Enriching the Bankruptcy Practice Through Pro Bono

Institutional support, involving the courts, and many committed volunteers account
for the success of the Bankruptcy Section pro bonoprograms, which are
models deserving emulation.

by Hon. Nancy Dreher

All of us know of Bar initiatives that last a year or so, look great, and then falter because with new and ever-rotating leadership, priorities change. Indeed, this is the bane of all Bar presidents: you usually inherit someone else's priorities while wanting to support your own.

Many of us will also recognize the not-always-uncomfortable problem Bar sections face in figuring out what to do with accumulating section dues. Not to mention the challenges of mounting programs that members will support and that will serve as examples for other Bar organizations.

For those facing these problems and, in this holiday season, looking for ways to "give back" to the community, I offer the case study of the MSBA Bankruptcy Section's pro bono program, an effort of long standing that has inspired the launch of similar programs in bankruptcy bars from Boston to Seattle.

Beginnings

Like many other practice groups within the Bar, the Bankruptcy Section has for many years included a number of individual attorneys who made themselves available informally as volunteers to counsel potential pro bono clients. Few of these clients have required a full-fledged bankruptcy filing; most simply require advice in the area of creditors' rights or perhaps need someone to write a letter to a demanding creditor telling the creditor not to waste further effort trying to collect from a desperately impecunious debtor. Volunteer Lawyers Network (vln), a Hennepin County-based volunteer attorney program, referred many of these cases to members of the Section, but initially these arrangements were not part of an organized Section effort, nor did they involve the Bankruptcy Court.

Laudable though these efforts were, as time went on it became increasingly clear that individual efforts alone were not meeting the needs of the court, debtors, creditors, or the bar. Demand for a more formal program arose from both increasing numbers of unrepresented individuals in the court system and Section members' continuing interest in identifying outlets for pro bono service.

A more organized effort began in the early 1990s. Coincidentally, the aba at this time amended the Model Rules of Professional Conduct to include Rule 6.1. This rule, subsequently adopted in Minnesota, provides that all attorneys should, on an aspirational basis, be devoting at least 50 hours per year to pro bono efforts. Spurred on by the new rule and the growing demands for service, the Section undertook to launch its adversary program with the cooperation and assistance of the bankruptcy judges.

The Adversary Program

The program started quite simply and was limited to providing services to defendants in adversary proceedings, which are lawsuits of a certain type that are brought in the Bankruptcy Court. Attorney volunteers, gathered and coordinated by the Section, undertake to represent the clients and take the cases through to conclusion. Funding is provided in the form of contributions from the Section and from the U.S. District Court for the District of Minnesota which, at the request of the Bankruptcy Court, has contributed funds to vln to help it defray the costs associated with screening prospective clients for the program.

Each time an adversary proceeding is commenced, the clerk of Bankruptcy Court sends the defendant a Pro Bono Notice, advising the defendant in plain English that he or she may be eligible for representation on a pro bono basis. The defendant is instructed to call Volunteer Lawyers Network, which screens the callers to determine whether the defendant's family income falls within the federal Poverty Guidelines used by vln and other Legal Services providers to determine eligibility for services. If the defendant qualifies based on income, the caller is referred to a member of the Section who has signed up to participate in this special adversary proceeding program.

The number of cases in which representation is provided has differed from year to year, but at times the program has serviced 25 or more defendants in adversary proceedings.

While the program was originally designed to accommodate concerns about taking paying clients away from the bar at large and to maintain a manageable number of cases, the success of the program to date has enabled its more recent expansion to assist some plaintiffs as well as defendants in adversary actions. Because the Section has not discovered a way to send a general notice to all potential plaintiffs, the structure of this limited expansion is still informal. The Pro Bono Committee of the Section maintains a list of lawyers who may be interested in assisting plaintiffs in student loan dischargeability actions and/or child support issues. When a lawyer in the Section or a bankruptcy judge become aware of a plaintiff who may need a lawyer, the Pro Bono Committee is notified and then sends an email to the list of potential lawyers. Over time, the Section hopes to develop the plaintiff referral network so that it works as efficiently as the adversary defense program.

The success of the adversary defense program appears to rest on three primary supports: 1) the Section has taken "ownership" of the program, has a stake in its success, and is very proud of it; 2) the program has the visible and real support of the Bankruptcy Court and the bankruptcy judges; and, 3) the program is served by a large number of lawyers who are willing to take on cases that sometimes become a little "difficult." While these three elements of success may appear basic on their face, I believe that they are essential to a successful program.

Building on Success

The success of the adversary defense program has inspired the launch of similar and expanded programs in bankruptcy bar associations around the country and has fostered additional program development within the Section. Extensive adversary defense programs built on the Section's model have sprung up in Los Angeles, Boston, New Jersey, and Washington state.
Within Minnesota, the Section has expanded its participation in client counseling clinics sponsored by vln and more recently has been working to establish a grant fund to broaden, refresh and enhance the Section's pro bono programs.

The client counseling clinics sponsored by vln have served hundreds of debtor clients over the years and have drawn many volunteer lawyers from the Bankruptcy Section. In recent years the Section has taken on the formal task of coordinating the volunteers and, within the past year, collaborated with the Minnesota Justice Foundation to recruit law students to work with volunteer lawyers in this program.
Given the success of the debtor counseling sessions, the Section now seeks to copy the program throughout the state of Minnesota. Working in concert with local Legal Services organizations, the Section has arranged one-day counseling sessions in St. Cloud, Duluth, and Mankato. The Section provides the lawyers and the training for the lawyers. The Legal Services organizations provide the clients. It is the hope of the Section to establish ongoing, regular debtor/creditor counseling programs in each of these communities.

