Massachusetts Supreme Judicial Court Awards Bankruptcy Law Section Highest Honor

Sunday, August 1, 2004 - 01:00

The Editor interviews Janet Bostwick and Christopher Mirick of the Bankruptcy Law Section of the Boston Bar Association on the Section's pro bono efforts. Janet, a solo practitioner, led the effort to organize the pro bono efforts some 10 years ago as chair of the then Bankruptcy Law Committee (now Section). Chris, who practices at Weil Gotshal & Manges in Boston, is incoming chair of the Bankruptcy Section. The Supreme Court's Standing Committee on Pro Bono Legal Services names the Bankruptcy Section the winner of the highly coveted John Adams and John Quincy Adams Pro Bono Publico Award, the first to be awarded to a section of the Boston Bar Association. The award was presented by Chief Justice Margaret H. Marshall and Justice Francis X. Spina at a ceremony at Boston College Law School on May 6, 2004.

Editor: How did each of you become involved with (1) the Bankruptcy Law Section, and (2) the Pro Bono Committee of the Bankruptcy Law Section?

I've been involved with the Section since I first began practicing law - first by serving on various committees, then as chair of the Section (formerly Committee). The pro bono activities of the Section came about during my term as chair as a result of one attorney with a large volume of consumer cases (around 300) being disbarred. The bankruptcy judges turned to me as chair of the Section for assistance. I set up the process for dealing with this type of problem. Over the years the efforts of the Section have expanded to provide pro bono services for other individuals in difficult circumstances who did not have the resources to afford an attorney.

Mirick: When I started practicing, the senior bankruptcy partners in the firm stressed the importance of being involved in the bar association and secondly, as a matter of professional responsibility, the importance of taking on pro bono cases. Actually, I have had at least one pro bono case on an ongoing basis over the last six years. Originally, I became involved with the Practices and Procedures Committee of the Section which became the group that judges would turn to whenever they needed help with a disbarment or suspension. The Bankruptcy Law Section started working with the Massachusetts Appleseed Center for Law and Justice to develop a program to assist the court with pro se debtors. As these efforts developed, part of the Practices and Procedures Committee split off to become the Pro Bono Committee, which Janet and I jointly chaired for the first several years.

Editor: Janet, has the Pro Bono Committee gone beyond simply helping debtors whose lawyers are incapacitated and extended its help to others without resources?

We realized that there was a need for a more formal institutionalized process for Bankruptcy Law Section members to assist in pro bono cases. Members of the Bankruptcy Law Section have diverse practices that cut across many areas in bankruptcy - both large, mid-size and small firms and single practitioners, as well as firms representing businesses and also consumers in bankruptcy matters. We all practice before a small number of judges - three in Boston and two in the Worcester/Springfield area. In a sense, we are a specialized bar with a specialized bench.

Mirick: These members have a great sense of professionalism, of desire to serve, to be exemplars of the profession. One of the factors motivating the formation of the Pro Bono Committee and the institutionalization of a more formal structure was the desire to provide our group with an opportunity to provide pro bono services in an organized way rather than rushing to fill a need on an ad hoc basis. Just to give you a sense of how willing our Section members are to volunteer, Janet tells me that following that first disbarment, which required stopgap measures, she sent out a letter on a Friday and by Monday had a dozen volunteers.

Bostwick: While practicing law is a business, there is also a strong sense of dedication to a profession and a higher calling. We all try to answer that call in different ways. This need was the catalyst for the formation of our various projects as well as our formal committee.

Mirick: The Bankruptcy Law Section's Pro Bono Committee has three ongoing projects: the disbarred and suspended attorney program has been used to find replacement attorneys for consumer debtors; there is also the Reaffirmation Clinic, administered by the Boston Bar Association; and finally, the ongoing effort to enlist lenders involved in the bankruptcy process to provide advanced conflict waivers for pro bono cases through the Volunteer Lawyers Project which do not involve amounts in excess of $25,000.

Editor: Please describe the work of the Reaffirmation Clinic.

The Reaffirmation Clinic helps with Chapter 7 bankruptcies where the debtor's obligations are discharged following his filing for bankruptcy. All of the debtor's non-exempt assets are applied to discharging of debt. If, however, the debtor wishes to retain collateral securing a loan - such as a car - the bankruptcy code provides some options. One is to enter into a reaffirmation agreement with the lender. Notwithstanding the bankruptcy, the debtor agrees to remain personally liable on the loan. If the debtor is not represented by counsel, the bankruptcy code requires the court to hold a hearing to determine whether a reaffirmation agreement is in a debtor's best interest. The Reaffirmation Clinic provides day-of-hearing volunteer attorneys who meet with these pro se debtors, review their bankruptcy petition, make certain that the debtor understands his obligation under the reaffirmation agreement, and provides the counseling that the debtor's attorney would otherwise provide. These clinics are held monthly at the bankruptcy court, sometimes with as many as five or six debtors in attendance. There is a steady list of volunteers who agree to help.

