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One of Every Nine Bankruptcy Cases Is Filed Without a Lawyer

posted by Bob Lawless

A few weeks ago, I pulled a national random sample of chapter 7 and chapter 13 cases filed by individuals during July and August of 2010. I kept track of how many were filed by pro se debtors, that is people who were not represented by an attorney as indicated by the docket sheet. The figure was 11.3% or a little more than one out of every nine cases (n = 672). Interestingly, the pro se rate was higher in chapter 13 (13.8%) than it was in chapter 7 (10.1%), but the difference was not statistically significant (p = 0.167).

The fact that one of every nine debtors files bankruptcy without an attorney will probably strike some people as high, but keep in mind this is just a national average. From talking with court clerks and bankruptcy judges, I understand some jurisdictions may have a pro se rate as high as 30%. Pro se debtors can impose extra costs on the bankruptcy system as they try to navigate the maze of forms and proceedings. Also, with a very complex law like the Bankruptcy Code that was only made more complex in 2005, it is likely that unrepresented debtors are not achieving as good results in bankruptcy as those who are able to afford attorneys.

Comments

This is an interesting poll. I wonder how many people in the bankruptcy system are working from advice of an attorney who is not representing them. Also, I wonder how many in bankruptcy are using experiences of friends, relatives, or their own past experiences.

As a young attorney, it is difficult to refuse the questions of friends and relatives about declaring bankruptcy. Since it is not my field of expertise, the best I can do is offer referrals and emphasize that an attorney is well worth the cost.

What did you do with petition preparers? Did you count them as "no attorney" cases? I suspect that the higher percentage of no attorney cases in chapter 13 compared to chapter 7 reflects the predominance of petition preparers in certain parts of the country, like California. I checked your finding against a random sample of chapter 13 cases that ended without discharge (that is, the chapter 13 cases were dismissed or converted). For that group, the pro se cases were 16%--about 1 in 6 cases.

Katie, my chapter 13 pro se rate was 13.8% as compared to your chapter 13 pro se rate of 16%. Even without doing the calculation, I would bet our confidence intervals would overlap each other (of course, depending on your sample size). There is no meaningful difference such that I think our findings reinforce each other.

But, then it's very interesting that the pro se rate for the converted/dismissed chapter 13s is the same as the overall rate. That would suggest that being pro se in chapter 13 is not meaningfully associated with having one's case dismissed or converted. This is a quick-and-dirty analysis that I don't want to get too carried away with and certainly not appropriate for the "p" word (i.e. "prove").

For those lawyers who do offer the service, it is now more expensive for their clients because it takes more of their time. This means that you will pay more for bankruptcy under the redesigned bankruptcy laws. For example, bankruptcy lawyers now have to personally attest to the accuracy of the information provided by their clients in the bankruptcy courts. This means that they have to take the time to personally research all of the information provided by their clients. The more time a lawyer spends with a client's case, the more that case will cost.

http://www.bankruptcydistrictcourt.com/

I totally agree with Bob that anyone who is contemplating on filing for bankruptcy to get a bankruptcy lawyer. I have had so many questions that only my bankruptcy lawyer can help me answer them. May be I could have found those answers myself, but to know that there is a real person, whom I have met, on the other line is reassuring in itself. Granted, I had to pay about $2,500 for the bankruptcy lawyer's fees, but just to have everything taken care of without me having to worry if I have done it right or not, I think it is totally worth it. If you want a bankruptcy lawyer, you can get referral from this site

http://tofilebankruptcyornot.com

Bankruptcy is too complicated to file without the help of a lawyer. You will not be able to a draw up a suit that does not harm you and in any case there are so many hidden damages that can occur which one will find out only in the future.

From what I've seen, the success rate of getting pro se Chapter 13 cases confirmed approaches zero.

While Congress was requiring debtors' attorneys to tell debtors they can proceed with out an attorney (Section 527(b)) they were creating detailed mandatory filing requirements - with "automatic dismissal" - that very, very few non-attorneys are going to be able to comply with.

Thus, in most jurisdictions the majority of Chapter 13 cases, and a substantial number of Chapter 7 cases, get dismissed before there is even a first meeting of creditors.

Sure, the client is paying for my experience and familiarity with the process, etc. etc. But they're also paying for my malpractice coverage. A wise person will understand the import of the preceding sentence because I'm not talking firm overhead.

It would be interesting to see a breakdown of pro se bankruptcy filers by profession/education level. I think most CPAs could file pro se no sweat.

