Workshop on Bankruptcy

May 17–19, 2001
St. Louis, Missouri

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BROOKLYN LAW SCHOOL

CONSUMER COUNSELING AND BANKRUPTCY CLINIC

STUDENT INTERN FIELDWORK MANUAL

Copyright Professor Mary Jo Eyster

January 1995

BROOKLYN LAW SCHOOL CONSUMER COUNSELING AND BANKRUPTCY CLINIC STUDENT MANUAL

1. SCHEDULE, CLINIC OFFICE PROCEDURES
a. schedule, time commitments and meetings
b. intake days
c. work space and files
d. mail and telephone
e. secretaries

2. CASE FILES AND RECORD KEEPING
a. case file

• client papers
• standard forms
• petition
• correspondence

3. STUDENT RESPONSIBILITIES
a. primary case management responsibility
b. client intake
c. information gathering
d. follow-up meetings
e. counseling
f. supervision meetings
g. recording and reporting

4. RESOURCES AND INFORMATION
a. clinic library materials
b. notebook of memoranda and other helpful guides
c. database of forms and information
d. supplies, petition forms, backs, etc.

5. FIELDWORK EVALUATION
a. criteria
b. basis

CONCLUSION

INTRODUCTION

The information contained in this manual is intended to assist you in understanding the requirements, expectations and procedures for a successful clinic experience. While there will be questions and situations that come up during the semester that are not covered, many if not most of the routine matters that you will encounter are contained in these pages. It is of course expected that all of this information will be taken as somewhat general; additional skills and lawyering instruction will be part of the seminar reading, discussions and assignments.

As you will observe in reading through this material, there is a strong component of student intern responsibility and independence on which this clinic experience is based. It is expected that student interns will accept this responsibility and perform their clinic work consistent with that expectation.

1. SCHEDULE, CLINIC OFFICE PROCEDURES, MAIL AND MESSAGES

a. Schedule, Time Commitments and Meetings. The days and times that you have scheduled for your fieldwork are the days that your colleagues and clients expect to be able to reach you in the clinic office. Meetings, interviews and telephone calls may be arranged on the assumption that you will be in and available during those time periods. Thus, it is essential that you stick to the schedule, and inform both the secretaries and your teammates if you will be late or out on a particular day. It is also a good idea to let clients and others from outside our office know when they can reach you by telephone.

Meetings may be scheduled from time to time by either the students or the supervisor to discuss the progress on a case or cases. It will be assumed that you are free to meet with others on the case during your scheduled hours; if you have a client appoi3ntment or other matter that makes you unavailable, please advise the supervisor or secretary, or both. If you want to schedule a meeting with others, please check with the supervisor before setting the date.

b. Intake Days. Intake interviews, which are the initial contacts with the client, will be scheduled on Mondays and Tuesdays. You will be assigned in pairs to conduct the client interview and to obtain the necessary information, forms, etc. from the client. It is hard to predict whether a client will actually appear at the scheduled time; it is a good idea to plan to work on other files while you are waiting.

Every effort is made to distribute the case load, including new intakes, in an equitable manner. However, client availability and the actual show-up patterns of the scheduled clients make it impossible to ensure that each student will be conducting an appropriate number of intake interviews. Over the course of the term, it is most likely that each will have ample exposure to a number of client contacts, including intake interviews; if you feel that this is not the case, please make your concerns known to the supervisor so that the situation can be corrected.

For follow-up interviews you may schedule the client to come in on a day and time that works for everyone involved. It can be on a regular Intake Day, as long as it does not conflict with your intake schedule, or on some other day.

We will try to reserve interview rooms for the regular Intake Days; for days on which you have scheduled a follow-up interview, speak to Lorraine about reserving an interview room.

c. Work Space and Files. The clinic office is utilized by a fairly large number of students who are enrolled in our in-house clinics: Elderlaw, Family Law, Federal Litigation, Prosecutors, Post-Conviction Remedies, Legislation, as well as the Consumer Counseling and Bankruptcy students. It is essential that we all be aware of the needs of the other students, the faculty and the secretaries. It is expected that substantially all of your clinic fieldwork will be conducted in the clinic office, including meetings with the clients, supervision meetings with the faculty\director and team\strategy meetings. Space is provided for students to work individually, or to meet in small groups. You must be aware that the space is not adequate for all students to leave their files and other materials out on the tables when they are not actually working on them; shelf space and filing space is available for housing work materials when you leave the office.

