Pro Bono Bankruptcy Attorney Florida by itt14205


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									                           MAKE A DIFFERENCE, VOLUNTEER
                           FOR CHAPTER 7 PRO BONO CASES

                                       George B. Cauthen
It often comes as a surprise to first year lawyers, but there is not "justice for all" in the American

legal system; there is justice for those who can afford counsel, and for those fortunate enough to

qualify for a legal services or pro bono lawyer. And even if an individual qualifies for a legal

services or pro bono lawyer, there are not enough such attorneys to meet the demand. When an

indigent individual requires legal assistance in the area of bankruptcy law, there is no certainty

that free legal assistance will be available.

All lawyers have an obligation to perform legal work on a pro bono basis: most of us have taken

an oath agreeing to represent, gratis, those without financial means to engage lawyers, most bar

associations or state courts regulating attorneys have adopted some version of the American Bar

Association model Code of Professional Responsibility Rule 6.1, which urges each lawyer to do

pro bono work and to provide financial support to groups representing indigents. Some Bar

Associations and courts, such as some in Florida, require lawyers to either perform pro bono

work or to make a financial contribution to the local Legal Services Organization. Florida,

Maryland, Nevada, and Mississippi require all attorneys to report, annually, their pro bono work.

Bankruptcy practice lends itself to doing pro bono in your own practice area, making it easy for

bankruptcy lawyers to do pro bono comfortably. This is not an area where extensive retraining is

necessary to do pro bono legal work. Most of the cases filed in United States Bankruptcy Courts

are Chapter 7 consumer cases and most of those are no asset cases. Some districts have a low

rate of pro se filings; some have many pro se filings. In a district that has perhaps received the

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most attention for pro se filings, the Central District of California, reported a pro se chapter 7

filing rate of 28% in 2002, down from a 1994 rate of 41 %; the District of South Carolina reports

about a 1% chapter 7 pro se filing rate. Most Legal Sewices organizations do not have the staff

or manpower to handle Chapter 7 cases and some set priorities that will only accept Chapter 13

cases where the debtor has a home to save. As a result, many pro se chapter 7 debtors proceed

without counsel, or worse, individuals who qualify and require the assistance that Chapter 7 can

provide do not file, for lack of understanding of the law. These cases proceed slower than ones

represented by counsel, and often have problems with improper or no exemptions being claimed,

lien avoidance actions not being filed and undefended discharge actions. The Court, the Clerk's

Office, and the Office of the U.S. Trustee all get involved in the processing and handling of pro

se cases. The Code that is designed to give consumer debtors a fresh start often does not function

without trained bankruptcy counsel.

Passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 will have an

impact on bankruptcy pro bono work. During the 180 days after April 20,2005, there will likely

be a surge in individuals filing under the old law; when the new restrictions on consumer filings

go into effect, many existing pro bono volunteers may be reluctant to handle chapter 7 cases,

given the new liability that debtor's counsel assumes under the revised 11 U.S.C. §707(b). Yet

most chapter 7 cases refened by a legal services or pro bono organization come well under the

median family income, one of the standards of the new means test. Most legal services and pro

bono referral services carefully screen each client for income qualifications, so there is also the

comfort in knowing that someone, in addition to the volunteer attorney, has screened the

prospective debtor for being properly qualified as a chapter 7 debtor. The cases referred are

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usually individuals with income equal to or under 125% of the federal poverty guidelines. As an

example, in 2005 the Federal Poverty Guideline for a family of four in South Carolina is

$19,350; 125% of that figure is $24,187.50. This is the cutoff figure for a family of four to

qualify for legal services or pro bono services in South Carolina. The 2005 median family

income for a family of four in South Carolina is $56,433.00, or over double the Federal Poverty

Guidelines. So under the 2005 Code changes, there is no presumption of abuse on these cases.

With the exception of a change in forms, there should be little change in the handling of pro

bono chapter 7 cases

                                    Reasons to do Pro Bono Cases

There are many compelling reasons for bankruptcy attorneys to volunteer to their local pro bono

office. It is a great way of training new lawyers on bankruptcy: the Code sections, the U.S.

