Pro Bono Representation Helps Meet Needs of Pro Se Filers

Journal Issue

Sep 2006

Column Name

Clerk Commentary

Citation

ABI Journal, Vol. XXV, No. 7, p. 44, September 2006

Topic Tags

Ethics

Journal HTML Content

I recently read an article that quoted a court
supervisor as stating that some days she "felt like Lucy Ricardo
trying to package chocolates coming at her on a high-speed conveyor
belt." I'm sure she is not alone. The clerks' offices of all of
the bankruptcy courts try their very best to ensure that their work is
accurate, staff members are courteous to the bar and the public, and
that the needs of all of the court's constituency are addressed. One
of the biggest challenges facing the clerks' offices is the growing
number of pro se debtors. Challenge for Clerks'
Offices Despite Lower Filings Bankruptcy court staffing is based
mainly on the number of case filings for the 12-month period ending on
June 30 of the year preceding the new fiscal year, which commences on
Oct. 1. During the last statistical year (July 1, 2005-June 30, 2006),
filings declined dramatically after Oct. 17, 2005, the effective date
of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
(BAPCPA). Therefore, staffing allocations based on these reduced
filings translates into less-authorized staff in most bankruptcy courts.
However, while BAPCPA may have caused a reduction in filings, the
amount of work by the court's office's required to administer these
cases has increased. For example, pro se filers require even
more assistance than they did in the past in order for them to meet
the mandates of BAPCPA. As the attorneys practicing bankruptcy law
have had to learn and adjust to the nuances of the new law, so did the
clerks' offices around the country. The Administrative Office of the
U.S. Courts and a committee of clerks did a remarkable job in
providing guidance to clerks' offices and revising old, and writing new,
standard forms to meet the demands of BAPCPA. The local courts
likewise did a tremendous job of developing new local forms and rules,
modifying systems and programs and changing local processes by the
Oct. 17 effective date. BAPCPA is now approaching its first
anniversary, and the attorneys and clerks' offices have moved past the
confusion and uncertainty that existed on the effective date. All of
the bankruptcy courts have adjusted to the mandates of BAPCPA and are
"fine tuning" forms and procedures. As the local courts
revised procedures and forms, the needs of the pro se filers
were considered and procedures were drafted in language that could
easily be understood by persons attempting to navigate through the
system without the benefit of counsel. However, we must remember that
for most pro se filers, bankruptcy court is their first court
experience. The bankruptcy process and required forms are confusing,
and a little help goes a long way to ease them through the process
correctly so that they can receive a timely discharge and the
proverbial "fresh start." Novel Approaches to Providing
Quality Pro Bono Representation Because of the severe
consequences of an incorrect filing—risking a dismissal and a
need to pay a second filing fee in order to file a second time, which
may lead to limited benefits of the automatic stay or, in the case of a
third filing, paying a third filing fee and losing the benefits of the
stay altogether—there is an increased need in bankruptcy courts
to be able to provide assistance to debtors filing petitions without
the benefit of counsel. Pro se filers would benefit from the
assistance of a pro se law clerk in bankruptcy courts. Under
the current limitations of position descriptions, bankruptcy courts
are not authorized to hire pro se law clerks. However, the
Eastern District of New York has been granted permission from the
Second Circuit Judicial Council to utilize the services of a temporary
pro se law clerk to assist with their increased pro se filings.

