Copyright (c) 2006 The American University Law Review
American University Law Review
BANKRUPTCY 2.0(05): CHAPTERS, CHANGES, AND CHALLENGES: ARTICLE: THE BAPCPA'S CHILLING EFFECT ON DEBTOR'S COUNSEL
55 Am. U.L. Rev. 1333
On April 20, 2005, President Bush signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), 1 legislation that significantly revamps bankruptcy law, procedure, and practice. While most of the attention on BAPCPA has focused on restrictions on consumer bankruptcy filings, less time has been spent on its implications for attorneys who represent those consumers. BAPCPA holds attorneys responsible for the accuracy and truthfulness of the information contained in clients' bankruptcy schedules and statements, 2 and imposes sanctions and even civil penalties if a consumer bankruptcy case is dismissed by the court. 3 In addition, new rules governing which state exemption laws apply force debtors' counsel to learn exemption laws of jurisdictions where they are not licensed to practice, subjecting them to the risk of being charged with the unauthorized practice of law. 4 These provisions will likely increase the cost of consumer bankruptcy filings and drive qualified practitioners away from bankruptcy practice.
Proponents of BAPCPA (namely the consumer credit industry that lobbied ten years for its enactment) tend to refer to BAPCPA as "reform" legislation that curtails unspecified "abuse." 5 BAPCPA's supporters chose a brilliant name for the legislation, because the name gives the impression that BAPCPA somehow reforms abuse and protects consumers (although it is not clear whether the protected consumers are the individuals filing for bankruptcy or the rest of society). After all, who could oppose a law that purports to prevent bankruptcy abuse and protect consumers?
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