In the Matter of Opinion No. 17-2012 of the Advisory Committee on Professional Ethics

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
In the Matter of Opinion No. 17-2012 of the Advisory Committee on Professional Ethics (A-22-13) (072810)
Argued April 1, 2014 -- Decided July 2, 2014
RABNER, C.J., writing for a unanimous Court.
In this appeal, the Court considers whether a volunteer pro bono attorney may represent a low-income
debtor in a no-asset Chapter 7 bankruptcy matter even if the attorney’s firm represents one or more of the debtor’s
creditors in unrelated matters.
Volunteer Lawyers for Justice (VLJ) created a bankruptcy clinic to assist low-income debtors who have no
assets to distribute. VLJ enlisted the help of lawyers in the bankruptcy department at Lowenstein Sandler, a large
New Jersey law firm that also represents institutional creditors in matters unrelated to VLJ’s cases. VLJ and the
firm implemented various safeguards to screen for potential conflicts. VLJ first examines each debtor’s finances
and turns away anyone with assets available for distribution to creditors or an annual income of about $27,500 or
more. For debtors who qualify, VLJ gathers the relevant documents, including the names of attorneys or collection
agencies that creditors may have hired, and sends the information to a volunteer attorney. The volunteer attorney
then conducts a conflict check on each relevant person or entity in the client file before contacting the debtor,
confirms that the debtor has no assets available for distribution, and asks the debtor additional questions that may
identify conflicts. Attorneys decline to take the case if the firm represents or has represented one of the debtor’s
creditors in a matter related to the debtor, or if a creditor the firm represents has brought a lawsuit or collection
action against the debtor in an unrelated matter. Otherwise, the attorneys generally accept the representation, even if
the firm represents one or more of the debtor’s creditors in unrelated matters. The firm prepares an engagement
letter informing the debtor that the firm will withdraw from representation if a conflict of interest arises and of the
scope of the firm’s representation. Among other things, the firm prepares and files the debtor’s Chapter 7
bankruptcy petition and represents the debtor at a meeting of the creditors, sometimes referred to as a “section 341
meeting,” which takes place before any debts may be discharged and gives creditors an opportunity to question the
debtor under oath. See 11 U.S.C.A. § 341(a). VLJ represents that no creditors have appeared at the section 341
meetings of any pro bono clients.
Because potential volunteer attorneys were hesitant to participate in the clinic due to possible conflict
issues, VLJ sent a formal inquiry to the Advisory Committee on Professional Ethics (ACPE) asking “whether a
volunteer pro bono attorney may represent low-income debtors in seeking relief under Chapter 7 of the Bankruptcy
Code even if the attorney’s firm represents creditors of those debtors in unrelated matters.” The ACPE responded in
the form of a written opinion. Because this situation does not involve a direct conflict of interest under RPC
1.7(a)(1), the ACPE focused on RPC 1.7(a)(2), which provides that a conflict of interest exists when “there is a
significant risk that the representation of one or more clients will be materially limited by the lawyer’s
responsibilities to another client.” The ACPE could not “find, as a categorical matter, that in all cases there would
be no material limitation on the lawyer’s representation.” The ACPE therefore concluded that volunteer lawyers
must inform both clients “of their participation in the program and obtain consent.” The Court granted VLJ’s
petition for review under Rule 1:19-8. 216 N.J. 12 (2013).
1
HELD: VLJ’s pro bono bankruptcy program does not present a conflict of interest under RPC 1.7. With appropriate
safeguards, a volunteer attorney can represent a low-income debtor in a no-asset Chapter 7 bankruptcy matter even if
the attorney’s firm represents one or more of the debtor’s creditors in unrelated matters.
1. Chapter 7 of the Bankruptcy Code provides a statutory framework to discharge an individual debtor’s unpaid
debts and to distribute any non-exempt assets among creditors in an equitable way. Many Chapter 7 cases -- like the
ones VLJ handles -- are “no-asset” cases in which the debtor has no property to distribute and the creditor may
receive nothing. In a typical Chapter 7 case, the debtor files a petition for bankruptcy listing his debts or creditors,
which constitutes an order for relief, and the court notifies the debtor’s creditors of the order. Within a reasonable
amount of time, a trustee convenes a section 341 meeting. The meeting is not a formal judicial proceeding; it is not
conducted in court, and the bankruptcy judge may not attend. See 11 U.S.C.A. § 341(c). Although a creditor can
file a complaint and object to the discharge of debt, unless a debtor has committed a prohibited act listed in the
statute, the discharge is not discretionary. See 11 U.S.C.A. § 727(a). Most Chapter 7 cases, as a result, are
straightforward and non-adversarial. (pp. 10-14)
2. A conflict of interest exists under RPC 1.7(a)(2) if there is a “significant risk” that a volunteer lawyer’s
representation of an indigent client in a Chapter 7 proceeding “will be materially limited by the lawyer’s
responsibilities” to a creditor the firm represents in an unrelated matter, or vice versa. Because the Court adopted
the ABA Model Rules of Professional Conduct, the official ABA comments to those rules can assist in interpreting
them. Those comments explain that the “mere possibility of subsequent harm does not itself require disclosure and
consent”; instead, there must be “a significant risk that a lawyer’s ability to consider, recommend or carry out an
appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities
or interests.” Model Rules of Prof’l Conduct R. 1.7 cmt. 8 (2013). To identify such a risk, “[t]he critical questions
are the likelihood that a difference in interests” will arise, and “if it does, whether it will materially interfere with the
lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that
reasonably should be pursued on behalf of the client.” Ibid. (pp. 14-16)
3. Advisory ethics committees in New York and Boston have found that pro bono Chapter 7 bankruptcy programs
similar to VLJ’s program do not give rise to a conflict of interest. Those decisions noted, among other things, that
unlike traditional adversarial lawsuits, Chapter 7 cases proceed by automatic operation of statute to discharge debt
absent a creditor’s objection, that volunteer lawyers do not represent debtors if a creditor objects to the discharge of
a debt or takes some other action against the debtor, and that the volunteer programs utilize procedures to screen out
cases that could create a conflict. See The Ass’n of the Bar of the City of N.Y. Comm. on Prof’l and Judicial Ethics,
Formal Op. 2005-01 (2005); Bos. Bar Ass’n Ethics Comm., Op. 2008-01 (2008). Ethics opinions from other
jurisdictions are distinguishable or do not consider the issue in detail. (pp. 16-21)
4. VLJ’s program does not present a conflict of interest under RPC 1.7. The Chapter 7 pre-determined statutory
process does not become adversarial unless a creditor files a complaint and objects, which triggers withdrawal of the
VLJ volunteer lawyer. The VLJ program screens out directly adverse interests at the outset, and the volunteer
lawyers later pose questions designed to root out conflicts. The program also undertakes a thorough effort to ensure
that prospective clients are truly indigent and have no assets available for distribution to creditors. As a practical
matter, in the “no-asset” cases the clinic handles, there are no non-exempt assets for a debtor to try to shield or a
creditor to receive. In addition, the firm notifies debtors at the outset that it will withdraw if a conflict arises, and
creditors receive notice that the law firm represents a debtor. The Bankruptcy Court also sends a notice, which
identifies the debtor’s lawyer, to all creditors listed on the Chapter 7 petition. Fed. R. Bankr. P. 2002(a)(1).
Moreover, in an analogous context, the Bankruptcy Code allows court-appointed trustees to hire “disinterested”
attorneys for assistance, and expressly states that such attorneys are not disqualified “solely because of [their]
employment by or representation of a creditor,” unless another creditor or the trustee objects and “there is an actual
conflict of interest.” 11 U.S.C.A. § 327(a), (c). Under the facts presented in this matter, the Court does not find a
“significant risk” that a volunteer lawyer’s representation of a Chapter 7 debtor in a no-asset case will be “materially
2
limited” by the firm’s responsibilities to creditors in unrelated matters, or that representation of those creditors will
be “materially limited” by the firm’s obligations to the debtor. See RPC 1.7(a)(2). To the extent the ACPE
articulated a different standard, the Court does not follow it. Finally, although VLJ advises that no creditor has yet
appeared at a section 341 meeting to question the debtor, because that circumstance could strain the lawyer’s duty of
loyalty to either client, even if the creditor chose not to object, the Court finds that another attorney from outside the
firm should be substituted to assist the debtor under those circumstances. (pp. 21-24)
5. Because the Court enacted the RPCs in the public interest, the strong policy in favor of pro bono legal services
also informs the Court’s decision. Low-income New Jersey residents facing civil legal challenges are often unable
to get legal help. In the Chapter 7 bankruptcy context, a technical area not designed for the layperson, the number of
self-represented bankruptcy filings has grown in the wake of the recession, and self-represented litigants have been
less successful in getting their debts discharged. The Court commends the lawyers in this and other pro bono
initiatives who offer their assistance at a time of need and help bridge the justice gap that leaves many low-income
residents in New Jersey without legal services. (pp. 24-28)
The final action of the ACPE is REVERSED.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-VINA and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-22 September Term 2013
072810
IN THE MATTER OF
OPINION NO. 17-2012
OF THE ADVISORY COMMITTEE
ON PROFESSIONAL ETHICS
Argued April 1, 2014 – Decided July 2, 2014
On petition for review of a decision of the
Supreme Court Advisory Committee on
Professional Ethics.
Catherine Weiss argued the cause for
appellant Volunteer Lawyers for Justice
(Lowenstein Sandler, attorneys; Ms. Weiss
and Joseph A. Fischetti, on the briefs).
Michael C. Walters, Assistant Attorney
General, argued the cause for respondent
Advisory Committee on Professional Ethics
(John J. Hoffman, Acting Attorney General of
New Jersey, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel).
Susan A. Feeney argued the cause for amicus
curiae New Jersey State Bar Association
(Ralph J. Lamparello, President and McCarter
& English, attorneys; Ms. Feeney, Emily B.
Goldberg, and Judah Skoff, on the brief).
Steven R. Marino argued the cause for amici
curiae Pro Bono Institute, Jessica Kitson,
and Jill Friedman (DLA Piper, attorneys).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
This case involves people who have incurred debts, have no
assets to repay them, and want to discharge those debts in
bankruptcy court. In the years since the recent downturn in the
1
economy, tens of thousands of New Jersey residents have found
themselves in that situation. Because they do not have enough
money to pay for a lawyer, too many people have been forced to
represent themselves as they navigate the technical field of
bankruptcy law.
In response, Volunteer Lawyers for Justice (VLJ), a legal
services organization, created a bankruptcy clinic to assist
low-income debtors who have no assets to distribute. VLJ and
the volunteer lawyers who work with the group screen potential
clients in an effort to avoid conflicts of interest.
A number of volunteer attorneys work at a law firm that
also represents large, institutional creditors in unrelated
matters. VLJ represents that other potential volunteers are
reluctant to participate in the clinic because of possible
ethical objections.
