advocate: Candor Toward the Tribunal. (a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a
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