The clinic files are kept in the file room when not in use. It is absolutely essential that they be returned to the file drawer before you leave, so that the file can be located if necessary by someone else who needs information. The content of the files will be addressed in a later section of this handbook ( Part 2 a ).

Client interviews must be conducted in one of the private rooms, both to preserve client confidences and to avoid disturbing others who are working in the main work area. On Intake Days, we will try to have rooms reserved for these interviews; if you are conducting an interview and there is not a room reserved, use one of the available small rooms. If there are none free, speak to Lorraine, or to the supervisor.

There is word processing equipment and computer research terminals in the clinic space for the use of the students. You can obtain disks from the secretaries. It is essential that you use your own disk, rather than the C-drive to store your work; access to the C-drive is essentially unrestricted. Ask Lorraine if you are having problems with the computers or printers. The research terminals are in the process of being installed and/or upgraded. It is expected that there will be access to on-line research on both Westlaw and Lexis in the not-too-distant future.

The copying machine is controlled by Lorraine. If you have any trouble with it, let her know.

d. Mail and Messages. Each student has a box at the front of the office where the secretaries leave any mail or telephone messages that arrive either for you, or in connection with a case that you are handling. It is extremely important that you check your messages each time you come into the office. If you are waiting for a message, let the secretaries know, since it is possible that it might have been placed in the box of another student who is assigned to the case. By the way, be sure to note that the box for your messages is under your name.

e. Secretaries. The secretaries are essential gatekeepers in the office for a number of reasons, and it is important that you respect their need for information, and for their own work space. They need to know when you are in and out, when you are expecting a client, when you will be late, etc. If you have asked a non-clinic friend to meet you in the office, let the secretaries know; also let your friend know that s\he must stop in the reception area and speak to the secretary, who will then page you.

The large number of students and clients in and out of the office make these formalities very important. Client files and information are rather freely accessible within the clinic office, and consequently we cannot have people walking in unchecked.

The secretaries will be happy to assist you with typing and forms, if necessary. It is generally expected that you will do most of your work yourself, but if there is an emergency you can ask for assistance. DO NOT USE THE SECRETARIES' DESKS OR WORD PROCESSORS WITHOUT THEIR PERMISSION. You may use the typewriter that is at the back of their work space, although there are other typewriters that you should try first.

2. CASE FILES AND RECORD KEEPING

a. Case File. All papers related to a client's case must be kept in the client's case file. There must be separate folders for different types of documents, and each folder must be accurately labeled, and indexed if necessary. The following list describes and explains the structure of the case file.

i. client papers. The client will bring in a variety of documents relating to debts, assets, income, etc. These should be copied [ALWAYS RETURN THE ORIGINALS TO THE CLIENT] and placed in a file labeled "client papers." You may find if helpful to make an index for the front of this folder listing the papers the client has produced, as well as papers the client has been asked to produce.

ii. standard forms. ALL STANDARD FORMS BELONG IN THE FOLDER LABELED "CASE MANAGEMENT." Standard forms include the client intake checklist, the Consent, Releases and the Case Diary. The purpose of the Case Management file is to permit quick access to all vital information about the case. The standard forms are stored on the bankruptcy information disk, and there are paper copies in a folder in the file drawer.

The Intake Checklist was developed by students in the clinic's first semester to assist them in remembering all important information to cover in the initial interview. We will be discussing Interview Technique at length during the first several weeks of the clinic, and will talk about the use of the checklist. It may be decided that a different form is desirable, or that modifications should be made to the one we have been using. In any case, some sort of summary of the interview is essential. Either during, or immediately following an interview, it is essential to make a record of the information that you obtained, so that there is an accurate record of what the client has told us.

