American Bar Association - Resolution by House of Delegates

Opposition to the Bankruptcy Abuse Prevention and Consumer Protection Act, P .L. 109-8 ("BAPCPA")

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This is the Resolution that the American Bar Association House of Delegates unanimously passed on August 4, 2009.

RESOLVED, that the American Bar Association opposes the provisions in the Bankruptcy Abuse Prevention and Consumer Protection Act, P.L. 109-8, that impose restrictions upon the bankruptcy-related legal advice lawyers can provide to individual clients and that require lawyers who provide such advice to identify and advertise themselves as "debt relief agencies," as well as other similar future federal legislative or regulatory proposals, on the grounds that such provisions violate core First Amendment principles, undermine the confidential attorney-client relationship, and interfere and conflict with traditional state judicial regulation of the legal profession.

Although the ABA has existing policy generally opposing the "debt relief agency" provisions in legislation that was ultimately enacted as BAPCPA, the recommendation will provide additional specific policy in support of an application to the Board of Governors for an ABA amicus brief to be filed in the Milavetz case challenging the constitutionality of the "debt relief agency" provisions in the statute. In palticular, the recommendation will allow the ABA to take the position in the proposed brief that the provisions in question: (l) violates the core First Amendment free speech rights of both lawyers and their clients; (2) seriously undennine the confidential attorney-client relationship; (3) interfere and conflict with the traditional and longstanding state judicial regulation of the legal profession; and (4) have had a profound adverse effect on lawyers, debtors, courts, and the bankruptcy system as a whole. The recommendation also will support the ABA's ongoing legislative efforts to achieve the repeal of these statutory provisions, and would enable the ABA, if necessary, to oppose similar future proposals governing lawyers providing bankruptcy-related advice.

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