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David Giacalone

Hmmm. Would similar irresponsibility be relevant to bar admission?

Scheherazade

No WAY, David! Geez, if so, we'd have a profession full of people who never lived, never stumbled. The profession is already too hung up on ACTING AS IF we're not human when we're at work, never screw anything up or feel anything or get confused. If a past that gave someone some good life lessons disqualified us from doing this work what kind of counselors would we be?

David Giacalone

"Never lived, never stumbled" is a strawperson if ever I've seen one. Are you saying a pattern of financial irresponsibility, capped with wanting to escape all creditors, is totally irrelevant to fitness to be a fiduciary for other people? My question is relevancy to admission -- is it worth some sharp questions and probing -- not whether it means automatic or even presumptive rejection.

Parts of our society call far too many things "mistakes." Consistent bad judgment in the service of self-indulgence is not merely a mistake. It's possibly a serious character flaw.

A. Rickey

That said, David, if I ever needed a personal bankruptcy attorney, I don't think I'd mind having one who actually went through a personal bankruptcy. There's something very Bleak House about making sure that one who would defend another in trouble had never slipped himself.

Bankruptcy certainly doesn't top the list of dumb things one can do in their early twenties. I'm not about to suggest we penalize the rest of them on bar admissions...

David Giacalone

"slip" and "stumble" are quite a bit different than spending a number of years walking the path of financial irresponsibility. If you check which lawyers tend to dip into their trust accounts and client funds, I think you'll find most do so because they were living beyond their means.

Folks in their mid-20s keep insisting they're adults. One of the useful things about wanting to join a profession is that it should get you acting like an adult -- acting as if your actions have consequences, sooner rather than later.

And, trust me, you can be a full-fledged adult and still have a full, fun, enjoyable life -- and even "slip" occasionally.

Again, I'm not talking total preclusion from bar admission. There's a continuum. People abuse the bankruptcy system; if it appears the bar applicant planned on living high and then going bankrupt, shouldn't someone care?

Scheherazade

David, you're getting me all riled up here. The Bankruptcy Code, the U.S. Trustee, and the judge are all charged with the responsibility of spotting abusers of the system. Those who do so don't get bankruptcy discharges. (Sure, some do, but every system is flawed.) I object to the board of bar overseers becoming the morality police. I saw the way they hassled some of my friends, who came to the profession from other walks of life, (had been in bar fights when in their twenties or gotten drunk and disorderly while merchant marines or driven too fast or moved around a lot and changed jobs a lot) and I found it reprehensible. As I find your presumption that all those in bankruptcy are carefree ditchers of obligations who splurged too much. That hasn't been my experience, and I'll be interested to hear where that impression came from. (I invite you to spend a day with me and a Chapter 7 or Chapter 13 Trustee, and then we'll talk.) I'm surprised too that you jumped to a "pattern of irresponsibility" from my cautionary "life lessons" posting. This particular pro bono client paid her bills on time until about a year and a half ago, when a combination of domestic abuse and a fire, coupled with a generous but ultimately ill-advised decision by her to take on all of the couple's debts in her own name, coupled with a crappy job situation (you try living on $250 a week, and supporting someone else) got the better of her. Now you would subject this person, who could easily go back to school in 10 years and be applying to bar admission, to the process of explaining decisions she made when she was 19 and 20 to some sneering judgmental overseers? I don't like it, David, even though I know you have client protection foremost in your mind. Your assumptions about human nature and your willingness to see unethical behavior in simply poor life decisions is too highly attuned, I think.

I suppose the bankruptcy system is occasionally abused, just as every other system seems to be, but how the board of bar overseers, charged with some kind of highfalutin' mandate to determine who is worthy of being admitted to this special club, are better qualified to detect abuses than the actual bankruptcy system is beyond me. I think it's a bad idea.

David Giacalone

Sherry, Please read my Comments a little more closely (and remember that you've already seen my thoughts at my site). I went out of my way to avoid saying that ALL bankruptcies are the result of irresponsibility. Only an ass would think so, much less say so in public, and I don't believe I'm an ass.

First, it was you who focused on irresponsible and very unwise behavior in your original post. You said nothing about any facts that would suggest just bad luck (or trying in good faith to find ways to meet your debt obligations).

Second, I asked about "relevance" which is a lot different than suggesting total preclusion because of bankruptcy. "Relevance" suggests that the Bar Examiners might ask for some kind of explanation -- just as they might wonder whether an applicant's "mental illness" was minor depression or some major psychotic episodes; or whether an arrest record was for one punch thrown in a bar a decade ago, or rape and mayhem.

