26 February 2010
No. The first reason is because a chapter 13 is a complex legal and financial arrangement. Generally, it is more complicated than a chapter 7. In fact, most lawyers would consider themselves unqualified to assist a client in filing a chapter 7, and even more a chapter 13, and they would be right. The second reason is that the bankruptcy practice is a specialty. This means there are few people out there who are able to give you accurate advice if you are attempting to glean information from those who are knowledgeable. The rest of the information is garbled, off-point, or just flat out wrong. A third reason, related to the second, is that chapter 13 practice, and thus what you need to do, varies substantially from region to region. This means if you are gathering information from the internet or books or pamphlets, if it isn’t geared for your specific locality, its value is decreased. Another reason is that the fail rate for attorney assisted chapter 13 plans ranges roughly between 2/3 and 3/4. The failure rate for pro se filed chapter 13’s approaches 100%. In fact, it is a rarity for the pro se proposed plan to even be confirmed. (Do you know what that means?) Finally, in all likelihood, because of the failure rate, you will waste money, which is probably exactly the opposite of what you are trying to accomplish by filing without the assistance of a qualified attorney.
Let me give you an illustration of the complexity, and thus the danger of filing a chapter 13. A debtor filed a chapter 13, had their plan confirmed, and (after a few bumps in the road) completed the plan all the way to its completion. A success, right? So far I would say yes, and statistically it would be better than about 99% of pro se filers, and even better than the large majority of filers that have the assistance of counsel. But here is what happened.
After the initial filing, but while the chapter 13 plan was underway, the debtor attained a legal claim. After the plan was completed, the debtor sought to pursue the legal claim she obtained while she was completing their plan. The defendant argued successfully that the debtor was barred to pursue the legal claim under the doctrine of judicial estoppel. What happened is that the debtor lost her legal claim because she did not amend her bankruptcy papers while the plan was underway. Robinson v Tyson Foods, Inc., No. 08-14991, 2010 WL 396130 (11th Cir. Feb. 5, 2010).
If after reading this blog you don’t have an idea why the debtor lost her legal claim or what judicial estoppel means, then you shouldn’t file alone. But if you do, when you realize you need help, feel free to give this office a call. However, it would be best to call before trying to do it yourself.
Thursday, February 25, 2010
Wednesday, February 24, 2010
Is the arbitration clause in my credit card agreement enforceable?
24 February 2010
It depends on where you live, how the card is used (commercial or personal), and what kind of claim you seek to bring. For example, if you live in Massachusetts (or otherwise Massachusetts law applies), use your card primarily as a consumer, and seek to bring a claim under the Massachusetts Consumer Protection Act (Mass. Gen. Laws ch. 93A, § 9) then the answer is that the arbitration clause is not enforceable. Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 826 (1982). Again in Massachusetts, if you are either a business or consumer, and wish to bring a class action for entities that would otherwise have insignificant actual damages individually, once more, the arbitration clause is not enforceable. Feeney v. Dell, Inc., 454 Mass. 192 (2009). There are also other types of claims in Massachusetts where an arbitration clause would presumably not be enforceable, or at least would require a heightened degree of notice for the waiver of rights before they are. See e.g., Warfield v. Beth Israel Deaconess Medical Center, 454 Mass. 390 (2009) (finding arbitration clause in employer-employee contract not enforceable against employee’s gender discrimination claim because the employee’s agreement to the clause was not expressed clearly enough).
However, generally, both the United States Supreme Court and the Supreme Judicial Court in Massachusetts have expressed a presumption in favor of arbitration. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (Federal); Miller v. Cotter, 448 Mass. 671, 676 (2007) (Massachusetts). So, in most other cases, an arbitration clause is probably enforceable. In those situations, you must decide if you want to try to be a trailblazer and appeal the matter to the highest court possible to establish new law.
Why does this matter? This is because the arbitration forum has traditionally been thought to favor the credit industry and award conservative amounts of damages to plaintiffs.
There are federal and state statutory schemes dedicated to the application and governance of arbitration. (9 U.S.C. §§ 1 et seq.); (Mass. Gen. Laws ch. 251, §§1 et seq.). The question of whether an arbitration clause is enforceable, or under what specific circumstances it might be, has been a frequent question posed to the courts throughout this country over the past number of decades. Many of these court decisions have been contradictory, which suggests that presenting a sound, strong argument could make the difference between winning and losing. If you are facing the question of whether an arbitration clause applies in a particular situation, we suggest you engage competent counsel, and invite you to contact our office for a consultation.
