Attorneys as Debt Relief Agencies: Constitutional Considerations
FORDHAM JOURNAL OF
CORPORATE & FINANCIAL LAW
Fordham Journal of Corporate & Financial Law
Copyright c 2008 by the authors. Fordham Journal of Corporate & Financial Law is produced
by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/jcfl
*J.D. Candidate, Fordham University School of Law, 2008; B.A., Political Science and
Middle Eastern Studies, Rutgers College, 2005. I would like to thank Professor Susan
Block-Lieb for all of her guidance through this process and for making my experience
in bankruptcy law at Fordham so fulfilling. I would also like to thank my family and
friends for their love and support, especially my grandmother, Mary Freund, whose
memory will always be with me.
The Bankruptcy Abuse Prevention and Consumer Protection Act of
20051 (“BAPCPA”) was signed into law on April 20, 2005,2 and
became effective six months later.3 Congress’ stated rationale for
BAPCPA “is to improve bankruptcy law and practice by restoring
personal responsibility and integrity in the bankruptcy system and
ensure that the system is fair for both debtors and creditors.”4 However,
critics have charged Congress, despite their decades-long effort,5 with
impure motives, sloppy draftsmanship leading to inconsistencies and
confusion,6 and “arrogant disregard for the facts about debt and debtors
The creation of a new group, “debt relief agencies,”8 and the
corresponding provisions regulating their behavior, may be the most
baffling.9 A debt relief agency is a person that provides bankruptcy
assistance to an assisted person in exchange for consideration.10 These
requirements have sparked a two-part debate: whether attorneys fall
within the definition of debt relief agencies,11 and if so, whether an
application of these regulations on lawyers as a class violates their First
Attorneys should not be included in the definition of debt relief
agencies. A contrary ruling notwithstanding, the following provisions
should be held unconstitutional: (
) § 526(a)(
), which prohibits debt
relief agencies from advising assisted persons to incur more debt;13 (
527, which requires attorneys to make specific statements to their
) § 528, which regulates debt relief agency advertisement;15
) § 526(a)(
), which mandates attorneys to perform specific
I. LEGAL BACKGROUND
A. Legislative History
BAPCPA arose from the lobbying efforts of a coalition of
consumer lenders, who “convinced Congress that abuse was rampant in
bankruptcy, that many debtors were using bankruptcy as a ‘first resort’
to avoid paying creditors, and that courts weren’t doing enough to police
the bankruptcy system.”17 Congress rationalized that BAPCPA would
restore integrity to the bankruptcy system and protect both creditors and
debtors.18 Congress also singled out attorneys as a major abuser of the
bankruptcy system,19 and purported that the amendments would curb
Senator Orrin Hatch of Utah, one of the most ardent supporters of
the “debtor’s bill of rights,” intentionally struck at attorneys when
addressing the Senate in favor of section 256 of BAPCPA:21 “Some
attorneys . . . leave out the part about the years of ruined credit that
result, the inability to get a car loan or a house loan.”22 Senator Hatch
noted that BAPCPA sought to end incomplete and sometimes incorrect
information provided by attorneys to their clients.23 Congress also
highlighted attorney abuse, or “gaming” of the system, as a factor in
support of bankruptcy reform.24
17. Lundin, supra note 6, at 1 (citing H.R. REP. NO. 109-31(I), at 5-8 (2005),
reprinted in 2005 U.S.C.C.A.N. 88, 92-95).
18. H.R. REP. NO. 109-31(I), at 1 (2005), reprinted in 2005 U.S.C.C.A.N. 88,
19. Congress never presented any evidence in support of their accusations of these
egregious abuses. “Without a shred of evidence, BAPCPA convicts debtors’ attorneys
as conspirators in an ‘abusive’ bankruptcy system.” Lundin, supra note 6, at 69.
20. 151 CONG. REC. S2459-01 (daily ed. Mar. 10, 2005) (statement of Sen. Hatch)
(“We all know about the abuses of the system. Well, that is about to change for the
better. This bill is about fairness and accountability. . . . This bill contains a debtor’s
bill of rights with new protections that prevent bad actors from preying on the
21. The section numbers of BAPCPA do not necessarily correspond to the section
numbers of the Bankruptcy Code.
22. 151 CONG. REC. S2459-01 (daily ed. Mar. 10, 2005).
23. See id.
24. See H.R. REP. NO. 109-31(I), at 5 (2005), reprinted in 2005 U.S.C.C.A.N. 88,
[T]he present bankruptcy system has loopholes and incentives that
allow and—sometimes—even encourage opportunistic personal
filings and abuse. . . . [The Justice Department] has ‘consistently
identified’ such problems as ‘debtor misconduct and abuse,
misconduct by attorneys and other professionals, problems
associated with bankruptcy petition preparers, and instances where a
debtor’s discharge should be challenged.’25
The courts that have held that attorneys are debt relief agencies have
relied on this evidence of legislative intent.26
A failed proposal by Senator Feingold provides another relevant
piece of legislative history. On March 9, 2005, Senator Feingold
proposed, as part of amendment No. 93,27 that the definition for debt
relief agencies exclude attorneys.28 However, the Senate did not pass, or
even address, his proposal.29 Although Congress turned down the
opportunity to resolve the definition of attorneys as debt relief agencies,
Congress did not reject BAPCPA, leaving the inclusion of attorneys an
issue of contention.
Some legislative history suggests intent to exclude attorneys from
the term “debt relief agency.” In certain parts, the Congressional Record
includes both attorneys and debt relief agencies on the same list.30
Additionally, the requirements for attorneys in the legislative history do
not include the responsibilities mandated in 11 U.S.C. §§ 526-528 for
debt relief agencies.31 Courts, especially those that heard challenges to
the debt relief agency provisions as an issue of first impression in their
attention to the legislative
B . Scholarly Treatment Pre-Implementation
After passage but prior to implementation of BAPCPA, scholars,
sparked by the ambiguous legislative history, addressed the inevitable
problems that courts would face under the new law.33 Scholarly articles
published prior to BAPCPA implementation assumed that debtors’
attorneys fall within the definition of “debt relief agencies.”34 Some of
these articles also addressed the applicability of 11 U.S.C. §§ 526-528 to
other attorneys (i.e., attorneys who do not or only rarely represent
debtors), and argued that the statutory language applied to all attorneys
involved in bankruptcy, not just debtor’s attorneys.35
Despite the failure to question whether attorneys are, in fact, debt
relief agencies, most of the pre-implementation articles addressed the
constitutional and practical issues posed by BAPCPA.36 These issues
varied from the regulation of advertising,37 to the constitutionality of §
32. See Hersh v. United States, 347 B.R. 19, 22-23 (N.D. Tex. 2006); Olsen v.
Gonzales, 350 B.R. 906, 911-12 (D. Or. 2006); In re Attorneys at Law & Debt Relief
Agencies, 332 B.R. 66, 69 (Bankr. S.D. Ga. 2005) (discussing Congressional intent).
