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Appointment of counsel is not the answer

By: dmc-admin//July 6, 2009//

Appointment of counsel is not the answer

By: dmc-admin//July 6, 2009//

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Pro se bankruptcy filers may be a drain on court resources, but judges won’t be trying to mitigate the problem by appointing attorneys to represent them.

A June 24 opinion by U.S. Bankruptcy Chief Judge Margaret Dee McGarity denied a debtor’s request for appointment of counsel pursuant to 28 U.S.C. 1915 (e)(1).

While some of the court’s reasoning is limited to the particular debtor, most of it would apply to all pro se debtors.

David Michael Larsen filed for bankruptcy pro se, and requested that the court appoint counsel to help him recover control over assets currently controlled by a receiver.

But Judge McGarity found that, even if sec. 1915 applies in bankruptcy court, no “exceptional circumstances” warranted the appointment of counsel.

First, the court found that Larsen’s filings indicated he clearly is capable of representing himself, calling his recitation of the sec. 1915 factors “excellent.”

Second, the court found that it would be “redundant” to appoint counsel to represent any pro se debtor, because the trustee already has the responsibility to do whatever appointed counsel might do.

“If there are any assets available for the debtor’s estate, either nonexempt or partially exempt, they will be recovered and administered by the trustee, not the debtor,” McGarity wrote. “If Mr. Larsen had a cause of action resulting from damage to his interests on account of improper transfers, negligent investments, or other malfeasance caused by the receiver, as he alleges, this belongs to the trustee.”

Because it is the trustee’s responsibility to investigate facts, issue subpoenas and conduct research, McGarity said appointment of counsel would be redundant and denied Larsen’s motion.

The case is In re: Larsen, No. 09-22963-MDM (E.D.Wis., June 24, 2009).


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