October 18, 2021

Reflections on Pro Bono Counsel in Chapter 13 Cases

Hon. Elizabeth S. Stong

Asking a judge—particularly a bankruptcy judge—to say a few words about the needs and opportunities for pro bono representation in our courts, particularly in the context of Chapter 13 bankruptcy cases, is a high-risk enterprise, for a couple of reasons. To be honest, there is just so much to say. But I will do my best to be brief—even though we judges are not known for this. I have three things to say: we need your help, we appreciate your help, and we thank you for your help.

First, we need your help. Chapter 13 bankruptcy cases occupy a very particular place in the bankruptcy world, and in the federal justice system. I can’t think of another area of law that more directly and consistently affects a family’s fundamental desire to keep their home, or if that is too much to manage, a family’s hope to find a path forward that is as dignified and decent as possible under the circumstances. And of course, every time a family succeeds in this way, the lender succeeds too—because a non-performing asset (a mortgage in default) is resolved, one way or another. If a Chapter 13 plan is confirmed, the arrears will be repaid; if loss mitigation leads to a modified mortgage or some other resolution, that’s good too; and if the case does not succeed, at least there is closure.

But a successful Chapter 13 case is not easy. In bankruptcy court, we live at the messy crossroads of debtors and their creditors, mortgagors and mortgagees, homeowners and banks. Things can happen quickly, and a misstep at the outset of a case can be devastating to its prospects. The advice of counsel—even the most basic guidance—can make the difference between a case that is dismissed in 45 days and a case that leads to a successful outcome for debtors and creditors.

Most—indeed, nearly all—lenders are represented in these proceedings, and experienced lenders’ counsel is absolutely invaluable in this process. These lawyers have vast experience in understanding and working with a situation to get the best result for their clients, and they are an indispensable part of the process. The Chapter 13 trustee is likewise highly skilled at guiding a process that can be successful for the homeowner and the lender alike. And the bankruptcy court has resources for all of the parties, including regular case conferences on the confirmation of a Chapter 13 plan, a highly successful loss mitigation program, a pro se law clerk, and more.

But many Chapter 13 debtors are not represented by counsel. Their situation may be urgent, and their bankruptcy case may be incomplete, filed in haste to stop a foreclosure sale or an eviction. They may lack even the most basic understanding of whether bankruptcy makes sense for them or how to get the benefits of a bankruptcy case in their particular circumstance. When this happens, the prospects for a successful outcome, one way or another, can be diminished or even lost. That’s an unfortunate result for the debtor and their family, for the mortgage lender and other creditors who might have been paid through a bankruptcy case, and for the bankruptcy system itself.

That doesn’t have to happen. In many of these cases, the debtor may be able to retain counsel. Unrepresented debtors are regularly encouraged to contact the lawyer referral services of local bar associations to obtain referrals to attorneys who are qualified to assist them in evaluating their bankruptcy options and to represent them in a Chapter 13 case. Sometimes family or household members can assist in paying the fee, whether up-front or over time, including through the Chapter 13 plan. But other times, no matter how hard the debtor and the debtor’s family try, the funds to pay an attorney just aren’t there.

Here’s where the need for pro bono counsel comes in. Not for every pro se debtor—that’s not at all what I’m suggesting. But in those situations where the debtor is unable to pay a fee, even with help from contributors, even over time, and still meet their basic needs, then every participant in the process, from the debtor to the secured creditor and all of the other creditors, to the Chapter 13 trustee, and the court, benefit from the service of pro bono counsel.

Second, we appreciate your help. Bankruptcy courts have many tools. We have broad jurisdiction, the Bankruptcy Code and Rules, our extraordinary colleagues, a highly professional, sophisticated, and creative bar, and some of the most interesting cases in the federal system. All of us in the bankruptcy practice have the opportunity to make a difference, every single day. We help companies reorganize, we give families the opportunity to get back on their feet with a fresh start, and we get creditors paid.

