Problems in Ethics, Compensation and Malpractice in Consumer Chapter 13 Cases
Morgan D. King
Of The California Bar
This article originally appeared in Norton's Bankruptcy Law Advisor
Regarding ethical problems connected with the practice of bankruptcy, it has been observed that
"The practice of law is strewn with ethi cal minefields, but nowhere is the risk greater than in the bankruptcy area. The multi-party element of bankruptcy makes it rife with con flicts. The source of payment out of a limited pool of re sources that might otherwise be dis tributed to creditors heightens tensions. Potential conflicts among management, sharehold ers, creditors and other par ties make representation of the estate problematic, while the need for full disclosure of the debtor's op erations makes practice even more difficult." (BCD News and Comment, June 10, 1996)
Sanctions for ethical violations, failure to observe the technical rules re garding disclosure and applications for compensation, unauthorized receipt of compensation, filing dilatory, false or unnecessary documents, fee splitting, billing errors or poor "billing judg ment," excessive fees, inadequate qual ity of work and other infractions most fre quently take the form of denial of fees (including orders for disgorgement of fees) and awards of attorneys fees against the offending counsel.
A great many of these issues arise, or may arise, in consumer Chapter 13 practice. Not only novice bankruptcy lawyers, but experienced Chapter 13 practitioners as well, if not careful, risk treading on ethical and professional constraints. And, the risk is magnified for the high-volume consumer practice.
The high-volume Chapter 13 practice
The Bankruptcy system tends to encourage the practice of Chapter 13 law on a high-volume basis. The myth that consumer bankruptcy cases are "simple" or "vanilla flavored" combined with pressure on compensation invites lawyers to generate and process a high volume of such work. This in turn encourages lawyers to process the work on a "cookie-cutter" assembly-line basis. In some venues this is the only way to generate sufficient profits to sustain a practice. And, in some venues this is viewed by the court or the trustee as the only ethical way to handle consumer bankruptcy cases. Held in dicta, "Chapter 13 cases are standardized and systematized, and much of the work is capable of performance by paralegals. These cases are typically handled in high volume practices." In re Howell, 226 B.R. 279, 281 (Bkrtcy. M.D.Fla. 1998).
However, the practice of Chapter 13 law on a high-volume basis invites ethical and professional mistakes.
The quality of legal services
Presumably consumer debtors are entitled to the same quality of legal ser vices as consumers of other kinds of legal services. Unfortunately, however, this may not be the case.
According to the American Bar Association bankruptcy practice has the third highest frequency of malpractice claims of all fields of consumer law. This should not be a surprise, in view of the complexity of consumer bankruptcy law and the pressure to process the cases quickly and, inevitably, superficially. Although there is scant empirical data on this issue there is some evidence that the compensation system contributes to the problem; according to a survey conducted by the National Association of Consumer Bankruptcy Attorneys (NACBA) in 1996, 43.1% of questioned lawyers answered in the affirmative to the question, "Do you believe restrictions on compensation are impairing your ability to deliver quality legal services?"
In a survey conducted by the American Bankruptcy Institute in 1992 inadequacy of professional representation was disclosed as a major cause of bankruptcy judge's orders for disgorgement of fees. The survey reported that poor quality results or unsatisfactory results were the cause of disgorgement orders in 49% and 23% of the cases, respectively.
Some attorneys attempt to deal with high-volume by trimming services. Some, for example, routinely do not appear with the client at the meeting of creditors. However, there is case law to the effect that a bankruptcy lawyer's minimum duties include attendance at the meetings, and failure to attend may be grounds for sanctions (In re Bancroft, 204 B.R. 548 (Bkrtcy.C.D.Ill. 1997); In re Stegemann, 206 B.R. 176 (Bkrtcy.C.D.Ill. 1997); In re Fraga, 210 B.R. 812 (9th Cir. BAP 1997). In In re Porter, 1991 Bankr. LEXIS 1928 (Bankr.S.D.Ind. 1991), a Chapter 7 case, a portion of the $500 retainer fee was ordered disgorged where the attorney failed to attend the meeting of creditors, did not explain the difference between Chapter 7 and Chapter 13, and was generally neglectful of the case.