33. See Chemerinsky, supra note 5; Lundin, supra note 6; Sommer, supra note 6;
Vance, supra note 6.
34. See Chemerinsky, supra note 5, at 572 (failing to question whether attorneys
are debt relief agencies: “BAPCPA requires consumer bankruptcy lawyers to identify
themselves in advertisements as ‘debt relief agencies’”); Lundin, supra note 6, at 69
(denouncing the unjustified conviction of debtors’ attorneys and discussing the
deprofessionalization of bankruptcy attorneys as debt relief agencies); Sommer, supra
note 6, at 206 (assuming that the provisions applying to debt relief agencies would
apply to bankruptcy attorneys); Vance, supra note 6, at 292 (assuming that debtors’
attorneys are debt relief agencies).
35. See Chemerinsky, supra note 5, at 576 (explaining how §§ 526-528 could apply
to attorneys representing creditors and landlords because the definition of “assisted
person” is not limited to debtors or prospective debtors); Sommer, supra note 6, at 206
(stating that the “slipshod drafting” of BAPCPA means that the provisions applying to
debt relief agencies “will apply to many attorneys who rarely, or never, represent
consumer bankruptcy debtors”); Vance, supra note 6, at 293 (questioning whether
BAPCA will also regulate creditors’ attorneys).
36. See generally Chemerinsky, supra note 5, at 572-89; Sommer, supra note 6, at
207-11; Wann, supra note 27, at 283-99 (forecasting constitutional issues which, while
written post-implementation, had not yet been litigated).
37. See Chemerinsky, supra note 5, at 572-89 (evaluating the Supreme Court’s
perspective on attorney advertising and discussing whether BAPCPA’s regulations on
) and § 528,38 to the potential for First Amendment violations.39
Attorneys, judges and other members of the bankruptcy world were
undoubtedly on notice of the potential conflict over 11 U.S.C. §§
526528, prior to October 17, 2005, the effective date of BAPCPA.
C. Four Basic Cases Types40
To date, four distinct types of rulings have emerged:41 (
holding that the plaintiffs have no standing;42 (
) cases holding that
attorneys are not debt relief agencies;43 (
) cases holding that attorneys
are debt relief agencies, but that some or all of the provisions pertaining
to debt relief agencies are unconstitutional as applied to attorneys;44 and
) cases applying the debt relief agency provisions to attorneys, without
formal discussion on the applicability of the provisions.45
The courts in Geisenberger v. Gonzales and In re Francis I.
McCartney both held that they lack jurisdiction to decide whether
attorneys are debt relief agencies.46 Both courts discussed the
constitutional prohibition against delivery of advisory opinions,47 and
determined that the motions by the plaintiffs amounted to little more
than requests for such proscribed opinions; therefore, they could not
hear the cases.48 The In re McCartney court noted that “no party has
threatened to enforce against [plaintiff] the debt relief agency provisions
of BAPCPA.”49 Without the enforcement, or the threat of enforcement,
a court could not hear a case or controversy as required under Article III
of the Constitution, and therefore could not determine whether attorneys
are debt relief agencies.50
The courts in three cases determined that debtors’ attorneys are not
debt relief agencies.51 These opinions forwarded four arguments as to
why courts should construe the statute in this way:52 (
) plain language
) legislative intent;54 (
) the doctrine of absurd
result;55 and (
) the doctrine of constitutional avoidance.56 The In re
Reyes court adopted the opinion of Judge Rosenbaum from Milavetz,
Gallop & Milavetz P.A. v. United States, holding that attorneys are not
debt relief agencies.57 However, even if attorneys generally are debt
relief agencies, attorneys who represent debtors in connection with pro
bono work are not debt relief agencies.58 Additionally, the In re Reyes
and Milavetz courts each held that §§ 526(a)(
) and (b)(
The courts in Hersh v. United States, Olsen v. Gonzales, and
Zelotes v. Martini also held that attorneys are debt relief agencies, but
that many of the provisions applying to debt relief agencies are
unconstitutional.60 All three courts held that § 526(a)(
unconstitutional as applied to attorneys.61 Olsen and Hersh both
addressed the constitutionally of § 527, holding that the section, even as
applied to attorneys, does not unconstitutionally compel speech.62 The
Olsen court went one step further in its constitutional evaluation,
discussing the viability of §§ 526(a)(
) and 528,63 but ultimately
determining that neither section violated the attorneys’ First Amendment
In re Gutierrez,65 In re Robinson,66 and In re Norman67 vary from
the other three types of cases because they were not brought by attorneys
seeking clarification about the statute, but rather were motions on other
issues, the resolution of which required analysis of the debt relief agency
provisions.68 These cases did not address whether attorneys are debt
relief agencies, or the corresponding constitutional implications.69
Rather, they merely applied the law to the factual situations presented.70
These cases, in particular In re Gutierrez, affect arguments that attorneys
may make about standing.71 Because a court has held an attorney liable
under the debt relief agency provisions, one can argue that the threat of
enforcement is not merely speculative.
A. Are Attorneys Debt Relief Agencies?
Because the limited number of courts that have addressed whether
attorneys are debt relief agencies disagree, the issue is unresolved.