In 13s our BK judge tells pro-se debtors that they don't actually pay Attorneys fees... He says that BK attorneys take their fees from Unsecured creditors. Obviously in non-100% plans.. Deadlines deadlines deadlines.... If attorneys don't want to do it for themselves...What does that say about the Bankruptcy process? I can't count how many attorneys we are currently helping. Now with the UST so aggro on 7 filings, one slip up and you could be facing a 707 motion at best.. on the other end of the spectrum.....bankruptcy fraud... What then?

If you can figure out the means test as a non-attorney and you have never seen how it works.....we may have an opening for you!

I blame the means test for our slow economic recovery (Corporate bonuses may be tied in there as well in that they could push the losses further into the future) .. just saying...

There are lots of sources of information, besides friends and relatives, in learning on how to do a bk, for those who are willing to put in the time and effort to learn it. There have been books for a long time, and now websites, including free tools to help with the means test. (e.g. http://www.legalconsumer.com)
Sure, there are those who aren't cut out for doing their own BK. But some are. If your job involved following detailed instructions and filling out long, detailed forms (say in their job in a technical field or otherwise) it is quite possible to follow detailed directions and successfully file BK pro se.

You assert that it's "likely" that these folks aren't achieving as good results as they could have without a lawyer, but offer no data to back that up. As an author of the leading book on how to file your own bk for the past 20 years, it's not unusual to get letters from people who say they were the most prepared person at the 341 meeting.
I would be interested to see some followup research to back up your assertion that pro se debtors (are less successful than those who used a lawyer. I think it has more to do with how well prepared you are, whether you're a lawyer or not.

First, to the post from "Dom". Thank goodness that that the majority of attorneys representing a consumer already checked the accuracy of their client's information before 2005. Got a bit depressing when in 341 hearings the attorney who was suppose to be representing a debtor had to call out their name because they likely never met them and also thank goodness the accuracy of social security numbers were checked as well.According to a NBKRC who tracks dismissals on chapter 13 cases the current rates are far less than 2000, 2005,2006 and 2007 during the first 18 months but it would be interesting to see how many 13s were dismissed comparing pro se to attorney representation.My last informal sampling showed a larger number of dismissals where attorney representation was noted but again a more detailed study should be done. Now to this higher cost of attorney fees that now range $2000 to $2500 to file a chapter 13. More paper? More data requirement? More calculations? or more likely to get sanctioned? I have not seen as many sanctions or lawsuits filed against an attorney by their client but that may be another study with merit to see if attorney fees could be reduced because consumers who cannot pay the fee today are more likey to either not file or seek help from legal aide or other support groups who, in my opinion, are under-staffed and under funded. Yes, one can blame the cause for BAPCPA by the credit industry, and in certain areas I agree because the BAPCPA slammed the door to those who needed to open it but maybe if fees could be reduced and consumer attorneys did not have to wait while the consumer began repayment of $2500 at $50 a month then at least the door could be unlocked.

In chapter 7, about 18 percent of pro se cases were dismissed pre-discharge, compared to 2 present of cases where the debtor had representation. In chapter 13, the numbers for pre-plan-confirmation dismissal were an astounding 91 percent for pro ses and 15 percent for represented debtors. These difference were all statistically significant.

I will provide a link to the paper when I post it online.

I don't know if this happens in other districts; but, I've caught wind of a couple of attorneys who file prepare petitions for pro se filers.
It's a huge ethical risk for the attorney, but it allows them to undercut other chapter 7 attorneys' fees and avoid liability for signing the petition.

Basically, they offer to complete the petition, but will neither sign nor file via ecf. The petition is filed in paper at the clerk's office and the debtors appear pro se at the 341.

By definition, an attorney can't be a bankruptcy petition preparer. I doubt that these attorneys are disclosing themselves as BPPs anyway, because the whole point seems to be to fly under the court's and the UST's radar.


To bkauthor- Its exactly the point that it depends on how prepared you are. If you are represented by an attorney, generally that attorney knows how prepared you need to be. In addition, the attorney has a stake in ensuring the debtor does the necessary preparation Whereas a pro se debtor may have no clue how much prepare, and may go by the "good enough" standard, which really might not be good enough.

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  • As a public service, the University of Illinois College of Law operates Bankr-L, an e-mail list on which bankruptcy professionals can exchange information. Bankr-L is administered by one of the Credit Slips bloggers, Professor Robert M. Lawless of the University of Illinois. Although Bankr-L is a free service, membership is limited only to persons with a professional connection to the bankruptcy field (e.g., lawyer, accountant, academic, judge). To request a subscription on Bankr-L, click here to visit the page for the list and then click on the link for "Subscribe." After completing the information there, please also send an e-mail to Professor Lawless (rlawless@illinois.edu) with a short description of your professional connection to bankruptcy. A link to a URL with a professional bio or other identifying information would be great.

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