A Call To Action To All Bankruptcy Lawyers

Push back to call to improve bankruptcy bar

 

 

My call to the inept bankruptcy practitioners to get better or get out spawned some surprising push back.

I spoke bluntly about what I saw as harm to the public from less than competent or committed bankruptcy attorneys.

Most reaction was supportive:  A trustee wanted to use the piece for a presentation he was making; another lawyer asked to reprint it.  Many simply added their voice to my call.

But I got two very heated, negative responses.

The Arrogance Of A Helping Hand

The first is easier to understand:  this reader thought I was arrogant.  I suppose he finds arrogance  in my willingness to name the performances I saw as sub par and to protest publicly when client cases are dismissed for the lawyer’s  failings.  Should that offend?  What obligates us to sit by in silence?

It does make me wonder what that attorney, a certified specialist in consumer bankruptcy law, is doing to help people in his area become better at their craft.  Does he sit with practitioners and assist in the crafting of plans?  Does he educate his colleagues about new developments in the law?

I suspect that he does nothing, sitting idly by as the next generation of bankruptcy lawyers circles the drain with their hapless clients in tow.

To this lawyer I say, “If you’re not helping, get out of the way of those who do.”

Scheming For Someone’s Clients

The second retort was more disturbing in some ways.  The reader attributed the observed incompetence to competition among lawyers that ran counter, he thought, to the idea of a profession.

He saw my criticism as being borne of a desire to take the bumbler’s clients, and contended that as profession we should be circling the wagons around the less-stellar members and nurturing them.

After all, he claimed, we are a profession, not a business.

This lawyers doesn’t know me personally, nor does he know my firm.  He has no sense of whether we’re booked solid or begging for business.

I personally find it reprehensible for a professional to speak poorly of another attorney with the intent to steal his or her clients.  And you certainly can’t make the case that I’m confronting those lawyers who sparked this dialogue  with an eye on their clients because, like at most CLE presentations, the people who could really benefit aren’t reading here.

Most disturbing in this angry comment was the unstated proposition that we, as a profession, should be protecting the least among us from criticism or consequence of their ineptitude.  Reminds me of the conspiracy-of-silence charge against professions, where no member of the profession can be found to testify for the victim of the defendant professional.

Yes, this is a profession.  One dedicated not only to profit but to assisting people who need it most.  By coddling those who bumble through in the face of proffered education, we are allowing them to sacrifice the best interests of their clients at the altar of their profit.  And that, gentle reader, is abhorrent.

Part of being a profession is having a duty to the calling as well as to the client.

A Call To Action

The experienced attorneys need to take up the mantle, make themselves available to mentor,  and point out educational opportunities for inexperienced bankruptcy attorneys.  Immediately.

In my local case, the bench and the trustee’s office had labored mightily to educate the bar on the new procedures.  The local bar associations and the Bankruptcy Forum run classes all over California.

The National Association of Consumer Bankruptcy Attorneys runs two programs each year.  The American Bankruptcy Institute puts on many programs, some of them dedicated to consumer issues.

I offer educational opportunities, both live and online.  So do other lawyers and private groups, some of them excellent.

A lawyer who remains clueless in the face of such educational opportunities should be pointed in the right direction.  If he or she fails to get the hint, permission to practice before the bankruptcy court should be revoked.  It may sound harsh, but we are a helping profession; a failure to help is a danger to those we are here to protect.

What do you think?  As a profession, what should be our attitude be toward the less competent?  As a specialty within a profession, are the rules in bankruptcy practice any different?

Image courtesy of Steve Snodgrass.

Related Posts Plugin for WordPress, Blogger...
  • wayne kiser

     As  a VBA I have been involved in a few cases where just as the attorney is about to represent his client at  a 341 hearing he turns to me and asks “How does that exemption work for cars?” or “Did we file all the documents?”  Wonderful.  How did he pass the bar?  Talk about incompetence.  It seems that once the attorney receives his District Certification, takes a few minutes to learn CM/ECF (which the VBA usually completes) and collects the retainer he’s a skilled authority on bankruptcy ready to represent clients – even a VBA has put in some thought in learing bankruptcy.  I have witnessed very little admonishment by Trustees to attorneys who don’t know the ins-and-outs of bankruptcy law -with some attorneys even coming back with the same stupid questions and mistakes over and over.   

