As the number of bankruptcy petitions grows, both nationwide and in Utah, more and more attorneys are devoting their time exclusively to bankruptcy cases.
The competition is best evidenced by the classified ad columns in local papers, where many of Salt Lake's bankruptcy attorneys advertise their services. The practice is now a legitimate option for attorneys, who for years were prohibited from advertising by the Utah State Bar.The ads range in length and specifics, but have some distinct similarities. Most offer a 24-hour recorded message and a free first-time consultation for people considering bankruptcy.
Attorneys say it's the free-market system at its best, while creditors argue that advertising has actually boosted the rate of bankruptcy by encouraging people to file.
Whatever the impact, if any, at least two local bankruptcy attorneys are proud of their specialty and agreed to give the Deseret News a look at bankruptcy from their side of the desk.
Rulon Burton has practiced bankruptcy law exclusively for 23 years. He's done so both without advertising and, now, with a standing ad in the classifieds. He said advertising has some impact on the rising number of bankruptcies, but the effect has been positive in human terms.
"It lets people know they have that kind of relief available. But it's not the kind of advertising that encourages people to go into bankruptcy."
Burton said advertising helps potential clients in two ways: it lets them know they have a choice in choosing an attorney, and it keeps prices for services competitive.
"I had a woman come in two months ago whose home was in foreclosure. She read the ad two days before the date her home was going to be sold. She filed a Chapter 13 petition and stopped the foreclosure. She now has three years to pay off the creditors, and everyone will be happier three years from now because she read an ad. The creditors get some relief, and she keeps her house."
Ronald Schiess has been a practicing bankruptcy attorney for 20 years and is a bar examiner for the Utah Bar. He also advertises regularly in the classifieds and said competition among attorneys has been heightened by advertising. He agrees with Burton that it benefits the public if it's done right.
"I believe legal advertising ought to be quite restrained. I don't believe attorneys ought to be saying things in ads that promote litigation and bankruptcy that isn't necessary.
"By and large, bankruptcy practice is not the lucrative practice that other kinds of law are. It is quite competitive, and attorneys are forever having price wars about it. I think it's unhealthy. I don't object to the competition, but I don't ever want it to get so competitive that you eliminate the best work that could be done for the client."
As longtime bankruptcy attorneys, both men have seen literally thousands of people whose debts are out of control and who are trying desperately to find a way out. They agree that while the social stigma of filing bankruptcy has softened in recent years, people's intentions in filing bankruptcy have remained basically the same.
"That's the reason I'm in bankruptcy law," Burton said. "By far the largest majority of people coming in really want to pay their bills. That's not lip service they really want to."
Burton admits there is a small percentage of clients who try to abuse the system and said he does his best to steer them elsewhere.
Schiess said the majority of clients he has seen over the years are victims of circumstances they don't control. "The mom gets cancer, or the dad loses his job. Maybe the employer's product no longer had a market. I think it's a minority of cases where the cause falls back on an imprudent debtor."
"Creditors sometimes don't agree with that opinion. Many of them believe it's easier to file bankruptcy now and that people are taking advantage of them through bankruptcy court by getting their debts discharged. I personally don't believe there's any more tendency to do a full discharge (Chapter 7 liquidation) than there has been in the past."
In fact, both attorneys say they file at least as many Chapter 13 (reorganization) petitions as they do Chapter 7 petitions. Even so, the numbers locally show that Chapter 7s outnumber 13s by almost 2 to 1. Schiess said that may have to do with the fact that a 7 is easier to file.
Chapter 13s are much more complex and usually run a course from three to five years. Also, cases originally filed as Chapter 13s are converted to Chapter 7 if the debtor can't meet the terms of the court-approved repayment plan.
Both attorneys agree that since the bankruptcy code was revised in 1978, the law is more workable for both debtors and creditors. That, they say, has had a large impact on the increase in bankruptcy filings.
Another factor, from their point of view, involves credit practices where lenders offer money under terms where the borrower can't appreciate the consequences.
As an example, Schiess cited an example of a lender that offers money to people in financial trouble and charges over 29 percent interest for a personal, unsecured loan. He said such borrowers are already desperate for cash and don't usually realize what the consequences of their actions are.
Burton said credit cards and second mortgages were not a problem for his clients in the mid-1960s but are now among the biggest factors in bankruptcy. "During the '70s, when homes increased tremendously in value, everyone got this equity infusion they didn't earn. It just came as a result of inflation. They took advantage of it, and now we have people coming to us with problems on paying a second mortgage."
As a result, most of Burton's clients are "scared to death when they come in to see us. We try to help them along with about half of the people I see, you have to sort of play parent because they just don't know how they'll ever survive. But they do."
Though their services are vital for their clients, Burton and Schiess, like most active local bankruptcy attorneys, are not usually subject to the media scrutiny that some high-profile criminal defense lawyers come under while defending a client.
That is, unless the attorneys themselves become the subject of court action.
Attorney Richard Calder advertises regularly in the local bankruptcy classified columns, offering a wide range of bankruptcy services. One distinct component of his ad is a tally of the number of cases he filed during the previous year. Calder's current ad claims he filed 762 Chapter 13s and 463 Chapter 7s during 1987. If the numbers are correct, that's more than one-third of all the Chapter 13s and about one-tenth of Chapter 7s filed in Utah.
The Utah State Bar has two formal complaints charging unprofessional conduct pending against Calder involving questions raised in two 3rd District Court lawsuits filed by former clients.
Both complaints were filed last year with the Bar's board of commissioners. Among other charges, they allege Calder violated the Bar's rules of professional conduct by "engaging in conduct involving dishonesty, fraud, deceit or misrepresentation" of one client, and "reckless disregard of plaintiff's rights" and "egregious violation of his legal and ethical obligations to plantiffs" in another case.
Calder has filed a motion with the Bar denying most of the ethical and factual allegations of the first complaint. When asked by the Deseret News about the complaints, he declined comment.