By Leon D. Bayer, Bayer, Wishman & Leotta, Los Angeles, CA
I. Grab Control Over Pre-Filing Issues
SUN SCREEN PROTECTS YOUR SKIN; PRE-SCREENING YOUR APPOINTMENTS HELPS TO PROTECT A CHAPTER 13 PRACTICE FROM UNWANTED EXPOSURE
Pre-screening prospective clients before setting an appointment will mostly eliminate situations and types of cases that you are unprepared for or unwilling to handle. There will never be a shortage of the cases that you won’t file. But a mostly worry free Chapter 13 practice requires conserving your time for (1) doing a great job on the cases you already have, and (2) seeing prospective clients with matters that you want to handle.
It only takes a minute or two on the phone for you or a staff person to make sure that a prospective case falls within your comfort zone. A few simple questions in that pre-screen phone call will save you a lot of trouble later on. For instance, always ask if there is a foreclosure pending or some other legal emergency. Let me illustrate the importance of this step in the process.
WARNING: Don’t Let This Happen to You: Suppose your secretary sets an appointment. A very nice woman arrives on time, and you begin the consultation. It suddenly comes out that a foreclosure sale is scheduled to take place in an hour. You tell the woman that you are unwilling or unable to accept representation due to the lack of time. Her response is to unleash a heated harangue on you and your staff. She demands that you immediately file the case because she came to your office in good faith to retain you. She says it was your office that set the appointment date and time; that your advertising offers “fast service”; and her case is exactly the type of case you advertise that you handle. The formerly very nice person now screams, “You wasted all my time and now I have nowhere else to go and no time to find a different lawyer. You better file my case right now or else I’ll lose my home and I will sue you!“
You should be worried. But is this MALPRACTICE? I asked a specialist in legal malpractice for his opinion on the above hypothetical. Michael A. Colton is an attorney in Santa Barbara, California and a California State Bar, Board of Legal Specialization, Certified Specialist in Legal Malpractice Law. Mr. Colton says that without more, this initial meeting did not create an agreed retention of the lawyer, nor any consequent duty for the lawyer to represent the client.
Mr. Colton reasons that the duty to represent did not arise because a contract for representation was not created; and that except in very limited circumstances, formation of the lawyer-client relationship for purposes of retention is a matter of voluntary contract at the outset.
Even if this is not malpractice, should the lawyer still be worried? Mr. Colton cautions that this was still a very dangerous situation for the lawyer because in the real world a malpractice case of this type comes down to she said – he said. Mr. Colton adds that if malpractice litigation arises, a plaintiff tends to plead whatever “facts” are necessary to state a claim; and a plaintiff’s recollection of the facts will often incorporate a sufficient level of poetic license as necessary to meet pleading requirements.
Thus, regardless of what we know from the hypothetical facts, a subsequent malpractice complaint would probably allege the creation of a verbal contract, or that the lawyer’s words and deeds would make a reasonable person think that a contract for legal representation had been formed; and thus the client was wrongfully abandoned.
PRACTICE TIP: Mr. Colton suggests that good client intake practices may include an easily understood fact sheet telling a prospective client that the initial meeting is merely a preliminary interview, and that the engagement of the lawyer does not occur until the signing of a written retainer agreement. Such language could be placed prominently on standard office intake forms that are presented to prospective clients.
ABSTINANCE DOESN’T WORK; USE PROTECTION.
Abstaining from the use of paper in favor of a paperless office is a popular yet risky goal. Written intake materials in your Chapter 13 practice are prophylactic in their effect. They dramatically reduce errors as well as your worry quotient. So “practice” safe law practice. Here’s why:
The computer age has made it popular to sit a client down and type the schedules while you talk. Experts in law office management may tell you how wonderful it is to have a paperless office. That is a swell idea for bean counters, but a terrible idea for you. One of the dangers is producing a set of schedules that are inaccurate, perhaps even fraudulent—but you won’t know that until the case blows up on you. A bad set of schedules supplies an aggressive creditor, a trustee and a judge with plenty of ammunition to rip the case apart, and rip you with it. After that, the finger pointing will begin. You can bet your client will tell the FBI investigator, “Please don’t prosecute me, I told my lawyer about my collection of 1,000 rare firearms. I trusted my lawyer, and I don’t know why my lawyer left the gun collection off my schedules.”
