I recently read an article that quoted a court supervisor as stating that some days she "felt like Lucy Ricardo trying to package chocolates coming at her on a high-speed conveyor belt." I'm sure she is not alone. The clerks' offices of all of the bankruptcy courts try their very best to ensure that their work is accurate, staff members are courteous to the bar and the public, and that the needs of all of the court's constituency are addressed. One of the biggest challenges facing the clerks' offices is the growing number of pro se debtors.

Challenge for Clerks' Offices

Despite Lower Filings Bankruptcy court staffing is based mainly on the number of case filings for the 12-month period ending on June 30 of the year preceding the new fiscal year, which commences on Oct. 1. During the last statistical year (July 1, 2005-June 30, 2006), filings declined dramatically after Oct. 17, 2005, the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). Therefore, staffing allocations based on these reduced filings translates into less-authorized staff in most bankruptcy courts. However, while BAPCPA may have caused a reduction in filings, the amount of work by the court's office's required to administer these cases has increased. For example, pro se filers require even more assistance than they did in the past in order for them to meet the mandates of BAPCPA.

As the attorneys practicing bankruptcy law have had to learn and adjust to the nuances of the new law, so did the clerks' offices around the country. The Administrative Office of the U.S. Courts and a committee of clerks did a remarkable job in providing guidance to clerks' offices and revising old, and writing new, standard forms to meet the demands of BAPCPA. The local courts likewise did a tremendous job of developing new local forms and rules, modifying systems and programs and changing local processes by the Oct. 17 effective date.

BAPCPA is now approaching its first anniversary, and the attorneys and clerks' offices have moved past the confusion and uncertainty that existed on the effective date. All of the bankruptcy courts have adjusted to the mandates of BAPCPA and are "fine tuning" forms and procedures. As the local courts revised procedures and forms, the needs of the pro se filers were considered and procedures were drafted in language that could easily be understood by persons attempting to navigate through the system without the benefit of counsel. However, we must remember that for most pro se filers, bankruptcy court is their first court experience. The bankruptcy process and required forms are confusing, and a little help goes a long way to ease them through the process correctly so that they can receive a timely discharge and the proverbial "fresh start."

Novel Approaches to Providing Quality Pro Bono Representation

Because of the severe consequences of an incorrect filing—risking a dismissal and a need to pay a second filing fee in order to file a second time, which may lead to limited benefits of the automatic stay or, in the case of a third filing, paying a third filing fee and losing the benefits of the stay altogether—there is an increased need in bankruptcy courts to be able to provide assistance to debtors filing petitions without the benefit of counsel. Pro se filers would benefit from the assistance of a pro se law clerk in bankruptcy courts. Under the current limitations of position descriptions, bankruptcy courts are not authorized to hire pro se law clerks. However, the Eastern District of New York has been granted permission from the Second Circuit Judicial Council to utilize the services of a temporary pro se law clerk to assist with their increased pro se filings.

To go beyond procedural advice, a pro bono panel of attorneys willing to donate their time to assist indigent debtors is needed. I have conducted a survey of bankruptcy clerks of courts throughout the judiciary and have received varied responses. For example, while the Southern and Eastern Districts of New York, Vermont and Minnesota participate in formal programs to assist in bankruptcy cases through the local bar associations, others feel their pro se population is so low that they believe the guidelines placed on their Web sites and distributed at their courts is sufficient to address the needs of the debtors filing chapter 7 cases in their courts without counsel.

Massachusetts takes a rather creative approach; judges speak at bar associations throughout the state, and attorneys who attend can agree to accept at least one pro bono case a year referred through the bar association in lieu of paying the registration fee for the program. They have also, in conjunction with the Boston Bar Association (BBA), instituted a reaffirmation clinic where a pro se debtor can meet with an attorney immediately before the reaffirmation hearing to discuss the reaffirmation process and what debt is being reaffirmed. The BBA has negotiated a conflict-of-interest waiver from various banks so that attorneys who represent banks may participate in this type of pro bono representation.

Most courts provide information in printed form and on their Web sites to assist pro se filers; however, these aids are limited to procedural advice. Even though every attempt has been made to write these in "plain English," the information is sometimes difficult for debtors who are totally unfamiliar with the legal—and more specifically, bankruptcy—system, to comprehend. Indigent debtors attempting to file for bankruptcy without the benefit of counsel are at a severe disadvantage. Trying to accumulate enough money to pay the increased filing fee, compounded by the cost of mandated credit counseling and the financial-management course needed to obtain a discharge, can often be so burdensome that paying an additional fee to an attorney would be an insurmountable obstacle to overcome.

The Southern and Eastern Districts of New York each have a pro se population in excess of 25 percent of the total number of individual chapter 7 and 13 cases. This, I have discovered through my survey of other bankruptcy courts, is unprecedented. The percentage of the pro se population in other courts appears to be between one and 10 percent of their overall filings. However, in every court there is a population in need of assistance.

In an effort to cope with their unusually high percentage of pro se filers, the Southern and Eastern Districts of New York have jointly sponsored two pro bono programs to assist indigent debtors. The programs were designed in conjunction with the New York City Bar Justice Center and Legal Services for New York City. These organizations "actively recruit, train and place volunteer attorneys with indigent debtors who are either in bankruptcy or contemplating it."

Attorneys who volunteer in these programs may assist pro se debtors in two different ways: (1) to prepare the petition and related documents (schedules, statements, etc.) needed to commence a chapter 7 case, or (2) to represent a pro se debtor in a contested matter or adversary proceeding. In either situation, the attorney's role in representing the debtor is limited to the specific assignment (i.e., preparing the petition or representing the debtor in a litigated matter) and the attorney does not assist the debtor in other aspects of the case.

