How To Avoid Being Thrown Under The Bankruptcy Bus

Bankruptcy lawyers find themselves thrown under the proverbial bus time and again.

Clients contradict themselves, trustees speak poorly of us during hearings, and even judges from time to time have been known to call us on the carpet for perceived shortcomings.

Sometimes we’re caught in a position due to an unforeseen turn of events. Other times, we end up stepping under the bus because we weren’t paying attention in the first place.

There are, thankfully, a few simple rules to help you stay away from the tire treads as the bus rolls by.

The Initial Consultation

My good friend Susanne Robicsek told me years ago that she asked her client during a consultation whether he had a sofa. When he said that he didn’t, she asked if he had a couch. Of course, came the response.

It’s important to spend as much time as is necessary on the initial consultation, working through not only the questions that will need to be answered on the Statement of Financial Affairs but on every aspect of the petition and schedules.

Ask the same question ten different ways, not because your client is looking to trip you up but because real people use different words than do bankruptcy lawyers. Even the most common terms – debt, creditor and property – have different meanings to our clients.

Pick Up Tidbits From Other Fields

Bankruptcy lawyers need to have a working knowledge of other areas of law. Family law, tax, personal injury and immigration spring to mind. Without knowing enough to spot the issues, you’re asking for trouble.

Let’s say your client has equity-laden rental property and decides to sell it to pay off debts. Without a working knowledge of tax law, you’re going to find out the hard way that selling an asset doesn’t necessarily translate into pure profit.

Document Your Conversations

Some lawyers have their clients fill out lengthy packets in the run-up to filing for bankruptcy. If that works for your client base, by all means keep on going with that practice. For the people I help, packets are unproductive.

That’s why I document every conversation, keeping detailed notes. If I’m on the phone with a client, I record it (with disclosure to the client) and save the audio file. The client gets a copy of it as well.

As with the consultation, I do this because clients live in a world that differs from mine. They’re confused, scared and depressed – and that clouds their memories and thoughts. Keeping records and notes to share with my clients gives them the opportunity to review them later on and, if need be, make corrections to the information they provide to me.

Measure Twice, Cut Once

In carpentry, you’re supposed to measure the wood twice before you take a saw to it. That reduces the number of errors. So, too, in bankruptcy work.

Review the draft petition twice – once on your own, once with your client. Yes, it takes longer that way. Yes, your client’s unfamiliarity with the legal terminology will make it take even longer. Still, it’s the only way to ensure that the documents that get filed with the court accurately reflect your client’s state of affairs.

Sidestep When Necessary

No matter how hard you try, there will be something that gets past your watchful eye from time to time. Some clients are less than forthcoming, others simply too befuddled to be reliable. In those situations, consider whether it’s a good idea to withdraw from representation.

Remember that your reputation is too important to risk on a single bankruptcy case. Your career will be a long one, and you’ll need to rely on that reputation from time to time. Don’t squander this valuable currency.

Jay S. Fleischman is a bankruptcy lawyer and legal marketing consultant for bankruptcy lawyers.  In his spare time, he thinks up new ideas to minimize his spare time.

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