Editor: The third prong of the Pro Bono Committee's activity has to do with conflicts. Please explain this function.

Looking at the membership of the Bankruptcy Law Section, we recognized early on that there were obstacles to be overcome to assist our members in providing pro bono representation. One had to do with the amount of time an attorney could commit; another had to do with whether an attorney had the right skill set. (Attorneys involved in business bankruptcy matters often have different expertise from those involved in consumer bankruptcies.) The third obstacle had to do with possible conflicts within an attorney's law firm. Typically, in a bankruptcy situation an individual debtor might have dozens or more creditors - credit card issuers, banks, loan companies, etc. A lawyer willing to represent a debtor must check with his firm as to possible conflicts. The Bar Association appealed to general counsel to help to develop a mechanism whereby the time-consuming and costly process of screening for conflicts, particularly by the large firms, could be obviated. With the Volunteer Lawyers Project, we developed a process where creditors agree in advance to the waiver of potential conflicts. General counsel of such banks as Fleet (now Bank of America) Sovereign, and Citizens have agreed in advance to an attorney taking on a pro bono case brought to the Section by the Volunteer Lawyers' Project as long as the debtor's obligation is $25,000 or less. These companies have agreed to waive these conflicts, and simply require the volunteer lawyer to send a notice as to who the debtor is and who is handling the case.

Editor: How do you interface with the VLP?

VLP deals with administering the allocation of pro bono cases. They intake the clients, they review them for eligibility and background, and they then prepare a package for the volunteer lawyers. It would be a duplication of effort if the Bankruptcy Law Section tried to deal directly with debtors in accepting their cases. One of the greatest boons to our members being able to take on cases is the conflicts waiver.

Mirick: The VLP is closely associated with the Bar Association. For a number of years Lynn Girton and others of the VLP have attended our Pro Bono Committee meetings, helping us develop projects which would channel the interest of our members into permanent projects rather than ad hoc services, such as when a calamity struck. What we heard from VLP was that they had many bankruptcy cases and many volunteers but the conflicts issue was a real obstacle.

Editor: Why did the Supreme Judicial Court's Standing Committee on Pro Bono Legal Services single you out for the Adams Pro Bono Publico Award?

The Bankruptcy Law Section has a long history of pro bono service dating back to its time as a committee under the Business Law Section. The combination of work we have done with the disbarred and suspended lawyer representation, the Reaffirmation Clinic, and our work with the Volunteer Lawyers' Project has been appreciated by the bar and bench. The Honorable Joan N. Feeney, Chief Judge of the U.S. Bankruptcy Court, wrote a letter listing our many pro bono services, addressed to the Standing Committee which recommended the Section for the award. The award, the first bestowed on any BBA section, was conferred on the entire Bankruptcy Section.

Editor: What is the involvement of the bankruptcy judges, the clerk's office and the U.S. Trustee's office with the Section's efforts?

When an attorney representing consumer debtors is disbarred, there are a number of consumer debtors involved who are already in the legal process. They cannot afford to wait nor do they have the resources to hire another attorney. Originally, the judges called on the bar to assist in these instances. The judges and clerks helped identify the cases and debtors involved in these situations. We also worked closely with the judges in developing the concept of the Reaffirmation Clinic. The judges and clerks assisted by scheduling such hearings at particular times so that there could be a clinic once a month. The judges have also assisted in training and educating members of the Section to undertake pro bono cases.

Mirick: The U.S. Trustee's office, an arm of the Department of Justice, has oversight of bankruptcy cases. This office has been very active in the disbarred and suspended attorney project, making certain that debtors are not left without an attorney. The clerk's office has created an information packet that goes to pro se debtors, informing them of the way to get in touch with a volunteer attorney. The judges, clerk's office and U.S. Trustee's office have helped to make our pro bono projects possible.

Editor: How can in-house counsel become involved with the Section and the Pro Bono Committee?

We welcome the involvement of in-house counsel as well as attorneys from any practice area, both to participate in the Section's activities, and to become active members of the Section and its Committees. The Reaffirmation Clinic is ideally suited to in-house counsel in that the time commitment and the issues are limited and the potential for conflict has been virtually eliminated. We have also had in-house counsel volunteer to take on pro bono cases in the instance where an attorney was disbarred. They have also been helpful in giving waivers so that attorneys can handle cases through the VLP without conflict.