What law school ought to be.




Mary Jo Eyster
Clinical Associate Professor, Brooklyn Law School

Preventive Law is a theory that seems to make a lot of sense. Regular medical check-ups are of course a fundamental part of good health. But legal check-ups, like medical check-ups, may not be part of the poor person's health program. Does Preventive Law have an application to the segment of the population who do not have access to routine care?

In reviewing the clinical course offerings at Brooklyn Law School in late 1993 , I was struck by the predominance of litigation models, and the absence of opportunities for students to learn about client interviewing and counseling. I sought to design a program that would give students opportunities to deal with clients in enough depth to learn something about the processes of interviewing and counseling. The vehicle I settled on was consumer debtor representation in the context of possible bankruptcy filings.

One of the striking ironies in the area of debt counseling is that it is fairly difficult for poor people in debt to obtain representation. There are very few programs or offices nationwide that offer free representation or counseling to poor people. (1) One such program that has existed for years in New York City is the Legal Aid Society Bankruptcy Unit. At the time I was planning the format of my new clinic course, I consulted with Morton Dicker who was then the director of that unit, and he strongly supported the idea. For consumers who were above the Legal Aid income and asset limits, there was simply no assistance available other than the private bar. (2)

Due to this dearth of options, there has been a constant demand for our services and the students in the program are virtually assured a steady and somewhat diverse group of clients. The program design is simple, with the overriding goal of teaching students the basic skills that are needed adequately to diagnose and deal with a client's problems: the focus is on interviewing, counseling, problem solving, analysis, negotiation and decision making.

Why do I consider this an example of Preventive Law in action? There are several ways in which I think the precepts of Preventive Law come into play. First and most fundamentally, the purpose of the consultation is to determine whether the problem that the client is seeking help with is best addressed through the legal remedy of bankruptcy. (3) Second, assuming that there is a bankruptcy solution available, will it lead to other problems that may be more serious? Third, will the client's overall financial/debt situation be addressed by filing for bankruptcy, or will the situation be recurring? Finally, assuming that a bankruptcy solution is appropriate, it is in itself a preventive law measure. These are the primary issues that the program stresses in our training and representation, and I will discuss each of them in turn.

Clients who seek our assistance commonly come into the initial interview with the intention of filing for bankruptcy. Though they have not yet received any legal counseling and may know little or nothing about the actual effect of such a filing, they have made a decision that bankruptcy is the solution to their problems. Consequently, it is challenging, but imperative, for the students to obtain a complete understanding of the client's situation and goals. It is essential to educate the students about the importance of really discovering what the client wants, and then thinking expansively about how best to achieve that. In many cases, this will mean that the client's initial "goal" of filing for bankruptcy must be examined rather than accepted at face value. (4) Even the goal of "getting rid of my debt" must be subjected to closer scrutiny. Not to go beneath the surface to find the real objective entails a serious risk that the client will not be satisfied even though the student intern did "exactly what she wanted."

There may be both legal and other means of solving the client's problem and reaching her goals, that do not necessarily involve filing for bankruptcy. For example, clients may be able to demand that the most annoying types of communications from creditors - phone calls from collection agencies - be terminated. The Fair Debt Collection Practices Act makes certain types of contacts by collection agencies unlawful, and the client may merely write to demand that these contacts cease. If the primary goals is to end creditor harassment, this option may be more cost effective than filing for bankruptcy. (5) For other clients, the best course of action might be simply to do nothing. If the client has no income or assets that are subject to collection action by creditors, paying the filing fee may be a greater hardship than the benefit obtained through filing. In other cases, filing for bankruptcy relief might provide a partial, perhaps inadequate, solution. One example is that student loan debt is, for the most part, no longer subject to discharge in bankruptcy. Many clients have several types of debt, including significant student loan debt. If this represents the bulk of the debt, the bankruptcy may be "successful" but the client may be left with most of her debt. Tax debt may be subject to discharge, but not always, and the timing of the filing will often be a critical factor. Careful attention to all of the factors that might affect the outcome of the bankruptcy will help the student and the client select a course of action that most nearly achieves the client's goals.

The second aspect of preventive law that is extremely important in this area of practice relates to adverse consequences that may flow from the chosen course of action. We have had a few cases involving, for example, clients working off the books. These range from clients who have babysitting or seamstress work that they do for friends on occasion, to others who have regular employment outside the home, but who are not reporting the income or paying taxes. There have also been some clients who were collecting benefits from various government programs in addition to the income that was not being reported. In many of these cases there is debt which could be legitimately discharged through a bankruptcy filing. However, the bankruptcy petition is required to list ALL income and debt. Thus, in some of these cases, filing for bankruptcy would create a risk of exposing a client to possible civil and/or criminal sanctions for other related conduct. (6) Students must be taught to counsel clients to avoid these serious potential legal problems, and when appropriate refer the client to other offices for tax, welfare or criminal law assistance.