    I feel that the Bankruptcy Courts should oversee attorneys wishing to practice bankrutpcy much more rigid.  This would include taking a series of classes that would not only deal with the rules and codes of bankrutpcy but ethics.  Since several attorneys have no real understanding regarding even the client interview process it would be benificial to both the attorney, his clients and the firm if he had a more educational background in bankrutpcy law.

    • Michelle Kainen

      Cathy,

      You had the courage to say what many of us think about this. 

      When the numbers dropped after BAPCPA, our judge was pushing the skilled practitioners (mostly NACBA members) to join in a formal mentorship program, in hopes of bringing up the filings by adding more practitioners.  

      I must admit, I did resent the fact that I was spending thousands of dollars annually to get on planes to learn this stuff, and the judge expected me to give that knowledge away to my competition.  These are the very same people who can’t take the time to participate in bench-bar discussions, committees, etc.  I decided that my rule for mentorship was that the case I was assisting on had to be pro bono or substantially reduced fee.  When I instituted that rule, suddenly no one wanted my help anymore.  Apparently they wanted me to provide free mentorship, so they could charge full-boat on cases.  Really????

      I certainly don’t have the answers, but am happy you opened up the discussion.

      • Cathy

         My “price” for mentoring is membership in NACBA. 

        If a newbie isn’t willing to do that, I don’t think they’re going to make good use of whatever help I can provide.

    • Attyhammel

       What is a “VBA?”

      • Anonymous

        Virtual Bankruptcy Assistant?

  • Jim Cossitt, Kalispell MT

    Don’t let the push back deter you.  If they can’t take the heat, they can beat it.   The biggest problem is self governance of the legal profession and the incredible attitude or culture of tolerance for subpar behavior.  The ethics committees handle these with kid gloves and it is part of the conspiracy of self regulated professionals.

    Judges are also a part of the problem–a big part.  I have practiced in 4 federal judicial districts (N & S Iowa, W Michigan and MT) and witnessed the range of attitudes.  Some of the more tolerant judges would do well to kick some butt.

    The last 2 questions are key for me as a member of the ABI Ethics Task Force and chair of it’s consumer committee.  We are in the midst of drafting guidance on this topic.

    Keep up the good work !

    • Cathy

       Jim, will you share as the work of the Ethics Task Force goes forward?  It’s really healthy for all of us to ask these questions of ourselves and our colleagues over time.

  • http://www.morethanbankruptcy.com Goldstein Law Group

    Maybe you just hit them too close to home. I regularly participate in listserve conversations. Sometimes I teach something and sometimes I learn something. Both results are important.

    It never ceases to amaze what some lawyers consider good work.

  • Susanne Robicsek

    There is work for all willing to do the job right, but it must learned and it isn’t easy. Those who know you, Cathy, understand that few do as much as you do to try to teach and mentor, and to raise the standard of practice.

    • Anonymous

      Thanks for the vote of confidence.

      The very fact that it isn’t always easy is what makes the practice appealing even after as long as I’ve been at it. I continue to see new wrinkles, new angles, new pitfalls, and cringe that I didn’t see it 10 years ago. There’s lots of room to grow in this practice.

      And when we retire, we want to leave a bankruptcy bar that is equally committed to the client and mastering the law.

  • Richard T Hilovsky

    Cathy, right on, I sat through what I would call the most unbelievable examination by a trustee (with the patience of …) All the other attorneys and debtors had to sit through 1/2 hour of wasted time, because the attorney was not prepared, had failed to list property and obviously had not prepared his client for the examination. I think the trustee should have simply continued the hearing and advise the attorney to seek advice regarding the practice of law in bankruptcy. Kudos for your article.

    • Anonymous

      It’s clear that what I’ve written about isn’t confined to a locality or the age of the lawyer. Thanks for words of support.

  • http://janet-lawson-bankruptcy.com/ Jlawsonlawyer

    I have picked up the bumbler’s clients, I have brought motions for disgorgement, and I presently have a malpractice action in state court against another “bankruptcy attorney” who did not undersatd what a judgement lien was.   Fair warning, if you don’t know what you are doing there are consequences.  The client should not have to pay for mistakes of the lawyer who is too lazy to learn his/her profession.