Another temptation is to rush quickly through each stage of the case without adequate time and attention, the hallmark of the bankruptcy "mill." For example, in one situation, that of the Hessinger law firm in California, the firm's paralegals were instructed to sign up each client within the first six minutes of the appointment! In re Hessinger & Assocs. 171 B.R. 366 (Bkrtcy.N.D.Cal. 1994).
In some cases the attorney and client understand and agree that the attorney is providing an "economy" service limited to preparing the petition and schedules and advising the debtor, and charging a reduced fee accordingly; while such arrangements would appear to make perfect sense to the lawyer and the client, courts have found them objectionable and ordered disgorgement of fees (In re Basham, 208 B.R. 926 (9th Cir. BAP 1997).
According to the NACBA 1996 survey, 65% percent of consumer Chapter 13 attorneys practice as sole practitioners, and 94% are in firms of three or fewer attorneys. In such firms a high-volume practice probably makes it difficult and unwise for the lawyer to attempt to do all the work himself. The widely employed solution for this dilemma is heavy reliance on paralegals.
The use and abuse of paralegals
There are several ostensible benefits to using paralegals to help process the work. Paralegals may perform tasks that an attorney does not really have to do, thus freeing him or her to devote more attention to true legal issues and problems. And, since paralegals are billed out at substantially lower rates than lawyers, their use in consumer bankruptcy cases should reduce the costs of legal services for both the debtor and the estate.
However, heavy reliance on paralegals to process the work carries with it certain risks. These include failing to give each case the benefit of the lawyer's personal skill, knowledge and experience, failure to adequately supervise the paralegal, and exposing the paralegal to unauthorized practice of law.
First, inadequate supervision increases the possibility of mistakes. The client is entitled to competent legal services. Where too much of the analysis and processing of the case are handled by a paralegal, the chances of mistakes may increase to an unacceptable level. The debtor's attorney in In re Martin, 97 B.R. 1013, 1019 (Bkrtcy. N.D.Ga. 1989) was sanctioned where he paid inadequate time and at tention to the case. Among other things, the attorney had apparently au thorized someone in his office, a non-at torney, to sign his (the lawyer's) name to the petition; but the attorney could not recall, nor could he determine from the file, who that person was.
An even more egregious example of the high-volume mill producing mediocre, or worse services is that of Frank Mann's firm in the Southern District of Texas. In In re Davila (Trustee v. Mann), 210 B.R. 727 (Bkrtcy. S.D.Tex. 1996) Mann was ordered to disgorge all fees in 155 Chapter 13 cases. Mann's firm relied heavily on paralegals to prepare and file approximately 100 cases per month.
"Mann has organized his office so that no attorney has more than the most minimal contact with clients. Mann has allowed poorly trained paralegals whose work he does not oversee or direct to perform the overwhelming majority of client contact, discourse, and instruction." Davila, at 731.
The court noted "... numerous and egregious errors in gathering and processing information from clients and in preparing pleadings ..." The court also found numerous schedules for clients with inaccurate disclosure of their income and assets.
Among the other sins of the Mann method of handling Chapter 13 cases the court found that Mann personally set the values of his client's possessions "because in his view all of his client's overestimated the value of their possessions." A paralegal would use a rubber signature stamp to sign Mann's name to the petition. Mann failed to explain his fee agreement in detail, relying on a paralegal for that task. He used a questionnaire for the client to fill out in lieu of a copy of the official forms and schedules, but the questionnaire was not nearly detailed enough to provide adequate information.
Mann apparently performed a pre-filing review on each case, but obviously this review was superficial and inadequate. Paralegals sometimes signed the client's names to amendments of schedules and plans.
Second, where the level of supervision is so slight that the paralegal is left to give advice and make decisions which are more properly the realm of the lawyer, both the paralegal and the attorney who is supposed to be supervis ing the paralegal are guilty of unethical practices. Held, where the debtors conferred with the attorney for a total of 25 min utes, and the subject of the conversation was the attorney's fees, with the parale gals doing the rest of the work, the at torney was guilty of permitting his par alegals to engage in the unauthorized practice of law (In re Pierce 1 B.R. 532, 533 (Bkrtcy.S.D.Ohio 1979); see also In re Stoutamire 201 B.R. 592 (Bkrtcy.S.D.Ga. 1996) where the attorney was sanctioned for relying too much on his paralegal to evaluate the case and failed to review the petition and schedules before filing. Similar facts in In re Martin, 97 B.R. 1013, 1019 (Bkrtcy.N.D.Ga. 1989).