The Client Consent form should be given to the client to assign at the time of the first interview, unless there is a question about whether we can accept the client. There are a number of reasons why we might not agree to accept a case, but the most obvious are the following: client previously retained another attorney; client has already begun proceedings; serious doubts about the client's veracity; unusual circumstances pertaining either to the client or the case that make the student intern(s) feel that further direction from the supervisor is needed.

Assuming that the case does not present these problems, ask the client to read the consent form. Then ask her/him whether there are any questions. If not s/he should sign it.

PLEASE NOTE: the form specifically limits our representation to the bankruptcy matter. While this may seem obvious to you, it is not always obvious to the client. If there is a related legal problem, a collection proceeding, a divorce, an eviction, we cannot represent the client on those other matters. We will, of course, attempt to provide referrals to other offices that may be able to help on the related matters.

There are Release forms available for the purpose of obtaining information and documentation directly from a creditor or financial institution. these are not necessary in every case, but if you feel that the client's documentation may be inaccurate or incomplete, obtain releases and send them to the institutions requesting current data. Retain copies of the release forms in the Case Management file.

The Case Diary is a very valuable and important record that must be kept current, and retained in the file. The form is on the disk, filed under "Forms." The purpose of this document is to permit anyone working on the case, or responding to an inquiry about the case, to quickly see the history and recent developments. All non-written communications must be recorded here; that includes telephone messages, both completed and not completed, attempt to obtain information from any source, both successful and not, and any other information that pertains to your information gathering efforts on the case. If you have completed a task that your teammate needs to be aware of, that fact must be entered in the Case Diary.

In order to ensure the effectiveness of this record, try to develop the habit of reading the case diary of any case you have been working on each day when you begin. This will save you the time of repeating tasks already completed by someone else, and will remind you of things you have yet to complete.

iii. petition. If we prepare a bankruptcy petition for a client, it is of course necessary to retain that document and other documents related to the proceeding in a folder labeled "Docket." In any case there will be at the very least a petition, a Notice of the Meeting of Creditors, and ultimately a Notice of Discharge. There may be other papers that will need to be filed or sent to the creditors, trustee or others connected with the filing. All of these are retained in the Docket file.

In addition, the information pertaining to these matters should be entered on the Case Summary sheet, which should be attached to the front of the file. This form is stored on the disk under "forms."

iv. correspondence. Copies of all written correspondence must be retained in the file. If you are sending a letter to a list of recipients, you may retain the letter as well as the list of addressees. You may also retain a copy of the letter and the recipients on your disk, to make it easier to retrieve for future use.

b. Case File Integrity. In order to protect the contents of the files and to prevent the loss, or loss of confidentiality, of the documents contained in the file, certain rules must be followed.

1. Do not take a file, or the contents of a file, out of the clinic office.
2. Copy all client papers and return the originals to the client.
3. Do not leave files open on library tables when you are not using them; either re-file, if you are leaving for the day, or close the files and place them on a shelf in the Bankruptcy section.
4. File all papers and record all communications in the correct place as soon as they are received, or as soon as possible. Delay in filing can lead to the loss or misplacement of documents.

c. Docket Sheets and Schedules. In order to keep track of vital dates and information on all the cases, we have developed forms to record in very summary fashion what is happening in each case. The Docket sheet should contain all the cases on which we have actually conducted an initial intake. The Schedule of 341 Meetings list all cases that have been filed, for which a Meeting of Creditors has been scheduled. These forms are on the Bankruptcy disk, and must be updated constantly.

In addition to the above, Lorraine keeps a schedule of the intake interviews. You should check that schedule regularly to determine when you may be needed to conduct an interview.

d. Computer Storage. If you develop any written communications, forms, information lists or the like that may be useful to others in the clinic, be sure to store them on the Bankruptcy disk in addition to your own disk. Also, as explained in the previous section, there are certain forms that must be updated on-line. If you need assistance with this, ask Lorraine or the clinic director.

If you store case related documents on a disk, you must still place a paper copy in the files.