Section 101(12A) defines debt relief agencies,72 but its vagueness has
led attorneys to question whether debtors’ attorneys are debt relief
agencies.73 Although such challenges have been raised primarily with
regard to debtors’ attorneys,74 the question whether attorneys who either
do not represent debtors, or represent them pro bono, are also debt relief
1. Debtors’ Attorneys
Two courts have held that attorneys are not debt relief agencies,
relying on the plain language of the statute.76 Section 101(12A) of the
Bankruptcy Code “makes no direct reference to either ‘attorney’ or
‘lawyer,’”77 and “as a matter of plain language, ‘attorney’ and ‘debt
relief agency’ are not synonymous nor do they in common
understanding include each other.”78 Similarly, this definition of debt
relief agency makes specific reference to bankruptcy petition preparers,
a group that specifically excludes attorneys,79 and omits precise
reference to attorneys.80 “‘Attorney’ is separately defined in § 101(
which makes no reference to debt relief agencies or to subsection
Both courts also declined to read the statute in a way that would
lead to an “absurd result.”82 If the definition of “debt relief agency”
includes attorneys, attorneys must tell assisted persons (their clients or
potential clients) that they have the right to hire an attorney or to
represent themselves, and that only an attorney can render legal
advice.83 “The interpretation of a statute that is logical or sensible is
preferred over interpretation that is illogical or absurd.”84
The court in Milavetz also relied on the doctrine of statutory
construction that strives to read a statute to avoid a finding of
unconstitutionality.85 The doctrine of constitutional avoidance
“counsels that, in construing a statute for ambiguity, the Court must opt
for a construction which avoids grave constitutional questions.”86 The
court concluded that clear ambiguity exists in the statute and
constitutional avoidance requires that §§ 526-528 do not apply to
attorneys.87 Because the court opined that the various provisions of
BAPCPA governing debt relief agencies would be unconstitutional if
applied to attorneys, it favored a construction of the statute that viewed
the debt relief agency provisions as inapplicable to attorneys, thus
avoiding a conclusion that §§ 526-528 are unconstitutional.88
The In re Attorneys at Law and Debt Relief Agencies court
rationalized that because the definition of bankruptcy assistance,89 a
vital element of the definition of debt relief agencies,90 includes the
provision “legal representation,” Congress intended to exclude attorneys
from the definition of debt relief agencies.91 The court reasoned that
Congress intended to create a federal statute to prevent the unauthorized
practice of law, not to regulate attorneys.92 The court also stated that
Congress made clear in § 526(d)(
) “that there is no effort to curtail the
states’ role in enforcing ‘qualifications for the practice of law.’”93
Because regulation of attorneys has traditionally been a matter of state
law, application of the new provisions to attorneys would overstep
previously established boundaries.94 Additionally, the court briefly
mentioned that this potential infringement on the states’ right to regulate
the practice of law would violate the Tenth Amendment.95
Despite the plain language reading, most courts find that debtors’
attorneys are debt relief agencies.96 To the extent they articulate their
reasoning, courts generally find that attorneys fit within the definition of
debt relief agencies because only attorneys are authorized to provide
legal advice, and “providing legal advice” is part of the definition of
bankruptcy assistance.97 Additionally, these courts reason that if
91. See In re Attorneys at Law & Debt Relief Agencies, 332 B.R. 66, 69 (Bankr.
S.D. Ga. 2005).
[T]he organized bar varies from state to state, is restricted by limited availability of
resources, and often cannot occur in a time-sensitive period as to protect the
consumer, [and] that the inclusion of the term ‘legal representation’ . . . was
Congress’s effort to empower the Bankruptcy Courts presiding over a case with
authority to protect consumers who [were] before the Court . . . .
Congress had intended to exclude attorneys from the definition of debt
relief agencies, it would have done so explicitly.98 Congress never
considered Senator Feingold’s amendment to BAPCPA, which would
have created this exclusion.99 These courts view repeated references in
legislative history that BAPCPA should protect consumer debtors from
their attorneys100 as evidence that Congress anticipated the restrictions
pertaining to debt relief agencies to apply to attorneys.101
2. Other Attorneys
Several scholars discussed the possibility that attorneys of other
parties in bankruptcy, such as creditors and landlords, could also fall
within the definition of debt relief agency.102 These scholars argued that
the definition of “assisted person,” set out in § 101(4A), is not limited to
debtors in a bankruptcy.103 Therefore, an individual creditor or landlord,
or a defendant in an adversary proceeding, could be considered an
“assisted person” and their attorney a debt relief agency.104
Additionally, § 527(b) requires debt relief agencies to provide
disclosures to represented debtors.105 This provision, however, only
requires debt relief agencies to provide disclosures “to the extent
applicable.”106 Consequently, Congress may have added this
discretiongranting phrase to protect attorneys from other parties to a bankruptcy.
No court has ruled on whether the debt relief agency provisions
apply to attorneys other than debtors’ attorneys. The court in Hersh
noted, however, that while the attorney in that case fell within the
definition of debt relief agency, that “does not necessarily mean it
applies to all attorneys.”107 McBride, one of the plaintiffs in Olsen, was
not a debtors’ attorney.108 However, the court did not treat McBride
differently from the other plaintiffs who were debtor attorneys, stating
its belief that if attorneys are debt relief agencies, the definition includes
all attorneys, not just debtor’s attorneys.109
Some scholars conclude that legislative intent would not render
non-debtor’s attorneys debt relief agencies.110 Because Congress
intended for BAPCPA to protect consumers from their attorneys, at least
in part,111 it would not follow that Congress meant to extend the
provisions to attorneys for other parties in bankruptcy. One court
addressed whether pro bono attorneys are debt relief agencies.112 The
court held that because, by definition, a “debt relief agency” must
provide “bankruptcy assistance . . . in return for the payment of money
or other valuable consideration,”113 pro bono attorneys are not debt relief
agencies.114 The court acknowledged that pro bono attorneys do receive
a benefit from the representation—credit toward fulfilling the state pro
bono requirement.115 Nonetheless, this benefit was not enough to
constitute the necessary exchange of valuable consideration between the
debtor and the attorney to fall within the definition of a debt relief
agency.116 However, the government could argue as erroneous the
adoption of a standard of valuable consideration mandating monetary
exchange between the debtor and attorney. Rather, the receipt of
valuable consideration should only require that the attorney receive
107. Hersh v. United States, 347 B.R. 19, 22 n.4 (N.D. Tex. 2006).
108. Olsen v. Gonzales, 350 B.R. 906, 910-11 (D. Or. 2006).
109. See id. at 919 (“[I]t does not appear that McBride is correct that he is required
to give an untrue statement or not advertise his services regarding advising clients in
areas of bankruptcy. . . . [S]ection 528 also permits a substantially similar statement . . .