Third, to the extent that the lawyer pays inadequate attention to the case the debtor does not get the full benefit of the lawyer's skill and experience, and accordingly receives inferior service. In Davila, cited above, the court found that the attorney had little input into the case.s "Mann's delegation of almost all client contact and pleading preparation to non-attorneys guarantees that his clients receive very little, if any, accurate legal advice." In other words, quite simply, the client is not getting what he or she paid for.
The recent opinion by Judge Steven W. Rhodes in In re Bass, 227 B.R. 103 (Bkrtcy.E.D.Mich. 1998) is a microcosm of problems related to the use of paralegals in Chapter 13 cases. In that case the court ordered reduction of fee awards on account of the firm's over-reliance on paralegals which resulted in inadequate attention to cases on the part of the lawyer. In some of the firm's cases, for example, the legal assistants handled the initial consultation and the attorney did not meet with the debtors until the petition and schedules were ready to be signed. Fees were also reduced for improper billing of paralegal time for ostensibly clerical tasks, such as, for example, verifying that the debtor's addresses were correct, placing notices and letters in case files, and other similar acts. The firm was criticized, as well, for permitting the legal assistants to engage in the unauthorized practice of law. And, the policy of giving bonuses to the legal assistants based on the volume of cases signed up each month violated the rule against fee sharing provided by 11 U.S.C. § 504; this section prohibits fee sharing in connection with compensation awarded as administrative expenses, which to some extent, at least, is what postpetition fees in Chapter 13 cases are.
How a paralegal may be employed most effectively in the office is to some extent a function of how intelligent and experienced the paralegal may be. However, some general constraints should be considered.
Most lawyers find that it is a mistake to give a paralegal the job of supervising and processing a case from start to finish, with the attorney stepping in only briefly somewhere in the process; the fact is, most paralegals lack the ability to identify, analyze and handle issues the way lawyers are trained to do in law school. As a consequence, opportunities as well as problems that lie just below the surface are likely to be overlooked by a paralegal that would not be overlooked by an attorney. For most lawyers the best use of a paralegal is with specific, discrete tasks that are required at certain stages of the case processing, that may require intelligence but not necessarily a lawyer's analytical ability.
Such tasks may include; screening initial calls and making appointments; collecting non-critical information; handling initial screening meetings with the client prior to an attorney stepping in (and prior to making the decision about whether to proceed with Chapter 13); keystroking the information into a computerized forms program; educating the client while avoiding giving legal advice (for example, the author has a paralegal call the client a week before the meeting of creditors to prepare the debtor for what to expect at the meeting); negotiating or solving relief from stay motions that do not involve legal issues; reviewing proofs of claims as they come in to assure that they are consistent with the claims as scheduled; preparing objections to claims; preparing proofs of claims for secured or non-dischargeable claims; filing or retrieving documents at court; following up on specific tasks delegated by the attorney; and give the petition and schedules a final pre-filing review for spelling errors, obvious mistakes in schedules, obvious eligibility problems (such as, for example, that the totals of the secured and unsecured claims do not exceed the § 109(e) limits) and etc.
Some lawyers have a paralegal calculate the Chapter 13 plan. A bright legal assistant with experience can probably handle this task in most cases. However, in the author's experience, this has not worked out well. Too often the paralegal overlooked strategies that would have made the plan more advantageous or feasible for the debtor while remaining within the parameters of good faith and best efforts.
There are some things a paralegal should probably not do. As a general rule it should not be left to the paralegal to "sign up" the client for a Chapter 13 case; the final decision to retain the firm for a Chapter 13 filing requires a legal analysis, and thus only the attorney should be involved in that stage of the process. While there is nothing unethical or inappropriate about a paralegal doing legal research, most attorneys have found that a paralegal simply can't do research on an adequate level, again apparently due to the difference in mental training between a lawyer and a paralegal. For the same reason it is risky to have a paralegal to allocate to which schedules various debts belong. Although the treatment of simple, routine debts such as credit cards is easy to do, many kinds of debts are tricky. A paralegal may miss a legal issue that may render a claim unenforceable or render an ostensible security agreement invalid; fail to distinguish between a fully secured versus an undersecured claim; fail to identify the dischargeability of taxes, or fail to properly characterize a claim as liquidated or unliquidated, etc. Properly analyzing many kinds of claims requires a lawyer's familiarity with commercial law and trade practices, business law, law of contracts and secured transactions, and other areas.