VLJ therefore turned to the Advisory Committee on
Professional Ethics (ACPE) for guidance and posed the following
question: can a volunteer lawyer represent a low-income debtor
in a Chapter 7 bankruptcy proceeding if the lawyer’s firm
represents one or more of the debtor’s creditors in unrelated
matters? In other words, if a potential pro bono bankruptcy
client owes thousands of dollars in credit card debt to a bank,
and the bank is a client of the firm in an entirely different
2
legal matter, can a lawyer at the firm volunteer to represent
the debtor in bankruptcy court?
The ACPE concluded that both clients must be informed and
“decide whether they consent to waive the conflict.”
Particularly in light of the nature of Chapter 7 bankruptcy
proceedings, and the standards that govern the clinic and pro
bono counsel, we do not agree. We do not believe that
participation in the program poses a conflict of interest under
the Rules of Professional Conduct (RPC). See RPC 1.7(a)(2). As
a result, we conclude that this valuable pro bono effort can
continue to operate with appropriate safeguards.
I.
A.
VLJ provides free legal services to low-income residents of
New Jersey on a wide range of civil issues. Since the start of
the recent recession, a growing number of people have sought
help to discharge debts they cannot pay. To address part of the
problem, VLJ and Merck, a pharmaceutical company with an in-
house legal staff, established a volunteer bankruptcy clinic in
2009 to assist low-income people prepare and file bankruptcy
petitions and to represent them at hearings. The clinic serves
indigent clients in Bergen, Essex, Hudson, Morris, Passaic,
Sussex, and Union Counties.
3
In 2010, VLJ and Merck enlisted the help of lawyers in the
bankruptcy department at Lowenstein Sandler, a large New Jersey
law firm. The firm also represents institutional creditors in
matters unrelated to VLJ’s cases.
To screen for potential conflicts, VLJ and the firm
implemented various safeguards, following the lead of ethics
committees in New York City and Boston. Both committees had
approved similar pro bono bankruptcy programs that are discussed
below.
The clinic operates in the following way. When a debtor
considering filing for bankruptcy contacts VLJ, the group
initially determines if the person qualifies for its help. The
clinic only represents low-income individuals with “no assets”
for purposes of Chapter 7 bankruptcy cases. VLJ thus examines
each debtor’s finances and turns away anyone with assets
available for distribution to creditors or an annual income of
about $27,500 or more. VLJ sometimes refers debtors with
minimal assets to other pro bono attorneys outside the clinic.
For debtors who qualify, VLJ collects the documents needed
to file a Chapter 7 petition, including a list of outstanding
debts; gathers the names of attorneys or collection agencies
that creditors may have hired; and sends the information to a
volunteer attorney. Both attorneys and paralegals at VLJ
conduct the initial screening.
4
Once volunteer attorneys at the firm receive the
information, they conduct a conflict check on each relevant
person or entity in the client file before contacting the
debtor. Potential conflicts involving other matters handled by
the firm are identified in that way. The firm, like VLJ, also
confirms that the debtor has no assets available for
distribution.
Attorneys decline to take the case if the conflict check
reveals that the firm represents or has represented one of the
debtor’s creditors in a matter related to the debtor. If a
creditor the firm represents has brought a lawsuit or collection
action against the debtor in an unrelated matter, the attorneys
also decline the debtor’s case. Otherwise, the attorneys
generally accept the representation, even if the firm represents
one or more of the debtor’s creditors in unrelated matters.
When volunteer attorneys meet with debtors, they confirm
the above conditions. Consistent with the recommendations of
ethics panels in New York City and Boston, the attorneys also
ask whether
the case involves only one creditor; the
client has granted any new liens or made any
non-routine payments in the past ninety
days; any of the debts to be discharged is
of a sufficient size that it is likely to
have a material impact on the creditor’s
bottom line; other facts suggest an unusual
or disproportionate impact on any particular
creditor; and other forms of bankruptcy
5
relief or alternatives to bankruptcy warrant
consideration.
Answers to those questions may identify additional conflicts.
After the conflict check is completed, the firm prepares an
engagement letter for the debtor to sign. The letter informs
the debtor that the firm will withdraw from representation if a
conflict of interest arises, including if a creditor the firm
represents objects to the bankruptcy petition or starts an
adversary proceeding against the debtor.
The letter also informs the debtor of the scope of the
firm’s representation. Among other things, the firm will
prepare and file the debtor’s Chapter 7 bankruptcy petition and
represent the debtor at a meeting of the creditors under the
Bankruptcy Code, sometimes referred to as a “section 341
meeting.” That meeting takes place before any debts may be
discharged and gives creditors an opportunity to question the
debtor under oath. VLJ represents that no creditors have
appeared at the section 341 meetings of any pro bono clients.
As of December 2012, more than fifty volunteer attorneys
had represented approximately one hundred pro bono clients
through the clinic. VLJ had approached additional lawyers at
other firms to recruit them as volunteers. It represents that
those attorneys were hesitant to participate in the clinic
6
because they represent creditors in unrelated matters and were
concerned about possible conflicts of interest issues.
B.
To clarify the issue, VLJ sent a formal inquiry to the ACPE
on December 2, 2012. The ACPE is a committee of the Supreme
Court that addresses questions about the “proper conduct” of
lawyers under the RPCs. R. 1:19-2. VLJ asked the Committee
“whether a volunteer pro bono attorney may represent low-income
debtors in seeking relief under Chapter 7 of the Bankruptcy Code
even if the attorney’s firm represents creditors of those
debtors in unrelated matters.”
