When Lawyer and Client Meet: Observations of Interviewing and Counseling Behavior in the Consumer Bankruptcy Law Office

What happens when lawyer and client first meet? How do they talk, how do they listen, what do they say, and what do they do? The answers to these questions are generated, and then lost, in thousands of law offices daily. There is thus a treasure of information, but it is mostly hidden from our view by legal barriers that protect privacy and confidentiality and by other barriers, economic, psychological, and logistical, that inhibit or preclude third party observation of lawyer-client contact. This Article reports an exploratory journey in search of that treasure, a journey into six law offices in the metropolitan areas of two states. In these offices I observed the initial consultation between consumer bankruptcy lawyers and individuals seeking legal assistance in connection with personal financial distress. The report of my observations introduces Lawyers A through F, each of whom devotes a significant portion of their time to consumer bankruptcy counseling. It describes the general structural characteristics and pertinent details of the consumer bankruptcy law practice of each lawyer. The report also identifies the differing attitudes of these lawyers about the alternative solutions to the financial distress of their consumer bankruptcy clients and reveals significant differences in the structure, content, and style of their interviewing and counseling behavior. This prosaic description is complemented by samples of dialogues between the lawyers and clients whom I observed. The dialogues are reproduced in Appendix, A. I have strived to observe carefully and to report faithfully. To the extent of my success in that effort, the descriptions of lawyer-client contact that follow offer a meaningful picture of interviewing and counseling behavior in the metropolitan consumer bankruptcy law office

The Ursinus Weekly, April 12, 1973

Board of Control meets, elects John Fidler editor; New staff chosen for Fall • J-Board plans complete; Meat boycott discussed • Alpha Phi Omega plans • Ecological concern cites collection days • IR Club to go to NY • Meistersingers return; Complete successful tour • Travelin\u27 6 concert to be held May 3 • Editorial: Taking care of business; Bury the faith at Wounded Knee • Faculty portrait: Dr. J.C. Noman Miller • Student spotlight • Film review: The Poseidon Adventure • Letter to the editor: Beef about beef • Thinclads wallop F&M; Sing sets mark • Netmen drop opener • Diamond season in full swing • Lacrosse team is successful at Sanford • Doreen Rhoads competes at intercollegiateshttps://digitalcommons.ursinus.edu/weekly/1102/thumbnail.jp

2005: A Consumer Bankruptcy Odyssey

Congress has concluded that the voyage of consumer bankruptcy in the United States is off course and that some of its crew - consumer bankruptcy attorneys and bankruptcy judges - no longer can be completely trusted at the helm. Following years of drama reminiscent of the 1914 silent film serial Perils of Protection Act of 2005 ( the Act ). Save perhaps the 1938 introduction of Chapter XIII, the correction presents the most far reaching changes in consumer bankruptcy law since the adoption of the Bankruptcy Act of 1898. These changes come little more than a decade after Congress established a National Bankruptcy Review Commission (the second such commission in twenty-five years) to review, improve, and update the Bankruptcy Code in ways which do not disturb the fundamental tenets and balance of current law. A House Report accompanying the legislation that established the second Commission pronounced Congress generally satisfied with the basic framework established in the current Bankruptcy Code. The Act ignores most of the Commission\u27s consumer bankruptcy recommendations. Fueled by concern about dramatic increases in Chapter 7 filing rates, the Act accepts instead the premise,advanced persistently and forcefully by and on behalf of extenders of consumer credit, that too many consumer debtors with the ability to repay meaningful amounts of non-priority unsecured debt have been seeking Chapter 7 relief. Advocates of reform have attributed much of this alleged abuse to consumer bankruptcy law that they characterize as lenient, to an alleged decline in the moral shame and social stigma associated with bankruptcy, and to increased attorney advertising. This claim of abuse, together with concomitant suggestions for restricted access to the Chapter 7 discharge, is a familiar refrain, having been advanced several times during the twentieth century, most notably in the 1930s, in the 1960s, and soon after the 1979 effective date of the Bankruptcy Code. Means testing is a cornerstone of the perceived solution. Means testing, a formula applied to the imputed income, imputed expenses, and actual debt of some individuals who file, or might otherwise file, a Chapter 7 petition, can deny Chapter 7 relief to some consumer debtors presumed able to pay a defined portion of their non-priority unsecured debt over a five-year period. Although means testing will affect only a small percentage of individual debtors contemplating Chapter 7, it has nonetheless commanded the lion\u27s share of debate, overshadowing other significant components of the reform. I discuss several of these other components of consumer bankruptcy reform in this Article. Part I considers the purposes, contours, and possible benefits,costs, and consequences of two new conditions to Chapter 7 and Chapter 13 relief for individual debtors: receipt by the debtor of a briefing and related budget analysis by a nonprofit budget and credit counseling agency as a condition to the filing of a petition, and completion of an instructional course in personal financial management as a condition to discharge. Part II explains means testing and dismissal of consumer Chapter 7 cases for abuse, in part to suggest both the transitory and enduring flaws of means testing and in part to provide important context for the remaining portions of the Article. Part III considers provisions requiring that consumer Chapter 7 debtors furnish what may often be superfluous additional information and computations in support of a petition. Part IV considers extensive new rules governing the behavior of consumer bankruptcy attorneys. It includes discussion of rules restricting the kind of advice that an attorney may give to a client and mandating specific content in advertising, rules that raise significant First Amendment issues. It also includes discussion of rules imposing new due diligence obligations upon consumer bankruptcy attorneys and authorizing sanctions for violation of those obligations, rules that have raised significant concerns about the viability of consumer bankruptcy practice and access of debtors to legal representation