110. See Vance, supra note 6, at 293.
111. See supra notes 19-25 and accompanying text.
112. See In re Reyes, 361 B.R. 276 (Bankr. S.D. Fla. 2007).
113. 11 U.S.C. § 101(12A).
114. See In re Reyes, 361 B.R. at 280-81.
115. See id.
116. See id.
consideration for services rendered, which can include credit toward a
pro bono requirement.
B. Constitutional Considerations
The conclusion that attorneys are debt relief agencies raises a host
of constitutional issues, specifically First Amendment issues.
1. Section 526(a)(
) of the
uncertainty, which provides that
code raises the
[a] debt relief agency shall not advise an assisted person or
prospective assisted person to incur more debt in contemplation of
such person filing a case under this title or to pay an attorney or
bankruptcy petition preparer fee or charge for services performed as
part of preparing for or representing a debtor in a case under this
Plaintiffs argue that compliance with this section prevents otherwise
correct, lawful, and proper speech, violating their First Amendment right
to free speech.118
a. Applicable First Amendment Standard
In any First Amendment challenge to a statute, the court must first
determine which standard or level of scrutiny to apply, i.e., how
valuable is the speech or the speaker’s right to make the speech,
balanced against the government interest forwarded by the statute.119
Challengers of § 526(a)(
) have based their claims on First Amendment
principles.120 The courts have grappled with the difficult threshold issue
of the applicable standard to apply to the evaluation of § 526(a)(
The outcome of this threshold issue directly affects whether a court will
invalidate the statute with regard to attorneys.
Defendants in constitutional challenges to § 526(a)(
) advocate for
the lenient standard articulated by the Supreme Court in Gentile v. State
Bar of Nevada.122 The disputed provision must serve “the State’s
legitimate interest in regulating the activity in question” and “impose
only narrow and necessary limitations on lawyers’ speech.”123 This test
arose out of the Supreme Court’s belief that the government has a
“special responsibility for maintaining standards among members of the
licensed professions,”124 specifically a responsibility to impose ethical
restrictions.125 Therefore, this standard applies where the challenged
provision is an ethical rule.126 According to the court in Gentile, an
ethical rule is designed to protect “the integrity and fairness” of the
judicial system.127 The defendants in Olsen and Hersh argued that §
) should be construed as an ethical rule, because it is “a tool for
protecting the integrity and fairness of the bankruptcy system.”128 If a
court determines that § 526(a)(
) constitutes an ethical rule, the more
lenient Gentile standard will apply, making invalidation of the statute on
First Amendment grounds more likely.129
However, a content-based restriction merits a higher standard of
review. The court in Milavetz rejected that the Gentile standard in favor
of strict scrutiny.130 Under strict scrutiny, restrictions can only survive if
they are narrowly tailored to achieve a compelling state interest.131 The
Milavetz court held that strict scrutiny should apply because § 526(a)(
is a content-based regulation of attorney speech; it prevents attorneys
from giving specific information to their clients.132 Strict scrutiny
applies to content-based restrictions on speech because “‘[g]overnment
action that stifles speech on account of its message . . . favored by the
Government, contravenes th[e] essential [First Amendment] right[s]’ of
private citizens.”133 In rejecting the Gentile standard,134 the court held
that § 526(a)(
) is not an ethical rule.135 The court found that nothing in
the section “alludes to ethics.”136 “The government ‘cannot foreclose
the exercise of constitutional rights by mere labels.’”137 This holding
increases the likelihood that the statute, as applied to lawyers, will be
invalidated on First Amendment grounds.
Other courts that have addressed the constitutionality of § 526(a)(
held that it is irrelevant which standard applies because the provision
fails even under the more lenient Gentile standard.138
In determining the constitutionality of § 526(a)(
), courts first look
to the government’s interests under the statute.139 The rationale behind
BAPCPA is well established: improve bankruptcy law by protecting
creditors and debtors and preventing abuse of the system.140 Congress
was concerned that attorneys were advising their clients to incur
significant debt in the time preceding filing because the debt would be
dischargeable, to the disadvantage of both creditors, whose distributions
in bankruptcy would be diminished, and debtors, whose cases could be
dismissed because of bad faith filing.141 Section 526(a)(
targets loopholes and removes the incentives “that allow and sometimes
even encourage opportunistic personal filings and abuse,”142 advances
None of the courts addressed whether this was a compelling143 or
legitimate interest;144 rather, they addressed whether Congress narrowly
drew the statute to serve that interest.145 Section 526(a)(
attorneys from advising their clients to incur any debt, including
legitimate debt, in contemplation of bankruptcy.146 However, Congress
failed to consider that incurring additional debt may not be a sign of
“gaming” the system, but rather an appropriate reaction to the debtor’s
financial distress.147 The prohibition could prevent a number of lawful
and beneficial actions, including: (
) refinancing at a lower rate in order
to lower payments and possibly delay or prevent bankruptcy; (
incurring secured debt in order to establish credit after filing for
) taking out a loan to cover the expenses of bankruptcy,
such as attorneys’ fees and filing fees; and (
) refinancing secured debt
in order to pay off unsecured debt.148 A statute prohibiting attorneys
from advising clients to take actions that could improve the possibility
of a successful bankruptcy is not narrowly drawn to serve the
government’s interest.149 Therefore, § 526(a)(
) is facially
unconstitutional, irrespective of which standard is applied, because it
chills the speech, or the advisement ability, of attorneys.150
2. Section 527
Section 527 requires attorneys to make specific statements to their
clients. 151 Attorneys challenging this section have argued that it violates
recommending to a patient the medical use of marijuana on the ground that such a
recommendation might encourage illegal conduct by the patient); Hersh, 347 B.R. at 25
(citing In re R.M.J., 455 U.S. 191, 203 (1982)) (even under intermediate scrutiny,
“[s]tates may not place an absolute prohibition on certain types of potentially
misleading information . . . if the information also may be presented in a way that is not
deceptive”); Olsen, 350 B.R. at 916-17; Zelotes, 352 B.R. at 25.
