UNLV law professor Nancy Rapoport asks a series of questions in her latest article published in www.ConsiderChapter 13.org.
To what extent must a debtor’s attorney personally meet with the client prior to filing the petition on behalf of the client, and how meaningful should the meeting be?
More specifically, how much can the attorney safely and ethically delegate to non-lawyer staff: Intake interview? Filling out forms? Obtaining and reviewing documents like mortgages and paystubs? Telling the client that s/he needs to file chapter 7 or 13? Telling the client what the attorney’s fee will be and getting the client to sign the retainer agreement? Going over the petition and schedules with the client and getting the client’s signature? If the attorney is reviewing the non-lawyer’s work along the way but does not personally meet or talk with the client, is that adequate supervision? What if the only contact the attorney has with the client prepetition is one “facetime” or skype video call, but the non-lawyer assistant does everything else?”
Let me answer the first question very directly: An attorney must substantially communicate with a client prior to filing a bankruptcy petition. In fact, the communication must be more than just chatting about filing a petition. It goes much deeper than that. Should the client even consider filing bankruptcy as opposed to some other debt solution, like consumer credit counseling or debt settlement or lifestyle downsizing?
Beyond the discussion of which debt solution is best for the client, it is important for the attorney to figure out the real cause of the money problem. Financial problems are often secondary to a more general personal or family problem. I may have two clients with identical financial problems but may recommend completely different courses of action based on their personality, education level, age, physical condition, emotional issues, etc. You must understand the client before you can really understand their financial problem.
Having said that, I am a big believer in building high quality systems of practice. Delegating tasks to paralegal staff is essential. In fact, to be unable to delegate is in its own way failing the client. If an attorney cannot return phone calls because they are too busy doing clerical tasks that could and should be delegated, that is a problem. Building standard operating procedures driven by checklists and attorney review procedures benefits clients. Having a paralegal staff trained to think as lawyers and who can respond to client requests quickly is appreciated by clients. Systematically training of staff on all parts of the bankruptcy process is at the core of building a great firm. Delegation is not the problem.
Bankruptcy practice is susceptible to machine-driven operation for many reasons. Bankruptcy petitions are prepared on standardized federal forms. The process is basically the same from state to state since it is a federal law that plugs in local state exemptions that are very similar, so forming firms that operate in multiple states is common. Most bankruptcy firms utilize the same computer software packages as well, so the work performed by an attorney or paralegal in New York is almost exactly the same as those who work in California. Client management software and cloud computing and internet-based telephone systems increasingly allow attorneys to expand geographically. The Matrix is real.
The problem is not caused by staff delegation or the use of technology. The problem associated with diminishing attorney-client contact is decisional. The attorney either decides to stay connected to the client or they decide to bum off the job to staff and technology. You decide to be accessible or you do not. You can build a system either way.
I’ve chosen to build a firm that uses every ounce of talent my staff has and to utilize technology to help us achieve our mission, but to require that each client has a personal relationship with their attorney and their paralegal. That’s an expensive way to build a bankruptcy practice. Good paralegals are not cheap and they tend to be sassy. Great attorneys take years to train and they leave unless they are provided with proper compensation and a sense of self-control.
It’s a lot more profitable to build a bankruptcy mill on cheap labor and technology, but invariably those firms at some point blow up at some point. They thrive for a while but eventually collapse.
Communicating with clients exclusively over the telephone, Skype, Facetime, or video conferencing is all fine. The medium does not matter. It’s the attorney’s commitment to professionalism, caring and the client that matter in the end. Clients know when they matter. They know when calls are returned, emails are answered, and when the attorney fusses over details.
I think Nancy’s point is that attorney contact with the client must be continuous throughout the case and that some firms are limiting that contact a a quick 10-minute sales consultation. I could not agree more.