  • Karenindixie

    I fully agree with your stand, Ms. Moran. Those of us who are in the profession to help clients should not have to teach those who haven’t learned the law how to do their jobs.  In  Atlanta, I see signs posted along streets (the equivalent would be a garage sale sign), advertising Chapter 7 services for $299.00, with a phone number.  Is that what we have come to? I’ve lost count of the number of clients who have switched to our firm, mid-case, because they have come to the realization that the attorney they hired originally is not qualified, or does not care to, advocate their interests.  The economy brought a lot of attorneys into bankruptcy law to make a quick buck, as foreclosures and unemployment climbed.  A good number of them saw it as a way to make a quick buck. However, just as in any other area of the law, bankruptcy is specialized, and if you’re not familiar with it, you are doing the client a disservice by offering them something that is less than quality work.  Some of them get lucky but, more often, the client is the loser in the process.

    • Anonymous

      Amen. It is not “just about forms” anymore than tax preparation is all about the forms.

  • Anonymous

    Cathy, you and most of the commenters have it right.  I’m more than willing to serve as a mentor, give advice on sticky questions when I get a “what do I do about this?” phone call, and guide people through a new challenge in the bankruptcy court.  I think experienced practitioners should be willing to do that.  I think we should also volunteer to speak at MCLE presentations, etc., which take a considerable amount of preparation.

    But, my schedule is packed, filled with ever present filing deadlines, and I’m not willing to give my time to an attorney who isn’t putting in the effort to improve and seek out educational opportunities.  We should be willing to call a spade a spade too, even if it means speaking the truth about a fellow lawyer.  There are too many pretenders attempting to make a quick buck in a profession I’ve spent twenty years learning.

  • Attyhammel

    I totally agree with the “get better or get out” sentiment.  I don’t begrudge the newbies who are struggling to find work and pay back their monumental student loan debt.  The ones who drive me crazy are the experienced lawyers who have decided that this is now where the money is because their criminal or family practice wasn’t going so well.  I’ve seen a few here in Madison WI (college town full of underemployed and unemployed lawyers) flying around the 341s and courthouse by the seat of their pants.  They are too proud or lazy to come to CLEs and conferences.  I just listened to a confirmation hearing today while awaiting our turn; not only did the judge tell the lawyer (in practice over 30 years) to read the law instead of calling the clerk’s office for advice, he actually hung up on the lawyer after he made an unfavorable ruling and she continued to argue with him.   We have a good state bar listserve and also a “mentor” list where “stupid” questions can be asked without revealing ignorance (and it’s not only young lawyers on there).  Our main concern should be that clients get good representation.  The bad actors reflect on us all.  Don’t get me started on some of the foreclosure defense lawyers…even less competition and oversight in that forum.

  • John P. Neblett

    I have a lot of stray thoughts about what you’ve said – in no particular order:

    You’re right, those who need what you are offering the most are probably not on here anyway.

    We have had a couple instances of attorneys who were performing well below the bar.  In these cases, the UST has stepped in when needed, one of them is banned from practice and the other is now retired.  The point being that there is already some oversight, at least here, and I get really nervous at the idea of the private bar deciding who among them is capable to practice.  That’s supposed to be the overarching purpose of the UST program, although we could have  a couple good discussions about that too.  It’s funny in a way, you and I go back a long time, and I can remember when we were all complaining back in 2002 abut the UST and the “oversight” of debtor counsel.  Now here we are talking about how to stop these bumblers.  

    There are a lot of positive ways to help a bumbler, not all of them official.  A private word to someone after a 341, sharing forms, local listserve, etc., all build relationships and encourage excellence.   I use them all.  The good ones I know do this all the time, and we all know who they are.  And don’t overlook the power in your good paralegal building some relationships with other bankruptcy paralegals.  That’s a powerful network around here.