Frivolous or unnecessary filings
Pressure to process cases quickly creates the added risk of failure to adequately screen the debtors for Chapter 13 consideration. Is it a good faith filing? Time constraints and pressure to collect a fee out of every case makes it difficult to turn down the inappropriate case. Not only the debtor but the debtor's attorney, as well, may be sanctioned for engaging in frivolous or bad faith filings or other proceedings. See In re Mellard, 117 B.R. 716 (Bankr.M.D.Fla. 1990) where the Chapter 13 attorney's fees were ordered disgorged in part because of serial or repeat filings. Even after a case is filed adequate thought must be given to each course of action; see In re DeLaughter, 213 B.R. 839 (8th Cir. BAP 1997) where the debtor's attorney was sanctioned under Rule 9011 for filing an amended Chapter 13 plan to avoid dismissal or conver sion, in bad faith (the filing of the amended plan to avoid conversion of case was done merely to thwart marital dissolution proceedings in state court).
The compensation system in Chapter 13 cases raises several potential problems.
According to the NACBA survey 94.7% of the responding attorneys stated they were permitted to take pre-petition retainers in Chapter 13 cases, but in the vast majority of cases the amount of the prepetition fee was limited by compensation "guidelines," or fee caps, and only 68% actually collected prepetition retainer fees in Chapter 13 cases. If these figures are correct, it means that 32% of the lawyers put all of their fees "into the plan." The survey revealed that 95% of the lawyers typically reserved all or a substantial portion of their fees for payment through the plan.
The most obvious trap for the unwary is taking unauthorized fees, whether pre or postpetition. Since a debtor in Chapter 13 may be paying his or her attorney's fees out of postpetition income (i.e. property of the estate) court approval is required for receipt of compensation.
It is easy to violate this rule. Typically, this may be done where the attorney collects a prepetition retainer fee that exceeds the allowable local guidelines, or takes post-petition fees without court approval. By comparison, in the routine no-asset Chapter 7 case there is typically no estate, and therefore little risk of violating this rule; the postpetition earnings of the Chapter 7 debtor are typically not assets of the estate.
Bankruptcy Rule 2016(a) requires that any fee being paid "out of the estate" requires notice and a hearing, and the postpetition income of the debtor is property of the Chapter 13 estate. Thus, charging and collecting postpetition fees for postpetition services without prior court approval invites censure.
See for example In re Fricker, 131 B.R. 932 (Bankr.E.D.Pa. 1991)(Chapter 13, disgorgement ordered as sanction for, among other things, accepting unauthorized postpetition fees and failure to disclose); In re Schroeder, 120 B.R. 527 (Bankr.D.Neb. 1990) (fees received postpetition in Chapter 12 case without prior court approval ordered disgorged).
This rule, if pushed to the fullest, would prohibit the attorney from collecting a consultation fee from his client after the case has been filed without prior court approval. Likewise, if someone used another attorney to file his Chapter 13 case but has become dissatisfied and wants another lawyer's opinion, the second lawyer may not collect a consulting fee or a fee to take over the case without prior court approval (which may makes it uneconomical to take the case). And, if the lawyer's existing Chapter 13 client wants to convert to Chapter 7, arguably the attorney may not collect a retainer fee for those services until after the conversion takes place, and quite possibly such fees are a dischargeable claim since debts incurred prior to conversion are discharged - see 11 U.S.C. § 348(d)). See the opposite situation in In re Bottone, 226 B.R. 290 (Bkrtcy.D.Mass. 1998) where the case was converted from Chapter 7 to Chapter 13 and the postpetition, pre-conversion fees were held to be priority, administrative expenses.
In the majority of jurisdictions if the Chapter 13 plan provides for payment of the balance of the attorney's fees and the plan is confirmed, no formal motion for court approval of such fees is required. But if the Rules require prior court approval before payment of fees may be made out of the debtor's postpetition income, then how can it be that the plan may provide for such payment without a court hearing? The reason is that the Code provides that the requirement of "notice and a hearing" is satisfied if there has been "notice and an opportunity to be heard." See 11 U.S.C. § 102(1)(A). Presumably, therefore, providing for post-confirmation payment of the attorney's fees in the plan constitutes notice and an opportunity to be heard for any potential objecting party, and an actual hearing is not necessary unless requested by a party in interest.
