Over the past year, nearly every insolvency organization in the nation has conducted a conference in Las Vegas, which might lead one to think that the year has been about gambling, luck, cocktails, decadence and shows. But, even through the glitz of Sin City, I have noticed a definite theme throughout the year: improving the consumer bankruptcy process. Although I can only mention a few highlights, there have been countless articles and educational conferences aimed at improving the integrity and efficiency of the consumer bankruptcy process. This includes improving the quality of the legal work, streamlining administrative functions, and decreasing fraud and abuse.

In last month's issue, Lawrence Friedman, Executive Director of the U.S. Trustee Program, wrote on this theme in his article entitled "Best Practices for Improved Bankruptcy Administration." He discussed proposed rule changes designed to mandate certain aspects of consumer practice. If adopted, the rules will require debtors to provide documentation to support the information in the sworn Schedules and Statement of Financial Affairs, and non-debtor spousal income information will be required in chapter 7.² Both of these practices are already followed in many jurisdictions, and Director Friedman believes they add a level of integrity and uniformity that will improve the quality of consumer practice if followed in all jurisdictions.

June was also the month of the annual meeting of the National Association of Chapter Thirteen Trustees (NACTT) in Las Vegas. Again, much was said about improving the quality of consumer practice, with sessions ranging from litigation practice, ethics, office management and leadership training to debtor education.

In conjunction with the NACTT meeting, Hank Hildebrand and Judge Keith Lundin made a significant contribution to the theme with their Advanced Consumer Bankruptcy Practice Institute.³ Over the course of two days, participants received classroom instruction and then had the chance to practice what they had learned in mock trial settings. I had the good fortune to participate as a witness in a mock trial and was impressed with the intensive feedback and instruction the lawyers⁴ received as they practiced properly identifying, authenticating, offering and using evidence, witness voir dire, qualifying an expert, objecting with specific reference to the rules of evidence and overcoming objections. I have no doubt that these efforts do, in fact, improve the general quality of practice.

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[W]hen a judge fails to consistently reprimand unacceptable behavior on the part of attorneys or parties, it is effectively an invitation for the behavior to be repeated.

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Nevertheless, I cannot help but notice that much of this educational effort is "preaching to the choir." Most of the professionals who attend conferences and read articles are already operating at a fairly high level of quality and are able and willing to self-correct when given new information. However, in every jurisdiction there are a handful of parties, usually lawyers, who are severely lacking in competence and/or ethics and they usually do not attend the conferences. If they do, they do not recognize the areas where they need to improve.

When it comes to issues of quality, the process is only as strong as the weakest link. If just one practitioner is incompetent or unethical, the practitioners playing according to Hoyle are at a disadvantage. So, after all of the articles and educational conferences, we are essentially back to where we started: Most of the participants in the bankruptcy process are doing their part, but we still have a handful of people who throw sand in the gears with incompetence or a lack of ethics.

Some of these participants are so far over the edge that the problem needs to be solved by the local bar association or other regulatory organizations. However, the more difficult issue is the participants who skirt around the edges of competence and honesty. How do we deal with the inefficiency and frustration they impose on the entire process?

Some may think that enacting more rules or changing the law will solve these problems, and there certainly is merit in that approach when there are universal issues. However, I believe that Director Friedman put his finger on the most effective and immediate quality control tool when he spoke to the chapter 13 trustees in Palm Springs. He said, "it's all about behavior modification."

Through the years, experimental psychologists have sought to identify elements that reinforce and encourage desired behavior and how to manipulate those elements to increase the desired behavior. On the flip side, they have also sought to identify reinforcements or punishments that can be used to decrease or eliminate undesirable behavior.

It turns out that there are rules that govern behavior modification, and Las Vegas is one of the best places to see them at work. If you want to encourage a particular behavior, the best way to do so is to provide intermittent and unpredictable positive reinforcement. Take, for example, a slot machine. People will insert their money, push the buttons and lose over and over again. However, the occasional win, even if very small in comparison to the losses, can put people into a nearly hypnotic state where they play the slots for hours on end. In other words, a little reinforcement every once in a while is an extremely powerful way to encourage repeated behavior. It's all about behavior modification.