When Lawyer and Client Meet: Observations of Interviewing and Counseling Behavior in the Consumer Bankruptcy Law Office

What happens when lawyer and client first meet? How do they talk, how do they listen, what do they say, and what do they do? The answers to these questions are generated, and then lost, in thousands of law offices daily. There is thus a treasure of information, but it is mostly hidden from our view by legal barriers that protect privacy and confidentiality and by other barriers, economic, psychological, and logistical, that inhibit or preclude third party observation of lawyer-client contact. This Article reports an exploratory journey in search of that treasure, a journey into six law offices in the metropolitan areas of two states. In these offices I observed the initial consultation between consumer bankruptcy lawyers and individuals seeking legal assistance in connection with personal financial distress. The report of my observations introduces Lawyers A through F, each of whom devotes a significant portion of their time to consumer bankruptcy counseling. It describes the general structural characteristics and pertinent details of the consumer bankruptcy law practice of each lawyer. The report also identifies the differing attitudes of these lawyers about the alternative solutions to the financial distress of their consumer bankruptcy clients and reveals significant differences in the structure, content, and style of their interviewing and counseling behavior. This prosaic description is complemented by samples of dialogues between the lawyers and clients whom I observed. The dialogues are reproduced in Appendix, A. I have strived to observe carefully and to report faithfully. To the extent of my success in that effort, the descriptions of lawyer-client contact that follow offer a meaningful picture of interviewing and counseling behavior in the metropolitan consumer bankruptcy law office

Randomly Distributed Trial Court Justice: A Case Study and Siren from the Consumer Bankruptcy World

Between February 24, 2010 and April 23, 2012, Heritage Pacific Financial, L.L.C. (“Heritage”), a debt buyer, mass produced and filed 218 essentially identical adversary proceedings in California bankruptcy courts against makers of promissory notes who had filed Chapter 7 or Chapter 13 bankruptcy petitions. Each complaint alleged Heritage\u27s acquisition of the notes in the secondary market and alleged the outstanding obligations on the notes to be nondischargeable under the Bankruptcy Code’s fraud exception to the bankruptcy discharge. The notes evidenced loans to California residents, made in 2005 and 2006, which helped finance the purchase, refinancing, or improvement of California residential real property. When issued, the notes were secured by junior consensual liens on the real property, but subsequent foreclosure of senior consensual liens, precipitated by the mid-decade burst of the housing bubble, left the notes unsecured. This article reports an empirical study of these bankruptcy adversary proceedings. Because the proceedings were essentially identical, they offer a rare laboratory for testing the extent to which our entry-level justice system measures up to our aspirations for “Equal Justice Under Law.” We are unlikely to find many conditions better suited to empirical exploration of that question: (1) civil litigation filed during a relatively brief time span by one plaintiff against 266 defendants (including co-defendant spouses); (2) some defendants defaulting, some defendants appearing pro se, and some represented by an attorney; (3) dispersal of the litigation among forty-seven different bankruptcy court judges, all sitting in one state (and thus, where applicable, required to apply the relevant substantive law of a single state); and (4) legal claims and factual allegations by the plaintiff so nearly identical that each dispute is resolvable on the basis of one obvious and straightforward factual question (reliance by an originating lender on a borrower\u27s misrepresentations) or on the basis of three less obvious and more complex legal rules (a California statutory limitation on fraud claims and two alternative varieties of a standing defense). The results in the Heritage adversary proceedings evidence a stunning and unacceptable level of randomly distributed justice at the trial court level, generated as much by the idiosyncratic behaviors of judges, lawyers, and parties as by even handed application of law. We anticipate some randomly distributed justice as the inevitable byproduct of disparities in economic and other resources of the parties and disparities in the knowledge, capabilities, and attitudes of even well-meaning attorneys and judges acting reasonably in an imperfect system. We aspire, nonetheless, to equal justice under law. The findings of this study reflect a departure from that ideal on a scale both larger than we may have expected and larger than we should tolerate