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2005 Formal Ethics Opinion 7

October 21, 2005

Recommending Services of a Third Party to Bankruptcy Client


Opinion rules that an attorney may recommend that a prospective client use a computer in the attorney's office and the services of an Internet-based company to complete a required bankruptcy certification form.


Inquiry:

The Bankruptcy Abuse Prevention and Consumer Protection Act ("the Act") makes sweeping changes to the Bankruptcy Code, almost all of which will go into effect on
October 17, 2005. Two of the more significant changes to the code are as follows:


1. The requirement that (with certain narrow exceptions) no individual may file any chapter of bankruptcy without first obtaining an "individual or group briefing (including a briefing conducted by telephone or on the Internet) that outline[s] the opportunities for available credit counseling and assist[s] such individual in performing a related budget analysis" (the entrance requirement). 11 U.S.C. §109(h) (1).


2. The requirement (again, with certain narrow exceptions) that no individual may receive a discharge under chapter 7 or chapter 13 of the amended Bankruptcy Code without first completing "an instructional course concerning personal financial management described in section 11185" (the exit requirement). 11 U.S.C. §§727 ((a)(11) and 1328(g) (1).


A newly formed North Carolina non-profit corporation, Hummingbird Credit Counseling and Education ("HCCE"), intends to offer the entrance and exit requirements via the Internet. HCCE will market low-cost and free financial education to the consumer. HCCE's goal is to provide the necessary entrance requirement in a completely unbiased way.


When a client seeks information and/or advice from a bankruptcy attorney, the attorney must inform the client that the client cannot file a bankruptcy case without first completing the entrance requirement. Time is usually of the essence when filing for bankruptcy. Consequently, the client must immediately comply with the entrance requirement and the Internet offers the best solution. A bankruptcy attorney could refer a client to HCCE and allow the client to complete the interactive program that HCCE provides on a computer in the attorney's office. The bankruptcy attorney would verify that the debtor, and not someone else, participated in the program. At the conclusion of the case, the client would return to the attorney's office and perform the exit requirement, utilizing the HCCE service, on the attorney's computer and again pay the appropriate fee to the attorney.


The costs associated with using HCCE's programming and support will be approximately $40.00 per entrance requirement. Potential bankruptcy filers usually do not have credit cards or should not use them. Since the only practical way to collect fees for Internet services is via a credit card, HCCE proposes that HCCE's certification fees be billed to the attorney's credit card on a monthly basis and the attorney will then collect the fees from his/her clients. The attorney will not receive any financial compensation for referrals to HCCE.


Due to the billing and identity verification concerns, the entrance and exit requirements will only be available at the attorney's office until such time as HCCE develops adequate direct delivery to consumers.


May a bankruptcy attorney offer prospective clients the opportunity to perform the entrance requirement via the Internet utilizing a computer provided by the attorney for this purpose and the services of HCCE?


Opinion #1:


Yes. Rule 1.1 requires competent representation and Rule 1.7 requires the exercise of independent professional judgment. Further, Rule 1.4 (a)(2) requires that the attorney reasonably consult with the client about the means by which the client's objectives are to be accomplished. When recommending that a client use the business services of a third party, the attorney's recommendation must be based upon a determination that the client needs the service, and upon an informed, unbiased analysis of the businesses that offer the service and the quality thereof.


Before the attorney may undertake representation of a prospective client for purposes of filing a bankruptcy petition, the attorney is required by the Act to advise the prospective client of the entrance requirement. It is therefore appropriate for the attorney to offer prospective clients the opportunity to perform the entrance requirement via the Internet in the attorney's office, on a computer provided by the attorney for this purpose, as a service that is related to anticipated legal services.


However, the attorney must determine that the use of the services of HCCE, or whatever third party company he recommends, is in the best interest of the client. To avoid conflicts of interest, the attorney may not earn a commission or a fee on the entrance requirement. See RPC 238. There must be full disclosure to the prospective client that the fee for the entrance requirement is being paid to the third party provider and that no portion of that fee goes to the attorney.


Inquiry #2:


Is it proper for the bankruptcy attorney to allow one of his/her employees to assist a prospective client in completing the entrance requirement via the Internet in the attorney's office?


Opinion #2:


Yes. The attorney may also bill the prospective client for any time devoted by the attorney's staff to assisting the prospective client. Rule 1.5.


Inquiry #3:


May the attorney collect HCCE's fee in cash from the prospective client and allow HCCE to charge the attorney's credit card?


Opinion #3:


Yes. See Opinion #1.


Inquiry #4:


May the attorney also verify the identity of the debtor prior to allowing the individual to complete the entrance requirement via the Internet?


Opinion #4:


Yes.

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