Traditionally,
almost all people who filed bankruptcy were represented
by lawyers. Since the advent of self-help law
books in the early 1970s, however, more and more
people have handled their own cases, often with
the help of independent paralegals (now called
bankruptcy petition preparers under the federal
bankruptcy law). Since the 1990s, lawyers have
been increasingly willing to offer their services
on a piecemeal (unbundled) basis and provide legal
advice over the telephone and Internet to help
people helping themselves.
This combination of services—both professional
and nonprofessional—has been a boon to people
who can’t afford full attorney representation.
Even though a lawyer acting in an alternative
role is considered a debt relief agency, the fees
are far less than those associated with full representation,
because the lawyer won’t be taking on nearly
as much responsibility.
1.
Unbundled Services
When lawyers do specific jobs at a client’s
request but don’t represent the client in
the underlying case, they are said to be offering
“unbundled” services. For example,
you may be able to hire an attorney to handle
a specific procedure—such as to defend against
a motion for relief from stay, or to bring an
action to determine the dischargeability of a
particular debt—while you handle the main
part of the bankruptcy yourself.
Some courts have held that attorneys can’t
ghostwrite legal documents for nonlawyers, but
the issue has not been decided by most courts.
Also, nothing prevents a lawyer from appearing
for you in a limited capacity and putting his
or her own name on associated documents.
As a general rule, you should bring an attorney
into the case for an unbundled service whenever
a dispute involves something of sufficient value
to justify the attorney’s fees. If a creditor
objects to the discharge of a $700 debt, and it
will cost you $500 to hire an attorney, you may
be better off trying to handle the matter yourself,
even though this increases the risk that the creditor
will win. If, however, the dispute is worth $2,000
and the attorney will cost you $500, hiring the
attorney makes better sense.
Unfortunately, many bankruptcy attorneys do not
like to appear or do paperwork on a piecemeal
basis. Justified or not, these attorneys believe
that by doing a little work for you, they might
be on the hook if something goes wrong in another
part of your case—that is, if they are in
for a penny, they are in for a pound. Also, the
bar associations of many states frown on unbundled
services on ethical grounds. On the other hand,
a number of other state bar associations are starting
to encourage their attorneys to offer unbundled
services simply because so many people are unable
to afford complete representation.
2.
Legal Advice Over the Telephone and Internet
Under the old bankruptcy law, many people were
able to represent themselves with a Nolo book
as their main source of information. Bankruptcy
under the new law is more complex, but in many
cases, it’s still just a matter of knowing
what to put in the forms and what forms to file.
For many people, however, a book just won’t
do the trick, no matter how well written and complete.
You want to talk to a human being. Because of
unauthorized practice laws and restrictions in
the bankruptcy law, however, there is only one
kind of human being who is authorized to answer
your questions about bankruptcy law and procedure—a
lawyer.
Fortunately, there are lawyers and services that
provide telephonic legal advice for a transaction
fee to find a telephonic or online consultation
service, go to Google or another search engine
and look for [bankruptcy legal advice telephone
or Internet] For example, the Affordable
Attorney Advice service (AAA) offers unlimited
telephone legal advice to Califorrnia bankrutpcy
filers for a flat rate of $100.
Even if you use a BPP, you may need to talk to
a lawyer to get the information you need to make
your own choices and tell the BPP what you want
in your papers. For instance, a BPP can’t
choose your exemptions for you, because that would
be considered the practice of law—something
only lawyers can do. However, a lawyer can help
you decide which exemptions to pick so you can
tell the BPP what to put in the form that lists
your exemptions. Again, Affordable
Attorney Advice offers this service to California
BPPs.
3.
How to Find a Bankruptcy Lawyer
Where
there’s a bankruptcy court, there are bankruptcy
lawyers. They’re listed in the Yellow Pages
under “Attorneys,” and often advertise
in newspapers. You should use an experienced bankruptcy
lawyer, not a general practitioner, to advise
you or handle matters associated with bankruptcy.There
are several ways to find the best bankruptcy lawyer
for your job:
·
Personal referrals. This is your best approach.
If you know someone who was pleased with the services
of a bankruptcy lawyer, call that lawyer first.
·
Look for a member of the National Association
of Consumer Bankruptcy Attorneys. See www.nacba.org.
Because of the massive changes enacted by the
new bankruptcy law, you will want to find an attorney
who has a means of keeping up to date and communicating
with other bankruptcy lawyers. Membership in the
National Association of Consumer Bankruptcy Attorneys
(NACBA) is a good sign that your lawyer will be
tuned in to the nuances of the new law and the
court interpretations of the law that are sure
to come.
·
Bankruptcy petition preparers. If there’s
a BPP in your area, he or she may know some bankruptcy
attorneys who are both competent and sympathetic
to self-helpers. It is here that you are most
likely to find a good referral to attorneys who
are willing to deliver unbundled services or advice
over the telephone.
·
Legal Aid. Legal Aid offices are partially funded
by the federal Legal Services Corporation and
offer legal assistance in many areas. A few offices
may do bankruptcies, although most do not. To
qualify for Legal Aid, you must have a very low
income.
·
Legal clinic. Many law schools sponsor legal clinics
and provide free legal advice to consumers. Some
legal clinics have the same income requirements
as Legal Aid; others offer free services to low-
to moderate-income people.
·
Group legal plans. If you’re a member of
a plan that provides free or low-cost legal assistance
and the plan covers bankruptcies, make that your
first stop in looking for a lawyer.
·
Lawyer-referral panels. Most county bar associations
will give you the names of bankruptcy attorneys
who practice in your area. But bar associations
may not provide much screening. Take the time
to check out the credentials and experience of
the person to whom you’re referred.
4. What to
Look for in a Lawyer
No matter how you find a lawyer,
these three suggestions will help you make sure
you have the best possible working relationship.
First, fight any urge you may
have to surrender to or be intimidated by the
lawyer. You should be the one who decides what
you feel comfortable doing about your legal and
financial affairs. Keep in mind that you’re
hiring the lawyer to perform a service for you,
so shop around if the price or personality isn’t
right.
Second, make sure you have good
“chemistry” with any lawyer you hire.
When making an appointment, ask to talk directly
to the lawyer. If you can’t, this may give
you a hint as to how accessible he or she is.
Of course, if you’re told that a paralegal
will be handling the routine aspects of your case
under the supervision of a lawyer, you may be
satisfied with that arrangement. If you do talk
directly, ask some specific questions. Do you
get clear, concise answers? If not, try someone
else. Also pay attention to how the lawyer responds
to your knowledge. If you’ve read this book,
you’re already better informed than most
clients (and some lawyers are threatened by clients
who have done their homework).
Finally, once you find a lawyer
you like, make an hour-long appointment to discuss
your situation fully. The lawyer or a paralegal
in the lawyer’s office will tell you what
to bring to the meeting, if anything (if not,
be sure to ask ahead of time). Some lawyers will
want to see a recent credit report while others
will send you a questionnaire to complete prior
to your visit. Depending on the circumstances,
you may also be asked to bring your bills, tax
returns, and documents pertaining to your home
and other real estate you own. Some lawyers prefer
not to deal with details during the first visit,
and will simply ask you to come as you are.
Your main goal at the initial
conference is to find out what the lawyer recommends
in your particular case and how much it will cost.
Go home and think about the lawyer’s suggestions.
If they don’t make sense or you have other
reservations, call someone else.