To go beyond procedural advice, a pro bono panel of attorneys
willing to donate their time to assist indigent debtors is needed. I
have conducted a survey of bankruptcy clerks of courts throughout the
judiciary and have received varied responses. For example, while the
Southern and Eastern Districts of New York, Vermont and Minnesota
participate in formal programs to assist in bankruptcy cases through
the local bar associations, others feel their pro se population
is so low that they believe the guidelines placed on their Web sites and
distributed at their courts is sufficient to address the needs of the
debtors filing chapter 7 cases in their courts without counsel.
Massachusetts takes a rather creative approach; judges speak at bar
associations throughout the state, and attorneys who attend can agree
to accept at least one pro bono case a year referred through
the bar association in lieu of paying the registration fee for the
program. They have also, in conjunction with the Boston Bar
Association (BBA), instituted a reaffirmation clinic where a pro
se debtor can meet with an attorney immediately before the
reaffirmation hearing to discuss the reaffirmation process and what
debt is being reaffirmed. The BBA has negotiated a
conflict-of-interest waiver from various banks so that attorneys who
represent banks may participate in this type of pro bono
representation. Most courts provide information in printed form and
on their Web sites to assist pro se filers; however, these aids
are limited to procedural advice. Even though every attempt has been
made to write these in "plain English," the information is
sometimes difficult for debtors who are totally unfamiliar with the
legal—and more specifically, bankruptcy—system, to
comprehend. Indigent debtors attempting to file for bankruptcy without
the benefit of counsel are at a severe disadvantage. Trying to
accumulate enough money to pay the increased filing fee, compounded by
the cost of mandated credit counseling and the financial-management
course needed to obtain a discharge, can often be so burdensome that
paying an additional fee to an attorney would be an insurmountable
obstacle to overcome. The Southern and Eastern Districts of New York
each have a pro se population in excess of 25 percent of the
total number of individual chapter 7 and 13 cases. This, I have
discovered through my survey of other bankruptcy courts, is
unprecedented. The percentage of the pro se population in other
courts appears to be between one and 10 percent of their overall
filings. However, in every court there is a population in need of
assistance. In an effort to cope with their unusually high percentage
of pro se filers, the Southern and Eastern Districts of New
York have jointly sponsored two pro bono programs to assist
indigent debtors. The programs were designed in conjunction with the
New York City Bar Justice Center and Legal Services for New York City.
These organizations "actively recruit, train and place volunteer
attorneys with indigent debtors who are either in bankruptcy or
contemplating it." Attorneys who volunteer in these programs
may assist pro se debtors in two different ways: (1) to prepare
the petition and related documents (schedules, statements, etc.)
needed to commence a chapter 7 case, or (2) to represent a pro
se debtor in a contested matter or adversary proceeding. In either
situation, the attorney's role in representing the debtor is limited to
the specific assignment (i.e., preparing the petition or
representing the debtor in a litigated matter) and the attorney does
not assist the debtor in other aspects of the case. Ethical
Considerations of Pro Bono Representation Ethical
considerations regarding limiting the scope of counsel's representation
of a debtor, or addressing possible conflicts of interest with an
attorney representing a debtor filing chapter 7 while the attorney or
the attorney's law firm is engaged in representing one of the debtor's
creditors, are topics that will need to be addressed by the volunteer
lawyer. The Association of the Bar of the City of New York Committee
on Professional and Judicial Ethics Opinion (Assoc. of the B. of the
City of N.Y. Comm. on Prof'l. and Jud. Ethics, Formal Op. 2005-1)
addresses the ethical issue of representing a debtor and a creditor of
that debtor in unrelated matters. In the opinion, the committee
determined that an attorney could limit the scope of representation
"as long as the volunteer lawyer ensures that the client is aware
of, and consents to, any risks posed by limiting the scope of the
lawyer's representation." In this instance, the pro bono