150. See Hersh, 347 B.R. at 25; Milavetz, 355 B.R. at 765-66; Olsen, 350 B.R. at
916 (advocating that because the definition of debt relief agencies does not include
nonprofits, debtors can still be advised on ways to “game” the system, rendering the section
under-inclusive as well as over-inclusive); Zelotes, 352 B.R. at 25; Olsen Brief, supra
note 122, at 16 (arguing that § 526(a)(
) is narrowly drawn because (
) it allows for
attorneys to discuss the standards for determining when debt is abusive, and (
) it is
merely a prohibition against advising clients from incurring more debt with an abusive
151. 11 U.S.C. § 527(b) (2006). Section 527 requires a debt relief agency providing
bankruptcy assistance to an assisted person to provide each assisted person the
following notice in writing:
IMPORTANT INFORMATION ABOUT BANKRUPTCY ASSISTANCE
SERVICES FROM AN ATTORNEY OR BANKRUPTCY PETITION PREPARER.
If you decide to seek bankruptcy relief, you can represent yourself, you can hire an
attorney to represent you, or you can get help in some localities from a bankruptcy
petition preparer who is not an attorney. THE LAW REQUIRES AN ATTORNEY
OR BANKRUPTCY PETITION PREPARER TO GIVE YOU A WRITTEN
CONTRACT SPECIFYING WHAT THE ATTORNEY OR BANKRUPTCY
PETITION PREPARER WILL DO FOR YOU AND HOW MUCH IT WILL COST.
Ask to see the contract before you hire anyone.
The following information helps you understand what must be done in a routine
bankruptcy case to help you evaluate how much service you need. Although
bankrupty can be complex, many cases are routine.
Before filing a bankruptcy case, either you or your attorney should analyze your
eligibility for different forms of debt relief available under the Bankruptcy Code and
which form of relief is most likely to be beneficial for you. Be sure you understand
the relief you can obtain and its limitations. To file a bankruptcy case, documents
called a Petition, Schedules and Statement of Financial Affairs, as well as in some
cases a Statement of Intention need to be prepared correctly and filed with the
bankruptcy court. You will have to pay a filing fee to the bankruptcy court. Once
a professional’s First Amendment right not to speak.152 In other cases
addressing the right of a professional not to speak, courts have applied a
strict scrutiny standard.153
Two courts have addressed constitutional challenges to § 527,154
and both held that § 527 passes constitutional muster under the strict
scrutiny standard.155 Section 527 ensures that a client is informed of
basic information before initiating a bankruptcy proceeding.156 Because
consumer debtors are at an informational disadvantage, as compared to
creditors, attorneys, and corporate debtors, a compelling government
The courts also held that the burden imposed by § 527 is
reasonable.158 Because nothing in § 527 prevents the attorney from
your case starts, you will have to attend the required first meeting of creditors where
you may be questioned by a court official called a ‘trustee’ and by creditors.
If you choose to file a chapter 7 case, you may be asked by a creditor to reaffirm a
debt. You may want help deciding whether to do so. A creditor is not permitted to
coerce you into reaffirming your debts.
If you choose to file a chapter 13 case in which you repay your creditors what you can
afford over 3 to 5 years, you may also want help with preparing your chapter 13 plan
and with the confirmation hearing on your plan which will be before a bankruptcy
If you select another type of relief under the Bankruptcy Code other than chapter 7 or
chapter 13, you will want to find out what should be done from someone familiar with
that type of relief.
Your bankruptcy case may also involve litigation. You are generally permitted to
represent yourself in litigation in bankruptcy court, but only attorneys, not bankruptcy
petition preparers, can give you legal advice.
giving the debtor further explanation than that provided in the statute,
the attorney would not be forced to provide false or misleading
information.159 Additionally, the provision allows attorneys to alter the
statement, so long as the content is “substantially similar.”160 A third
factor making the burden “reasonable” is that the disclosures only need
to be provided “to the extent applicable.”161 These flexibilities leave
“the bankruptcy attorney with sufficient control of the distribution of the
messages of the statement to avoid any undue burden.”162
The plaintiff in Hersh argued that § 527 creates an undue burden on
attorneys because it requires them to make false or potentially
misleading statements.163 This includes statements that clients “will
have to pay a filing fee to the bankruptcy court,” even though such fees
can be deferred under Federal Rule of Bankruptcy Procedure 1006(b),
and that the trustee is a “court official,” when the trustee is not employed
by the court, but rather is selected by the Executive Branch.164 Plaintiff
contended that because such disclosures are objectively incomplete or
misleading or false, compelling attorneys to dispense this information is
an obvious violation of their constitutional rights.165 Under Casey,
mandating speech is unconstitutional if it requires the professional to
make false or misleading statements.166 Therefore, plaintiff argued,
because § 527 requires attorneys to make eleven false or misleading
statements, it violates the First Amendment right to refrain from
speech.167 No court has accepted these arguments.168
159. See id.
160. See id. (citing 11 U.S.C. § 527(b) (2006)).
161. See id. (citing 11 U.S.C. § 527(b) (2006)).
162. Id. (citing Fargo Women’s Health Org. v. Schafer, 18 F.3d 526, 532-34 (8th
Cir. 1994)) (upholding a provision requiring doctors to provide information, where they
may comment on or dissociate themselves from that information).
163. See Hersh Reply Brief, supra note 122, at 15-17.
164. See id. The plaintiff listed nine other false or misleading statements that a debt
relief agency would be required to make if it complied with § 527. See id.
165. See id.
166. See id. (citing Planned Parenthood v. Casey, 505 U.S. 833, 883 (1992)).
167. See id.
168. See e.g., Hersh v. United States, 347 B.R. 19, 27 (N.D. Tex. 2006) (rejecting
the plaintiff’s arguments).