Most jurisdictions employ the "lodestar" formula in fixing the amount of compensation. The lodestar formula is simple - you establish a reasonable hourly rate and multiply it by the number of reasonable and necessary hours incurred in handling the matter. Fee applications are typically reviewed with this formula in mind, and the court may adjust either the hourly rate or the amount of time logged to fit the court's view of what is reasonable and necessary. Although one factor that is supposed to be considered is the level of compensation earned by attorneys in non-bankruptcy work (11 U.S.C. § 330(a)(A)(E)) there is evidence that the previously discarded standard of "economy of the estate" is reentering the picture. The doctrine of economy of the estate posits that the total compensation awarded should not be out of proportion to the value of the estate, regardless of how much lawyers' time and efforts were necessary to handle the matter. See, for example, In re Howell, 226 B.R. 279 (Bkrtcy.M.D.Fla. 1998) where the court, in limiting the fees requested in that ostensibly "routine" Chapter 13 case to a predetermined fixed amount, stated "... the court notes that the fee allowed represents more than 14 percent of the total funds to be paid by the debtor into the confirmed plan, a substantial percentage."
Where the retainer fee is found to be excessive the court may deny an appli cation for approval of such fees (where an application is required) or order a refund of the excessive amount to the debtor or the estate. In re Mellard, 117 B.R. 716 (Bankr.M.D.Fla. 1990) (Chapter 13, excessive fees ordered disgorged based on serial or repeat filings); In re Sandoval, 186 B.R. 490 (9th Cir. BAP 1995) (Chapter 13, excessive fees ordered disgorged); In re Lee, 884 F.2d 897 (5th Cir. 1989) (Chapter 7, major portion of $15,000 retainer fee ordered disgorged as excessive); In re Cook, 166 B.R. 177 (Bankr.N.D.Fla. 1994) (Chapter 13, fees ordered disgorged as excessive, attorney ordered to disgorge $750 out of retainer fee of $1,500).
In some jurisdictions, however, the lodestar formula is not applied on a case-by-case basis. In these jurisdictions the court's have undertaken to establish a reasonable "fixed" fee that controls the compensation in all "routine" or "vanilla flavored" cases. For example, In In re Howell, supra., the court fixed a reasonable flat fee in "routine Chapter 13 cases" at $1,300, which would be applied regardless of the actual time expended on any particular "routine" case. Thus courts applying this method appear to apply pressure for all of the consumer bankruptcy attorneys in the area to comply with a uniform level of compensation. An attorney who feels he provides superior or specialized services in Chapter 13 cases, and should be compensated accordingly, will be frustrated by the fixed fee paradigm. Furthermore, this formula dilutes any incentive to strive for excellence in the practice of consumer bankruptcy law, since the typical reward for achieving excellence . . . an outstanding reputation together with a commensurate entitlement to greater compensation, is largely lacking. Thus, arguably, such an approach applies pressure to practice law on a mediocre level. If so, the question must be asked, is this truly in the best interests of debtors, or even creditors who routinely see the majority of Chapter 13 cases fail?
The trick is to figure out how to strive for excellence in the practice of law within the compensation straight jacket.
Flat fees and fee caps
Collier's recommends the use of the flat or "fixed" fee in consumer bankruptcy cases. And, in an effort to make it feasible for the court to handle a volume of Chapter 13 cases, local fee caps are often used to reduce the volume of fee applications. The deal that is cut allows the lawyer to collect a fee not to exceed an ostensibly reasonable limit, and in exchange the attorney need not file a fee application.
The use of the fixed fee risks several hazards. As a matter of economics the flat fee may be unfeasible for the attorney, or fall dangerously behind the rise of overhead and fee rates as time passes; see In re Kindhart, 160 F.3d 1176 (8th Cir. 1998) where Judge Harlington Wood, Jr., struck down an $800 fee cap in Chapter 13 cases that had been established ten years ago. As Judge Wood warned, "Bankruptcy courts must not be so unreasonably frugal as to risk driving the bankruptcy bar into bankruptcy."