The ACPE responded in the form of a written opinion dated
May 10, 2013. It concluded that “lawyers need to inform
creditor clients of their participation in the program and
obtain consent” before they can represent a debtor who “has
obligations to the creditor client.”
The ACPE recognized that a lawyer’s representation of a
debtor in a “no-asset” Chapter 7 bankruptcy case did not create
a direct conflict of interest with a creditor. See RPC
1.7(a)(1). The ACPE’s opinion letter focused on RPC 1.7(a)(2)
instead, which provides that a conflict of interest exists when
“there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer’s
responsibilities to another client.”
7
The Committee observed that although these cases presumably
involve small amounts of money, a creditor may object based on
“loyalty concerns or other non-monetary interests.” According
to the ACPE, therefore, the lawyer “could be materially limited
by obligations to the creditor client and a conflict would
arise.” The Committee could not “find, as a categorical matter,
that in all cases there would be no material limitation on the
lawyer’s representation.” It noted that “an unreasonable client
may have inflated expectations of loyalty”; “that not all
clients would be content if their lawyer represents debtors in
such proceedings”; and that even if adverse interests are
indirect, “there is a risk that the representation will be
materially limited.” It thus directed volunteer lawyers to
inform both clients “of their participation in the program and
obtain consent.”
We granted VLJ’s petition for review of the ACPE’s final
action under Rule 1:19-8. 216 N.J. 12 (2013). We also granted
motions from the New Jersey State Bar Association as well as the
Pro Bono Institute, along with two individuals who direct public
interest programs at Rutgers School of Law-Newark and -Camden,
to appear as amici curiae.
II.
VLJ argues that the ACPE misapplied RPC 1.7(a)(2). The
group contends that the ACPE erred in finding a conflict under
8
the rule because there is no “significant risk” that an
attorney’s pro bono representation of a low-income Chapter 7
debtor will “materially limit” his or her representation of one
of the debtor’s creditors in an unrelated matter. According to
VLJ, the risk of a conflict of interest is remote. VLJ also
maintains that the ACPE effectively revived the “appearance of
impropriety” standard and failed to take account of the
safeguards in the clinic’s screening measures and conflicts
checks. VLJ points to other ethics opinions in New York City
and Boston that have approved nearly identical programs. In
addition, VLJ argues that attorneys serve an important public
interest when they provide specialized legal services to low-
income debtors on a pro bono basis.
The Attorney General, appearing on behalf of the ACPE,
argues that the Committee’s opinion is correct. The Attorney
General notes that the interests of a creditor and debtor in a
Chapter 7 bankruptcy may be indirectly adverse and that, in some
instances, there may be a significant risk that the lawyer’s
representation will be materially limited. In addition, the
Attorney General suggests that opinions from jurisdictions that
require consent from both clients in comparable bankruptcy
matters should be given more weight than rulings by ethics
committees in New York City and Boston.
9
The New Jersey State Bar Association (NJSBA) argues that
the standard the ACPE articulated is inconsistent with the plain
meaning of RPC 1.7(a)(2). The NJSBA also contends that the ACPE
failed to consider relevant bankruptcy rules that permit court-
appointed trustees to hire lawyers who may represent creditors
in unrelated matters. The NJSBA presents other arguments that
echo VLJ’s position. Among other points, the NJSBA stresses
that the ACPE’s opinion will have a negative effect on pro bono
efforts that are needed to help low-income residents in New
Jersey.
The Pro Bono Institute, a non-profit organization that
provides research and assistance to legal groups seeking to help
the poor and others, and two individuals who oversee public
interest programs at Rutgers School of Law-Newark and –Camden,
presented a combined brief as amici. They document the need for
pro bono representation, nationally and in New Jersey, and the
recent increase in pro se Chapter 7 filings. Like VLJ and the
NJSBA, amici argue that this lack of representation creates a
gap in the administration of justice, which pro bono programs
can help close.
III.
We briefly review certain features of federal bankruptcy
law to provide context for this matter.
10
“The principal purpose of the Bankruptcy Code is to grant a
‘fresh start’ to the ‘honest but unfortunate debtor.’” Marrama
v. Citizens Bank of Mass., 549 U.S. 365, 367, 127 S. Ct. 1105,
1107, 166 L. Ed. 2d 956, 961-62 (2007) (citation omitted).
Chapter 7 of the Bankruptcy Code provides a straightforward
framework (a) to discharge an individual debtor’s unpaid debts,
to the extent the law allows, and (b) to distribute any non-
exempt assets among creditors in an equitable way. Collier on
Bankruptcy ¶ 1.07[1][a][i] (Alan N. Resnick & Henry J. Sommer
eds., 16th ed.). Chapter 7 outlines a mechanism to take control
of a debtor’s property, sell it, and distribute the proceeds to
creditors. Id. at ¶ 1.07[1][a]. But many Chapter 7 cases --
like the ones VLJ handles -- are “no-asset” cases in which the
debtor has no property to distribute and the creditor may
receive nothing. Id. at ¶ 1.07[1][a][1], –[1][f].
In a typical Chapter 7 case, “the debtor files a petition
for bankruptcy in which he lists his debts or his creditors;
[and] the petition constitutes an order for relief.” Tenn.
Student Assistance Corp. v. Hood, 541 U.S. 440, 447, 124 S. Ct.
1905, 1910, 158 L. Ed. 2d 764, 775 (2004) (citations omitted).
The court clerk, in turn, “notifies the debtor’s creditors of
the order.” Ibid.
