This is a frequently asked question for any bankruptcy attorney and is dependent upon the unique facts and circumstances of each case. In some instances, the probable success of a bankruptcy case can be determined at the initial consultation and the prospective client will be advised appropriately. However, because of time limitations for the initial consultation, unavailability of documents and other information, or a combination of both, our attorneys may not be able to reach a decision on representation at the initial meeting. While we can inform prospective clients of the standard document requests, such as tax returns, pay stubs and bank statements, it is inevitable that additional information may be needed to carefully evaluate a case. COMMON QUESTIONS THAT BANKRUPTCY ATTORNEYS HAVE TO ANSWER FOR POTENTIAL CLIENTS For this reason, additional consultations may be required with additional documents to be reviewed.
Our attorneys will conclude their review and assess the likelihood of case success as soon as possible, given their court schedules and current client responsibilities. They will also carefully consider collateral consequences such as the risk of asset loss or potential objections WHAT IS A NON-DISCHARGEABLE DEBT, AND HOW CAN IT AFFECT MY BANKRUPTCY CASE? to the case filing. MINIMIZING OR ELIMINATING “COLLATERAL DAMAGE” FROM A BANKRUPTCY FILING At that time, the determination to take on representation will be made. If our firm chooses to offer representation, a fee arrangement and retainer payment will be decided. The Bankruptcy Code requires that bankruptcy representation of a consumer cannot commence until they have signed a written confirmation of representation. Until the written confirmation of representation is executed, our office has not undertaken any legal duties or responsibility for your case. For this reason, prospective clients should not notify their creditors that they have retained our office until the written agreement is signed, and the retainer fee is paid.
If the attorney decides not to offer representation after the consultations in document review, it can be for several reasons. After consultations and document review, our attorneys perform a conflict review to make sure that any new representation would not conflict with the pending or past representation of other clients. In some situations, the conflict may be apparent at the time of the consultation, and the prospective client will be advised accordingly. But in other situations, it may require a search of our client database which would be performed after the consultation. The State Bar of Georgia prohibits attorneys from representing clients if it would or could cause a conflict of interest. Because of the duty of confidentiality, we cannot disclose the identity of the conflict without authorization of the other firm client.
Even if there is not a conflict, our attorneys may decide that there are one or more factors which could prevent effective representation of a potential client, such as:
- a history of past unsuccessful bankruptcy cases, especially if outstanding court fees are owed; PRE-FILING INDICATIONS THAT YOUR CHAPTER 13 CASE WILL NOT BE SUCCESSFUL
- inaccuracies in income tax returns which could lead to a case objection as well as the possibility of a tax audit; THE IMPORTANCE OF ACCURATE INCOME TAX RETURNS IN BANKRUPTCY
- the inability to protect assets that the potential client wishes to keep; HOW TO LOSE AN ASSET IN BANKRUPTCY COURT WITHOUT EVEN TRYING
- failure to keep accurate business records;
- transfer of assets to friends and family members in the year prior to the consultation; SALES, TRANSFERS AND DEBT REPAYMENT: WHAT YOUR BANKRUPTCY ATTORNEY NEEDS TO KNOW
- unexplained financial activity in bank accounts.
Keep in mind that many times this conduct can occur with innocent intentions or omissions, and not out of deceit. Unfortunately, the Bankruptcy Code does not consider such intentions if they occur within certain time frames. The decision not to take on the case of a prospective client for reasons other than a conflict of interest is almost always done in the interest of protecting that individual from costly consequences of a bankruptcy filing. HEIGHTENED REVIEW OF INCOME TAX RETURNS IN CONSUMER BANKRUPTCY CASES Despite the decisions of our attorneys, we always encourage potential filers to seek a second or third opinion as there are multiple bankruptcy attorneys in our local area who also offer free consultations and may have a different perspective on how a bankruptcy case would proceed.
Based on ethical recommendations of the State Bar, the notification of non—representation – if needed – will be submitted via letter. Any documents supplied to our office as part of the bankruptcy consultation will be made available for pickup or delivered as requested by the consumer. The ongoing duty of confidentiality for all communications given during a consultation remains even if our attorneys decline representation. Given that bankruptcy consultations with our firm are free and all information divulged in the course of those consultations is protected, we respectfully request that you honor the attorney’s decision. Declining a potential case inevitably means lost potential revenue for our firm. But we continue to enjoy the referrals from friends, family members, and other attorneys because we don’t file cases that will be unsuccessful or that may generate additional and bigger problems for a prospective client.