But sometimes, it takes a lawyer to get these good results. And in Chapter 13, that “sometimes” is actually most of the time. A missed opportunity to get to a good result is a loss for the debtor, the creditors, and the court. And a saved opportunity to get to that good result, through the service of pro bono counsel, is a win.

It’s hard adequately to describe how satisfying it is to see a pro bono attorney succeed in a case—no matter what the definition of “succeed” proves to be in the particular situation—or how much this representation is appreciated. Bankruptcy court is often where individuals and families land at a moment of crisis in their economic lives, and as hard as we try to make it a user-friendly and accessible place, it can be intimidating. There are countless ways to make a mistake early in a case, and the cost of such a mistake can be high indeed. The costs of a failed case are borne by the debtor and their family, of course. But they are also borne by creditors, who lose the chance to get paid through the orderly administration of a bankruptcy case. This may well be avoided when pro bono counsel steps in early in the case.

Even more fundamentally, every party—whether represented or not—deserves to understand what is expected of them, what is happening to them, and why. We can conduct hearings in person, telephonically, and on video, and we have access to interpretation in countless languages—but courts cannot “interpret” the law for a pro se party or provide legal advice. Here too, it’s hard adequately to describe how satisfying it is to see that a party who would otherwise risk being lost in a maze of legal proceeding is now represented by their own counsel, or how much this work is appreciated.

Third, we thank you for your help. Sometimes it’s worth remembering that “pro bono” means so much more than “for free.” It is derived from “pro bono publico,” and means “for the public good.” According to the Oxford Reference, it was first used in this sense in England in the late seventeenth century, and now is commonly used to mean “work undertaken for the public good without charge, especially legal work for a client on a low income.” According to Wikipedia, it means “professional work undertaken voluntarily and without payment.” When I was in private practice, I liked to think that a characteristic of my pro bono work was that all of the income that it generated—in the form of professional satisfaction—was non-taxable.

It should also generate this: thanks. We don’t say it nearly often enough, and it could never be said too much. Thanks for considering pro bono work, thanks for every hour you have ever spent on pro bono work, and thanks for every hour that you are spending now and that you will invest in the future in pro bono work. Thanks for keeping that family in their home, or for helping them to understand that they need to move on. Thanks for helping your pro bono client get through one of the hardest times they will face, knowing that there is someone in their corner—and thanks for being that “someone” for them. And thanks for providing the secured creditor’s lawyer and the Chapter 13 trustee with a lawyer with whom they can speak in addressing the situations presented by the case.

Finally, thanks for appearing in court on behalf of your client, and helping the court to have the best possible hearing in a difficult situation. And when I have to make a hard decision in a Chapter 13 case, and because of your service the debtor has an advocate, thanks for helping me sleep well that night.

***

Does any of this make it easier to step forward and take on a Chapter 13 bankruptcy case, maybe for the first time? Does it begin to answer the question why someone who owns a home could somehow need a pro bono lawyer to help save that home? Hopefully, it does, at least a little bit. The need for this help is there. We may not see it from the bench every day, but we surely see it often—too often.

Pro bono assistance also fills a critical gap between what the pro se debtor needs and what the court, the Chapter 13 trustee, and counsel for other parties can provide. Closing that gap can make the difference between success and failure of a case.

And finally, pro bono assistance is not just legal work “for free.” It is foundational to the profession, and serves the public good. And it deserves our recognition, and our thanks.

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    Hon. Elizabeth S. Stong

    U.S. Bankruptcy Court, Eastern District of New York

    Judge Stong is a US Bankruptcy Judge for the Eastern District of New York.  Previously, she was a litigation partner at Willkie Farr & Gallagher and law clerk to US District Judge David Mazzone.  She is a member of the Council on Foreign Relations, the Council of the American Law Institute, the Advisory Committee to Columbia University’s Committee on Global Thought, and the Advisory Board of the ABA Center for Human Rights.  She holds leadership roles in the Practising Law Institute, PRIME Finance, and the ABA’s Business Law Section, International Law Section, and Judicial Division.