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Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases

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Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases Online CLE Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases 1 General CLE credit From the Oregon State Bar CLE seminar 32nd Annual Northwest Bankruptcy Institute, presented on April 5 and 6, 2019 © 2019 Edward Boltz, Gary Dyer. All rights reserved. ii Chapter 2 Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases EDWARD BOLTZ Law Offices of John T. Orcutt Durham, North Carolina GARY DYER Office of the U.S. Trustee Spokane, Washington Contents Presentation Slides: The Risks and Rewards of Unbundling in Chapter 7. .2–1 Further Reading . 2–15 Daniel Gill, “Should ‘No Money Down’ Chapter 7s Be Allowed?” Bloomberg Law, October 27, 2017 (Reprinted with Permission) . 2–17 Tessa Santiago, Michael Sousa, and Alex Dolhancyk, “Rustling Up Bankruptcy Unbundling,” NACBA’s 26th Annual Convention, April 2018 (Reprinted with Permission) . 2–19 Bethea v. Robert J. Adams & Associates, 352 F.3d 1125 (7th Cir. 2003) . 2–33 Memorandum Opinion in In re Wright, Case Nos. 17-11936-M (Bankr. N.D. Okla. 2018) . 2–41 Cadwell v. Kaufman, Englett & Lynd, PLLC, 886 F.3d 1153 (11th Cir. 2018) . 2–97 Final Report of the American Bankruptcy Institute National Ethics Task Force (Reprinted with Permission). .2–115 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases 32nd Annual Northwest Bankruptcy Institute 2–ii Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases The Risks and Rewards of Unbundling in Chapter 7 Presented by: Edward Boltz, Law Offices of John T. Orcutt, Durham NC Gary Dyer, U.S. Trustee Program, Seattle WA Disclaimer: These materials and the opinions expressed are not necessarily the position of the U.S. Department of Justice and cannot be used against the U.S. Department of Justice or the Office of the U.S. Trustee. 2 32nd Annual Northwest Bankruptcy Institute 2–1 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases Outline of Presentation • What is unbundling? • Why unbundle services? • How unbundle services? • No money down cases • Self Financing • Factoring • Statutes and Rules affecting these cases 3 What is • Unbundling is the practice of limiting the scope of services unbundling? that an attorney will provide—“dividing comprehensive legal representation into a series of discrete tasks, only some of which the client contracts with the lawyer to perform.” In re Seare, 493 B.R. 158 (Bankr. D. Nev. 2013) 3 Instead of traditional representation, where a lawyer handles a case from start to finish, limited scope representation, also known as “unbundling” or “discrete task representation,” involves representation in which a lawyer performs some, but not all, of the work. In re Ruiz, 515 B.R. 362 (Bankr. M.D. Fla. 2014). 4 32nd Annual Northwest Bankruptcy Institute 2–2 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases Why • Provide immediate representation to the client unbundle at no or low cost. fees? • Retain more clients who would normally balk at initial fees. • Obtain a competitive advantage over firms which require higher fees to begin representation. • Increase total compensation paid if additional unforeseen work is required. 5 • Articles and academic studies have found that Why attorneys may steer clients towards chapter 13 unbundle based on race and class. fees? • These finding presume that such biases are driven by both the higher up-front costs of chapter 7 and the higher allowed fees in chapter 13. • Recommendations from such papers have included unbundling to allow less expensive chapter 7 case. 6 32nd Annual Northwest Bankruptcy Institute 2–3 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases How to unbundle fees • Zero down vs. partial money down. • One contract vs. two contract models. • See Bethea v. Robert J. Adams & Assocs., 352 F.3d 1125, 1127 (7th Cir. 2003) 7 Financing chapter 7 • General practice: obtain all fees from the client Cases before filing a chapter 7 bankruptcy. • For zero/low down fee chapter 7 cases attorneys usually use • Self financing • Factoring entity 8 32nd Annual Northwest Bankruptcy Institute 2–4 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases Financing • Self Financing • Firm assumes the risk of the debtor not Chapter 7 paying Cases • Must have enough income flow from other cases to cover non-payment. • Firms have duty to update compensation of attorney form (2016(b)) if receive money after filing. • Under Bankruptcy Rule 2017 the Court can examine payments received after filing. 9 • Factoring Entities Financing • Generally will pay debtor’s attorney a percentage of the fee up front chapter 7 • Either after the original attorney client Cases agreement is signed or • After a 2nd post-petition agreement is signed. • Debtor’s attorney assigns rights to collect on fees to factoring agency. • Usually have a “claw back” provision between factor and attorney if the client doesn’t make payments. 