A Bankruptcy lawyer’s primary job is to advise clients on Bankruptcy law, plan a Bankruptcy filing and guide clients through a Bankruptcy case. That is exactly what Bankruptcy Judges expect us to do, and we can get into trouble with the Court, U.S. Trustee, State Bar and even our clients if we do not do that job correctly. Bankruptcy cases are like most other cases in that personal feelings are often set aside for the moment so we can deal with the legal and financial issues. We know that our clients did not set out to get in financial trouble and then get out of their debts, and we often act as personal counselors as we meet with clients. We are sympathetic and empathetic, but sometimes tell our clients that the Judges or Trustees do not really care how they got into debt except in those rare cases in which the debt arose from some kind of misconduct. As long as we make sure our clients comply with all of their obligations in the case, and act in good faith, personal feelings really are not relevant. Right? Maybe not, according to a recent study that concludes that an apology in a Chapter 13 plan increases the chances of confirmation.
Robert Lawless and Jennifer Robbennolt presented fictional plans to Bankruptcy judges that were identical except that some had this apology at the end of the Plan: “We have no way of keeping up with our bills and repaying everything. It is all we can do to pay the mortgage and keep food on the table. We know that we are responsible for the mess we are in. We are truly sorry.” The results of the study were that 40.6% of the Judges would have confirmed the plan with an apology but only 34.4% would have confirmed the plan that did not include the language. In the real world, this does not mean that Plans that have other problems will be confirmed if an apology is added. However, if there is a dispute to be decided by a Judge in a Chapter 13 case and there is discretion involved, such as whether a little more money can be squeezed out of the clients for their Plan, an apology may very well help. Judges, after all, are people too!