panel proposed to provide legal representation only through the
commencement of a chapter 7 case. The committee also determined that
"pro bono representation of an individual in connection
with a chapter 7 bankruptcy filing while simultaneously representing
one or more of the individual's creditors in unrelated matters will
not typically create a conflict of interest...." The committee
noted that the "unrelated matters" usually involved a
volunteer lawyer whose law firm would represent the financial
institutions and credit card companies whose debt the debtor is
seeking to discharge in the bankruptcy. In their analysis, the
committee weighed the fact that "debts sought to be discharged in a
typical chapter 7 case are relatively small with respect to any given
creditor, particularly large institutional creditors; that in an
overwhelming majority of these cases there are no significant
nonexempt assets; and that it is extremely rare for an objection to be
made to the discharge of the debt in chapter 7 cases." The
committee utilized statistics from the Southern District of New York in
its analysis: "During the...statistical year (July 1, 2003-June
30, 2004), 15,146 individual chapter 7 cases were filed. Of these,
14,842 (98 percent) were deemed no-asset cases. Only 223 adversary
proceedings were filed during the same period involving a request for
exceptions to the discharge of a debt under 11 U.S.C. §523."
Moreover, the committee noted in the opinion that "unlike the
commencement of litigation...the commencement of a typical chapter 7
case is an in rem proceeding that triggers the automatic
operation of a statutory framework for marshaling and distributing
assets and discharging debt." However, the committee did state
that in the rare instance when a creditor subsequently files an
adversary proceeding or "takes action that is directly adverse to
the debtor," a conflict-of-interest check would have to be
revisited and consent obtained from the respective clients in order
for the dual representation to be able to continue.
Tangible/Intangible Benefits of Pro Bono Representation
As the saying goes, "out of chaos comes great
opportunity." The feedback from attorneys serving on the pro
bono panels in New York is that they have been given an
opportunity to assist indigent debtors, while honing their legal
skills and mastering the nuances of BAPCPA. In May 2006, the New York
City Bar Committee on Bankruptcy and Corporate Reorganization and the
City Bar Justice Center sponsored a seminar in New York, "From
the Courtroom to the Classroom." At this seminar, attorneys spoke
about the benefits and opportunities they received from their
involvement with the New York programs. They spoke about how serving
on the panel presented an opportunity for new attorneys to gain
significant experience conducting client interviews, trial skills and
courtroom experience. Others who were a bit reluctant to represent
clients in the bankruptcy court since the passage of BAPCPA by serving
on the pro bono panel were afforded an opportunity to be
trained and to "learn the ropes" of the new law under the
guidance of more experienced attorneys serving on the panel. All of
the attorneys spoke of the personal benefits they received by helping
someone in great need to gain a "fresh start." Also, these

pro bono programs are welcome resources to the judges and
clerks' offices in both the Southern and Eastern Districts of New York.
One can observe the relief on the faces of the debtors when they are
informed that they may be eligible for free legal advice from an
attorney. It can transform a very difficult experience into a less
frustrating one. My survey of other courts' pro bono programs
has indicated that if one exists, it is usually formed and
administered through the local bar associations. Courts that have
adopted or sponsored these programs have placed the information,
including applications for attorneys and law school clinical programs,
on their Web sites. Information on the programs for the U.S.
Bankruptcy Courts for the Southern and Eastern Districts of New York
can be found on both courts' Web sites: <a href="http://www.nysb.uscourts.gov">www.nysb.uscourts.gov</a> and <a href="http://www.nyeb.uscourts.gov">www.nyeb.uscourts.gov</a>. If you are
interested in helping to conquer the "New Frontier" by
volunteering for pro bono work in bankruptcy courts, check with
your local bar association or go to <a href="http://www.probono.net">www.probono.net</a> for comprehensive
information about bankruptcy pro bono programs throughout the
United States. There may already be such a program in existence, and it
may be anxiously awaiting an opportunity to enlist the services of
experienced or not-so-experienced bankruptcy lawyers. The contact for
the New York City Bankruptcy Assistance Project is Bill Kransdorf at
(646) 442-3646. The contact for the New York Justice Center Pro
Bono Consumer Bankruptcy Project is John McManus at (212)
382-6698. The current programs in the Southern and Eastern Districts
of New York are very viable and energetic and ready to be of
assistance to the pro se debtor constituency, and for this the
judges and clerks' offices in both districts are most appreciative and
thankful. Having debtors approach the intake counter at these clerks'
offices fully informed and with completed, correct petitions in hand
makes the process more efficient, allows both of these clerks' offices
to provide accurate, courteous service, and slows the "conveyor
belt of chocolates." The benevolent attorney is able to hone his
or her skills and learn the nuances of BAPCPA with guidance from
experienced lawyers. It's a "win-win" situation, everyone
feels better, and everyone involved in the process, including the
debtors, clerk's office staff and the pro bono counsel, walk
away knowing they have contributed to a "job well done."

Journal Authors

Kathleen Farrell-Willoughby

Laura Brundage

Journal Date

Friday, September 1, 2006 - 12:00

Bankruptcy Rule

2006

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