Article by Jay Fleischman, New York Bankruptcy Lawyer
Well over 45% of the Chapter 7 bankruptcy cases in Los Angeles are filed without a lawyer. When it comes to Chapter 13 filings, that number is far higher – in spite of the fact that nearly every single Chapter 13 bankruptcy case filed without a lawyer is thrown out of court.
It seems as if many people don’t know the difference between the services a lawyer can provide as opposed to those offered by non-attorney bankruptcy petition preparers.
Maybe it’s the promise of a lower cost than attorneys charge. Or a sense of trust and authority vested in non-lawyers by community groups. Regardless, when it comes to filing for bankruptcy without a lawyer there are a host of things you’re not going to get.
Section 110 of the U.S. Bankruptcy Code explicitly limits the conduct of bankruptcy petition preparers in their assistance of people who file for bankruptcy.
Non-Lawyers Can’t Give Legal Advice
Section 110(e) expressly forbids bankruptcy petition preparers from offering legal advice. That includes discussing with you whether filing for bankruptcy is a good solution for your problems, which type of bankruptcy to file, which debts will get wiped out, and whether you’ll lose the property if you file for bankruptcy.
If you consider the entire range of things the bankruptcy petition preparer can’t do, it becomes pretty clear that there’s not much they can do. In fact, the law pretty much turns these folks into nothing more than typists.
Prohibition Against Giving Legal Advice Goes Beyond Bankruptcy Law
“[S]tate law is properly considered in determining whether the unauthorized practice of law has occurred in a bankruptcy court,” according to In re Boettcher, a 2001 decision of the U.S. Bankruptcy Court in the Northern District of California. Under California law, you’re not allowed to practice law in California unless you’re admitted to practice. Period.
If you’re not admitted to practice law in California, offering legal advice – whether or not rendered in the course of the litigation – is a big, fat no-no.
Why’s that important? Because it’s been held by the U.S. Bankruptcy Court for the Central District of California that choosing your bankruptcy exemptions is considered the unauthorized practice of law. In fact, the 9th Circuit Bankruptcy Appellate Panel found that a non-attorney engaged in the unauthorized practice of law by “interview[ing] and solicit[ing] information from the debtor with regard to his financial status” and “assist[ing] the debtor in preparation of the bankruptcy schedules.”
Non-Lawyers Who Help You File For Bankruptcy Are Typists – That’s All
According to a 1998 case out of the U.S. Bankruptcy Court for the Southern District of California, “[T]he services of bankruptcy petition preparers are strictly limited to typing bankruptcy forms.”
They can’t do anything more than the type of bankruptcy forms. If you’re a well-seasoned consumer bankruptcy attorney with an intimate knowledge of the U.S. Bankruptcy Code and state exemptions, that’s all you need. But for anyone else, using a typist for your bankruptcy preparation is nothing short of insanity.
Non-Lawyers Are Doing More Than Permitted – And Doing Harm
In the past month or so I’ve reviewed well over 300 bankruptcy cases filed without lawyers. Most contain proper exemptions, are professionally compiled using commercial software such as that used by consumer bankruptcy lawyers. People who file for bankruptcy are getting advice, and only sometimes is it correct.
From what I’ve been told by people who’ve gone through the process without a lawyer, many times they are charged 2-3 times the amount experienced attorneys are asking for full representation.
Finally, the non-lawyer is required to disclose their assistance in connection with the bankruptcy filing. I think I’ve seen 5 or 6 such disclosures filed in all of the cases I have reviewed.
Don’t Get Hooked………in other words, consumers are getting screwed and scammed in droves.
Carolyn Secor is a Clearwater bankruptcy attorney and Clearwater foreclosure attorney serving Palm Harbor, New Port Richey, Oldsmar, Tarpon Springs, Seminole, St. Petersburg, and the Tampa Bay area.