3. Section 528
Section 528 regulates debt relief agency advertisements by
requiring them to include the phrase: “We are a debt relief agency. We
help people file for bankruptcy relief under the Bankruptcy Code.”169
Two courts heard challenges to this section, and their holdings
conflict.170 Both initially evaluated which of three standards of
constitutional evaluation should apply.171 All three standards require the
evaluating court to first determine whether the First Amendment right to
commercial speech protects the expression,172 and then assess the nature
of that commercial speech.173 If the speech is found to be deceptive, it
need only withstand a rational basis review.174 If the speech is not
deceptive, the restriction must directly advance a substantial government
interest.175 The courts in Milavetz and Olsen determined that
intermediate scrutiny is the proper standard to apply to § 528176 because
the statute imposes requirements on both the false and deceptive
advertisement of which Congress complains and on truthful
advertisements.177 The intermediate scrutiny standard requires that the
) directly advance (
) a substantial government interest that
) “narrowly drawn.”178
The court in Milavetz held that § 528 violates attorneys’ First
Amendment rights because the statute fails the first and third prongs of
the intermediate scrutiny standard.179 The government interest concerns
preventing debt relief agencies from misleading “the lay community into
thinking debts can be erased without payment or filing for
bankruptcy.”180 However, because the statute is likely to create more
confusion, not less, the government’s interest is not advanced.181 The
public does not know what a debt relief agency is, and is more likely to
be confused by advertisements for this Congressionally-invented group
(which has no real existence outside of the legislative imagination) than
it would by advertisements for bankruptcy attorneys.182 Additionally,
the statute forces all professionals that are debt relief agencies to
advertise in the same way, regardless of whether they are qualified to
practice law or only assist in the petition preparation process,183 thus
The Milavetz court, in addition to holding that § 528 does not
directly advance the government’s interest, also held that this section is
not “narrowly drawn.”185 “A narrowly drawn regulation designed to
prevent deception ‘may be no broader than reasonably necessary to
prevent the ‘perceived evil.’”186 The court concluded that Congress
constructed § 528 far too broadly because it regulates “absolutely
truthful advertisements,” which is unnecessary to satisfy the government
Conversely, the court in Olsen held that § 528 withstands
constitutional scrutiny.188 It concluded that because the required
language is neither illegal nor misleading, it advances the government
interest of preventing fraudulent advertising by debt relief agencies.189
The first two prongs of intermediate scrutiny are thus satisfied.190 The
Olsen court found that Congress did narrowly draw the statute because,
while it does require attorneys to advertise as debt relief agencies, it
does not limit them from also identifying themselves as bankruptcy
attorneys.191 The forced inclusion of debt relief agencies simply
provides more information.192 The court also addressed whether
nondebtor attorneys will be obligated to include this potentially misleading
statement in advertisements, despite the fact that the debt relief agency
designation arises only because of service provided to “assisted
persons.”193 The court held that because § 528 allows professionals to
make “substantially similar” statements and does not limit them from
providing additional information in their advertisements, it is still
narrowly drawn.194 As a result, the Olsen court found that the third
prong of intermediate scrutiny was satisfied, and therefore upheld the
constitutionality of § 528.195
4. Section 526(a)(
) provides that “[a] debt relief agency shall not fail
to perform any service that such agency informed an assisted person or
prospective assisted person it would provide in connection with a case or
proceeding under this title . . . .”196 In Olsen, the plaintiffs argued that
attorneys might be reluctant to tell clients or potential clients some
details regarding the ramifications of representation, thus
unconstitutionally chilling speech.197 The plaintiffs discussed several
examples where an attorney might promise services, but later ethical or
practical considerations would prevent performance.198 These concerns
echo those voiced by scholars, who had previously addressed the
potential chilling effect of the debt relief agency provisions, and who
191. See id.
192. See id.
193. See id.
194. See id.
195. See id.
196. 11 U.S.C. § 526(a)(
197. Olsen Brief, supra note 122, at 8-10.
198. See id. (examples cited include an attorney representing a married couple,
making representations to both of them and then, due to their divorce, becoming unable
to fulfill those obligations to one or both of them per the ethics rules; an attorney unable
to fulfill his obligations because he feels as though his life is threatened by his client;
and the situation of a debtor changing dramatically during the course of a bankruptcy
described hypothetical situations in which an attorney’s adherence to
professional responsibilities would induce violation of the statute.199
The Olsen court, unpersuaded,200 interpreted the statute consistently
with the statutory construction doctrine of constitutional avoidance, and
in a way that did not raise a question of constitutionality. Olsen held
that courts “should interpret this section to not require attorneys to
perform ill-advised or unethical services.”201 It concluded that when an
interpretation that does not violate the constitution is available, an
asapplied challenge should fail.202 The court found that “speech is not
chilled by the provision,”203 because in the worst case, attorneys would
be required to couch their promises in conditional terms, not abstain
from communication entirely.204
A. Attorneys Are Not Debt Relief Agencies
1. Debtor’s Attorneys
Notwithstanding the pre-implementation treatment of this issue by
scholars,205 debtors’ attorneys are not debt relief agencies. If courts
interpret the definition of debt relief agencies to exclude attorneys,
many, if not all, of the constitutional issues would disappear.206 This
result complies with the requirement that courts choose the statutory
construction that creates the fewest constitutional issues.207
The plain language of the statutory provisions at issue compels such
a result.208 Despite Congressional denouncements of bankruptcy
attorneys in the legislative history, the definition of a debt relief agency
does not expressly include attorneys.209 Congress easily could have
added attorneys to this definition, but did not. Moreover, the legislative
history reveals instances where attorneys and debt relief agencies are
recognized as separate entities on the same list.210 The history also
contains a separate list of attorney responsibilities, indicating that
attorneys have responsibilities different from those of debt relief
Lastly, the failure to incorporate Senator Feingold’s amendment,212
which would have excluded attorneys from the definition of debt relief
agency, is not persuasive evidence of Congressional intent to include
attorneys. First, Congress never specifically rejected this amendment.213
Second, its failure to read the issue is better construed as an indication
that Congress did not view the amendment as necessary, because
attorneys are not included within the definition of debt relief agency,
rather than that Congress affirmatively understood the term to include
attorneys and declined the opportunity to carve out an exemption for
2. Other Attorneys
If debtors’ attorneys are not debt relief agencies, then attorneys for
non-debtor “assisted persons” and pro bono attorneys are not debt relief
agencies, either.214 Even if debtors’ attorneys are debt relief agencies,
attorneys for other “assisted persons” should not be included within the
scope of these provisions. Since the most powerful argument in favor of
debtors’ attorneys as debt relief agencies is the legislative history
accusing attorneys of “gaming,”215 it is difficult to translate this
argument to attorneys who do not represent debtors and, therefore,
cannot mislead debtors or aid them in “gaming” the system.
