Law Review Note: Rylee Stanley, The Poor Man's Problem in Bankruptcy, 55 St. Mary's L.J. 1185 (2024).

Available at: The Poor Man's Problem in Bankruptcy

Introduction:

This Comment describes how bankruptcy courts operate and explores the effects of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) on indigent parties and  also discusses the unique concerns surrounding pro se bankruptcy cases compared to other proceedings and points out the inequities that currently exist between trustees and debtors. 

Next, it examines the civil-criminal dichotomy and the heavily debated “Civil Gideon” movement, first highlighting the landmark case of Gideon v. Wainwright, 11 which declared the right to legal counsel is a fundamental right for indigent criminal defendants.  Second,  the comment dives further into Boddie v. Connecticut and Powell v. Alabama,  which explain the importance of the right to access the courts, as well as how the right to counsel is needed in civil and criminal proceedings. 

Then the comment sets forth more details about the Civil Gideon movement and discusses its relevance in bankruptcy law,  also explaining four prevalent issues in bankruptcy law that support the need for an appointed right to counsel in bankruptcy. Most importantly, it proposes a solution to provide access to counsel in bankruptcy proceedings and addresses popular concerns with public assistance programs. 

Finally, it wraps up the conversation and revisits the many reasons why the Sixth Amendment right to counsel should be extended beyond the criminal courts.  

Commentary:

This is an idealistic and well-intentioned law review comment, that unfortunately,  by blending the Civil Gideon  movement with bankruptcy  but without any clear experience directly bankruptcy,  misses the target.  There is neither a recognition of  how many indigent people do not actually need bankruptcy, because they are judgment proof,  nor that many debtors are able to file bankruptcy,  depending on the jurisdiction in either Chapter 7 or Chapter 13,  often paying little, if any, costs or attorneys fees in advance.  (As these are unmentioned, so too are the problems with such options,  including the heightened costs of Chapter 13 or the problems with "zero money down" Chapter 7 cases under Lamie or bifurcation schemes.)