Finally, please remember to delete confidential or sensitive information from the hard drives of any school computers, as these are freely accessible to others. On the other hand, if someone else has accidently stored such information on the hard drive of a machine that you are using, please be careful not to invade the privacy and jeopardize the confidentiality of the material. Computer files are entitled to the same degree of protection as other private materials, but you should take extra care to protect information pertaining to your clients by not making it accessible to others.

3. STUDENT RESPONSIBILITIES

As an intern in an in-house clinic you will be expected to take on a serious level of responsibility for cases and clients. It is important to understand that the expectations are somewhat different than in an employment situation, where a supervisor assigns tasks and makes decisions about how and when they are to be completed. The intern or intern team will be responsible for the management of virtually all aspects of the case; the clinic director is of course available to assist and supervise. If you are uncertain about a decision, or feel that additional input from the director is needed, it is always appropriate to ask for guidance. To assist the director in keeping informed about the status of the various matters, periodic meetings will be held, and CASE DOCKET SHEETS must be kept up-to-date.

a. Primary Case Management Responsibility. After a case has been taken in and assigned to one or more students, the decisions and all necessary tasks are the primary responsibility of the students assigned. There are a number of ways in which the responsibility for case management can be divided and discharged. Whichever means is selected, it is imperative that the various record keeping devices be used to allow both the team members and the clinic director to check the progress of the case as needed.

If you are working with one or more colleagues on a matter, you can decide together to delegate certain tasks to one of you, and decide on deadlines, strategy, scheduling, etc. There may be some matters that all members of the team must be involved in, such as client interviews or other communications that occur at unscheduled times during the week.

Many of the decisions and tasks may seem obvious and straightforward; it might not be necessary to consult the clinic director about these. However, major strategy decisions or the handling of any problems should always be discussed with the director.

If you are concerned about the manner in which the case is proceeding, or feel that the delegation of responsibility is not working effectively, you should either resolve the problems among yourselves or schedule a meeting with the clinic director so that the difficulties can be addressed.

b. Client Intake. Initial interviews with prospective clients will be scheduled on Mondays and Tuesdays. Interns will be assigned to handle these in teams. You may develop a system for conducting these interviews that seems to be effective, such as assigning one person to take primary responsibility for conducting the interview while the other takes notes. Whatever system individual teams devise, it is essential that each of you be given opportunities to conduct the primary question and answer part of several interviews. These will not be assigned until approximately the third week of the clinic, after we have covered a substantial amount of the Interview theory and technique material.

When conducting any client interview it is important to be careful about preserving confidentiality. Be certain that only the client, or clients if a joint filing is contemplated, are present. At times clients bring a friend along for moral support. This person is not going to be covered by either attorney/client or any other privilege, and really should not be present for the interview. It is also possible that the client will be more self-conscious about revealing information with an acquaintance present. The same applies to social workers, adult children, boyfriends and girlfriends, etc. Establish at the outset, before the interview begins, who is to be present; politely request that others wait in the reception area.

Students have developed some materials to assist in the intake interview; these can be obtained from the computer disk or from the file drawer. Among the items that you should have with you when you begin the interview are: 1. The intake checklist; 2. Client information handout; 3. Release forms; 4. Client consent form. It is assumed that you will develop your own system for handling these various forms, but it is essential that you review them and be familiar with them before you start the interview.

At the beginning of the semester, the clinic director will not sit in on intake interviews, because it is difficult for students to take complete responsibility for the session if the director is present. Later in the semester, some of these, and other clients meetings, will be observed. If a problem should arise in the Intake, you can either excuse yourself briefly to consult with the director, or you can advise the client that consultation with the supervisor is necessary before the issue can be resolved.

At the time of the intake, the client will probably have documents that must be copied, so that the originals can be returned to the client. In most cases, it will be apparent that we can accept the case, and the Consent form should be read and signed by the client. If either student has any question about the propriety of representing the client, do not ask the client to sign the form at that time. Instead, explain that we will consult to determine whether we can represent the client, and will let her/him know our decision.