Written intake forms for key data, completed in the client’s own handwriting, are for your protection. Use them.
HONE YOUR INTERVIEW SKILLS.
Your time is valuable. Develop interview techniques to keep the prospective client on a relevant track; and also be a good listener. Keep your ears tuned to any possible mention of assets, debts and financial affairs that were not mentioned on the client’s intake questionnaire, then follow up with appropriate questions to flush out issues or problems.
SEND A LETTER WHEN YOU TURN DOWN A CASE.
Send a non-representation letter when you have turned down a prospective case. This is a simple step, but often overlooked. Don’t worry about the cases you turn down; just confirm your actions in writing. This has the positive effect of documenting your file, and making it clear that a contract for representation was not created during the meeting.
RETURN DOCUMENTS – DON’T BE A HOARDER.
Avoid conduct that could imply your acceptance of representation.
Until you have actually accepted a case, return all personal paperwork to the prospective client. If you retain personal documents—such as lawsuit papers and foreclosure notices—a confused or unscrupulous person might claim that your possession of those papers is further evidence that you accepted the legal representation to deal with those problems. Please consider this practice tip in light of the malpractice hypothetical given earlier and the advice of the malpractice specialist.
PUT IT IN WRITING.
Use written retainer agreements. Most if not all state bar associations have model retainer agreements. Modify them to suit your particular needs, but keep the original form as intact as possible. Those forms will likely have incorporated important, time tested language that helps protect the lawyer. A good retainer form will carefully define the scope of your representation to exclude what you do not want to be responsible for. It should also require the client’s cooperation with the case and a duty for the client to keep you informed of new information, such as any change of address, phone, and email, and changes that occur in the client’s financial affairs. Finally, you should provide examples of additional work the client may request which are not covered by your flat fee, such as amendments, lien strips, objections to claims, contested matters, and adversary matters.
DON’T GO OUT ON A LIMB – PERSONALLY REVIEW DOCUMENTS
Carefully examine all relevant documents; i.e. foreclosure notices, lawsuit papers, divorce agreements, etc. Beware of real property title problems. If a debtor is not the record owner, a foreclosure sale may not be stayed.
A careful examination of real estate paperwork may show a foreclosure sale notice concerning the subject property addressed to a different person. It is common for people who have financial difficulty to “borrow” someone else’s credit to buy or refinance real property.
Do not accept representation on a foreclosure case unless you have the pertinent foreclosure notices. The blowback may be that a sale already took place, or does take place before expected, or that the debtor is not the person who owns the property. If you want to eliminate worry, be certain of the facts and circumstances by personally reviewing the documents before you agree to take the case.
IT MIGHT RUIN SOMEBODY’S DAY – BUT HONESTLY SHARE THE PROBLEMS YOU SEE.
Give each prospective client a realistic evaluation of all potential problems that you foresee. Clients who have unrealistic expectations of success are likely to blame you if and when problems arise. On the other hand, clients who are forewarned of possible problems can mentally prepare themselves for the disappointment when it happens.
Prior to filing a case, write out a brief advice memo which describes any issues or problems that you have discussed with the client. Make it clear that you are not saying that these things are going to happen, but that they might happen. Explain in your memo that “these are some of the things that we have discussed together.” Have the client sign the memo and keep it in the file. If any of those things actually do come up, you will be very glad that you have the advice memo.
Pre-Filing Troubles Come in Many Forms
DO A GOOD DEED, FOR SOMEONE IN NEED.
THE GOOD, THE BAD AND THE CRAZY.
In case you don’t know it, the world is full of difficult people and potentially difficult clients. A prospective case may be right up your alley, but you will be handling more than the case. You must also handle the client. A good case with a bad client is a bad case. You must take your client as you find him (to paraphrase the ‘Eggshell Skull’ rule in tort law). So here are a few common sense tips for handling crazy people that will reduce your worry in your Chapter 13 practice.