Within a reasonable amount of time, a trustee then convenes
and presides over a “meeting of creditors,” in accordance with
11
section 341 of the Bankruptcy Code. 11 U.S.C.A. § 341(a). The
debtor must attend the section 341 meeting and “submit to
examination” under oath by any creditors that choose to attend.
Collier, supra, ¶ 1.07[1][c]. The meeting is not a formal
judicial proceeding; it is not conducted in court, and the
bankruptcy judge may not attend. See 11 U.S.C.A. § 341(c).
A creditor can file a complaint and object to the discharge
of debt. See Daniel R. Cowans, Bankruptcy Law & Practice § 5.5
at 68-70 (7th ed. 1998). The grounds for objection, though, are
limited by statute. See 11 U.S.C.A. § 727(a) (listing, among
other grounds, when debtor has transferred, destroyed, or
concealed property with intent to defraud, or has knowingly made
false oath in bankruptcy case). In most cases, creditors do not
object, see Cowans, supra, § 5.3 at 62; it “can be expensive” to
do so, and “not overly productive” to collect from a debtor
whose discharge is denied, id. at § 5.4 at 65.
Unless a debtor has committed a prohibited act listed in
section 727, the discharge of debt is not discretionary.
Rather, “the debtor is entitled to a full discharge and release
from all [dischargeable] debts.” Collier, supra, ¶
1.07[1][a][i] (emphasis added) (citations omitted); see also 11
U.S.C.A. § 727(a) (providing that “court shall grant the debtor
a discharge,” absent listed circumstances (emphasis added)).
12
Most Chapter 7 cases, as a result, are straightforward and
non-adversarial. The structured proceedings, guided by federal
law, can be resolved quickly and without disputes. See Berliner
v. Pappalardo (In re Puffer), 674 F.3d 78, 80 (1st Cir. 2012).
As one bankruptcy judge observed in the context of reviewing a
fee application, “the services required in a Chapter 7 case,
i.e., the filing of papers and attendance at a § 341 meeting for
about five minutes, are, like those performed in an uncontested
divorce, among the simplest of non-adversarial legal problems
which any lawyer will encounter.” In re Patronek, 121 B.R. 728,
734 (Bankr. E.D. Pa. 1990).
Most debtors seek bankruptcy relief under Chapter 7.
Collier, supra, ¶ 1.07[1]. In New Jersey, about seventy-five
percent of all bankruptcy filings are submitted by individuals
under Chapter 7. See Admin. Office of the U.S. Cts., U.S.
Bankr. Cts. -- Bus. and Nonbusiness Cases Commenced, by Ch. of
the Bankr. Code During the 12-Month Period Ending Mar. 31, 2014,
Table F-2, www.uscourts.gov/uscourts/statistics/
bankruptcystatistics/bankruptcyfilings/2014/0314_f2.pdf (last
visited June 5, 2014).
A far smaller number of debtors proceed under Chapter 13 of
the Bankruptcy Code, ibid., which provides for a very different
approach. Under Chapter 13, debtors with a regular income can
hold onto their assets and pay off their debt to creditors over
13
time. Collier, supra, ¶ 1.07[5][c]. Debts are only discharged
once a repayment plan has been completed. Id. at ¶ 1.07[5][e].
Thus, although Chapter 7 and 13 proceedings have similar aims,
they “are poles apart in the means employed” to achieve them.
Id. at ¶ 1300.02.
IV.
We consider the question presented -- whether volunteer
lawyers who represent low-income persons in “no asset” Chapter 7
bankruptcy matters have a conflict if their firm represents a
creditor in an unrelated matter -- in light of RPC 1.7. Because
the Court has plenary authority to regulate the legal profession
in New Jersey, we review this issue de novo. See N.J. Const.
art. VI, § 2, ¶ 3; In re Sup. Ct. Adv. Comm. on Prof’l Ethics
Op. No. 697, 188 N.J. 549, 554 (2006); In re LiVolsi, 85 N.J.
576, 585 (1981).
RPC 1.7 provides as follows:
(a) Except as provided in paragraph (b), a
lawyer shall not represent a client if the
representation involves a concurrent
conflict of interest. A concurrent conflict
of interest exists if:
(1) the representation of one client
will be directly adverse to another
client; or
(2) there is a significant risk that
the representation of one or more
clients will be materially limited by
the lawyer’s responsibilities to
another client, a former client, or a
14
third person or by a personal interest
of the lawyer.
(b) Notwithstanding the existence of a
concurrent conflict of interest under
paragraph (a), a lawyer may represent a
client if:
(1) each affected client gives
informed consent, confirmed in writing,
after full disclosure and consultation
. . . .
The parties do not suggest that representation of a low-
income debtor is “directly adverse” to a creditor that the firm
represents in an unrelated matter. Our focus, therefore, is on
section (a)(2). That clause outlines the proper framework for
analysis: a conflict exists if there is a “significant risk”
that a volunteer lawyer’s representation of an indigent client
in a Chapter 7 proceeding “will be materially limited by the
lawyer’s responsibilities” to a creditor the firm represents in
an unrelated matter, or vice versa. RPC 1.7(a)(2).
The Court adopted the ABA (American Bar Association) Model
Rules of Professional Conduct in 1984 “to harmonize New Jersey’s
standards with the Model Rules and to provide clear, enforceable
standards of behavior for lawyers.” State v. Rue, 175 N.J. 1,
14 (2002). The official ABA comments to the RPCs can assist in
interpreting them. Introduction to Rules of Professional
Conduct, Kevin H. Michels, New Jersey Attorney Ethics, Appendix
A2 at 1257 (2014).