It depends on where you live, how the card is used (commercial or personal), and what kind of claim you seek to bring. For example, if you live in Massachusetts (or otherwise Massachusetts law applies), use your card primarily as a consumer, and seek to bring a claim under the Massachusetts Consumer Protection Act (Mass. Gen. Laws ch. 93A, § 9) then the answer is that the arbitration clause is not enforceable. Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 826 (1982). Again in Massachusetts, if you are either a business or consumer, and wish to bring a class action for entities that would otherwise have insignificant actual damages individually, once more, the arbitration clause is not enforceable. Feeney v. Dell, Inc., 454 Mass. 192 (2009). There are also other types of claims in Massachusetts where an arbitration clause would presumably not be enforceable, or at least would require a heightened degree of notice for the waiver of rights before they are. See e.g., Warfield v. Beth Israel Deaconess Medical Center, 454 Mass. 390 (2009) (finding arbitration clause in employer-employee contract not enforceable against employee’s gender discrimination claim because the employee’s agreement to the clause was not expressed clearly enough).
However, generally, both the United States Supreme Court and the Supreme Judicial Court in Massachusetts have expressed a presumption in favor of arbitration. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (Federal); Miller v. Cotter, 448 Mass. 671, 676 (2007) (Massachusetts). So, in most other cases, an arbitration clause is probably enforceable. In those situations, you must decide if you want to try to be a trailblazer and appeal the matter to the highest court possible to establish new law.
Why does this matter? This is because the arbitration forum has traditionally been thought to favor the credit industry and award conservative amounts of damages to plaintiffs.
There are federal and state statutory schemes dedicated to the application and governance of arbitration. (9 U.S.C. §§ 1 et seq.); (Mass. Gen. Laws ch. 251, §§1 et seq.). The question of whether an arbitration clause is enforceable, or under what specific circumstances it might be, has been a frequent question posed to the courts throughout this country over the past number of decades. Many of these court decisions have been contradictory, which suggests that presenting a sound, strong argument could make the difference between winning and losing. If you are facing the question of whether an arbitration clause applies in a particular situation, we suggest you engage competent counsel, and invite you to contact our office for a consultation.
Thursday, February 11, 2010
Is it OK to file legal pleadings secretly prepared by an attorney?
11 February 2010
For the attorney, this is called ghostwriting. Whether it is allowed depends on the jurisdiction and the specific court. For instance, in Massachusetts it has been allowed in the probate and family court in certain counties since 1 November 2006. When this ghostwriting is done, the filing must state it was “Prepared with the assistance of counsel” conspicuously. However, it is not allowed in other courts in Massachusetts. It is also not permitted in any federal court in Massachusetts, and presumably none in the entire country. Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971) (requiring any brief prepared in substantial part by an attorney to be signed by him); Durran v. Carris, 238 F. 3d 1268, 1273 (10th Cir. 2001) (same); Clarke v. United States, 955 F. Supp. 593, 598 (E.D. Va. 1997); United States v. Eleven Vehicles, 966 F. Supp. 361, 367 (E.D. Pa. 1997).
What is the concern about ghostwriting anyway? There are more than a few. First, rule 11 of the Federal Rules of Civil Procedure, and almost all equivalent state rules, requires that every pleading filed with the court to be signed by the attorney of record, if the party is represented, or the party himself if unrepresented. The rule also acts as a certification that the pleading/filing is not presented for an improper purpose, that the claims presented are warranted, and that the allegations made have evidentiary support. So when an attorney prepares the pleading but the pro se party (pro se means representing themselves) signs it, the attorney is allowed to skirt the requirements of rule 11. Another problem is that generally pleadings filed by pro se parties are held to a less stringent standard than those filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). So ghostwritten pleadings masquerading as ones being prepared by a pro se will be scrutinized under the less stringent standard for pro se prepared pleadings, which they do not deserve. Another issue is that the practice of ghostwriting allows lawyers to circumvent the rules covering their appearances and withdrawals from cases.
