The BBA Bankruptcy Section is deeply concerned about the growing need for effective legal representation by the most needy in our community, many of which are in desperate need of chapter 7 representation. One issue that has long challenged our ability to provide more direct pro bono representation have been issues of conflicts inherent within a large law firm practice. To that end, the Bankruptcy Section previously obtained advance limited conflict waivers from a variety of financial institutions, which in most instances waived any conflicts relating to that financial institution in cases that arose through the Volunteer Lawyers Project (VLP). Over the past several years, however, many financial institutions have become larger and several of our local banks have been merged into national banks, resulting in challenges to obtain additional advance conflict waivers.
While these advance conflict waivers are still in existence and a valuable tool, the Bankruptcy Section recognized that it needed to address the underlying conflict issues more broadly in order to enable large law firm practitioners to accept a larger volume of cases. The Bankruptcy Section’s Pro Bono Committee established a Large Law Firm Pro Bono Subcommittee (Subcommittee) to analyze different methodologies used by other bar associations to address the needs of chapter 7 pro bono debtors. The Subcommittee determined that a program in place in New York City might be useful as a guide in our jurisdiction that would allow for direct representation where a lawyer’s limited role would be in compliance with Massachusetts Rules of Professional Conduct.
The Subcommittee analyzed the ethical issues presented and made a request for an Ethics Opinion from the BBA Ethics Committee. As a result of these efforts, the BBA Ethics Committee issued Opinion 2008-01, which in brief allows a lawyer to represent a VLP chapter 7 debtor as long as the representation is not directly adverse to an existing client of the lawyer’s firm. For example, a lawyer would not be conflicted from representing a VLP Chapter 7 debtor merely because his/her firm represented a large financial institution and that institution issued a credit card to the Debtor and has an unsecured claim in the Chapter 7 case. To screen out whether there are special situations that might materially limit the volunteer lawyer’s ability to advise the pro bono debtor, the Ethics Opinion recommends that the volunteer lawyer run a conflict check only on the debtor and question the debtor at the initial meeting to determine the following:
(i) Does the debtor have one dominant creditor?
(ii) Does the lawyer regularly represent creditors in consumer collection actions?
(iii) Has a creditor of the debtor commenced a collection action against the debtor?
(iv) Is the debtor engaged in litigation in which the other side is represented by counsel?
(v) Has the debtor granted liens or made unusual payments during the previous 90 days?
(vi) Are there any facts indicating that a particular debt could be material to a particular creditor, such as another individual?
Depending on the answers to the above questions, the volunteer lawyer may be required to run additional conflict checks to evaluate whether a direct conflict exists with any of the debtor’s creditors and therefore whether he or she would be able to represent that debtor. However, it is anticipated that in many instances, the above screening questions would not result in a direct conflict and thus result in a greater number of lawyers representing chapter 7 debtors.
After obtaining the Ethics Opinion, the Bankruptcy Section and representatives of many of the large law firms in Boston solicited feedback from the Massachusetts Bankruptcy Bench on the scope of the proposed Initiative. After considering all of the alternatives, the Bankruptcy Section and many of the large law firms determined that it would be most beneficial to enlarge the scope of the Program such that a volunteer lawyer would represent a chapter 7 debtor for the entire case, recognizing that in most instances chapter 7 cases conclude shortly after the Section 341 meeting of creditors. If however, a conflict was not anticipated by the screening questions but nevertheless arose during the case, the lawyer would be allowed to seek replacement counsel and to withdraw from the Program.
We encourage all of our members and interested volunteers to review the full Ethics Opinion and outline of the Pro Bono Initiative. We are in the process of developing materials and will be conducting a Training Program on February 11, 2010 at 4 pm at the BBA. We hope to see many of you there. If you have any questions regarding the Ethics Opinion or the Initiative, please contact Doug Gooding at [email protected] or at 617-248-5277.