209. See id. § 101(12A).
210. See H.R. REP. NO. 109-31(I), at 17, 44 (2005), reprinted in 2005 U.S.C.C.A.N.
88, 103, 116 (“S. 256 would impose private-sector mandates on bankruptcy attorneys,
creditors, preparers of bankruptcy petitions, debt-relief agencies, consumer reporting
agencies, and credit and charge-card companies.”).
211. See id. at 116.
212. See supra notes 27-29 and accompanying text.
213. See Wann, supra note 27, at 281 n.37.
214. The arguments about constitutional avoidance and plain language discussed
above apply to all attorneys.
215. See supra notes 102-03 and accompanying text.
On the other hand, if debtor’s attorneys are debt relief agencies,
debtor’s attorneys working on a pro bono basis are also debt relief
attorneys.216 The In re Reyes court held that pro bono attorneys are not
debt relief agencies because they do not receive valuable consideration
from the debtor in exchange for their services.217 The definition of debt
relief agencies does not require that the debtor give valuable
consideration, only that consideration is received in exchange for the
services.218 Debtors’ attorneys, or any other debt relief agency, could
simply receive payment directly from family members of the debtor, or
from a bank where the debtor has taken a loan to cover bankruptcy
expenses, to avoid all liability under §§ 526-528. This loophole would
render the debt relief agency provisions completely ineffective.
Therefore, pro bono attorneys that represent debtors must be debt relief
agencies if debtors’ attorneys are included in the definition.
B. If Attorneys are Debt Relief Agencies, §§ 526-528 are
A holding that attorneys are debt relief agencies triggers the second
half of the debt relief agency debate, whether §§ 526-528 violate the
constitutional rights of attorneys.
1. Section 526(a)(4) Violates Attorneys’ First Amendment Rights
a. Strict Scrutiny—The Applicable Standard
Determining which First Amendment standard to apply to a
statutory restriction on speech first requires a threshold determination of
the type of restriction.219 If the restriction is content-based, then the
strict scrutiny standard applies.220 If the restriction constitutes an ethical
rule, the evaluating court should apply the Gentile standard.221 Section
216. From a public policy standpoint, such a holding would not be desirable since it
discourages attorneys from engaging in pro bono work aimed at assisting consumer
debtors as they are already experiencing financial difficulties.
217. See 361 B.R. 276, 280-81 (Bankr. S.D. Fla. 2007); supra notes 114-18 and
218. 11 U.S.C. § 101(12A) (2007).
219. See supra notes 123-40 and accompanying text.
220. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000).
221. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1075 (1991).
) prevents attorneys from giving specific information to their
clients.222 Therefore, it is a content-based restriction and strict scrutiny
should apply.223 It is more likely that a court will find that the statute
violated attorneys’ constitutional rights under a strict scrutiny standard
than under the Gentile standard.
b. Section 526(a)(
) Violates Attorneys’ First Amendment Rights
Regardless of the Applicable Standard
) fails constitutional scrutiny regardless of the
standard applied, whether under the Gentile test or the strict scrutiny
standard. Both tests require that the statute be “narrowly drawn” in
order to serve the government interest,224 and § 526(a)(
) is not narrowly
drawn. While it may serve the purposes set out by Congress,225 it would
also prevent attorneys from providing lawful, appropriate advice to their
clients. There are several examples of proper incursion of additional
debt prior to filing for bankruptcy, even in anticipation of filing for
bankruptcy.226 Offering such advice would not be unlawful, unethical,
or even encourage debtors to “game” the system. Instead, it would aid
all parties in a bankruptcy.227 Unfortunately, attorneys could not advise
debtors accordingly if forced to comply with § 526(a)(
). A statute
prohibiting attorneys from advising clients to take actions that could
improve the possibility of a successful bankruptcy is not narrowly
drawn. Therefore, it violates attorneys’ constitutional rights.
2. Section 527 Violates Attorneys’ First Amendment Rights
Section 527 violates attorneys’ First Amendment right to remain
silent.228 While the government has a compelling interest in ensuring
that an attorney inform the debtor of basic information before initiating a
bankruptcy proceeding, the statute unduly burdens attorneys.229 Under
Casey, a statute unconstitutionally violates speech if it requires a
professional to make false or misleading statements.230 Section 527
proscribes eleven mandatory statements that are false or misleading.231
Thus, § 527 violates attorneys’ constitutional rights.
3. Section 528 Violates Attorneys’ First Amendment Rights,
Notwithstanding Application of the Intermediate Scrutiny Standard
Milavetz and Olsen both addressed the constitutionality of § 528
and held intermediate scrutiny as the appropriate standard of review.232
Intermediate scrutiny requires that the statute directly advance a
substantial government interest and to be drawn narrowly.233 Despite
the use of this more lenient standard, § 528 is not constitutionally valid.
Section 528 might confuse those reading debt relief agency
advertisements, such that non-attorneys might be perceived as attorneys,
and actual attorneys become de-professionalized.234 This confusion
frustrates the government’s goal to protect against consumer deception.
As a result, the statute fails the first prong of the intermediate scrutiny
Further, § 528 is not narrowly drawn, as required by the third prong
of the intermediate scrutiny standard.235 The regulation applies to all
advertisements, even truthful ones. Regulation of truthful
advertisements, when such regulation does not achieve the government
interest, violates attorneys’ First Amendment right to free speech.
