By Amy Hennen
Misinformation is a common concern, especially among bankruptcy attorneys. Getting accurate facts from Chapter 7 clients can be a daunting task. Professional responsibility and court rules require attorneys to do a thorough investigation of the client and their claims. This is an important part of preparing a bankruptcy application. However, the assumptions the attorney makes can be especially harmful to low-income clients. Meeting the needs of low-income clients benefits all attorneys and prevents the clients from representing themselves or turning to less reputable options, like some Bankruptcy Petition Preparer (BPP).
“If a client doesn’t pay, they won’t be invested.”
Some bankruptcy attorneys think that when a pro bono Chapter 7 client is not paying the attorney’s fee, the client should at least pay the filing fee. Attorneys who believe this will ensure the client has an incentive to be responsive and complete the process. However, clients earning less than 150 percent of the federal poverty level can and should receive a waiver of the filing fee. Clients have enough invested because it is their lives and incomes that are on the line.
Other bankruptcy attorneys believe low-income clients won’t commit the time needed to be “invested” in the process. Clients can become non-responsive when other life factors make it hard to focus on financial problems. Setting expectations early puts a structure in place for the client if responsiveness is a concern.
Pro bono clients may be concerned about how they are viewed by their attorney. They may not feel important as a client, or that the attorney believes they should spend less time on their case because they are not a paying client. Regardless of the veracity of these beliefs, an attorney taking the time to explain that their case has the same value to the attorney, and the attorney has the same expectations of the pro bono client as a paying client, can alleviate those concerns.
“But what about her cell phone?”
Bankruptcy attorneys are always being mindful of what must be declared on the bankruptcy schedules. So, when a client shows up to the attorney’s office carrying an expensive handbag or cell phone, the attorney may make assumptions about what other items the client may own or what they have prioritized over their debts. For pro bono Chapter 7 clients, it’s important to ask questions about assets without assumption or judgment. The handbag may have been a gift or the one nice thing the client owns. The cell phone may be the only computer in the household. Questions phrased with embedded assumptions may cause clients to feel judged or reluctant. Asking questions without assumptions or judgment leads to better interactions with clients.
“If he’s getting money back, he should have to pay.”
When exempt, garnished funds may be returned to the client, attorneys may feel that they should be paid from the return of garnished wages. However, garnishment forces impossible choices for low-income clients. Rent may go unpaid, medicine may go unpurchased, and basic necessities may go unmet. Getting those funds back can offer a chance to catch up. Clients who qualify for pro bono representation should receive that representation without charge.
“Taking a pro bono case hurts the bottom line.”
Debtors who cannot get pro bono representation look for alternative ways to get the financial relief from filing bankruptcy. In some cases, they may turn to a Bankruptcy Petition Preparer (BPP). These non-attorneys are permitted by federal law to assist debtors with filing petitions; each district sets the amount BPPs may charge. Maryland permits a fee of $125; however, if a client does not know this, BPPs may charge more. Additionally, if a BPP instructs a debtor how to fill in the exemptions on their schedules, the BPP often gets it wrong, in addition to practicing law without a license. The incorrect belief by some debtors that BPPs are the best way to file a Chapter 7 bankruptcy harms the debtor and it harms the profession. Filing a Chapter 7 for a low-income client means that person will not look to a BPP for assistance, and will not later recommend a BPP to a friend or family member.
In addition to preventing clients from using BPPs, pro bono cases can lead to a more direct benefit. In surveys, pro bono bankruptcy clients express the most gratitude for the ways the assistance gave them the ability to move forward. For these clients, the opportunity was life changing. Happy pro bono clients are more likely to refer friends and family who could be paying clients.
Myths in Chapter 7 pro bono cases harm debtors and they harm attorneys. Getting rid of assumptions and judgments creates better relationships between attorneys and clients.
Amy Hennen is the managing attorney for Housing and Consumer Issues at the Maryland Volunteer Lawyers Service (MVLS), where she oversees all elements of the organization’s consumer and housing programs.