It often comes as a surprise to first-year lawyers, but there is not "justice for all" in the American legal system: There is justice for those who can afford counsel, and for those fortunate enough to qualify for a legal services or pro bono lawyer. Even if an individual qualifies for a legal services or pro bono lawyer, there are not enough such attorneys to meet the demand. When an indigent individual requires legal assistance in the area of bankruptcy law, there is no certainty that free legal assistance will be available.

All lawyers have an obligation to perform legal work on a pro bono basis. Most of us have taken an oath agreeing to represent, gratis, those without financial means to engage lawyers. Most bar associations or state courts regulating attorneys have adopted some version of the American Bar Association Model Code of Professional Responsibility Rule 6.1, which urges each lawyer to do pro bono work and provide financial support to groups representing indigents. Some bar associations and courts, such as some in Florida, require lawyers to either perform pro bono work or to make a financial contribution to the local Legal Services Organization. Florida, Maryland, Nevada and Mississippi require all attorneys to annually report their pro bono work.

Bankruptcy practice lends itself to doing pro bono work. This is not an area where extensive retraining is necessary to do pro bono legal work. Most of the cases (70 percent) filed in U.S. Bankruptcy Courts are chapter 7 consumer cases, and most of those (98 percent) are no-asset cases. Some districts have a low rate of pro se filings; some have many pro se filings. A district that has perhaps received the most attention for pro se filings, the Central District of California, reported a pro se chapter 7 filing rate of 28 percent in 2002, down from a 1994 rate of 41 percent; the District of South Carolina reports about a 1 percent chapter 7 pro se filing rate. Many legal services organizations do not have the staff or manpower to handle chapter 7 cases, and some set priorities that will only accept chapter 13 cases where the debtor has a home to save. As a result, many pro se chapter 7 debtors proceed without counsel, or worse, individuals who qualify and require the assistance that chapter 7 can provide do not file for lack of understanding the law. These cases proceed slower than ones represented by counsel and often have problems with improper or no exemptions being claimed, lien-avoidance actions not being filed and undefended discharge actions. The court, clerk's office and Office of the U.S. Trustee all get involved in the processing and handling of pro se cases. The Code that is designed to give consumer debtors a fresh start often does not function unless trained bankruptcy counsel represent those consumers.

---

[E]ven attorneys with large creditor practices can find ways, without conflicts, to do pro bono.

---

Passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (P.L. 109-8) will have an impact on bankruptcy pro bono work. Before the law's effective date (Oct. 17), there will likely be a surge in individuals filing under the old law; when the new restrictions on consumer filings go into effect, many existing pro bono volunteers may be reluctant to handle chapter 7 cases, given the new liability that debtor's counsel assumes under the revised 11 U.S.C. §707(b). Yet most chapter 7 cases referred by a legal services or pro bono organization come well under the median family income, one of the standards of the new means test. Most legal services and pro bono referral services carefully screen each client for income qualifications, so there is also the comfort in knowing that someone, in addition to the volunteer attorney, has screened the prospective debtor for being properly qualified as a chapter 7 debtor. The cases referred are usually individuals with income equal to or under 125 percent of the federal poverty guidelines. As an example, in 2005 the Federal Poverty Guideline for a family of four in South Carolina is $19,350; 125 percent of that figure is $24,187.50. This is the cut-off figure for a family of four to qualify for legal services or pro bono services in South Carolina. The 2005 median family income for a family of four in South Carolina is $56,433, or more than double the Federal Poverty Guidelines. So under the 2005 Code changes, there is no presumption of abuse in these cases. With the exception of a change in forms, there should be little change in the handling of pro bono chapter 7 cases.

Reasons to Do Pro Bono Cases

Pro bono work is a great way to train new lawyers on bankruptcy: The Code sections, the U.S. Trustee Guidelines and the Local Rules work the same as they do in business cases. In a large firm, an associate may not get to argue motions for billable clients until later in his or her legal career; that same first-year associate, with proper supervision and training, can make court appearances during a pro bono bankruptcy, begin acquiring courtroom experience and learn client-interview skills.

There is no doubt that courts appreciate a case being handled by counsel in lieu of the debtor appearing pro se. Pro se cases usually do not work well; the debtors have trouble with exemptions, discharge issues and compliance with court requirements. Pro se cases usually take more bench and trustee time as the uninformed, unrepresented debtors make their way through a complicated system. As more courts go online with case management/electronic case filing, it will be even more difficult for an individual pro se debtor to navigate through the system.

For some bankruptcy attorneys, it can be a refreshing change of pace—shifting gears from dealing with a major chapter 11 case to trying to save an individual's home or vehicle. A hug and an expression of gratitude from a pro bono debtor can be as gratifying as the payment of a client bill, although some may disagree. Pro bono bankruptcy cases are great for morale for both the attorneys and staff that are involved in the case. It is often difficult for the attorneys working on a large corporate chapter 11 case to feel a connection to the entity being represented; in an individual bankruptcy case, the volunteer attorney meets individuals with serious financial problems and has the opportunity to turn their lives around.

Types of Pro Bono Work

While the biggest demand for assistance on pro bono cases comes at the individual level, even attorneys with large creditor practices can find ways, without conflicts, to do pro bono. Participation in a bar-sponsored bankruptcy clinic, where the bankruptcy law is explained to a group of people and individual representation is not undertaken, is of great assistance. Many government lawyers, uncomfortable with doing pro bono work in a courtroom, find doing work for a clinical program a meaningful way to participate. Check with your local bar association for clinic schedules.

Volunteer to serve as a mentor to a less-experienced bankruptcy attorney who agrees to take on pro bono cases. Help with the legal issues, but also introduce the new attorney to trustees and judges, and help with local procedure and tips that are not available through readings.

Working with the local bar pro bono program in reviewing and referring qualified cases to pro bono volunteers is of value to a pro bono program. It is often more difficult to say no to a new pro bono case when the referring attorney is a colleague.

In districts where debtor's counsel may limit their representation, pro bono volunteers are used to represent debtors in a relief-from-stay action or an adversary proceeding. In these cases a creditor's lawyer that may have conflicts representing the debtor in the main case can take on representation of a debtor in a relief-from-stay action or in an adversary proceeding in a limited, discreet way.

Resources

Bankruptcy pro bono programs are usually initiated by either the bar or by the judiciary. Most formal pro bono programs have free malpractice coverage available to their volunteers for work done on assigned pro bono cases. There are various models to follow upon creating a bankruptcy program, and there are many resources available. The American Bar Association has a wonderful resource, a pamphlet entitled "How to Begin a Pro Bono Program in Your Bankruptcy Court, a Starter Kit for Lawyers and Judges," and it can be found at http://www.abanet.org/buslaw/probono/bank_kit.pdf.

Grants to fund pro bono programs involving bankruptcy may be received from the American College of Bankruptcy and the American College of Bankruptcy Foundation (see http://www.amercol.org. More than $140,000 in grants has been given to organizations in 23 states and the District of Columbia for training, creating web sites and conducting studies of consumer bankruptcy issues, and even for filing fees. Grant funds are donated by the College and the College Foundation year-round, and applications may be found on its web site.

---

Footnotes

¹ Board Certified in Business Bankruptcy and Consumer Bankruptcy Law by the American Board of Certification. Return to article