15
Comment 8 to the relevant model rule addresses what
constitutes a significant risk of a material limitation. See
Model Rules of Prof’l Conduct R. 1.7 cmt. 8 (2013). The comment
explains that the “mere possibility of subsequent harm does not
itself require disclosure and consent.” Ibid. Instead, there
must be “a significant risk that a lawyer’s ability to consider,
recommend or carry out an appropriate course of action for the
client will be materially limited as a result of the lawyer’s
other responsibilities or interests.” Ibid. To identify such a
risk, “[t]he critical questions are the likelihood that a
difference in interests” will arise, and “if it does, whether it
will materially interfere with the lawyer’s independent
professional judgment in considering alternatives or foreclose
courses of action that reasonably should be pursued on behalf of
the client.” Ibid. For example, an attorney “asked to
represent several people seeking to form a joint venture is
likely to be materially limited in the lawyer’s ability to
recommend or advocate all possible positions that each might
take because of the lawyer’s duty of loyalty to the others.”
Ibid.
Lawyers are called upon to make the above determination
whenever they consider representing a new client with a
connection to another client. RPC 1.7 requires counsel to
exercise professional judgment about the possibility of a
16
concurrent conflict under the circumstances; the rule does not
require attorneys to notify a client and get consent unless
there is a significant risk that one client’s interests will
materially limit the lawyer’s obligations to the other.
V.
Advisory committees in other states have considered
comparable programs, and two of them have approved pro bono
Chapter 7 bankruptcy initiatives similar to the clinic’s
efforts.
In New York City, the Bar Association’s Committee on
Professional and Judicial Ethics considered a nearly identical
pro bono program. See The Ass’n of the Bar of the City of N.Y.
Comm. on Prof’l and Judicial Ethics, Formal Op. 2005-01, 1
(2005). It concluded that, under certain conditions, volunteer
lawyers from large commercial law firms could simultaneously
represent both low-income debtors in Chapter 7 bankruptcy cases,
and their creditors in unrelated matters, without giving rise to
a conflict of interest. Id. at 1, 8.
The opinion observed that Chapter 7 proceedings are
“[u]nlike the commencement of litigation -- which by definition
is brought directly against one or more parties on behalf of
another party with an adverse interest.” Id. at 5. “[A]
typical Chapter 7 case,” by contrast, “is an in rem proceeding
that triggers the automatic operation of a statutory framework
17
for marshaling and distributing assets and discharging debt.”
Ibid. Absent an objection, debts are discharged “by automatic
operation of statute.” Ibid. The committee noted that “there
is no adversity between debtor and creditor” under the relevant
ethical rules “unless and until a creditor objects.” Id. at 6.
It also considered “adversity of an indirect nature.” Ibid.
The committee explained that its analysis might be
different under other circumstances: if the prospective client
were involved in litigation or a dispute with a client of the
firm; if the firm represented institutional clients in consumer
collection actions; if the debtor “had no non-exempt assets and
only a single creditor” that the firm represented, in which case
the filing of a Chapter 7 petition could appear to be “more
directly aimed at that particular creditor”; if the debtor “had
granted new liens . . . or made nonroutine payments within the
past 90 days”; or if the “client’s personal circumstances made
it advisable for him or her to consider . . . forms of
bankruptcy relief” other than Chapter 7. Id. at 6-7. As noted
above, VLJ’s clinic seeks to avoid handling those types of
cases.
In addition, the committee concluded that if a creditor
objects to the discharge of a debt, or takes some other action
against the debtor, the volunteer lawyer “cannot represent the
18
debtor” without getting “any necessary consent.” Id. at 8. The
clinic follows that approach as well.
Three years later, the Boston Bar Association’s Ethics
Committee approved a similar pro bono bankruptcy initiative.
Bos. Bar Ass’n Ethics Comm., Op. 2008-01, 1 (2008). The
committee found that, “[a]bsent special circumstances, . . . the
proposed representation does not give rise to a conflict of
interest” under a rule comparable to RPC 1.7. Id. at 10.
Like the New York opinion, the Boston committee remarked
that “in ordinary circumstances a Chapter 7 Petition is not
directed ‘against’ any particular creditor. Thus [it] is not
like filing a lawsuit on behalf of one creditor against another
creditor” or “a debtor against a creditor.” Id. at 5. The
committee also compared volunteer lawyers to attorneys appointed
by a bankruptcy trustee “‘who have multiple representations
involving creditors and the debtor’” in unrelated matters. Id.
at 6-7 (quoting 1 Collier on Bankruptcy ¶ 8.03[9][b] (Alan N.
Resnick & Henry J. Sommer eds., 15th ed. rev.) (citing 11
U.S.C.A. § 327)).
In addition, the committee credited the initiative for
taking “appropriate steps to identify and avoid any special
circumstances where the lawyer’s ability to act could be
materially limited.” Id. at 9-10. Under Boston’s program,
volunteer lawyers are to ask questions to screen new clients for
19
possible conflicts. Ibid. VLJ’s initiative requires this as
well.
Other ethics opinions are distinguishable or do not
consider the issue in detail. The North Carolina Bar, for
example, does not permit attorneys to represent a debtor in a
Chapter 13 bankruptcy case if they represent a lender in other
matters, without the consent of both clients. See N.C. State
Bar, Formal Ethics Op. 11 (2010). But Chapter 13 proceedings,
which seek to preserve the debtor’s assets and involve
potentially lengthy repayment plans between debtors and
creditors, present different concerns than Chapter 7 cases do.