It is important that the client be clear that the primary representation is provided by students working under the supervision of an attorney, as is stated in the Consent form. If the client is not satisfied with this arrangement, we will not accept the case.

c. Information Gathering. Following the Intake, there is generally a great deal of follow-up information gathering that is necessary. It is up to the team members to decide how to handle this aspect of the case. Sometimes it is most efficient to give the client a list of additional items to send or bring to the office to complete the financial picture. Other times it may be preferable for us to take charge of obtaining information. Make sure that both you and the client are clear about who is responsible for which tasks. It might be effective to assign a date by which the client is to send information to the office.

In almost every case, the information that is covered in the Intake is insufficient to proceed with the case. Further information is needed: 1) to counsel the client as to the courses of action available; and 2) to proceed with whichever course the client chooses. Therefore, it is important that you make clear to the client that there will be some delay in proceeding with the matter, so that either additional financial information or legal issues can be developed.

d. Follow-up Meetings. At some point the client will need to be rescheduled to come in for additional information gathering, for counseling about the courses of action available, and/or to complete and sign a Bankruptcy Petition. These follow-up meetings should be scheduled by the team, at a time that will not conflict with Intake responsibilities. The DOCKET schedule that is stored on the disk has a column for noting the dates of such meetings. Please make sure that it is kept up to date, as it will be a primary source of information about what is scheduled for the week.

e. Counseling. After the Intake, and after all factual and legal issues have been resolved, the team must develop a plan for counseling the client. The theory and technique of Client Counseling will be discussed extensively in the seminar. Be aware that in every case, even those that seem straightforward Chapter 7 Bankruptcies, some amount of counseling is necessary. Clients may come into the office set on a particular course of action; this determination may not always be the result of full consideration of available options. Remember that it is the client's prerogative to make a choice, but it is the lawyer's obligation to inform the client as to the existence and effect of all available choices.

It is important that the counseling plan be discussed among the team and the supervisor before the client is actually counseled. The reason for this is that this is a point where any oversights or lapses in our information can best be spotted, and rectified.

f. Supervision Meetings. The clinic director will schedule periodic supervision meetings to keep informed as to the developments, plans, and any problems in the cases. It is expected that the interns will review their cases prior to each of these meetings so that important matters can be raised. Since the supervisor must rely on the interns to highlight issues and problems, it is particularly important that any potential difficulties be raised at the supervision meeting.

Additionally, if an intern feels that it is necessary to schedule a meeting to discuss any aspect of a case, it is your responsibility to do so as soon as practicable. Do not wait if the matter seems to require quick attention.

g. Recording and Reporting. At this point it should be apparent that the interns bear major responsibility for keeping records accurate and up-to-date, and reporting important developments. Many of the developments in the cases are routine, but some are not. It will be necessary for you to develop your judgment about what matters need to be brought to the supervisor's attention quickly, and what matters are routine. To assist in this reporting, there are several forms that must be kept current to allow the director to quickly skim the histories on the cases to spot any problems or delays. If you do not keep the information in these tables current, it is obviously not going to be very effective in keeping the director informed.

However, if there are matters that seem to require more attention than merely entering them on a form or table, you need to raise those directly, either verbally or through a written memo.

Remember that many other people may need to rely on the records that you are keeping, and you will also need to use them to refresh your recollection about case developments. Even though the task may seem tedious at times, it is much less so than attempting to reconstruct events weeks after they occur.