And, what is often overlooked in setting such fee caps is that Chapter 13 attorneys report they lose an average of 20% of their billable fees in Chapter 13 cases. Courts assume that if the attorney has a reasonable hourly rate, and is limited to a reasonable number of hours on "vanilla" flavored Chapter 13 cases, and the fees have been approved by the court, that this is what the lawyer will actually get paid. In some jurisdictions Chapter 13 attorneys may lose as much as 40% of their compensation due to dismissal or conversion.
Also, the use of the fixed fee can become a self-fulfulling false prophesy; the court denies an unusually high fee application by observing that all the other attorneys are charging less; what is missed in this analysis is that the reason the other attorneys are charging less, is because they know that if they request higher fees in a case, the request will likely be denied on the ground that all the other attorneys are charging less.
Another issue is the justification of a flat fee in every case, against the reality that Chapter 13 cases often vary considerably in circumstances and difficulty of treatment. While the court sees only a nice, neatly typed petition and schedules, it may not see the hours of client consulting, legal research, and investigation that went into creating order out of financial chaos. on the other hand, some cases are amenable to fast, problem-free processing in the law office. The theory of the flat fee in Chapter 13 cases is that while the attorney may be underpaid on the complex cases, this loss of compensation is balanced by the windfall of fees in the simple case, where the fee in fact exceeds the billable time required for the case.
As has been pointed out by at least one judge, lawyers often charge the full limit of the fixed fee even in simple cases, on the theory that it will not be questioned as long is it comes in "under the trustee's radar." While this may seem unethical, it is offset by the fact that the lawyer's entitlement to substantial additional fees in a problematic cases also invariably goes unnoticed by the trustee (have you ever heard of a trustee seeking court review of an attorney's compensation actually paid in a case on the ground that it was too low?).
Protection of Compensation
According to the NACBA survey 75.7% of surveyed attorneys believe they "... lose a significant portion of ... fees due to conversion or dismissal." One way this happens is dismissal prior to confirmation of the plan. In the event of pre-confirmation dismissal where the debtor has made some payments the trustee will typically mail a check for the accumulated fund to either the debtor or the attorney. If the check is made out only to the debtor, the lawyer risks losing the balance of fees owed. Some trustees believe it is somehow unethical to insist that the attorney's fees be paid first. However, 11 U.S.C. § 1326(a)(2) requires administrative expenses to be paid prior to refund to the debtor. Accordingly, one way to protect the fee is to obtain an order declaring the fees to be administrative expenses. Another way is to have the debtor sign a "lien letter" giving the attorney a lien on the funds and instructing the trustee to pay the attorney's fees first. Where such liens are recognized under state law they are enforceable in Bankruptcy. Although some judges and trustees think this is unethical, it is a provision found in the ABI model fee agreement for Chapter 13 cases.
Caveat here . . . Rule 2016(b) requires the attorney to file an amended 2016(b) statement upon receipt of "... any payment not previously disclosed." At first glance this would appear to apply to post-dismissal payments, and at least one trustee has sought sanctions because the attorney failed to disclose. However, this section requires filing the statement with "the court," and Bankruptcy Rule 9001(4) defines "court" as the "judicial officer before whom a case or proceeding is pending." Arguably, once the case is dismissed nothing is pending, and therefore the requirement to file an amended statement of compensation would not seem to be required. Ultimately the only way to know how the trustee interprets this is to ask. It would be prudent to ask ahead of time before a motion for sanctions is filed.
Many eyes watching
Not only is bankruptcy as a field of practice strewn with hidden ethical land mines, but bankruptcy is also the most watched-over field of practice. While the ordinary lawyer is scrutinized by his client and possibly the bar association, a bankruptcy lawyer is watched by his client, the bar association, the bankruptcy judge and the United States Trustee's office. This is because of the mandate prescribed by the Bankruptcy Code that judges and the trustees should monitor cases carefully for unethical or improper activities.
With so many eyes watching it is virtually certain that conduct perceived as somehow unethical, failure to follow the rules, or shoddy workmanship will not go long unnoticed. Thus, the consumer bankruptcy lawyer must be wary of a simplistic approach to handling consumer bankruptcy cases. The legal philosopher Karl Llewellyn once likened law practice to a bramble bush capable of scratching out your eyes. Bankruptcy practice is surely such a thicket, and the only way through it is with your eyes wide open.