Letter to the Editor
The article in the December/January 2002 edition of the ABIJournal by Jan Samuel Ostrovsky, former U.S. Trustee for Region 18 (Seattle), cannot be allowed to pass unchallenged. Mr. Ostrovsky praises the proposed Credit Card Company Protection Act of 2002, a.k.a. the so-called Bankruptcy Reform Bill, for requiring debtor's counsel to do what should be second nature to them, such as avoiding misrepresentations, being diligent, etc. How, then, does the provision holding debtors' counsel financially liable for the accuracy of the information supplied by their clients fit into that? Are divorce attorneys required to put their own finances on the line for the veracity of their clients? Is this part and parcel of normal legal practice? Or is this a ruse by the creditors purchasing this legislation to discourage attorneys from engaging in bankruptcy practice?
This is not to say that the problems cited by Mr. Ostrovsky don't exist; clearly, they do. But not in the all-pervasive way he would have us believe. I have indeed observed instances of poor representation in §341(a) meetings and in courtroom practice in the Moscow venue. In fact, Idoubt any of us is entirely without fault from time to time. Before Irestricted my practice to bankruptcy in 1990, I also observed the same in state courts in all other fields of legal practice. So bankruptcy practice is no different from that of other fields so far as I can tell. Why, then, try to fix the problem with federal bankruptcy legislation?
If Mr. Ostrovsky is wringing his hands over attorney malpractice in the bankruptcy courts, why isn't he concerned about the missteps by creditors' counsel? I often see creditor pleadings filed by out-of-district attorneys who are not members of the bar of the local bankruptcy court. If this is done pro hac vice, no problem, but sometimes it is not. I see no action being taken by the U.S. Trustee. I also see creditors' counsels filing proofs of claim claiming fully secured status for a $10,000 loan with the only collateral being a rag-tag assortment of old baseball gloves, sleeping bags, perhaps a chair and table, etc. I see objections to confirmations of chapter 13 cases listing every possible statutory reason for attacking confirmation without regard to what evidence there might be for any of it—a clear violation of Rule 11. Where is the U.S. Trustee system now? Where are all those members of Congress who are so concerned about the level of legal practice in bankruptcy court? It doesn't take a brain surgeon to figure out what's going on here.
In sum, the problems Mr. Ostrovsky notes, to the extent they exist, are well within the power of the bench, bar and the U.S. Trustee system to address. If that isn't being done, it won't help to try to make debtors' counsel financially liable for their client's errors or anything else. It's still going to fall back on the U.S. Trustee personnel to police the practice arena and call the transgressions to the attention of the bench and bar for corrective action. If they aren't doing that now, they won't do it in the future under new legislation either.
Kenneth L. Anderson
Attorney at Law; Lewiston, Idaho