4. RESOURCES AND INFORMATION.

a. Clinic Library. There are several treatises, manuals and memoranda in the clinic library that you will want to consult to resolve any legal or filing (procedural) questions you may have. Of course the Code and the federal digest system are also sources of legal authority and are available in this library as well. Many of the materials that will be useful to you are listed at the top of the Syllabus; these will be found on the shelves adjacent to the director's office. As you will note, some of the reading assigned in the Syllabus is from some of the books that are in the library; there are several copies of these materials so that everyone will have a chance to complete the reading.

b. Notebook of Memoranda and Other Material. There are several memoranda and other informative materials that have been accumulated by the office that may be helpful in your case work. These include, for example, summaries of exemptions available under New York Law, checklists for filing petitions, and the like. These memos will be stored in binders with the other Bankruptcy Materials, and will be indexed and labeled in such a way as to make them accessible. From time to time you may want to refresh your memory as to what type of information is housed in these binders, as they may save you time.

c. Database of Forms and Information. Various types of information, including the forms required for recording case related information, checklists and client information material, is stored on a Bankruptcy Clinic disk. If you want to make changes or additions to this material, please consult with the director. If you have developed a form letter, other communication or any type of document that might be helpful to others in the clinic, please consider adding it to our database.

There are also pre-packaged computer forms that we have acquired to facilitate case management. At the present time, many forms for pleadings and other communications are available on a disk labeled "Bankruptcy Pleadings on disk." Surprisingly, this does not include the standard petition forms, but we are attempting to obtain a computer program to make the initial filing more efficient.

These disks will be kept in a centralized location so that they are accessible to everyone when needed. If you are using one of the disks, the best method is to extract the form to a hard drive, then re-copy it to your own disk so that you can work with it. Then return the main disk so that it is available to others who need it.

If you need assistance with these procedures, please ask Lorraine for help.

d. Supplies, petition forms, backs, etc. There is a supply room that contains most of the things you will need to do your work. Lorraine keeps the key, and she can tell you what is available. If we seem not to have what you think you need, ask.

5. FIELDWORK EVALUATION

a. Criteria. The foregoing summary of your internship responsibilities, and the expectations concerning the casework, should also be understood to represent the criteria on which your performance will be evaluated. It is not possible to quantify precisely the components of the evaluation; there may be different factors that predominate in one case or set of circumstances. However, the following set of factors, as explained more thoroughly in the above sections, will be taken into account.

1. Responsibility

• attending to all necessary case work
• meeting deadlines
• fulfilling scheduled hours
• accurate and timely records
• obtaining necessary guidance

• appropriate handling of cases
• moving cases to resolution
• coordination with teammates

• client relations/communications
• communication with non-clients
• communication with clinic personnel

• identification and presentation of options to client
• explanation of consequences of choices
• guidance to alternative services when appropriate
• guidance in making choices
• handling client's questions and concerns

• fact and information gathering
• identifying problems
• identifying and assessing solutions

• recognizing legal issues
• identifying solutions

• settling or modifying debts
• reaching non-litigated solutions when appropriate

b. Basis The basis for your evaluation will be the performance in the office, and with respect to the cases and matters to which you are assigned. There will be numerous opportunities to assess your performance including: meetings and discussions about the cases; observations; review of records, reports and similar documents; and your mid and end-of-term conferences and reports on case status.

If you are unclear about the expectations and requirements, make sure that you do what is necessary to resolve the uncertainty. You will not be given specific tasks and deadlines by the clinic supervisor, as explained above; consequently, you should not assume that you will be given continuous prodding throughout the semester to complete your assigned tasks.

CONCLUSION

The concepts that are repeated throughout this manual reflect a very conscious choice about methodology. It is the expectation and belief of the Brooklyn Law School Clinical Faculty that one of the best methods for assisting in the development of competent and effective professionals is to give students the kind of responsibility and independence that professionals are expected to exercise. The burden that this methodology places on the student intern is that s/he must, perhaps for the first time, make numerous judgments about the work that needs to be done and the best means of accomplishing it. While most students recognize the value of this role, and welcome the opportunity to develop as mature members of their chosen profession, some may find the role daunting.

If you feel that the level of responsibility and/or supervision are inappropriate for you, you must bring your concerns to the attention of the clinic supervisor. Everyone has a different learning style, a different pace, and different supervision needs. It may be that one supervisor is not as capable of meeting your needs as a different type of supervisor would be. We can make efforts to alter our supervision style to better meet your needs.

The clinical internship experience is intended to permit you to work toward achieving your potential as a member of the legal profession. To achieve this, you must be an active participant in the entire process.