28 Dec Should I Prepare and File my Chapter 7 Without a Lawyer?
One of the (un)intended consequences of the 2005 BAPCPA changes to the bankruptcy law was to increase the complexity of bankruptcy filings. Median income tables, means test calculations, pay advices, credit counseling and financial management course requirements comprise just a few of the concepts and terms that were not previously part of the bankruptcy landscape prior to October, 2005.
With increased complexity, unfortunately, comes increased cost. In the Northern District of Georgia, where I practice, the average fees for both Chapter 7 and Chapter 13 have increased because the amount of work that your lawyer has to do and the associated liability has also increased. I have also seen a change the “lawyer landscape.”
Gone are the general practitioners who used to file three or four cases a year. Now, there are a few “boutique” firms like me who file a limited number of cases, but extend personal attention, and several high volume filers (100 to 500+ cases per month) who rely on younger lawyers and paralegals to manage the blizzard of paperwork. Often the volume filers are unable to offer much in the way of personal attention, but they are able to keep the fees down.
For some people, even the lower fees and generous terms of a volume filer may appear to be too expensive. I occasionally get emails or comments on my Atlanta bankruptcy blog from people who want information about filing on their own. This morning, I received one such message, which I am reproducing here:
I was reading your blogs and its very helpful i am really thankful i found your website. I just have a question to you regarding bankruptcy.
I am intending to file a Chapter 7 this january 2009 however i wanna do a pro se file the bankruptcy myself and hire a lawyer to appear for me on the 341a meeting. I am aware of the schedules and exhibit except that i dont know how to start. from taking the means test on my own, and sending the taxes to the trustee whos trustee? and after filing the petition. is this too much to ask? is it possible for me to file bk given the fact i will hire a lawyer to just appear for me. the thing is to hire a lawyer will cost me less if i do the rest.
what u may suggest. any help suggestion wil be appreciated i am thinking on calling the court to ask them how to get forms and how to take the step from the beginning to the end.
It appears to me that this individual has probably done some research, because she uses terms like “pro se” (which means filing without a lawyer), “means test,” “exhibits,” and “trustee.” I think that those of us who practice in this area sometimes forget that the bankruptcy world is kind of its own universe, with strange terminology, procedures and timelines. This individual has clearly made an admirable effort to educate herself about the process.
There are also books out there which purport to walk you through a pro se filing. This past year, in fact, the Sphinx Publishing Company mailed me review copies of their “how to” books about Chapter 7
and Chapter 13 by an attorney named Edward Haman, both of which do a good job explaining the concepts. My conclusion however, is that no “how to” book can take the place of a lawyer who should understand local procedures, know the danger areas, and know what is missing.
I would also encourage my blog reader as well as anyone thinking about filing on his own to type in “pro se” in the search box of this blog – you will find a number of thoughtful blog posts by members of the Bankruptcy Law Network discussing some of the problems that can arise in a pro se filing.
Finally, I think that my blog reader will have a very difficult time finding a lawyer to “appear” for her. Over the years I have taken over responsibility for bankruptcy cases from other lawyers and, without exception, every one of these cases was a huge mess and required immense expenditures of time – often time for which I was not paid. As a result, I don’t take over a pro se case or a case filed by another lawyer without a substantial retainer, and I turn down most of those requests.
I don’t know any bankruptcy lawyer who knows what he or she is doing who would enter an appearance solely to appear at a 341 hearing. There is a very good chance that the presiding bankruptcy judge would not permit a limited role for the lawyer, meaning that the appearance lawyer would be expected to represent fully the formerly pro se client, whether or not any money was paid. The bottom line – only a new or very inexperienced bankruptcy lawyer would attempt to accept this type of limited representation, which would defeat the purpose my blog reader hopes to achieve.
There is an old saying that “he who represents himself has a fool for a lawyer” and I think this applies now more than ever in the bankruptcy world. While I understand why Congress will not take away the right of individuals to file pro se, I can think of almost no situations where it makes sense to navigate the choppy waters of bankruptcy without competent counsel.
Jonathan Ginsberg, Esq.
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