The Oregon State Bar Association has opined that a lawyer
may not simultaneously represent a debtor and creditor in the
same bankruptcy proceeding. Or. State Bar Ass’n, Formal Op. No.
2005-40 (2005). It also stated that a lawyer would need consent
from both clients to represent the debtor in bankruptcy court if
the creditor was a client in an unrelated matter. Ibid. The
opinion offers no analysis and does not identify the type of
bankruptcy proceeding involved.
Finally, New York’s Suffolk County Bar Association opined
in 1991 that lawyers could not represent a debtor in an
unspecified type of bankruptcy proceeding if the lawyer also
represented a creditor in an unrelated case. Suffolk Cnty. Bar
Ass’n, Op. 91-1 (1991). The brief opinion also contains little
20
analysis and refers, in part, to an outdated standard: the need
to avoid an appearance of impropriety. Id. at 1; see also In re
Op. 697, supra, 188 N.J. at 552.
VI.
We consider VLJ’s program in light of RPC 1.7. We conclude
that the program does not present a conflict of interest under
the rule for a number of reasons.
To begin with, the nature of Chapter 7 proceedings makes it
less likely that a difference of interests between debtors and
creditors will develop. Model Rules of Prof’l Conduct R. 1.7,
supra, cmt. 8. As discussed earlier, a Chapter 7 proceeding is
not a lawsuit between a debtor and creditor. When a Chapter 7
petition is filed on behalf of a debtor, that triggers a pre-
determined statutory process to liquidate assets and discharge
outstanding debts. See Cowans, supra, § 5.3 at 62. The process
does not become adversarial unless someone -- in particular a
creditor -- files a complaint and objects. See id.; Patronek,
supra, 121 B.R. at 734. If that happens, a volunteer lawyer in
the VLJ program withdraws from assisting the debtor if the
lawyer’s firm also represents the creditor.
The safeguards built into VLJ’s initiative also minimize
the risk of a conflict of interest. The program screens out
directly adverse interests at the outset, such as when a firm
represents a creditor in a matter related to the bankruptcy, or
21
the creditor has brought a lawsuit or collection action against
the debtor in an unrelated case. Volunteer lawyers also pose
questions designed to root out cases that may be of particular
importance to a creditor. They screen for cases that involve
only one creditor or debts that are sufficiently large that they
would likely have a material impact on a creditor’s bottom line.
In most cases, those concerns do not surface. For large
institutional creditors, like banks or cell phone service
providers, the amount of debt in a typical Chapter 7 case is not
significant to the company as a whole. For smaller creditors as
well, it often costs more than the value of the debt to send a
representative to a section 341 meeting or challenge the
discharge. See Cowans, supra, § 5.4 at 65.
Another important part of the screening process is a
thorough effort to ensure that prospective clients are truly
indigent. VLJ only represents people with an income up to 175%
of the federal poverty level -- about $27,500 for a family of
two. VLJ also screens out individuals who have assets available
for distribution to creditors. Volunteer attorneys at the firm
conduct the same review a second time.
The issue before the Court relates only to “no-asset”
Chapter 7 bankruptcy filing. We do not address Chapter 7
petitions in which there are assets to distribute or proceedings
under any other chapter of the Bankruptcy Code. As a practical
22
matter, in the “no-asset” cases the clinic handles, there are no
non-exempt assets for a debtor to try to shield or a creditor to
receive.
There are also two forms of notice to clients. The firm
tells debtors at the outset that it will withdraw if a conflict
arises, for example, in the unlikely event a creditor it
represents objects to the petition. Creditors also receive
notice that the law firm represents a debtor. The Bankruptcy
Court sends a notice, which identifies the debtor’s lawyer, to
all creditors listed on the Chapter 7 petition. Fed. R. Bankr.
P. 2002(a)(1). We do not suggest that this type of notice, by
itself, constitutes a waiver in this or other contexts.
In addition, we note that the Bankruptcy Code, in an
analogous context, allows court-appointed trustees to hire
“disinterested” attorneys to help carry out the trustee’s
duties. 11 U.S.C.A. § 327(a). The Code expressly states that
attorneys are not disqualified “solely because of [their]
employment by or representation of a creditor,” unless another
creditor or the trustee objects and “there is an actual conflict
of interest.” 11 U.S.C.A. § 327(c). As one authoritative
treatise has noted, the “Bankruptcy Code contemplates that
attorneys will, in unrelated matters, have multiple
representations involving creditors and the debtor.” Collier,
supra, ¶ 8.03[9][b] (discussing 11 U.S.C.A. § 327(c)).
23
To be sure, some creditors who are clients of the firm may
be less than pleased by a lawyer’s volunteer activities on
behalf of a debtor. But that is not the standard to determine
whether a conflict of interest exists. See RPC 1.7(a)(2). The
“mere possibility” of harm, let alone displeasure, does not
require consent. Model Rules of Prof’l Conduct R. 1.7, supra,
cmt. 8. Under the facts presented in this matter, we do not
find a “significant risk” that a volunteer lawyer’s
representation of a Chapter 7 debtor in a no-asset case will be
“materially limited” by the firm’s responsibilities to creditors
in unrelated matters, or that representation of those creditors
will be “materially limited” by the firm’s obligations to the
debtor. See RPC 1.7(a)(2). To the extent the ACPE articulated
a different standard, we do not follow it.
VLJ reports that in the four-year history of the clinic, no
creditor has objected to the discharge of a client’s debt in the
one hundred cases handled so far. Once again, if a creditor
were to object to the discharge, VLJ would arrange for another
volunteer attorney outside the firm to handle the case. Just
the same, VLJ advises that no creditor has yet appeared at a
section 341 meeting to question the debtor. If that happened,
it could strain the lawyer’s duty of loyalty to either client,
even if the creditor chose not to object. As a result, we find
24
that another attorney from outside the firm should be
substituted to assist the debtor under those circumstances.
