No one likes cleaning up a mess that someone else made, especially lawyers. I’ve coined the term “clean up” to describe a particular type of case – whether it be debtor or creditor. In most cases however, it’s a debtor’s case that was handled by an attorney who is no longer returning phone calls, or has informed the debtor that they can no longer handle the case. The debtor is extremely concerned, and is usually in a very difficult position. And unfortunately, I’m seeing these types of cases with greater frequency.
There are many reasons why a debtor’s case may not be progressing the way they expected. But in many cases I am seeing, when a debtor is contacting me to either get a second opinion, or to get a new attorney it’s because something in the case is going dreadfully wrong. It could be an improperly completed form, or a complete lack of understanding of how bankruptcy works. It could also be a little of both.
The economy is drying up legal work in other areas and this may be pushing attorneys who do not know bankruptcy law into the practice in an effort to their own ends meet. However, attorneys who do this with an assumption that bankruptcy is “easy” or is just about filling forms will soon realize that this is not the case.
How does this happen?
Here’s an example: debtor hires attorney and tells attorney “I need to save my house from foreclosure.” Attorney tells debtor: “stop paying mortgage” and then files a chapter 7. Attorney then realizes that a chapter 7 is not the vehicle to save a home, but rather chapter 13 is, and then converts the case to chapter 13. Attorney does not properly list creditors, who do not get notice and continue to collect money from the debtor. Debtor now gets motions to dismiss in the mail (because debtors still receive mailings even though they have hired counsel), and they start to call their attorney who provides vague answers, or in a worst case scenario, doesn’t return the call. Now debtor cannot merely dismiss the case and start over with a new attorney because the case started out in chapter 7.
The attorney likely didn’t know – or didn’t care. Perhaps they assumed – very, very wrongly - that bankruptcy was merely form filling. Perhaps they assumed – very, very wrongly – that since they were experts in other areas of the law, that they could “wing it” in bankruptcy. Or perhaps they assumed, and again, very wrongly, that someone else could come along (like me), fix their mistakes, and they could continue handling cases that are more similar to what I heard once crassly described to as “lower hanging fruit.” Those assumptions can land them as defendants in malpractice cases and as respondents in bar disciplinary proceedings. It can also result in their being forced to disgorge their fees back to the debtor.
All the meanwhile, the debtor is still at risk of unnecessary (and in many cases completely avoidable) complications in the bankruptcy case. The debtor is forced to seek out and hire new counsel, after the mistakes have been made – all costing more for the debtor, and causing more anxiety in a legal matter that by its very nature, will cause a certain level of angst in any debtor.
On the flip side, there are attorneys who make honest mistakes. In one particular case, I believe a prior counsel had no belief that there was an error, or that action needed to be taken to prevent harm to the debtor. However, once the details of the error were brought to his attention, counsel stepped up, took responsibility, and is doing the right thing to undo the damage. Others may not be so fortunate to have had counsel who not only cared about their error, but acknowledged the need to set things straight again.
I have no doubt that what is pushing inexperienced (and in some cases just not competent) attorneys into bankruptcy law is the economy. I can say this without doubt because attorneys – especially newer ones, have told me that they believe that bankruptcy is the “hot” practice area to be in. To those attorneys, I remind them to bone up on bankruptcy law and also that “hot” should not mean interpreted to mean “easy.” Get involved with the local bar and with national organizations who encourage the study of bankruptcy law and debtor and creditor rights. And I warn any attorney who thinks that bankruptcy is little more than filling out forms with the same level of degree, skill and care as an average credit card application that you will reap what you sow. As a trusted colleague once told me: bankruptcy attorneys are dealing with people’s lives. Our work is serious and is to be taken seriously.
For people struggling with debt: please don’t be afraid to ask tough questions of the attorney – or attorneys – you are considering retaining to help you through a difficult financial time. You should feel good about hiring the attorney not because they make you feel good, but because you’re confident that they know what they are doing. It’s better to seek out good counsel at the onset, than to have to worry more later with finding someone who is able (and willing) to clean up prior counsel’s mess.
Related posts:
- Why Not Wipe The Slate Clean?
- Blackberries & Form-Fillers: What Bankruptcy Practice is Really About
- Pro Se Perils
Tags: attorneys, bankruptcy attorney, Chapter 7, Consumer Rights, Credit and Debt