Some courts have taken a hard stance against ghostwriting and warned that not only will the offending attorney be subject to sanctions or discipline, but the pro se filer himself. Duran, 238 F.3d at 1272 (considering a ghostwritten pleading a misrepresentation by the pro se party as well as attorney); In re Mungo, 305 B.R. 762, 770 fn.2 (Bankr. D. S.C. 2003)(warning the ghostwritten pleadings filed by pro se parties could be stricken). So if you are considering filing a ghostwritten pleading, you should make sure that it is permitted in the particular jurisdiction and court you plan to file the pleading in.
For the attorney, this is called ghostwriting. Whether it is allowed depends on the jurisdiction and the specific court. For instance, in Massachusetts it has been allowed in the probate and family court in certain counties since 1 November 2006. When this ghostwriting is done, the filing must state it was “Prepared with the assistance of counsel” conspicuously. However, it is not allowed in other courts in Massachusetts. It is also not permitted in any federal court in Massachusetts, and presumably none in the entire country. Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971) (requiring any brief prepared in substantial part by an attorney to be signed by him); Durran v. Carris, 238 F. 3d 1268, 1273 (10th Cir. 2001) (same); Clarke v. United States, 955 F. Supp. 593, 598 (E.D. Va. 1997); United States v. Eleven Vehicles, 966 F. Supp. 361, 367 (E.D. Pa. 1997).
What is the concern about ghostwriting anyway? There are more than a few. First, rule 11 of the Federal Rules of Civil Procedure, and almost all equivalent state rules, requires that every pleading filed with the court to be signed by the attorney of record, if the party is represented, or the party himself if unrepresented. The rule also acts as a certification that the pleading/filing is not presented for an improper purpose, that the claims presented are warranted, and that the allegations made have evidentiary support. So when an attorney prepares the pleading but the pro se party (pro se means representing themselves) signs it, the attorney is allowed to skirt the requirements of rule 11. Another problem is that generally pleadings filed by pro se parties are held to a less stringent standard than those filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). So ghostwritten pleadings masquerading as ones being prepared by a pro se will be scrutinized under the less stringent standard for pro se prepared pleadings, which they do not deserve. Another issue is that the practice of ghostwriting allows lawyers to circumvent the rules covering their appearances and withdrawals from cases.
Some courts have taken a hard stance against ghostwriting and warned that not only will the offending attorney be subject to sanctions or discipline, but the pro se filer himself. Duran, 238 F.3d at 1272 (considering a ghostwritten pleading a misrepresentation by the pro se party as well as attorney); In re Mungo, 305 B.R. 762, 770 fn.2 (Bankr. D. S.C. 2003)(warning the ghostwritten pleadings filed by pro se parties could be stricken). So if you are considering filing a ghostwritten pleading, you should make sure that it is permitted in the particular jurisdiction and court you plan to file the pleading in.
How do I find an ethical and reputable attorney?
11 February 2010
People usually hire an attorney without inquiring of others whether the attorney has a good reputation and simply assume that the attorney they end up speaking to is ethical. It is hard to learn of a bad egg partly because other lawyers are reluctant to state a negative opinion in fear of the potential fallout stemming from an honest one. Safer to say everyone is great, and let you take your chances with who you hire. So what can you do?
Some ways to find the right attorney is to obtain a referral. But the weight you should give a referral depends on how well the referring entity really knows the attorney, and of his day-to-day practice. Another is to simply ask questions of a prospective attorney, but this too may be a rather limited way to learn of the ethics or reputation of an attorney. It may provide some insight, but it is the walk and not the talk that matters. Another way is to check with the state bar association whether the attorney is in good standing and/or whether he carries malpractice insurance.
Now let’s say you hired the attorney. Now you can try and keep a look out for what you consider ethical behavior. Some items to look for are: 1) Did the attorney carefully screen the claim or facts you presented? In other words, did he seek to make sure the facts and/or claim you presented was indeed truthful or accurate? It may be nice to have a sympathetic ear, but your lawyer should keep you grounded, and not simply tell you what you may be indicating, knowingly or not, what you want to hear. 2) Does the attorney warn you of potential issues or problems that could arise? This includes expenses; how expensive are certain tasks to complete, just how expensive could the pursuit of a certain course of action become? 3) If you filed a complaint in litigation or a petition in bankruptcy, did he provide you a copy and/or review it with you before it was filed? It is a no-no to do otherwise. United States Trustee v. Lynn (In re Bellows-Fairchild), 322 B.R. 675, 677-82 (Bankr. D. Or. 2005)(petitioner signing bankruptcy schedules prior to their completion found to be serious ethical breach and resulted in attorney being enjoined from practicing in bankruptcy court).