Caveat Emptor. Don’t buy into a case with client(s) who display symptoms of serious personality disorder or other neurotic behaviors—unless you are prepared to exercise the patience and diplomacy that is necessary to deal with such a person. By keeping your cool and always displaying a positive attitude you can receive enormous personal satisfaction from helping a person that no one else would probably have helped. Remember, if you take such a case, you are doing a very good deed for someone in need.
It’s not About the Money. Expect that the amount of time you would normally spend on such a matter will be tripled or more. You can expect endless phone calls from the client expressing the same obsessive worries. You will answer the same questions over and over. Remind yourself that you are doing the case out of kindness, and the fee is secondary. Unless you can always react with grace and patience, there is a danger of the client becoming hostile, complaining to the bar, or obsessively posting nasty things about you on the Internet. If the relationship starts off well but turns sour prior to filing, refund all of the fees and bow out as gracefully as possible. Trying to keep all or part of a fully earned fee from a very difficult client isn’t worth the trouble, because it merely shifts the fighting to a new battlefield.
Know What To Look For. Warning signs of the difficult client abound. Here are some things to look for and to be wary of:
♦ Prospective clients who show up with shopping bags full of documents and stacks of mail that have never been opened;
♦ Prospective clients who are disorganized;
♦ Those who are unable (or unwilling) to give straight, direct answers to your questions;
♦ Prospective clients who ask a question and don’t let you to finish your answer;
♦ Prospective clients who persist in trying to make you to change your advice from what they don’t want to hear to what they do want to hear;
♦ Prospective clients who withhold important information;
♦ Prospective clients that are contradictory;
♦ Prospective clients who refuse to grasp what you are trying to tell them.
Turn a Case Down Gracefully. People do not react well to rejection. The same goes for telling a prospective client that you do not want to represent them. Gracious excuses include expressions of empathy and sympathy for their problem coupled with your apology that you can’t take their case because you can’t give it the time it will need, or that other lawyers with more relevant experience might do a better job, or that other lawyers may be able to give them a much better fee than what you can do for them.
PRACTICE TIP: Send a follow-up letter to confirm that you were not available to handle the matter and that you recommended they obtain other legal representation immediately.
THE SKELETON FILING – BARE BONES TROUBLE
Beware of doing an emergency filing—the so-called ‘skeleton filing’—without schedules. These cases are a fertile breeding ground for all kinds of trouble, including malpractice claims against you. If it is absolutely necessary, and you are determined to file one, at least make a thorough and complete analysis of assets, liabilities, a fully drafted plan, a means test, and the budget.
A face sheet filing means you need to get the same client back in to finish the job. A client that needed a skeleton filing in the first place is the last person you should rely on to come back on time to finish the schedules. Here are some other reasons for you to worry about cases that are as scary as the walking dead:
Suppose you can’t come up with a feasible Plan. Suppose the debtor is not eligible. Suppose the debtor needs to convert to Chapter 11, and demands that you must do it.
Please remember: after the case is filed, you’re stuck with it.
PRACTICE TIP: Create your own waiver, acknowledgement of issues and appointment confirmation forms if you absolutely must file a face sheet case and have the client sign the forms. A waiver and acknowledgement form should, at a minimum, advise the client of the limited and temporary benefits of such a filing, the harm that will ensue if the client fails to cooperate with you in returning to your offices to complete the required paperwork, and the fact that you cannot be responsible for any harm that flows from their failure to so cooperate. An appointment confirmation form should require that the client return to your office on a specific date, at a specific time, to complete the paperwork for their case.
Be Careful Where You Step. Be ultra-cautious with any prospective client who has no real interest in prosecuting a legitimate Chapter 13 case, but nevertheless wants to file without schedules to gain a temporary stay of foreclosure or eviction. There are a multitude of problems with clients that “say” they only need a little more time.
