Workshop on Bankruptcy

May 17–19, 2001
St. Louis, Missouri

Back to Workshop Program

Professor Karen Gross
May 2001

In the mid-1990's, I spent a portion of one of my sabbaticals working with consumer debtors at the New York Legal Aid Society. Quite apart from what I garnered from this experience (credibility being high on the list since most of my years in law practice were focused on Chapter 11 work), I saw an opportunity for our students to gain invaluable legal experience by working with an under-served population. So, together with the then head of the Consumer Division of the New York Legal Aid Society (an extraordinary consumer advocate named Morton Dicker), we established the NYLS Bankruptcy Assistance Program. To date, the program has been running for five years with our fiftieth student completing the program this year. (A reunion is in the works for Fall 2001.)

Overall, the program has been a remarkable success on many fronts: (1) It has given our students hands-on experience working with both substantive legal doctrine and actual clients; (2) It has given our students work experience that is valuable for job searches, even jobs that are not in the bankruptcy field; (3) It has helped an excellent but understaffed organization that needs and wants the students’ assistance; (4) It has exposed students to some of the emotional issues that lawyers confront in dealing with troubled clients; and (5) It has allowed NYLS, as an institution, to give back to the larger community.

The program itself can be broken into four major parts: training, client observation, actual client contact with counseling and form completion, and periodic monitoring and debriefing. These components are more fully described below. I have also appended two documents: a description of the program delivered to students considering joining the program and the form the students complete to express interest. Other and further documents are available upon request. At the end of these remarks, I will suggest two avenues we are presently pursuing to provide added benefits for students.

Two additional pieces of information are critical to understanding this program and its success. First, the program has received the unfaltering support of NYLS and the expertise of a wonderful program administrator, Helena Prigal. She has handled all the logistics for the program (which are considerable -- just think about scheduling for the students who want to work) and has overseen all aspects of training and follow-up. Without her (or someone of similar talent), a program such as this could not succeed. It would take far too much faculty time if there were no such support system. Second, our program is funded in large part through Federal Work Study funds. (The Work Study monies comprise three quarters of the major funding; NYLS contributes one fourth of the remaining funds (which amounts to approximately $15,000 annually.) Almost every student in the program is paid for his/her time, including for the training and follow-up. As such, students do not receive any course credit for their participation. The availability of funding has made the program popular, and it is usually oversubscribed. (We also announce and describe the program in relevant classes which increases visibility.) In terms of NYLS, in addition to the share mentioned above, the law school has also paid for the refreshments at our various training sessions and for the duplication of needed materials. It has also provided space for the training and follow-up sessions.

The program’s key components are as follows:

• TRAINING: All participating students receive mandatory training geared to the bankruptcy work they will be doing. (Most students have completed or are currently enrolled in the basic bankruptcy course. On occasion, we have allowed a student who has completed Commercial Transactions or had prior work experience to participate.) The training is in two live sessions: one is geared to substantive knowledge acquisition, including the federal and state laws that surround the bankruptcy laws - Fair Credit Reporting Act, Fair Debt Collection Practices Act, state UDAP statutes, garnishment procedures, government support programs and the like. The second session is more geared to client counseling issues and form completion; this aspect of the program has sample documents included so students can familiarize themselves with what they will see at the Legal Aid office. Students also learn to complete the special documents Legal Aid requires. This year, we added to different feature: a presentation on the top fifteen things every person working with debtors should know. There was a voluntary session on credit reporting and credit scoring, which, in the future, we may require.

  There is one message that is repeatedly delivered in the training: ask if you do not know, even if you are working with a client. We explain that unlike school and exams where one can pretend to know (and hope that no one notices), this is NOT such an occasion. This is an important message to keep repeating. Thankfully, the head consumer lawyer at Legal Aid (formerly Mort Dicker and now John McManus, his most able successor) is very accessible and keeps an open door policy which facilitates the ability of students to ask often.

  There is one other piece of the training that is new and we now think critical. We require the students to go to the courthouse in either New York City or Brooklyn and see where and how the bankruptcy petition and related documents are filed -- in essence following in very steps they are asking their clients to take. We also require that they attend a Section 341 meeting so they can better tell clients what to expect. We ask that they go to these locations by bus or subway, again so they can better tell clients how to proceed.

  When filing for consumer cases goes online, thereby requiring electronic filing, we will add a training component on this as well, together with an important discussion of privacy issues and privacy protection.