The grant fund initiative being undertaken by the Section's Pro Bono Committee is designed to support and augment already successful programs such as the adversary program and the client counseling programs, among other things. Funds could be used for such things as expanding the debtor/creditor counseling programs in their entirety through the state of Minnesota, underwriting the costs associated with expert witnesses in adversary proceedings, and providing assistance via the Internet to lawyers who volunteer to do pro bono work.

Rewarding Volunteers

Volunteers generally don't come seeking tangible returns for their service and it is unlikely we could repay them in any event. However, this is not to say that rewarding volunteers isn't important.
To recognize and assist those of its members who do volunteer services, the Bankruptcy Section has established two separate annual events.

The first event is a seminar on some topic relevant to the pro bono lawyers. The Section invites all lawyers who have volunteered their services to attend the seminar free of charge. Other Section lawyers are invited to attend for a fee. The Section applies for cle credit for each seminar. The event serves to assist the pro bono lawyers in their work and provides the benefit of "free" cle credits.
The second event is an annual recognition reception. At this event the Section recognizes and honors all lawyers who have volunteered time in the various pro bono programs. The Section invites all of the volunteer lawyers, various dignitaries from the bar and the community, the judiciary, and others to celebrate the work of the Section lawyers. The Section gives an award each year to a lawyer who exemplifies the pro bono spirit.

Lessons Learned

I have watched this program grow and have been proud of it and the lawyers in the Section over these many years. I know my colleagues on the Minnesota bankruptcy bench similarly wholeheartedly support these efforts. The Bankruptcy Section has stumbled from time to time on its way to developing these programs. As the Bankruptcy Section continues to refine and expand its pro bono efforts it will no doubt face ups and downs; however, there are lessons to be learned here. As I see it those lessons are:

1. Pro Bono Programs Need Continuous Nurturing
No pro bono program should be started unless it has a continuity plan. I like to compare these initiatives to small children: they need nurturing over years; they cannot be jump-started one year only to be forgotten the next.

The Bankruptcy Section has organized its efforts to avoid this problem. The Section's commitment to pro bono service is institutionalized in the form of the Pro Bono Committee. The vice chair of the Section is always the chair of the Pro Bono Committee. This focuses the attention of the incoming chair on this very important aspect of the Section's activities. The Pro Bono Committee meets monthly, immediately before the Section meeting, as a consequence of which regular attention is paid to its programs.

2. The Money Is There
Finding appropriate outlets for expenditure of section dues is a problem for various msba sections. Obviously, section dues are supposed to be used to support section programs. The Bankruptcy Section has applied a significant portion of its dues collections to subsidize its pro bono efforts. Dues also underwrite the annual reception, which is a costly event, but it's worth it because the lawyers who give of their time deserve a very nice thanks. The Section contributes to vln because it knows that vln needs help wherever it can get it, and that the job of screening potential clients and matching them with volunteers costs money. Soon the Section may be permanently putting aside a fixed sum each year for the sole purpose of helping to fund other more expansive pro bono programs. Even with these expenditures the Section has always remained solvent and been able to fund other programs.

3. Members Like It
Based on my experience and anecdotal evidence I've heard, the members of the Bankruptcy Section are pleased and proud to support these pro bono programs. There is rarely, if ever, much discussion and no dissent when the Section votes to make the annual contributions or to provide other funds for other parts of the programs. No one is complaining; to the contrary, they appear pleased to have a bar leadership that pays this subject some attention.
Even more important is that several of the lawyers have indicated that they are grateful to find a way to provide pro bono service in their area of expertise. The Section programs allow the Section lawyers to do what they do best for pro bono clients.

4. Other Sections Can Do It
There may be some things peculiar to the bankruptcy world that have contributed to the success of this program. Perhaps some other substantive areas of the law would not so neatly fit into a similar program. But I don't doubt that a number of other substantive sections of the Bar could clone these efforts or similar ones. It takes a leadership interested in the subject, a willing section membership, careful attention to not designing programs that will take paying business away from membership, the cooperation of the courts in most instances, and careful planning. In my view, creating pro bono programs within the substantive sections of the Bar is one of the most effective ways to deliver pro bono services because the section members understand the needs within their area of the law.

5. The Court Is and Should Be a Resource
No pro bono program will ever catch all the problems. There will always be pro se litigants in the court who insist on representing themselves or who would never qualify for pro bono assistance. But even the smallest efforts should, and do, garner the support of the judiciary. The judiciary must walk a fine line. It cannot be either the forerunner or the vocal cheerleader, lest it go too far and create an appearance of impropriety. But it can, and it should, say thanks where thanks are due. This is done in small ways: by instructing a clerk to give due consideration to the time problems of pro bono lawyers; by attending the award receptions; by agreeing to help teach the training seminars; and by always saying thanks when the occasion presents itself. I know our court is thankful for these efforts and, on behalf of my colleagues, I applaud them.

Hon. Nancy Dreher has been a judge of U.S. Bankruptcy Court for the District of Minnesota since 1988. She was reappointed for a second term effective January 25, 2003.