Martin M. Holmes
How to Find a Good Bankruptcy Lawyer
Your best investment in navigating the bankruptcy maze is a skilled, experienced bankruptcy attorney. Just as there are good doctors and bad doctors, good teachers and bad teachers, good auto mechanics, and bad auto mechanics, so too there are good lawyers and bad lawyers. Indeed, some attorneys are barely competent or even downright incompetent. Just as there is no simple, guaranteed way of finding a good doctor, there is no simple, guaranteed way to find a good lawyer. Here are some things to look for:
It would seem obvious that an attorney who has been practicing for 25 years should know more than an attorney with only 10 years' experience. However, that is not always the case. There are some attorneys who have practiced bankruptcy law for many years but have never really mastered the subject. There are other attorneys who have pursued a general practice, filing a case now and then. If they have been practicing for 25 years without much in-depth experience in bankruptcy that does not translate to the expertise you need.Tip #1: Look for an attorney with many years' experience in consumer and small business bankruptcy law, who enjoys the respect of other bankruptcy attorneys, the trustees, and the judges.
TRAINING & COMPETENCE
After an attorney graduates from law school and passes the state bar examination, then the real learning begins. Even when there are not many new laws being passed on a particular subject, attorneys improve their skills by attending educational seminars. Now, with the enactment of a completely different bankruptcy law, education is an absolute necessity. So many basic concepts under the prior law just don't work anymore. And, the new law is so complex, an attorney is making a big mistake if s/he thinks s/he can understand it by just sitting down and reading it. There is only one organization that is devoted to training attorneys who represent debtors - the National Association of Consumer Bankruptcy Attorneys (NACBA). Is the attorney a member of NACBA? Did the attorney attend NACBA educational events? Tip #2: Look for an attorney who belongs to professional organizations that represent clients like you and who regularly attends continuing legal education events.
SOMEONE WHO WILL LISTEN TO YOU
An attorney who tells you what you should do before s/he even listens to the facts of your situation is not the right attorney. Unfortunately, some attorneys have a "cookie-cutter" approach to legal advice which completely ignores the true difficulties or opportunities that your case may present. Tip #3: You want an attorney who will listen to your facts and ask the right questions so s/he will truly understand your case.
A LAWYER MUST INTERVIEW THE CLIENT HIMSELF...
to probe every aspect of a client's situation before a bankruptcy can be filed. A bankruptcy lawyer needs to know family law, to make sure all marital debts and assets as well are properly scheduled; a bankruptcy lawyer needs to know business law, to make sure that assets and debts related to partnerships, former partnerships, corporations, and other entities are properly scheduled; a bankruptcy lawyer needs to know probate law, to make sure that inheritance rights (including those that arise after filing pursuant to § 541(a)(5)) are properly scheduled; a bankruptcy lawyer needs to know real estate law, to make sure that all interests in real property are properly scheduled; a bankruptcy lawyer needs to know the law of secured transactions, to make sure that secured debts and collateral are properly scheduled; the list is endless. There is no substitute for detailed questioning by an attorney. Tip #4: Get an attorney who interviews you himself/herself instead of passing you off to a paralegal or other staff member.
SOMEONE WHO WILL GIVE YOU SPECIFIC ADVICE ABOUT YOUR SITUATION
Contrary to what many people think, going through a Bankruptcy is not simply a matter of filling out some forms. It is a complicated process that involves the application of both federal and state law to the facts of each individual case. It is much like running through a legal minefield. You need to know where the mines are buried. If you don't you can make your situation worse. The outcome of any case depends on the particular facts in that particular case. It is very rare that any two cases are exactly alike. Like snowflakes, every case is different even if they appear similar. Each person is unique. With different, property, debts, income, and expenses health and family. The law will apply differently as facts change. It takes a knowledgeable and experienced attorney to help guide you through the minefield of your particular case. You don't want to be led into a dead-end by following advice that is wrong for your particular situation. Tip #5: Your attorney should listen to you and then consider your specific facts in the context of the law. Only by doing that will s/he be able to give you the advice you deserve - good advice.
SOMEONE WHO WILL HELP YOU MAKE THE RIGHT CHOICES WITHOUT MANAGING YOUR LIFE
The situation for which you seek legal help is your situation, not the lawyers. The choices you face are yours to make not the lawyers. The consequences of the choices are yours, not the lawyers. Therefore, in order to make good choices, it is necessary that you make well-informed choices and understand how the law applies to your situation. Tip #6: Get someone who respects the fact that you are the authority on your own life, that it is your right and duty to decide what is best for you and who will take the time to teach you how the law applies to your situation so that you can make the right choices.
YOU ARE THE PROSPECTIVE EMPLOYER
Choosing a lawyer is very important. You are hiring somebody to help you. Do not be intimidated. Tip #7: Ask:
- How long has the attorney practiced law?
- How long has the attorney practiced Bankruptcy law?
- Does the Attorney represent Debtors, Creditors, both?
- In what % of cases does the Attorney represent Debtors?
- In what courts does the attorney practice?
- Does the Attorney represent Debtors in
- Chapter 7 Cases?
- Chapter 13 Cases?
- Chapter 11 Cases?
- Chapter 12 Cases?
- What professional Organizations Does the attorney belong to?
- What continuing Legal Education events or seminars has the attorney attended in the last year?
- Has the attorney ever been sanctioned or disciplined by the State Bar? When? for what? What was the sanction?
- Has the attorney ever been sanctioned or disciplined by a judge? When? for what? What was the sanction?
- Can the attorney provide references?
One of the biggest concerns is what’s this going to cost? It has often been said that cheap help isn’t good and good Help isn’t cheap. If you needed a heart transplant would you be more concerned about the quality of the surgeon or the amount of his fees? If I am sky diving, I probably am not going to opt for the cheapest parachute I can find! By the same token, high fees do not necessarily mean better representation. You can hire an attorney and pay $800 per hr. for the big-name law firm and have the work done by a paralegal or law student. That is paid $15 per hr. Tip #8: Get it in writing. You should look for an attorney who will put it in writing with a fee agreement that tells:
- what price you will be charged.
- what services you are going to receive
- What services are not covered and what the charges will be for those additional or supplemental services
- Who will provide the services and what they will charge?
- A mechanism for addressing problems with representation or billing without charging you for doing so. The attorney should provide an itemized statement showing what was done, how long it took who in the firm did the work and what you were charged what costs and expenses were advanced by the firm and what you were charged.
In Michigan the fees an attorney can charge is governed by The Michigan Rules of Professional Conduct Rule: 1.5 Fees which provides:
- (A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. The factors to be considered in determining the reasonableness of a fee include the following:
- the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
- the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
- the fee customarily charged in the locality for similar legal services;
- the amount involved and the results obtained;
- the time limitations imposed by the client or by the circumstances;
- the nature and length of the professional relationship with the client;
- the experience, reputation, and ability of the lawyer or lawyers performing the services; and
- whether the fee is fixed or contingent.
- When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.