While it is clear that the student intern and attorney must counsel the client against taking action that would entail a risk of this nature, the facts themselves are often not at all clear. Clients do not always reveal their "guilty" conduct when they respond to routine questions about debt and income. It requires both careful and analysis and careful probing at times to understand the full picture. For example, when a client reports income that is far below her reported monthly expenses, further inquiry is necessary. If her regular monthly expenses are $700, and her monthly income is $550, one must ask questions about how she paid last month's bills, and the month before, and so on. Students often accept statements about income, expenses and debt without probing further to determine whether they are accurate and complete. Not to probe is to risk missing some critical detail. Having been "trained" in doctrinal classes to accept "facts" at face value, students must learn and practice the art of probing for essential missing details without becoming needlessly intrusive or insensitive.

A third preventive law focus in our practice involves analysis of the client's overall financial picture to try to ascertain what her situation will be after the debt is discharged through bankruptcy. In an unfortunate number of our cases, there is simply inadequate income to cover regular expenses. That is, the debt situation may not have been caused by a catastrophic event or by a series of unlucky breaks. It might be the result of the client's trying to make ends meet by obtaining credit cards and using them to buy regular necessary items. (7) When this is the case, one must examine two related issues: what will the client's financial situation be if she loses all of her access to credit, and what overall beneficial effect will the bankruptcy filing have if the client has no way to live within her income. In turn, this line of analysis may give rise to issues about how the client might augment her income - perhaps through government benefits programs or other sources. Additionally, the question of how the client is spending money, and budget issues, may also be relevant. These questions are not strictly "legal," and are often very sensitive issues to raise. In our classes and meetings, we spend much time discussing our roles as legal counselors, and the limits of appropriate legal counseling. (8)

The bankruptcy solution, where appropriate, is often an excellent preventive law measure that will protect clients from many types of legal actions and consequences. Filing for bankruptcy is a means of preventing salary garnishment, home foreclosures, debt collection lawsuits and other costly legal battles. This is often, though not always, the end result of our client counseling. When we have been successful, there are no legal challenges and the client receives a discharge of the debts that are eligible.

To turn back to the beginning, the preventive law approach envisions a type of regular on-going relationship that is most often not available to people of limited means. Just as many of our clients use the emergency room for their "regular" medical care, they use offices like ours, and legal services offices, for their regular legal needs. Routine check-ups are not available. Our office does not have the means to attend to all of these legal needs; nor do most legal services offices. For the reasons described earlier, the law school clinic cannot provide a full range of possible legal approaches. In the decision to focus on bankruptcy counseling we have also in effect defined the nature of the solution. However, within these limits, the preventive law concepts still apply. In fact, it seems to me that given the limits on our ability to offer a full range of options and services, it is all the more important that we carefully consider whether the assistance that we can offer is really in the client's best interest.

1. Susan Block-Lieb wrote an article just about the time I was designing my program that reviewed the existing pro-bono and other free bankruptcy representation programs. Our clinic was not mentioned due to the fact that neither Susan nor I was aware of the work the other was engaged in, and our efforts were taking place essentially concurrently. Susan Block-Lieb, "The Need For Pro Bono Assistance of Needy Consumer Debtors in Bankruptcy," 2 Am. Bankr. Inst. L. Rev.37 (1994).

2. The Brooklyn Bar Association has a project staffed by volunteer attorneys through which debtors can obtain pro-bono representation. The qualifying requirements are essentially the same as those applied in the Legal Aid office. For an individual, the income ceiling is $10,000 per year. The Brooklyn Law School Clinic has accepted several clients through referrals from these two offices. However, we do not apply these income guidelines, so our clients may also include individuals who would not be accepted in either of the above mentioned programs.

3. By design, I limited the type of representation the clinic would offer. To maximize the opportunities for client contact I had to avoid protracted civil litigation. This design choice is one that has both benefits and costs.

4. Clients and students both are apt in the beginning to accept as a "goal" the desire to "file for bankruptcy." Through my prodding and questioning of the students, I urge them to get beyond that potential "solution" to probe for the actual goal. Is it to protect income and assets; to end creditor harassment from phone calls and letters; to relieve the moral guilt and psychological stress of being in debt; etc.? The predetermination by the client, without legal counseling, that bankruptcy will help her reach one of these goals may be incorrect.

5. The cost of a stamp rather than the $200 filing fee presently in effect in New York. There is presently no in forma pauperis fee waiver provision available for bankruptcy cases, though there was such a provision (experimental) when the clinic first operated.

6. If the client is engaged in illegal activity of any type, there is of course already a risk of legal consequences. However, to essentially document the situation through a filing with a federal court would probably highly increase the chances of discovery.

7. It is unbelievably easy for people with limited income to obtain credit cards with relatively high credit lines. Many of our clients have been living on fixed incomes for a long time and have obtained cards legitimately during that time. For them, the choice between incurring further debt or going without daily essentials is a very harsh one, and, particularly when children are involved, debt is the chosen evil.

8. This area of counseling is within the sphere of another related movement encompassed within the term Therapeutic Jurisprudence. By considering the impact on the client's overall welfare, not just her legal rights and outcomes, we are teaching students to consider the therapeutic and non-therapeutic possibilities of the legal action taken.