A stay lasting only a few weeks probably won’t solve anything. In the first place, the automatic stay may stall the foreclosure, but the filing of a bankruptcy case may also stall or even kill a refinance, the closing of an escrow, a loan modification, renting a home, or probably anything else the debtor was expecting to accomplish.
A client who “only needs two weeks” will soon be demanding that you must get them more time. If you didn’t file schedules and a plan timely, the Chapter 13 case will be dismissed, often with a bar and the client’s chances of obtaining further relief may be impossible.
The Magic Stay – Now You See It, Now You Don’t. Even if there is no bar to a new case filing, the automatic stay in a refiled case may expire quickly and automatically, absent a timely motion and an order to extend it. Naturally, the client will minimize the fact it was they who only wanted two weeks and deliberately chose a limited level of representation necessary for a mere skeleton filing. Clients have selective memory and may look to blame anyone but themselves when they have run out of time. You may get blamed for the client’s inability to obtain prolonged bankruptcy protection.
Don’t Act Like a Goofball. Your personal reputation is always at stake in each case that you file. If you gain a reputation for filing frivolous cases, it will undermine your personal credibility with judges, trustees, and the creditor bar. It could even lead to professional disciplinary proceedings against you. The loss of your personal credibility also means that your other clients will suffer for it. Judges, trustees, and creditor’s lawyers won’t give your worthy clients the benefit of a doubt in close cases because your arguments may be discounted or ignored.
SUBBING IN TO SOMEONE ELSE’S TROUBLE.
Be on guard for terminal bankruptcy disease. Sometimes this comes in the form of a plea that you “sub in” as counsel and take over a case. Look for situations that reflect repetitive filers, clients who unjustly blame their current lawyer, perennial bankruptcy cases that have already been dragging on for years, legendary debtors who have already gone through any number of other lawyers, and persons with complex insurmountable litigation problems. These cases will raise your anxiety level to undreamed of heights. So tread carefully with this kind of trouble.
TAKE ALBERT EINSTEIN’S ADVICE ON TAX ISSUES.
Albert Einstein, on filing tax returns, famously said, “This is too difficult for a mathematician. It takes a philosopher.” If taxes are not in your comfort zone—and there is no dishonor in that—then recommend that the client retain experienced tax counsel to be responsible for tax issues instead of you. Tax counsel should evaluate large tax claims and give direct advice. Have the tax lawyer provide you and the client with written guidance about tax claim priority and dischargeability issues. It is nice to know, before you file, what you can expect to find in the IRS’s proof of claim.
EXPECT TROUBLE WHEN A PROSPECTIVE CLIENT SAYS, “LET’S FORGET I TOLD YOU THAT.”
How many times has a prospective client said that to you? It is perfectly normal that you wish to yourself the client had not mentioned something. You don’t want to lose the fee you were about to take, but there are times when you have to forego the money.
A client who says, “Let’s forget I told you that” has laid a trap waiting to bite you. You can’t un-ring a bell. Don’t allow your emotions to interfere with your professional responsibilities and your better judgment. It is far better to walk away from a fee than to risk losing your license. It may turn out that you have merely educated the client on what not to tell the next lawyer who is consulted. So be it.
Do not lie or mislead the court in any way to help a client, no matter how sympathetic you may personally feel towards the client. It is far better to lose a client than go to jail with him. Lawyers, as well as clients, have indeed gone to prison for bankruptcy crimes. Your client, if caught, will rat you out.
Did a light just go on for you? Do you see the importance of written intake materials that are answered by the client in their own handwriting? A client who is caught in a lie about assets or other financial affairs will probably say they told their lawyer all about it. Written materials are for your protection. If the client didn’t write it down, they probably didn’t tell you about it.
III Case and Controversy
“I forgot to file before
the foreclosure sale!'”
YOU NEED A SIMPLE AND EFFECTIVE OFFICE SYSTEM TO KEEP TRACK OF ALL CRITICAL DEADLINES.
The worst Chapter 13 screw-up is probably when a case does not get filed in time to stop a foreclosure sale.