Some items that are not good indicators of an ethical attorney are: 1) How much advertising they purchase. Advertising does not make someone ethical. 2) Whether he agrees with you about everything, including your subjective opinions. A good lawyer will play devil’s advocate and probe for problems or potential weaknesses in your case, and will be weary of overconfidence. 3) Whether he promises results or creates for you expectations of favorable outcomes. It may sound great to hear you’re going to win the case or have no problems in your legal endeavor, but it doesn’t indicate you have an ethical or even competent lawyer. 4) A willingness, sometime an over-willingness, to take your case. A cautious lawyer typically indicates an ethical one. If they are too eager for your business, they may not be careful or cautious enough or really care what the merits of the case are.
Through all your trial and error, when you do find an ethical and reputable attorney (and maybe even capable), hold on. A lawyer who is willing to go the extra mile for you is worth his weight in gold. Typically, developing a good working relationship with a lawyer breeds trust, which enhances the attorney-client relationship. There is something to be said for the saying ‘everyone needs a lawyer in the family.’ So, you may not have an attorney in the family, but having an established working relationship with an attorney is a valuable asset for anyone.
People usually hire an attorney without inquiring of others whether the attorney has a good reputation and simply assume that the attorney they end up speaking to is ethical. It is hard to learn of a bad egg partly because other lawyers are reluctant to state a negative opinion in fear of the potential fallout stemming from an honest one. Safer to say everyone is great, and let you take your chances with who you hire. So what can you do?
Some ways to find the right attorney is to obtain a referral. But the weight you should give a referral depends on how well the referring entity really knows the attorney, and of his day-to-day practice. Another is to simply ask questions of a prospective attorney, but this too may be a rather limited way to learn of the ethics or reputation of an attorney. It may provide some insight, but it is the walk and not the talk that matters. Another way is to check with the state bar association whether the attorney is in good standing and/or whether he carries malpractice insurance.
Now let’s say you hired the attorney. Now you can try and keep a look out for what you consider ethical behavior. Some items to look for are: 1) Did the attorney carefully screen the claim or facts you presented? In other words, did he seek to make sure the facts and/or claim you presented was indeed truthful or accurate? It may be nice to have a sympathetic ear, but your lawyer should keep you grounded, and not simply tell you what you may be indicating, knowingly or not, what you want to hear. 2) Does the attorney warn you of potential issues or problems that could arise? This includes expenses; how expensive are certain tasks to complete, just how expensive could the pursuit of a certain course of action become? 3) If you filed a complaint in litigation or a petition in bankruptcy, did he provide you a copy and/or review it with you before it was filed? It is a no-no to do otherwise. United States Trustee v. Lynn (In re Bellows-Fairchild), 322 B.R. 675, 677-82 (Bankr. D. Or. 2005)(petitioner signing bankruptcy schedules prior to their completion found to be serious ethical breach and resulted in attorney being enjoined from practicing in bankruptcy court).
Some items that are not good indicators of an ethical attorney are: 1) How much advertising they purchase. Advertising does not make someone ethical. 2) Whether he agrees with you about everything, including your subjective opinions. A good lawyer will play devil’s advocate and probe for problems or potential weaknesses in your case, and will be weary of overconfidence. 3) Whether he promises results or creates for you expectations of favorable outcomes. It may sound great to hear you’re going to win the case or have no problems in your legal endeavor, but it doesn’t indicate you have an ethical or even competent lawyer. 4) A willingness, sometime an over-willingness, to take your case. A cautious lawyer typically indicates an ethical one. If they are too eager for your business, they may not be careful or cautious enough or really care what the merits of the case are.
Through all your trial and error, when you do find an ethical and reputable attorney (and maybe even capable), hold on. A lawyer who is willing to go the extra mile for you is worth his weight in gold. Typically, developing a good working relationship with a lawyer breeds trust, which enhances the attorney-client relationship. There is something to be said for the saying ‘everyone needs a lawyer in the family.’ So, you may not have an attorney in the family, but having an established working relationship with an attorney is a valuable asset for anyone.
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