On the other hand, a little bit of consistent punishment (or negative reinforcement, for those of you who know the difference) can be a powerful way to discourage behavior. Take, for example, a baby elephant. When they are young the mahout puts a rope on their leg and ties it to a stake in the ground. The baby tries to pull free, but is unsuccessful because he is still small and relatively weak. Eventually the baby learns that it cannot escape and stops pulling on the stake. Ironically, as the baby grows so does its ability to pull free. However, the elephant's behavior has already been shaped. It believes that it cannot pull free and can be contained for the rest of its life merely by placing the rope on its leg. It's all about behavior modification.

Many judges have learned to use these principles with great effectiveness. We have all seen the young lawyer who appears in court for the first time, only to receive a stern reprimand over some small error. While harsh, the judge is using the "rope on the baby elephant's leg" approach and banking that the lawyer will not repeat the behavior. However, if the behavior is repeated, the harshness of the reprimand is progressively increased until the behavior is extinguished or the lawyer loses his/her privileges. However, more often than not, the lawyer learns that the behavior will not be tolerated and conforms to the judge's wishes.

Unfortunately, some judges have inadvertently defaulted to the slot-machine approach. This is not surprising, because bankruptcy judges deal with very human disputes and it is sometimes difficult to reprimand attorneys for misconduct or incompetence, especially if the reprimand will have a negative impact on the client. While some lawyers appreciate a judge's deference and will learn from a single experience, other lawyers learn completely different lessons. If they miss a deadline and there is no consequence, they will take their chances with deadlines in the future. If they file inaccurate schedules and they are not caught or there is no reprimand when caught, they will file inaccurate schedules in the future. If they ignore rules of procedure and in so doing obtain a benefit for their clients, they will disregard procedure in the future.

Even if reprimands are periodically doled out by the court, the intermittent reinforcement of getting away with incompetent or unethical behavior will usually prevail. The temptation to play the slots just one more time is almost too hard to resist. Thus, when a judge fails to consistently reprimand unacceptable behavior on the part of attorneys or parties, it is effectively an invitation for the behavior to be repeated. It's all about behavior modification.

That being said, it bears noting that judges are not the only ones who can inadvertently reinforce bad behavior in the bankruptcy process. All of the parties to the bankruptcy process influence each other. This includes the clerk's office, the U.S. Trustee, lawyers, private trustees, debtors and creditors. Every time we tolerate incompetent, dishonest or borderline conduct, we encourage it to be repeated. This is not to say that we must be suspicious, hostile or aggressive toward each other. Trust and professionalism are important parts of the equation. However, we must not unwittingly encourage behavior that detracts from the efficient and accurate administration of consumer bankruptcy cases.

We must consistently demand the best of ourselves and of each other. If participants fail to conform to the appropriate standards of competence and/or ethics, it should be acknowledged and remedial action requested. Parties can start by taking action informally. If any of us receives feedback that our conduct has not met the standard, we must push down the natural feeling of indignation and carefully examine ourselves. Even the most competent among us can occasionally make a misstep.

In those cases where correction is truly needed but does not occur, the court must get involved. If the offending party is a lawyer, the court can (1) order the lawyer to submit to additional legal education, (2) order the lawyer to demonstrate that he or she has corrected deficiencies in his or her office procedures, (3) order the lawyer to pay financial sanctions and, if absolutely necessary, (4) bar the lawyer from practicing in the bankruptcy court. Other progressive feedback and/or sanctions can be provided to all other participants in the process as well.

While this process is sometimes uncomfortable, it is critical that the participants in the bankruptcy process self-police to improve the quality, integrity and efficiency of the consumer bankruptcy process. We owe this to ourselves, to the system, to the law and to the many people who are relying on the bankruptcy law for relief. Because in the end, self-policing is all about behavior modification.

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Footnotes

¹ The author wishes to acknowledge her husband, Dr. Andres Kerns, a licensed psychologist, who was a resource and guide in describing the psychological ideas in this article. She also wishes to thank her four children who have given her a lifetime of opportunity to practice the principles of behavior modification. Return to article

² Such information is already required by the official forms in chapter 13. Return to article

³ The faculty also included Tom Salerno, Judge Tom Waldron, Prof. Bruce Markell (now a judge), Judge Margaret Mahoney and Judge C. Ray Mullins. Return to article

⁴ Notably, not all of the participants were lawyers. Some creditor representatives participated and gained a greater understanding of the bankruptcy process and the constraints on their lawyers. Return to article

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Journal Date:  Thursday, July 1, 2004 © American Bankruptcy Institute. All rights reserved. ABI is a (501)(c)(3) non-profit business (52-1295453)