Trustee Guidelines, and the Local Rules work the same as they do in business cases. In a large

firm, an associate may not get to argue motions for billable clients until later in their legal career;

that same first-year associate, with proper supervision and training, can make court appearances

during a pro bono bankruptcy, begin acquiring courtroom experience, and learning client

interview skills.

There is no doubt that the courts appreciate a case being handled by counsel in lieu of the debtor

appearing pro se. Pro se cases usually do not work well; the debtors have trouble with

exemptions, discharge issues, and compliance with court requirements. Pro se cases usually take

more bench time, more trustee time, as the uninformed, unrepresented debtors make their way

through a complicated system. As more courts go on line with Case ManagementIElectronic

Case Files, it will be even more difficult for an individual, pro se, debtor to navigate through the


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For some bankruptcy attorneys it can be a refreshing change of pace, shifting gears from dealing

with a major chapter 11 case to trying to save an individual's home or vehicle. A hug and an

expression of gratitude from a pro bono debtor can be as gratifying as the payment of a client

bill, although some may disagree.        Pro bono bankruptcy cases are great for morale, for both

attorneys and staff that are involved in the case. It is often difficult for the attorneys working on

a large corporate case to feel a connection to the entity being represented; in an individual

bankruptcy case the volunteer attorney meets individuals, with serious financial problems and

has the opportunity to turn that person's life around.

                                        Types of Pro Bono Work

While the biggest demand for assistance on pro bono cases come at the individual level, even

attorneys with large creditor practices can find ways, without conflicts, to do pro bono.

Participation in a bar sponsored bankruptcy clinic, where the bankruptcy law is explained to a

group of people, and individual representation is not undertaken, is of great assistance. Many

government lawyers, uncomfortable with doing pro bono work in a courtroom, find doing work

for a clinical program a meaningful way to participate. Check with the local bar association for

clinics schedules.

Volunteer to serve as a mentor. to a less experienced bankruptcy attorney who agrees to take on

pro bono cases. Help with the legal issues, but also introduce the new attorney to trustees and

judges, help with local procedure and tips that are not available through readings.

Working with the local bar pro bono program in reviewing and referring qualified cases to pro

bono volunteers is of value to a pro bono program. It is often more difficult to say no to a new

pro bono case when the referring attorney is a colleague.

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Representing non-profit organizations in bankruptcy, on a pro bono basis, can be of assistance.

Some non-profits struggle with inadequate funding, and have financial problems. The

Turnaround Management Association recognizes a Turnaround of the Year: Pro Bono, for

workout groups or attorneys that revitalize or save a non-profit organization on a pro bono basis.

Check with your local Habitat for Humanity chapter, to see if they need assistance on bankruptcy

cases. When a homeowner files for relief, Habitat may need assistance in filing a claim and

protecting their interest in a chapter 13 plan, or dealing with trustees. Also be sensitive to the fact

that a non-profit may have budgeted for legal assistance; do not allow good intentions to impair

another attorney's livelihood

In districts where debtor's counsel may limit their representation, pro bono volunteers are used to

represent debtors in a relief from stay action or in an adversary proceeding. In these cases a

creditor's lawyer that may have conflicts representing the debtor in the main case, can take on

representation of a debtor in a relief from stay action or in an adversary proceeding, in a limited,

discrete way.


Bankruptcy pro bono programs are usually initiated by either the Bar or by the Judiciary. Most

formal pro bono programs have free malpractice coverage available to their volunteers, for work

done on assigned pro bono cases. There are various models to follow on creating a bankruptcy

program, and there are many resources available. The ABA has a wonderful resource, a

pamphlet entitled "How to Begin a Pro Bono Program in your Bankruptcy Court, a Starter Kit

for Lawyers and Judges" and it can be found at;/buslaw/probono/banknkkit.~df

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            Grants to fund pro bono programs involving bankruptcy may be received from the

American College of Bankruptcy and the American College of Bankruptcy Foundation see
---                           Over $140,000 in grants have been given to organizations in 23 states and

the District of Columbia for training, creating websites, conducting studies of consumer

bankruptcy issues, even for filing fees. Grant funds are donated by the College and the College

Foundation year round, applications may be found on the website.

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