• OBSERVATION: The Legal Aid Society’s procedure for dealing with consumer debtors breaks into three parts: an initial interview to assess the client’s situation and to consider with the client the options available for him/her; a second meeting if the client determines to seek bankruptcy relief at which the necessary forms are completed (if possible); and a final meeting to go over the completed forms to insure their accuracy and the client’s understanding of same and then to advise the client as to how to file the petition. There is also a discussion of the Section 341 meeting. On occasion, if there is an objection to discharge or other litigated issues, the students get involved. So, a client appears in the Legal Aid office a minimum of three times.

  Before any student is permitted to work with a client, he/she must attend and observe examples of all of these three meetings: listening, watching, learning and asking questions thereafter. Usually, a student observes for several days before beginning on his/her own. Moreover, most students are not permitted to venture completely solo even after the observation period; instead, they are observed for the first few times they work with clients, either by a lawyer or another more experienced student.

• CLIENT MEETINGS: The administrative staff at Legal Aid schedules clients for the students to meet. Ideally, a student sees his/her own clients through the entire three meeting process. However, since this is not always workable, students may see clients at any one of the three meeting stages. It is expected that students will do all necessary follow-up with their clients, which is often necessary in order that the Schedules and Statement of Affairs can be completed accurately. Students are also responsible for reviewing and correcting the documents when same are typed. No documents, however, are ever filed with the court unless they have been reviewed by the head consumer lawyer at Legal Aid. So, even assuming a student did not ask the right questions along the way, there is a final check-point where all work is reviewed.

  Meeting with clients, developing a relationship, listening, learning, counseling, questioning - these are all skills that the students develop over the course of a semester or year. Most students recognize that they have a huge responsibility in this program and they need to exercise that responsibility with care and attentiveness. Interestingly, the students help each other in ways that are not always obvious in the law school environment. They work together rather than in competition with each other, another useful skill for the real world.

  As an institution, we have received wonderful feedback from both the Legal Aid Society and clients assisted by our students. This praise is important for students to see as well.

• FOLLOW-UP AND DE-BRIEFING: We try to have at least one or two meeting each semester to allow students to express their feelings with respect to their work. These sessions usually revolve around several extremely difficult but important lawyering themes: How does a lawyer separate him/herself from her clients so he/she does not walk home with all the client’s problems on his/her own shoulders? How does one walk the dividing line between providing information and making a decision for a client? How does a lawyer know if he/she has gotten all the needed information? How does one handle one’s own lack of knowledge on a particular legal issue? How does one handle clients who are emotionally distraught, ill or stressed?

  One of the most interesting observations by students in this process is their realization that they are not vastly different from the clients they meet. Students are frequently in debt; they use credit cards and make less than 100 payment each month; they have students loans; they have family illness; they worry about losing a job. The we/they approach just doesn’t always work. Their level of empathy rises.

  Finally, I seek to probe the ways in which the existing law works and does not work. This has a law reform aspect to it; frequently, it is only when the law is in action that one perceives its flaws. Indeed, one student sought to amend the New York exemptions (which are remarkably antiquated) in an independent study he did.

There are still pieces of this program that could be improved. We are working to obtain permission for students to attend Section 341 meeting as their client’s representative. This would be valuable for both the students and the clients. Most clients are scared to appear alone, and students could participate in another forum that is, by its nature, more adversarial. (Legal Aid does not have the available resources to do this.) We are also investigating the possibility of allowing students to develop appropriate litigation in the consumer finance arena if such problems present themselves. A number of the Legal Aid clients are subjected to predatory lending practices or other behaviors that are violative of state and/or federal law. However, these causes of action are not pursued. This is a labor intensive project, and the Legal Aid Society does not have the person-power at handle same.

Of the many things I do at NYLS, this is among the most rewarding. I sense that our students are going to be better lawyers because of the program. In the beginning, I used to wake up at night, worried that our students would be giving bad advice and that the Legal Aid clients were not getting the benefits of a full-fledged lawyer. But, I have recovered from this anxiety pang. First, without NYLS students, these clients would be left to appear in bankruptcy pro se, hardly a good result. Second, many of the participating students are spending more time with these individuals than would a lawyer whom the client retained (assuming they had the funds to do so). Many consumer bankruptcy lawyers leave lots in the hands of paralegals. So, these Legal Aid clients are getting time and attention, with all work reviewed by a trained lawyer. Third, our students are not flying solo; they are part of a team effort that redounds to the benefits of the Legal Aid clients.

I and Helena Prigal (hprigal@nyls.edu) would welcome answering any questions which any of you may have in respect of this program; we look forward to hearing from you.