Divided Loyalties: The Attorney’s Role in Bankruptcy Reaffirmations

Abstract

Section 524 of the Bankruptcy Code divides the consumer bankruptcy attorney’s loyalties between the client and the court. On the one hand, the attorney is the gatekeeper for the court in ensuring that whether a debtor enters into a reaffirmation agreement is balanced against one of the primary objectives of the bankruptcy system - to give the debtor a “fresh start.” On the other hand, the attorney has an obligation under the Model Rules of Professional Conduct to pursue the client’s objectives during the bankruptcy representation.

This Article is about the lawyer-client relationship. Ethics scholars have traditionally adopted either a client-autonomy or paternalistic model to analyze the lawyer-client relationship. This Article rejects both and proposes a collaborative model of lawyer-client decision-making. Congress must free bankruptcy lawyers of their ethical conflict, so that lawyers can work in collaboration with their clients to help debtors improve financially post-bankruptcy. Then, the client might be able to be her own gatekeeper, freeing both the courts and attorneys from that responsibility.

Keywords: Reaffirmation, Section 524, BAPCPA, Undue Hardship Certifications, Consumer Bankruptcy, Bankruptcy Practice, Divided Loyalties, Duty to the Client, Duty to the Court, Role of the Attorney