Is it unethical for a lawyer to file a bankruptcy adversary proceeding pro se to discharge their own student loans as an undue hardship?

Plain-English summary

The question was whether it is unethical for an attorney to file an adversary proceeding in bankruptcy on his own behalf to determine the dischargeability of student loan obligations based on undue hardship. The committee answered that all attorneys must follow the Washington Rules of Professional Conduct when representing clients, even when the client is the attorney himself; the rules neither add nor reduce ethical standards for self-representation. So it is not per se unethical to file such a proceeding, but a self-representing attorney who does not otherwise follow the WRPC violates the rules just as he would if representing another.

The committee observed that attorneys, like laypersons, have a basic right of self-representation, and noted that pro se attorneys have litigated student-loan undue-hardship discharges without the courts treating ethics as an issue, with courts deciding only whether the undue-hardship threshold was met (citing the Brunner factors). Drawing on a law review article, the committee identified three broad ethical principles for pro se attorneys: remaining objective in legal judgment, avoiding use of legal process to harass, and avoiding the appearance of inappropriate financial self-interest. It noted that although the third principle might seem at risk in a self-interested discharge action, bankruptcy courts had not found an appearance of inappropriate self-interest, probably because the undue-hardship threshold weeds out such behavior.

The committee cautioned that obligations under Title 3 and Title 4 of the WRPC present particular challenges for the pro se attorney: WRPC 3.1 (meritorious claims), 3.3 (candor toward the tribunal), and 3.4 (fairness to opposing party and counsel) all require realistic, objective participation, and WRPC 3.4(a) can make it hard for the pro se lawyer to separate work product from discoverable evidence; WRPC 4.1 (truthfulness to others) can pose problems in disclosing material facts to a third person when disclosure is necessary. It added that conflict-of-interest issues under WRPC 1.7, 1.8, and 1.9 could arise if the pro se lawyer had represented or still represented the lender. In summary, the committee believed there is no specific restriction against the filing, but the lawyer must still prove undue hardship and meet the same ethical duties as any other attorney, even if a lack of objectivity makes some of those duties harder to see and evaluate.

In practice

Under this opinion, and under the rules as they stood in 2006, the governing principle is that self-representation does not lower the ethical bar. The opinion holds that filing the adversary proceeding is not inherently unethical, but the lawyer remains fully bound by RPC 3.1 (meritorious claims), 3.3 (candor to the tribunal), 3.4 (fairness to others, including the work-product/discovery line), and 4.1 (truthfulness to third persons), and must independently prove undue hardship. The opinion flags that a self-representing lawyer's reduced objectivity makes these duties harder to satisfy, and that conflicts under RPC 1.7, 1.8, or 1.9 could arise if the lawyer has a relationship with the lender. The committee did not characterize the conduct as risky or advise a course of action; it located the duties in the rules themselves.

Common questions

Q: Can a lawyer file a bankruptcy adversary case to discharge his own student loans?

A: Yes. The committee concluded it is not per se unethical, because a lawyer representing himself has the same right of self-representation as anyone and must simply follow the RPCs.

Q: Do the ethics rules apply when the lawyer is his own client?

A: Yes. The committee said the WRPC apply when the client is the attorney himself, with neither added nor reduced standards for self-representation.

Q: Which duties are hardest for a pro se lawyer?

A: The committee pointed to RPC 3.1, 3.3, and 3.4, which require objective participation, noting the work-product-versus-evidence line under 3.4(a), and RPC 4.1 on disclosing material facts to third persons.

Q: Could a conflict of interest arise?

A: Yes. The committee said WRPC 1.7, 1.8, and 1.9 could come into play if the pro se lawyer had represented or still represented the lender from which the loans were obtained.

Background and rules framework

The opinion interprets Washington's Title 3 and Title 4 advocacy rules: RPC 3.1 (meritorious claims and contentions), RPC 3.3 (candor toward the tribunal), RPC 3.4 (fairness to opposing party and counsel), and RPC 4.1 (truthfulness in statements to others), each the counterpart to the same-numbered Model Rule. It also references the conflict rules RPC 1.7, 1.8, and 1.9. The factual backdrop is bankruptcy dischargeability of student loans on undue-hardship grounds under the Brunner standard.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.1 / Washington RPC 3.1 (meritorious claims and contentions)
• Model Rule 3.3 / Washington RPC 3.3 (candor toward the tribunal)
• Model Rule 3.4 / Washington RPC 3.4 (fairness to opposing party and counsel)
• Model Rule 4.1 / Washington RPC 4.1 (truthfulness in statements to others)
• Model Rules 1.7, 1.8, 1.9 / Washington RPC 1.7, 1.8, 1.9 (conflicts; referenced if the lawyer is connected to the lender)

Cases:

• Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395 (2d Cir. 1987), undue-hardship standard for student-loan discharge
• Great Lakes Higher Educ. Corp. v. Brown (In re Brown), 239 B.R. 204 (S.D. Cal. 1999), pro se attorney-debtor discharge action

Other authorities cited:

• Alicia L. Downey, "Fools and Their Ethics: The Professional Responsibility of Pro Se Attorneys," 34 B.C.L. Rev. 529 (1993)

See also

• WA Ethics Op. 1618: Self-Representation and Duty to Disclose Status
• WSBA Ethics Op. 1898: Lawyer-Trustee Serving as His Own Advocate
• WSBA Ethics Op. 1262: Lawyer as Witness Representing Himself

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1570

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 2131
Year Issued: 2006
RPC(s): RPC 3.1, 3.3, 3.4, 4.1
Subject: May an attorney file an adversary proceeding on his own behalf in a bankruptcy

Issue Statement Whether it is unethical for an attorney to file an adversary proceeding in bankruptcy on his behalf to determine the dischargeability of student loan obligations based on undue hardship.

Brief Answer All attorneys need to follow the Washington Rules of Professional Conduct (WRPC) when representing clients, even when the client is the attorney. The rules neither specify any additional or reduced ethical standards attorneys should follow when representing themselves. Therefore, it is not per se unethical for an attorney to file an adversary proceeding on his behalf in bankruptcy. But if an attorney does not otherwise follow the WRPC, he will be in violation of the rules in the same sense that he/she would be in violation if representing another.

Discussion It is not per se unethical for a pro se attorney to file an adversary proceeding in bankruptcy because attorneys, as lay-persons, have a basic right to self representation. In many cases pro se attorneys have represented themselves in adversary proceedings in bankruptcy to discharge their student loans based on undue hardship, and the courts did not bring up ethics as an issue. See Great Lakes Higher Educ. Corp. v. Brown (In Re Brown), 239 B.R. 204 (S.D. Cal. 1999). The courts ruled solely on whether the attorney-debtor met the undue hardship threshold. If the attorney proved undue hardship, his loans would be discharged.

When determining whether a student loan obligation should be discharged because repayments create undue hardship a court considers: (1) the debtor’s current level of income and expenses and whether a minimal standard of living can be maintained by the debtor if he/she must repay the student loans; (2) additional circumstances that might suggest that the debtor’s current financial condition would likely continue for a significant portion of the repayment period; and (3) whether the debtor has made a good faith attempt to repay the student loans. Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir. 1987).

Although the WRPC are silent concerning the ethics of attorney self-representation, a relevant law review article proposes that since attorneys have a professional duty to conform to certain ethical standards when representing others, those same standards should apply when attorneys represent themselves. Alicia L. Downey, Fools and Their Ethics: The Professional Responsibility of Pro Se Attorneys, 34 B.C.L. Rev. 529, 532 (1993). At least three broad ethical principles can be drawn from the model rules: attorneys are required to (1) remain objective when exercising legal judgment; (2) avoid legal process for the purpose of harassing others; and (3) avoid the appearance of inappropriate financial self-interest. Id. Following these standards will minimize the potential for ethical violations.

Even though it would seem that the third principle is likely to be violated by pro se attorneys seeking to discharge their student loan obligations, bankruptcy courts have not found any appearance of inappropriate financial self-interest. This is probably because the undue hardship threshold that the pro se attorneys have to meet would weed out such inappropriate behavior.

It should be noted, however, that various ethical obligations under Title 3 and Title 4 of the WRPC present additional problems for the pro-se attorney. The old adage about the attorney who represents him/herself having a fool for a client can be explained, in part, by the lack of objectivity in evaluating and handling the matter. WRPC 3.1 (meritorious claims and contentions), 3.3 (candor toward the tribunal) and 3.4 (fairness to opposing party and counsel), all of which address the attorney’s duties and responsibilities to persons other than his/her client, contemplate and require realistic and objective participation. For example, under WRPC 3.4(a), we suggest that there could be inherent difficulties in the pro se lawyer deciding what is attorney work product versus discoverable evidence. Similarly, WRCP 4.1 (truthfulness in statements to others) can present peculiar problems, particularly in the area of disclosure of material facts to a third person when disclosure is necessary.

Finally, and while it is unlikely, there could be issues of conflict of interest if the pro- se lawyer had represented or was still representing the educational institution or financial/governmental organization from which the student loans had been obtained. That situation would bring WRPC 1.7, 1.8 and 1.9 into consideration.

In summary, we believe that while there is no specific restriction against a pro se attorney filing an adversary proceeding in bankruptcy to determine the dischargeability of his student loan obligations, h/she still must prove the undue hardship standard and meet the same ethical duties as any other attorney presenting the case. Some of those ethical duties may be more difficult to see and evaluate because of lack of objectivity, but that difficulty, alone, does not preclude the pro-se representation.