Let’s examine how that may happen, to illustrate the importance of a reliable deadline calendaring system for your bankruptcy practice:
WARNING: This is Just a Bad Nightmare, (Wakeup Anytime You Want To): You are retained to prepare and file a Chapter 13 to save a client’s home from foreclosure—a home with $25,000 of equity. Every few days the client makes annoying phone calls to you about the status of the case. You have told the client time and again that it will be filed right after the first of next month, so that next month’s house payment due on the 1st can be included in the Chapter 13 plan. You consistently reassure the client that the case is being prepared and will be filed in time to prevent the foreclosure sale. Despite the client’s annoying tone and suspicious nature, your voice betrays your own growing irritation as you tell the client not to worry so much and that she need not call with the same question over and over.
Two weeks pass after last talking to the client. Suddenly you realize that you lost track of the matter. Upon checking into it, you discover that a foreclosure sale already took place. Title has gone back to the foreclosing creditor.
You are aghast! You now actually wish the annoying client had kept on calling you. You think/hope that maybe the lender will agree to rescind the sale and allow a Chapter 13 to reinstate the loan. You figure they really don’t want any more houses, so probably everything can be set right. You are starting to feel better.
You have a discussion with the lender and they are considering your proposal. The client then calls you again for the status of the case. You reassure the client as sweetly as you can that everything is okay and not to worry about anything. You spend the next week trying unsuccessfully to persuade the lender to rescind the sale.
The client calls again, hysterical because she has just received an eviction notice, and the client has just discovered that you never stopped the foreclosure sale. The client is later evicted, spends several months living in motel rooms, and suffers a nervous breakdown with symptoms of disabling depression which were not preexisting.
What are the damages?
This is what an expert says. Michael A. Colton is an attorney in Santa Barbara, California and a California State Bar, Board of Legal Specialization, Certified Specialist in Legal Malpractice Law. He says, “In California, general damages, e.g., pain, suffering, and emotional distress are generally not recoverable for ordinary legal professional negligence. (The recognized exception is loss of liberty due to legal malpractice). The public policy enunciated is that the legal malpractice tort protects the legitimate expectations of the client, which in most spheres of legal involvement are primarily economic (i.e., loss of the $25,000 equity) and not emotional or psychological. Another enunciated factor is the difficulty in delineating the cause of distress, since litigation itself is stressful.”
Unfortunately, our hypothetical Chapter 13 lawyer should take no comfort from that. Mr. Colton goes on to state, “The posited scenario reveals the oft-stated truism, ‘the cover-up is worse than the crime’. The lawyer crossed the line from hapless to heartlesswhen he deliberately kept the awful truth from his client. That is not mere negligence; it is an actionable breach of the lawyer’s fiduciary duty of fidelity and scrupulous honesty to the client. For such breach, especially when intentional and colored by self-protective motive, general damages and possibly even punitive damages may be available.”
“How Can They Do That if My Check was in the Mail?”
Clients who forever juggle payments cannot understand how “you“ let them lose their home over just one late payment. (At least that is your client’s world view of things. In reality it is because of all the payments they probably didn’t pay prior to filing Chapter 13, all the payments they didn’t pay after filing Chapter 13, and their inability to understand that they do not get to keep juggling payments and have further chances). Frustration quickly turns to anger, and now you as the lawyer may be viewed as a culprit. The client will say that the default provision is something they never agreed to, or else did not understand because you failed to explain it. They often say if they had known about it they would not have paid late! Your client snarls, “You shouldn’t have signed it!”or less polite versions expressing the same thought.
You can protect yourself from this sad confluence of events very easily. It is a good idea to have your client sign all stipulations or proposed orders if the settlement can be prepared before the hearing. If there is no signature line for your client, just draw a line and have your client sign the document. If there is not yet a written agreement, then write out a memo for the client to approve and sign, authorizing you to stipulate on their behalf to those terms, especially including the default procedures.
