US lawyer urged clients to infect opposing counsel with “nasty disease”

Envelopes: A new front in litigation?

A US lawyer advised his clients to have someone with Covid or another “highly infectious, nasty disease” lick and handle an envelope being sent to opposing counsel, it has emerged.

The extraordinary request was revealed in a ruling that condemned the behaviour of Colorado bankruptcy lawyer Devon Barclay in acting for two debtors and banned him from operating in the US Bankruptcy Court of Colorado for three years.

The ruling of Judge Thomas McNamara said Mr Barclay’s conduct was “an affront to the administration of justice” and “highly detrimental” to his clients.

At the start, Mr Barclay and his firm failed to execute a written contract with the debtors. “In any event, Mr Barclay commenced the debtors’ Chapter 7 bankruptcy case by forging the debtors’ signatures on the petition, statement of financial affairs, and schedules.”

He engaged in an “egregious pattern” of misbehaviour in trying to have the case dismissed, lying “repeatedly” to the trustee in bankruptcy and trying to manipulate the bankruptcy filing fee system “to cause the bankruptcy case to be dismissed”.

The judge went on: “Mr Barclay filed multiple motions to dismiss based upon false assertions of fact. He ignored informal and formal discovery efforts initiated by the Chapter 7 trustee, thus causing his clients to be sanctioned by the court. Mr Barclay failed to communicate with the debtors and provided incompetent legal services.”

Judge McNamara said that, “to top it all off”, Mr Barclay advised his clients to try to harm the trustee’s lawyer when sending him a letter.

The lawyer told his clients: “If either of you have Covid or some other highly infectious, nasty disease — or if you know someone who does — please make sure they lick the envelope and handle it as much as possible.”

The judge said: “To characterize such advice as outrageous is a gross understatement. Demonstrating that none of the foregoing was some sort of one-off mistake, even after some of Mr Barclay’s malfeasance was uncovered, he doubled down and made a final improper effort to manipulate the main case and the bankruptcy system.”

The US Trustee – a federal office that oversees bankruptcy cases – brought the misconduct action against Mr Barclay and his firm, although neither participated.

The judge said it deserved “severe sanctions”. He suspended Mr Barclay from practising in the Colorado bankruptcy court for three years and ordered that he cease advertising bankruptcy law services during that time.

In the US, state courts oversee lawyer discipline and the judge also required Mr Barclay to serve the order on the US District Court as well as the Office of Attorney Regulation Counsel of the Colorado Supreme Court.

The ruling was posted on Twitter by Jason Binford, a former Texas assistant attorney general, who said “we have an all-time winner of the #Bankruptcy Lawyers Behaving Badly award”.

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