Your reply to my first Comment seemed to say that bankruptcy should never be relevant. I then asked about a "pattern of irresponsibility" specifically to indicate to you that I was not talking about every bankruptcy.
How much clearer could I be than saying "Again, I'm not talking total preclusion from bar admission. There's a continuum. People abuse the bankruptcy system; if it appears the bar applicant planned on living high and then going bankrupt, shouldn't someone care?"

You never answer that question, which seems like a fair one to me. I mentioned intentionally living the high life (or simply well above your buget) while in school with the intent to go bankrupt. I'm not sure the Trustee or Court would be able to catch that abuse, but I certainly think it tells us something about the values of the high-lifer. "It's not a felony" is, to my little puritanical mind, not a high enough ethical standard.

How dare I ask an adult and prospective lawyer to "explain" why a bankruptcy was a reasonable way out of a sympathetic factual situation. I sure am a meanie.

You "prove too much" when you suggest that a topic can never be broached at all, and has no relevance to ethical fitness, because some people who are in a disfavored (or suspect) group did not do anything very serious, or have perhaps simply grown up.

To sum up: I'm asking about relevance and an intentional, morally-questinable misuse of the privilege of bankruptcy. Whether the relevance turns into materiality and then conclusive proof of ethical unfitness depends on the facts of the case. If a bar applicant with a good explanation isn't willing to take the time, or isn't capable of the level of persuasion, she or he might flunk the diligence and competency standards, too.

Outer Life

I'm with David. People who live high on the hog and then stiff-arm their creditors shouldn't be allowed to practice law.

Now that I think of it, what's so special about law? If we need to ensure that only good, decent and frugal people practice law, we surely need to ensure that only good, decent and frugal people enter medicine, financial planning and accounting, the armed forces, the civil service, science, schools and universities, finer shops and restaurants (and, for that matter, in our less fine shops and restaurants -- why should rich people get served by the good and decent people while the poor get the deadbeats?), and in just about any other walk of life I can think of.

I really think David is onto something. I can't believe we've been allowing bankrupt deadbeats to seek gainful employment in law or any other job. Those bankrupt deadbeats really belong in only one place -- a correctional facility of some sort that walls them off from society until they figure out how to pay off their creditors. That'll teach 'em. We could call it debtors' prison. I'm surprised no one ever thought of this before.

Thanks, David. You've really opened my eyes.

Hal O'Brien

Consider the fact, cited by Warren and Tyagi in The Two-Income Trap, that the single best indicator whether someone will file for bankruptcy in this country is whether one is married, and has kids. Or that more children will live in households that go through bankruptcy this year than households that go through divorce.

The leading cause, per Warren and Tyagi again, is not that more families are living high on the hog. No, more families are stretching their incomes to try to buy housing in neighborhoods perceived to have better schools. Then, because the mortgage payments rely on two incomes rather than one, the family has double the exposure to health risks, layoffs, what-have-you, and off to the court they go when something unexpected happens.

I leave it as an exercise for the reader if perhaps our society would be wiser to make school funding more equitable across all districts, and if perhaps slightly higher taxes wouldn't be more efficient for society as a whole than putting such large numbers of families through bankruptcy.

I also leave it as an exercise, even if one says only a percentage of bankruptcies are abusive as mentioned above, as to how small the pool of potential lawyers would be under such "considerations", given that bankruptcy is now more common than divorce.

David Giacalone

Does anybody read or listen to what some one else is saying before unloading their black-or-white, preconceived, or ultra-glib response? Are we really a society where almost no one can make a nuanced judgment - not even those trained to "think like a lawyer"?


I do not think there would be a lot of instances where going bankrupt would preclude a lawyer from being admitted to the bar, due to misuse or abuse of the bankruptcy privilege.

I do not think many (or virtually any) of the small group whose situation would warrant a closer look are part of the demographic group of double-income families with large mortgages and huge child-care expenses.

I do think that lawyers have special duties and obligations that warrant some ethics screening prior to admission.

The fact that there are some very good reasons to go bankrupt and that many very good (and often very unlucky) people do use bankruptcy to get a new start, in no way justifies looking the other way when an applicant for a position that includes enormous trust and responsibility, and bestows many privileges, appears to have abused the system.

Scipio

I have mto back David up here on this. I certainly don't think that people who declare bankruptcy are bad people. But attorneys wield enormous real power over people's lives, in particular, the lives of their clients. And lawyers have a duty to provide moral and ethical as well as merely legal advice.

There is a substantial difference between persons who are forced to file bankruptcy, and those who do it largely for evasive purposes. In particular, there was a problem with student loans and bankruptcy petitions that Congress did away with a few years ago by making student loan essentially non-dischargeable.

There is not an easy answer here, and probably not one that doesn't leave some people cold about the general public's attitude toward bankruptcy. Fundamentally, I don't really have any concerns about whether a lawyer has declared bankruptcy, although the circumstances of his bankruptcy would definitely adjust my view of his probity.

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