Consumer Bankruptcy Journal Winter 2016 - Page 34

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 34 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