Charles Riecke Published in ABI Journal
"BAPCPA’s Effect on Pro Bono Assistance"

The March 2007 issue of the ABI Journal includes the article by Charles "BAPCPA’s Effect on Pro Bono Assistance" that points out "Section 101(12A) of the Bankruptcy Code, newly enacted under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), creates and defines the term “debt relief agency.” Corresponding BAPCPA §§526, 527 and 528 of the Bankruptcy Code impose a great number of restrictions, affirmative obligations and potential liabilities upon any attorneys or law firms bearing the unhappy designation (collectively, “covered attorneys”). . . . Is it any wonder, then, that many law firms and practitioners shudder at the prospect of being so named and may feel a great deal of trepidation about providing pro bono bankruptcy services, all as a direct result of this novel statutory creation, the “debt relief agency?” The term has had a chilling effect on many eligible pro bono bankruptcy service providers. . . .Formulating the “debt relief agency” analysis by looking only to the relationship between the attorney (or law firm) and the “assisted person,” as the Reyes court did, very simply and effectively resolves the issues. In this way, an initial question posed by the Reyes court—“should we assume that Congress was mean-spirited and intended §§526, 527 and 528 to provide a chilling effect on lawyers’ willingness to represent persons who have suffered financial misfortune, in most cases through no fault of their own, because of lack of health insurance, loss of employment or other tragedy?”—may be answered, in favor of social justice, with a resounding “no.”