Many settlements take place in the courtroom hallway. After an agreement is reached, have your client stay for the case to be called. It is essential that the clients remain for the case to be called. Tell your client that when the case is called, the lawyer for the lender will recite the basic terms, and that you will then ask the client in open court if they understand and agree to those terms.
CLOSED FILES – A POTENTIAL TOXIC WASTE DUMP?
In most if not all jurisdictions, the client file belongs to the client. You cannot even destroy it without the permission of the client, because you don’t own it. There are also court rules pertaining to electronic filing requirements which mandate that you must keep the original of every court filed document for a certain prescribed period of time. After a case is completed, these constraints could mean that you are stuck storing each client file indefinitely. That is expensive and burdensome. You are paying rent for the floor space that every file cabinet sits on. You also have to buy the file cabinets. To top it all off, you have former clients calling you and requesting copies of things from their old file, sometimes many years after the fact. If you put your closed files into storage, you are paying rent for that, too, and if you need to send an employee to retrieve something from storage, the cost of keeping an old file is further magnified.
PRACTICE TIP: Consider adding a special provision to your written retainer agreement setting a time limit for file storage, and giving you the right to destroy the file, and to charge fees for copies. In any event, you should definitely retain every file until several years after the expiration of any applicable statute of limitations for attorney malpractice. Also consider making it a practice to permanently retain certain ‘problem’ files. Put a “problem” case into in a special red file jacket or use some other distinguishing indicator to protect such the file from accidental destruction. Consider something like the following for your written retainer agreements:
CLIENT FILE STORAGE AGREEMENT AND AUTHORIZATION FOR ATTORNEY TO DESTROY CLIENT’S FILE; FEES FOR DOCUMENT COPIES. You agree that we as Attorney will maintain possession of your file. You agree that in any event, Attorney will continue to maintain possession of your file for such time as within the discretion of Attorney. You authorize Attorney in any event to destroy your file at any time after 3 years from discharge, dismissal, or inactivity without further notice to you. After a file has become discharged, dismissed, or inactive, Client agrees to pay an advance fee of $75.00 each time Client requests copies of anything from Client’s file. There is no charge to Client for requesting one copy of any document during the time that the file is active.
Leon Bayer has been practicing bankruptcy law in Los Angeles, California since 1979. His primary focus is on representing individuals and small businesses. He is a founding partner in the law firm of Bayer, Wishman & Leotta and is a Certified Specialist in Bankruptcy Law. You can visit his professional websites at www.debt-relief-bankruptcy.com www.bankruptcyblogger.org and Mr. Bayer authors the “Ask Leon” series on Nolo’s Bankruptcy, Debt & Foreclosure blog, and writes on bankruptcy topics for Nolo’s website. In addition, Mr. Bayer devotes a significant number of hours to volunteer legal services. The State Bar of California has commended Mr. Bayer for this work every year since 2004. Mr. Bayer’s professional affiliations and leadership roles are many, and include: President of the Los Angeles Bankruptcy Forum (1995-1996), member of the State Bar of California’s Law Advisory Commission on Personal & Small Business Bankruptcy Law (1996-2000), and exam grader and question writer for the State Bar Legal Specialization test on Bankruptcy. Mr. Bayer is a frequent lecturer on bankruptcy law. He has spoken at the former Bridging the Gap program for new lawyers, lectured on bankruptcy case law developments at a number of the State Bar of California Annual Meetings, and has presented bankruptcy law material at many other educational programs. Mr. Bayer’s frequent television appearances include interviews on KCAL9 News and EXTRA (where he weighs in on various celebrity bankruptcies). He has also served as a bankruptcy expert on many different radio shows and news stations, and is a frequent guest on KALW-FM public radio’s Your Legal Rights. Mr. Bayer is currently co authoring a revised edition of Stephen R. Elias’s The New Bankruptcy for Nolo. Other publications include The Essentials of Chapter 13, Daily Journal Report, December 18, 1987, Basic Bankruptcy, California Practice Handbook, Matthew Bender 1992, 1993 (contributing editor), and Personal and Small Business Practice in California, CEB Bankruptcy Practice Guide, 2003 (reviewer and contributing author).
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