A Post Inspired by Dr. King

In lieu of a pithy (and likely out-of-context) quote from Dr. King today, I will note a problem that I see that relates to the struggles he spoke of:

The number of bankruptcy cases filed pro se (without an attorney) has increased as a percentage of cases filed over the last several years. One study noted that those cases were increasing at over double the rate of other cases.  In my district  at least, the vast majority of pro se filers are drawn from the poorest sections of our society, and are disproportionately African-American.

To oversimplify, bankruptcy is a very technical area of the law, and pro se filers get worse results than those with attorneys. Attorneys know the property exemption laws better than do laypeople, have working relationships with the trustees and judges that can allow options outside apparent “binary” solutions, and can simply be more efficient with the filing process, which increases the effectiveness of the court system.

So we have an issue of economic (and racial) injustice when it comes to filing bankruptcy. No one is suggesting attorneys should stop making a living to accommodate this problem, but all too often the attorneys who “serve” these communities take advantage of their clients instead of actually being part of a solution.

Bankruptcy lawyers have gotten creative in some cases trying to help these poorest clients, using a Chapter 13 with a very low payment over 36 months to allow for bankruptcy protection for clients who can’t muster filing fees and attorney fees upfront before filing. Yet these filings are attacked by oversight bodies for abuse, when in fact they may be the only way to get an honest and poor individual help.

I think there are some ways to help address the problems with getting impoverished clients legal representation:

  1. Support your local Legal Aid organization. In my district, Legal Aid provides representation to many, but their staff is already so overwhelmed that their reach doesn’t go far enough. Give them some money to help them do their jobs with a broader reach.

  2. Volunteer to take a pro bono case. Once again, our Legal Aid has a Volunteer Attorney Project, which allows bankruptcy lawyers to help in cases identified by Legal Aid as needing assistance, but unable to afford it. Younger lawyers can even use this as a path to get some litigation experience while actually doing good.

  3. Be flexible in how you structure fees. There is a minimum amount of time any bankruptcy lawyer needs to put in on a case to be ethically sound, but most of us charge a flat fee for our cases, regardless of the anticipated difficulty. Taking on a number of generally simpler cases at a lower fee might allow for a broader reach of clients. Using creative methods like a “fee only” Chapter 13 can be a good idea for the right clients.

  4. Reach out into those poorer communities to find clients. Our poorest (and often most racially diverse) communities often live in a “service desert,” without access to anyone but payday lenders, pawn shops and convenience stores. Do some work inside those neighborhoods, and let the clients come to you.

In the end, the racial justice Dr. King sought is inextricably tied to notions of economic justice and access to legal justice. I hope we can all get a little better at providing a bit of that in our practices.