VII.
This Court “enacted the RPCs with the public interest as a
paramount consideration.” Borteck v. Riker, Danzig, Scherer,
Hyland & Perretti, LLP, 179 N.J. 246, 259 (2004). The strong
policy in favor of pro bono legal services therefore informs our
decision as well.
Volunteering one’s time and expertise to help people who
need legal services that they cannot afford is in keeping with
the finest traditions of the practice of law. See In re
Guardianship of G.S., III, 137 N.J. 168, 175 (1994); Madden v.
Delran, 126 N.J. 591, 595 (1992). That noble tradition spans
centuries.
During the Reconstruction Era, the Freedmen’s Bureau
arranged for private lawyers from the District of Columbia and
some southern states to assist poor African-Americans in
criminal and civil cases. Jeremy Miller with Vallori Hard, Pro
Bono: Historical Analysis and a Case Study, 21 W. St. U. L. Rev.
483, 488 (1994). In 1876, the first legal aid society in
America, later known as the New York Legal Aid Society, began to
assist poor German immigrants in landlord-tenant disputes and
other civil matters. See Marlene Coir, Pro Bono and Access to
Justice in America: A Few Historical Markers, 90 Mich. B.J. 54,
25
54 (2011). During the civil rights movement more than seventy-
five years later, local bar associations worked with legal aid
groups to help offer services. See id. at 55. And in recent
years, large, private law firms “have become crucial drivers” of
pro bono efforts, as this appeal shows. Scott Cummings &
Rebecca Sandefur, Beyond the Numbers: What We Know--and Should
Know--About American Pro Bono, 7 Harv. L. & Pol’y Rev. 83, 84
(2013) (noting that pro bono hours at two hundred largest law
firms have increased nearly eighty percent from 1998 to 2005).
New Jersey’s Rules of Professional Conduct specifically
address pro bono service. RPC 6.1 declares that
[e]very lawyer has a professional
responsibility to render public interest
legal service. A lawyer may discharge this
responsibility by providing professional
services at no fee or a reduced fee to
persons of limited means or to public
service or charitable groups or
organizations, by service in activities for
improving the law, the legal system or the
legal profession, and by financial support
for organizations that provide legal
services to persons of limited means.
This obligation has even greater meaning today. Low-income
residents in New Jersey who face civil legal challenges are
often unable to get legal help. Legal Services of New Jersey,
New Jersey’s Civil Legal Assistance Gap 4 (2012), available at
www.lsnj.org/PDFs/NJ_Civil_Legal%20Assistance_Gap_2012.pdf
(reporting that fewer than one in six low-income residents can
26
secure needed legal assistance for civil problems). In mortgage
foreclosure cases, evictions, immigration matters, and other
areas, too many people have to respond to important legal
challenges without the help of a lawyer.
The same is true for the growing number of bankruptcies in
the wake of the recession. More than 1.3 million bankruptcies
were filed nationwide during the one-year period ending March
31, 2012. United States Courts, President Signs Temporary
Bankruptcy Judgeships Extension Act (May 31, 2012),
http://news.uscourts.gov/president-signs-temporary-bankruptcy-
judgeships-extension-act. That amounted to more than 400,000
additional filings compared to the same period in 2008. Id.
The growth in self-represented filings has been even greater.
During the five-year period from 2006 to 2011, pro se Chapter 7
filings increased 208% nationally. United States Courts, By the
Numbers--Pro Se Filers in the Bankruptcy Courts (Oct. 2011),
www.uscourts.gov/news/TheThirdBranch/11-10-01/By_the_Numbers--
Pro_Se_Filers_in_the_Bankruptcy_Courts.aspx.
Chapter 7 of the Bankruptcy Code is a technical area not
designed for the layperson. Not surprisingly, self-represented
litigants are less successful in getting their debts discharged
under Chapter 7 than debtors who are represented by lawyers. A
survey of Chapter 7 filings in 2007 revealed that “17.6 percent
of unrepresented debtors had their cases dismissed or converted”
27
but “only 1.9 percent of debtors with lawyers met this fate.”
Angela Littwin, The Affordability Paradox: How Consumer
Bankruptcy’s Greatest Weakness May Account for its Surprising
Success, 52 Wm. & Mary L. Rev. 1933, 1971-72 (2011).
Programs like VLJ’s clinic help address this crisis, as
volunteer lawyers try to pave the way for debtors to recover
financially. We commend the lawyers in this and other pro bono
initiatives who offer their skill and help at a time of need.
By doing so, they help bridge the justice gap that leaves many
low-income residents in New Jersey without legal services.
VIII.
For the reasons stated above, we reverse the ACPE’s final
action. We conclude that volunteer attorneys can continue to
represent low-income debtors in no-asset Chapter 7 bankruptcy
matters consistent with the principles outlined above.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-VINA
and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join
in CHIEF JUSTICE RABNER’s opinion.
28
SUPREME COURT OF NEW JERSEY
NO. A-22 SEPTEMBER TERM 2013
DISPOSITION On petition for review of a decision of the
Supreme Court Advisory Committee on Professional Ethics
IN THE MATTER OF
OPINION NO. 17-2012
OF THE ADVISORY COMMITTEE
ON PROFESSIONAL ETHICS
DECIDED July 2, 2014
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRIGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1