WHY THE GAP BETWEEN JUDGES AND
ATTORNEYS OVER FEES?
By Cathy Moran, Esq.
Moran Law Group
Mount View, California
This article first appeared at http://www.
bankruptcysoapbox.com/
V
ery few bankruptcy judges ever
represented average individuals
in bankruptcy before they
became judges.
Fewer were sole practitioners, who
must rely on the fees they earn and
collect to stay in business.
Those two factors seem to create the
chasm between bench and bar over
attorneys’ fees in consumer bankruptcy
cases.
This post starts from the experiences
of a colleague who sought approval
for fees toward the end of a Chapter
13 case. That fee application resulted
in a written opinion denying in part the
request for fees over and above the
flat fee or “no look” fee available in this
district.
Some
assumptions
underlying
the written opinion are ill considered;
having been written down, the view of
the judge writing may attract a following
beyond the facts of the case in question
and beyond the realities that consumer
bankruptcy lawyers face.
opinion, from the attorney’s fees side of
the gulf between bench and bar.
The fee is “too high”
In reducing the fees requested, the
judge writes that the fee is “too high,”
because the work was “the ordinary
sort of counseling asso ciated with any
chapter 13 filing”.
So?
The unstated assumption is that
whatever counseling is required is
subsumed in the no-look fee.
It may be “ordinary”, but it’s still part of
what an attorney owes her client and
necessary to maintain a good working
relationship with the debtor. Particularly,
when the communication is initiated by
the debtor and it’s the debtor who will
pay the fees as approved, what’s the
attorney to do?
Let’s face it: clients are not the
same. They have different levels of
basic knowledge; different problems
from case to case; and different “stuff”
happening in their lives.
So, here’s my perspective on the
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CONSUMER BANKRUPTCY JOURNAL
Winter 2016
Some clients are needy, illogical,
insecure, and forgetful. Some have
situations more complicated than
others. Families, jobs, and health get
in the way.
If the court gets to exercise hind sight
on the necessity of the counseling,
without having met or interacted with
the client, the attorney is left with
unpalatable choices.
·
Ration
counseling
and
responsiveness to the debtor
·
Represent
only
rational,
organized,
educated,
and
unstressed debtors
·
Render the necessary service at
the attorney’s expense
None are appealing alternatives from
my point of view. I strive to provide
good service and make a modest
living. Those choices conflict with my
goals.
Services are “administrative”
The second basis the court used for
denying a part of the request was
an assessment that many of the
National Association of Consumer Bankruptcy Attorneys