The first year of practice after law school is an exciting, yet humbling, experience for brand new associates, especially if starting in a field that is new and unfamiliar. For me, it was “exciting” because, after years of hard work, deadlines, sleepless nights and dreaded finals, I thought I was finally in a position to apply the golden nuggets of law I had accumulated during my academic career. It was also “humbling” as I realized after a few months of practice how much I had yet to learn.
As I entered the world of bankruptcy law, I was introduced to a hybrid of state and federal law. I had flash backs from civil procedure of “Federal Courts are courts of limited jurisdiction,” and the “Erie Doctrine” echoed in my head that “Federal Courts must apply the substantive law of the State they are located in.” Albeit, bankruptcy law is a unique creature. When I first started practicing, I heard comments like “Oh, bankruptcy law, isn’t that all on software?,” and “that’s pretty easy, isn’t it? All you have to do is input everything, and the rest of the work is done by the software.” Well, yes and no.
It is true that computer software is used by most law firms to generate bankruptcy schedules. However, what these comments reflect is the general lack of understanding of the complexities that can arise in the context of bankruptcy law: the interplay of bankruptcy law with other areas of law, such as property law, secured transactions, family law and probate and estate law can make bankruptcy challenging but also interesting. There is yet another major aspect of bankruptcy law that a lot of people do not immediately think about, and that is client interaction and counseling.
The attorney’s role as a counselor is most prevalent in bankruptcy law, and client interaction with clear communication is crucial to a successful practice. I want to dwell a bit further into this aspect of bankruptcy law practice because a lot of new associates are so intent on learning a new area of law that they sometimes forget that the first step to a successful practice is successful communication. Keeping these few factors in mind is helpful not only for bankruptcy attorneys, but for those starting in any new area of law practice.
Remember that bankruptcy is often a client’s last resort. Most clients are filing for bankruptcy after all of their other options have failed. Usually their lives are in disarray, and in addition to being faced with a financial conundrum, they are also under tremendous stress. Strained personal relationships, harassment from creditors and the social stigma associated with bankruptcy are all factors that can add to this stress level. Some clients may be faced with the harsh reality that they have to vacate their home. Relocating from their community can also be devastating. As a counselor, an attorney must keep these realities in mind, especially when making demands from clients. It is easy to get frustrated with a client who is late in producing pertinent documentation or cannot remember all of the crucial details. However, being aware of a client’s state of mind can help an attorney work more efficiently. For example, follow up document requests with brief phone calls or reminders, because clients may forget.
An attorney must realize that clients may look up to him or her as a “saving grace.” They may look at you as someone who will provide salvation during their difficult times, but it is important to keep a client’s expectations realistic. Clients expect the attorney to have all the answers. If you are unsure about a particular issue, check with a mentor, do the necessary research and get back to the clien. Do not be pressurized into answering on the spot just to pacify your client—that is an easy way to earn malpractice law suits.
Always communicate and reiterate what the client’s end objectives are and whether the objectives are realistic enough to be achieved. I have heard clients say, “I never thought I would have to file bankruptcy” or “I never thought I would be in this situation.” While in denial, clients sometimes do not hear the attorney’s advice. It is important to repeat the ramifications of the legal decisions that are being made. For example, try to list the pros and cons of filing for bankruptcy as applied to the client’s circumstances. This gives them a better understanding of how things work.
It is important to empathize with your client, but always be objective. Do not be overly empathetic and never try to shield your client from unpleasant news. Remember that, in the end, client trusts you with their finances, and sometimes their very personal and private matters. Not only is confidentiality key, but an attorney must also establish a channel of communication and honesty with the client. Verbalizing to the client that their private information is confidential is very important.
As a bankruptcy attorney, you are not only playing the role of an advocate, but you are also responsible for assembling and organizing all of the pertinent information for a client. This task involves not only open and honest communication, but also a deep understanding and perhaps even a level of empathy for the client’s circumstances and psychological state. Some clients may come to you suffering from depression, while others may manifest stress in the form of physical illness. Regardless, it is an attorney’s role as a counselor to work past these obstacles and make sure that in-depth investigation is conducted so that accurate information can be filed on the client’s behalf. Sometimes clients leave out important details and an attorney must be able to spot the missing information and ask relevant questions that lead to the informative answers. This can require sifting through a plethora of facts and picking out the crucial pertinent facts. This is where the attorney’s law school training and skills come into play. Knowing the law and applying it to your client’s situation is key for the benefit of your client. At all times, as an attorney, you must be aware that you are counseling your client and in the realm of bankruptcy, you are helping your client piece together their lives and enabling them to make a “fresh start.”