    I have a busy consumer practice, but I’m also a Ch 7 Trustee.  One of the things stressed to me during the training was the idea that we try to get the right bankruptcy result under the Code, even when the debtor counsel messes up.   That might surprise some of you, and probably some trustees don’t do that as well as they could.  We can’t always do that because many things can’t be fixed once the petition is filed, and a lot of missed opportunities for the debtor will never come to light, but a lot of things can.  Exemptions, the forgotten asset, the reworked means test, are all examples of things that can be fixed a lot of the time.  This made me happy and is something I believe strongly should be done.

    My pet peeve and my take on professionalism in the bankruptcy context; we file petitions, not complaints.  We aren’t supposed to be negotiators with the Court.  What distinguishes us from other practice areas is the idea that we come in the spirit of full disclosure with open books, or at least we should.  Too many lawyers coming over from other practice areas are of the “ask for 20 settle for 10″ mentality.  Some trustees are too.  It’s not supposed to be that way and I really do not respect attorneys that basically hide something hoping no one will notice, or don’t ask the right questions of their clients.  I tell my clients when they hire me, and I sense some “disclosure” issues, they’re going to get the benefit of my credibility and reputation, and I want the next 5,000 clients to get the same.  I insist on honesty and full disclosure from them and to the court.   Enough of that soapbox.

    It’s clear to me you have a passion for the education of counsel, and I hope you pursue that as far as you can.  Know I am in your corner!

    John P. Neblett

    • Cathy Moran, Esq.

      You are right on so many points. On the issue of the profession policing itself, I can appreciate the thought that we can’t be vigilantes. But on the other hand, if we truly care about the public we serve, can we stand idly by while the clueless and unscrupulous victimize laymen? And what about segments of the bar that don’t have a UST equivalent?

      I would welcome the UST doing something truly useful. In my experience, they are seldom willing to put their shoulder to the wheel where it is needed, instead preferring to nit pick the fee apps of the little guys, and letting the big boys fees go unchallenged. Their focus seems to be variable and I have not personally seen them root out the incompetent or the remote bankruptcy lawyers from out of district that plague us in the Northern District of CA.

      I’m clearly one for list serves and mentoring. One of the greatest ideas I’ve seen since the influx of new lawyers into bankruptcy was Jeena Cho’s newbie list serve. The first live class I gave was to 9 new bankruptcy attorneys and during the breaks, they discovered that each of them knew something the others didn’t that they could share. She created a Google group, then proceeded to organize a newbie “breakfast club” that “met” by conference call and invited an experienced practitioner to address questions the participants submitted. Brilliant and it amplified the time and input from the greybeards.

      We must keep plugging away at this issue.

  • Ellfar Law

     Cathy – thank you for your post.
    The 2005
    BAPCA change in law was designed to reduce bankruptcies and it did until the
    economic recession took over. Many an experience practitioner stopped taking
    cases after BAPCA as they recognized that the new law required Counsel and
    their clients to jump through hoops of fire that they simply thought were not
    worth the effort.

     

    The
    economic recession and the “hide a ball” scams of the money lenders
    forced many into bankruptcies and the bankruptcy floods that followed have led
    many lawyers to join the field of bankruptcy as they looked at it  both as
    a profitable area of practice and as a way to help individuals in dire need.
     These lawyers took the time to attend educational seminars to learn the
    intricacies of law and those that did benefited from the fact that they could
    attain as much understanding of bankruptcy law as those that had practiced for
    several years prior.

     

     This
    was a new law and the new attorney could “almost” achieve the same
    skill level as practitioners who had practiced since the “old” 1978
    law, which was the “new” law when I started practicing!

     

    Some
    practitioners, however, had a better grasp of google, the internet, SEIOs,
    adwords and were able to drive the bankruptcy clients to their site. Their case
    load flourished as they took on 7s, 13s and in some cases even 11s. Some of
    them, unfortunately, did not take the time to master the new law.

     

    Times are
    now changing again.  The bankruptcy flood is receding and bankruptcy
    filings will return to “normal or sub-normal” levels, which may be as
    little as 20% of the current level, within 2 or 3 years.  So those practitioners
    who are currently thinking of jumping into this very complex area of law for
    economic reasons should think again before they proceed down this path. As to
    those practitioners who think of bankruptcy as a way of helping those down on
    their luck and in desperate need of assistance:  Welcome aboard.Javed Ellahie