10 32nd Annual Northwest Bankruptcy Institute 2–5 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases Financing • Factoring Benefits chapter 7 • Allows attorneys who need cash Cases immediately to obtain payment. • Levels the playing field between firms who can self-finance (usually larger firms) and other firms who can’t. • Provides “financing” to debtors who can’t (or don’t want) wait to pay their attorney’s fees in full before filing bankruptcy. 11 Financing • Factoring Detriments chapter 7 • May artificially increase the total of attorneys fees charged to compensate for Cases the factor’s percentage of the fee. • The Debtor will receive collection letters and calls after filing for bankruptcy. • Puts the firm at risk of examination and turnover of attorneys fees. These claims are usually brought against the firm, not the factoring company. 12 32nd Annual Northwest Bankruptcy Institute 2–6 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases Statutes and • “A lawyer may limit the scope of the Rules representation if the limitation is reasonable regarding under the circumstances and the client gives informed consent.” unbundling • Rule1.2(c)(Scope of Representation) and factoring American Bar Association, Center for Professional Responsibility, Model Rules of Professional Conduct. 13 • The issue is whether the debtor has given Statutes and “informed consent”, which includes: Rules • the facts and circumstances giving rise to the situation; regarding • an explanation of the material advantages and unbundling disadvantages of the proposed course of conduct; and factoring • a discussion of options and alternatives; and • in some circumstances, a recommendation to seek the advice of other counsel. • These disclosures should be in writing. 14 32nd Annual Northwest Bankruptcy Institute 2–7 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases • Under the specific circumstances, determining Statutes and if “informed consent” was reasonably adequate, Rules may include review of: • whether the client or other person is regarding experienced in legal matters generally; unbundling • whether the client or other person is experienced in making decisions of the type and factoring involved; and • whether the client or other person is independently represented by other counsel in giving the consent. 15 • 11 U.S.C. § 329(b) allows the court to review Statutes and and adjust the compensation of a debtor’s Rules counsel if “such compensation exceeds the reasonable value of any such services.”. regarding • Disgorgement under § 329 is a remedy where unbundling debtor’s counsel’s services are insufficient and ineffective in order to “redress losses caused and factoring by insufficient work by counsel.” In re Moragne, 2013 WL 3336605 at *4 (Bankr. D. Haw. July 2, 2013); Hale v. U.S. Trustee, 509 F.3d 1139, 1147 (9th Cir. 2007). 16 32nd Annual Northwest Bankruptcy Institute 2–8 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases Statutes and Rules • Under §329, courts have reduced fees that were increased to cover the percentage paid to regarding a factoring company, i.e. the normal chapter 7 unbundling fee is $1200.00, because the factor takes 25%, the fee is increased to $1,600.00. See In re and factoring Wright, Case Nos. 17-11936-M (Bankr. N.D. Okla. 2018). 17 Statutes and Rules • Rule 2017 directs the court to review any regarding payments or transfers, or agreements for either, made directly or indirectly by debtors to unbundling an attorney, either before or after the filing of and factoring the bankruptcy case, to determine if those payments or transfers are excessive. 18 32nd Annual Northwest Bankruptcy Institute 2–9 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases Statutes and • The advisory committee’s comments regarding Rule 2017 explain its purpose: Rules • This rule . is premised on the need for and regarding appropriateness of judicial scrutiny of arrangements between a debtor and his unbundling attorney to protect the creditors of the and factoring estate and the debtor against overreaching by an officer of the court who is in a peculiarly advantageous position to impose on both the creditors and his client. 19 • A chapter 7 discharge permanently enjoins Statutes and collection of “all debts that arose before the Rules date of the order for relief.” 11 U.S.C. § 727(b). • The automatic stay prevents any act to “collect, regarding assess or recover a claim against the debtor unbundling that arose before the commencement of the and factoring case.” 11 U.S.C. §§ 362(b), 523(a). • These sections are relevant to the argument that collection of fees post-petition is a violation of the automatic stay or discharge injunction. 20 32nd Annual Northwest Bankruptcy Institute 2–10 Chapter 2—Bankruptcy Bermuda Triangle: Unbundling and Factoring in Consumer Bankruptcy Cases Statutes and • 11 U.S.C.
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