Ethical Considerations of Pro Bono Representation

Ethical considerations regarding limiting the scope of counsel's representation of a debtor, or addressing possible conflicts of interest with an attorney representing a debtor filing chapter 7 while the attorney or the attorney's law firm is engaged in representing one of the debtor's creditors, are topics that will need to be addressed by the volunteer lawyer. The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Opinion (Assoc. of the B. of the City of N.Y. Comm. on Prof'l. and Jud. Ethics, Formal Op. 2005-1) addresses the ethical issue of representing a debtor and a creditor of that debtor in unrelated matters. In the opinion, the committee determined that an attorney could limit the scope of representation "as long as the volunteer lawyer ensures that the client is aware of, and consents to, any risks posed by limiting the scope of the lawyer's representation." In this instance, the pro bono panel proposed to provide legal representation only through the commencement of a chapter 7 case.

The committee also determined that "pro bono representation of an individual in connection with a chapter 7 bankruptcy filing while simultaneously representing one or more of the individual's creditors in unrelated matters will not typically create a conflict of interest...." The committee noted that the "unrelated matters" usually involved a volunteer lawyer whose law firm would represent the financial institutions and credit card companies whose debt the debtor is seeking to discharge in the bankruptcy. In their analysis, the committee weighed the fact that "debts sought to be discharged in a typical chapter 7 case are relatively small with respect to any given creditor, particularly large institutional creditors; that in an overwhelming majority of these cases there are no significant nonexempt assets; and that it is extremely rare for an objection to be made to the discharge of the debt in chapter 7 cases." The committee utilized statistics from the Southern District of New York in its analysis: "During the...statistical year (July 1, 2003-June 30, 2004), 15,146 individual chapter 7 cases were filed. Of these, 14,842 (98 percent) were deemed no-asset cases. Only 223 adversary proceedings were filed during the same period involving a request for exceptions to the discharge of a debt under 11 U.S.C. §523."

Moreover, the committee noted in the opinion that "unlike the commencement of litigation...the commencement of a typical chapter 7 case is an in rem proceeding that triggers the automatic operation of a statutory framework for marshaling and distributing assets and discharging debt." However, the committee did state that in the rare instance when a creditor subsequently files an adversary proceeding or "takes action that is directly adverse to the debtor," a conflict-of-interest check would have to be revisited and consent obtained from the respective clients in order for the dual representation to be able to continue.

Tangible/Intangible Benefits of Pro Bono Representation

As the saying goes, "out of chaos comes great opportunity." The feedback from attorneys serving on the pro bono panels in New York is that they have been given an opportunity to assist indigent debtors, while honing their legal skills and mastering the nuances of BAPCPA. In May 2006, the New York City Bar Committee on Bankruptcy and Corporate Reorganization and the City Bar Justice Center sponsored a seminar in New York, "From the Courtroom to the Classroom." At this seminar, attorneys spoke about the benefits and opportunities they received from their involvement with the New York programs. They spoke about how serving on the panel presented an opportunity for new attorneys to gain significant experience conducting client interviews, trial skills and courtroom experience. Others who were a bit reluctant to represent clients in the bankruptcy court since the passage of BAPCPA by serving on the pro bono panel were afforded an opportunity to be trained and to "learn the ropes" of the new law under the guidance of more experienced attorneys serving on the panel. All of the attorneys spoke of the personal benefits they received by helping someone in great need to gain a "fresh start."

Also, these pro bono programs are welcome resources to the judges and clerks' offices in both the Southern and Eastern Districts of New York. One can observe the relief on the faces of the debtors when they are informed that they may be eligible for free legal advice from an attorney. It can transform a very difficult experience into a less frustrating one.

My survey of other courts' pro bono programs has indicated that if one exists, it is usually formed and administered through the local bar associations. Courts that have adopted or sponsored these programs have placed the information, including applications for attorneys and law school clinical programs, on their Web sites. Information on the programs for the U.S. Bankruptcy Courts for the Southern and Eastern Districts of New York can be found on both courts' Web sites: www.nysb.uscourts.gov and www.nyeb.uscourts.gov.

If you are interested in helping to conquer the "New Frontier" by volunteering for pro bono work in bankruptcy courts, check with your local bar association or go to www.probono.net for comprehensive information about bankruptcy pro bono programs throughout the United States. There may already be such a program in existence, and it may be anxiously awaiting an opportunity to enlist the services of experienced or not-so-experienced bankruptcy lawyers. The contact for the New York City Bankruptcy Assistance Project is Bill Kransdorf at (646) 442-3646. The contact for the New York Justice Center Pro Bono Consumer Bankruptcy Project is John McManus at (212) 382-6698.

The current programs in the Southern and Eastern Districts of New York are very viable and energetic and ready to be of assistance to the pro se debtor constituency, and for this the judges and clerks' offices in both districts are most appreciative and thankful. Having debtors approach the intake counter at these clerks' offices fully informed and with completed, correct petitions in hand makes the process more efficient, allows both of these clerks' offices to provide accurate, courteous service, and slows the "conveyor belt of chocolates." The benevolent attorney is able to hone his or her skills and learn the nuances of BAPCPA with guidance from experienced lawyers. It's a "win-win" situation, everyone feels better, and everyone involved in the process, including the debtors, clerk's office staff and the pro bono counsel, walk away knowing they have contributed to a "job well done."