4. Section 526(a)(1) Unconstitutionally Chills Attorney Speech
Ethical and other considerations frequently arise, rendering
attorneys unable to perform services for their clients. Mandating
attorneys to perform services absent exceptions will prevent attorneys
from discussing the scope of their representation prior to the
commencement of representation. Had Congress included a phrase
excusing attorneys when an ethical or other conflict arises, § 526(a)(
would be valid. However, because in the event of a conflict, the plain
language of the text leaves attorneys with no option other than to violate
BAPCPA and face sanctions, or violate ethical rules and face
disciplinary action, attorneys will be reluctant to have open
communication with their clients about the scope of the representation.
Not only does this violate the attorneys’ First Amendment right to free
speech, it also contradicts the rationale for BAPCPA—debtor
Olsen’s stipulation that courts “should interpret this section to not
require attorneys to perform ill-advised or unethical services”237
provides guidance for future courts, but does nothing to calm the fears of
attorneys. Section 526(a)(
) violates attorneys’ First Amendment rights
because they cannot speak with clients in the legal and ethical way that,
absent this provision, they otherwise could.
Any attorney that wishes to make a statement in violation of §
) or (
), refrain from any statement in violation of § 527, or
advertise in a manner that violates § 528, has standing to raise a
constitutional challenge to the debt relief agency provisions of
BAPCPA. A court hearing that challenge should find that attorneys do
not fall within the definition of debt relief agencies. If the court does
1. Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub . L. No. 109-8 , 119 Stat . 23 ( codified as amended in scattered sections of 11 U .S.C.).
3. UNITED STATES BANKRUPTCY CODE & RULES BOOKLET 5 (LegalPub .com, Inc. 2006 ).
4. H.R. REP . NO. 109 - 31 (I), at 2 ( 2005 ), reprinted in 2005 U.S. C.C. A .N. 88 , 89 .
5. See Erwin Chemerinsky , Constitutional Issues Posed in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 , 79 AM. BANKR. L.J. 571 , 571 ( 2005 ).
6. Keith M. Lundin , Ten Principles of BAPCPA: Not What Was Advertised, 24 AM. BANKR. INST. J. 1 , 1 ( 2005 ); Henry J. Sommer, Trying to Make Sense Out of Nonsense: Representing Consumers Under the “Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ,” 79 AM. BANKR. L.J. 191 , 191 ( 2005 ); Catherine E. Vance & Corinne Cooper, Nine Traps and One Slap: Attorney Liability Under the New Bankruptcy Law, 79 AM . BANKR. L.J. 283 , 284 ( 2005 ).
7. Lundin, supra note 6, at 1.
8. 11 U.S.C. § 101 ( 12A ) ( 2007 ).
9. See id. §§ 526 - 528 .
10. Id . § 101 ( 12A ). “Debt relief agency” means: [A]ny person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer under section 110, but does not include-- (A) any person who is an officer, director, employee, or agent of a person who provides such assistance or of the bankruptcy petition preparer; (B) a nonprofit organization . . . ; (C) a creditor of such assisted person . . . ; (D) a depository institution . . . ; (E) an author, publisher, distributor, or seller of works subject to copyright protection . . . . Id. “Bankruptcy assistance” means:
25. Id . (emphasis added).
26. See Hersh v. United States , 347 B.R. 19 , 23 (N.D. Tex . 2006 ) (noting that Congress mentioned “attorneys” 164 times in the House Report on BAPCPA); Olsen v . Gonzales , 350 B.R. 906 , 912 (D. Or . 2006 ) (weighing the legislative history to determine that attorneys are debt relief agencies).
27. Robert Wann , Jr., Note, “Debt Relief Agencies: ” Does the Bankruptcy Abuse Prevention And Consumer Protection Act of 2005 Violate Attorneys' First Amendment Rights?, 14 AM . BANKR. INST. L. REV. 273 , 281 n. 37 ( 2006 ).
28. See 151 CONG . REC. S2306- 02 , 2316 - 17 (daily ed. Mar. 9 , 2005 ) (statement of Sen . Feingold); see also Wann, supra note 27 , at 281 n.37. (discussing Congress' failure to adopt the Feingold amendment as support for the argument that attorneys are debt relief agencies).
29. Wann , supra note 27, at 281 n.37.
30. See H.R. REP . NO. 109 - 31 (I), at 34 ( 2005 ), reprinted in 2005 U.S. C.C. A .N. 88 , 92 - 95 ). (“S[ection] 256 would impose private-sector mandates . . . on bankruptcy attorneys . . . [and ] debt-relief agencies . . . .”). Id.
31. See id. at 44.
43. See Milavetz, 355 B.R. at 767-68; In re Reyes, 361 B.R. at 279-80; In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 71.
44. Hersh , 347 B.R. at 23-27; Olsen, 350 B.R. at 915-21; Zelotes, 352 B.R. at 22- 25.
45. See In re Gutierrez, 356 B.R. 496; In re Robinson, 368 B.R. at 500 n.7 (briefly mentioning binding authority holding that attorneys are debt relief agencies and that the relevant provisions to that case were not unconstitutional ); In re Norman, No. 06 - 70859-A, 2006 Bankr. LEXIS 2925, at * 11 - * 15, * 21 - * 22 ( Bankr. E.D. Va . Oct. 24 , 2006 ) (discussing debt relief agencies and their requirements with regard to attorneys, but assuming without discussion that attorneys are debt relief agencies and the provisions are constitutional).
46. See Geisenberger, 346 B.R. at 683; In re McCartney, 336 B.R. at 591-92.
47. See Geisenberger, 346 B.R. at 683; In re McCartney, 336 B.R. at 591.
48. See Geisenberger, 346 B.R. at 683; In re McCartney, 336 B.R. at 591.
49. 336 B.R. at 592.
50. See U.S. CONST. art. III; In re McCartney, 336 B.R. at 591 (quoting Preiser v . Newkirk , 422 U.S. 395 ( 1975 )).
51. See Milavetz , Gallop & Milavetz P.A. v. United States , 355 B.R. 758 , 768 - 69 ( D. Minn . 2006 ); In re Reyes, 361 B.R. 276 , 279 - 80 (Bankr. S.D. Fla . 2007 ); In re Attorneys at Law & Debt Relief Agencies, 332 B.R. 66 , 71 ( Bankr. S.D. Ga . 2005 ).
52. See infra Part III.B.
53. See In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 69.
54. See Milavetz, 355 B.R. at 768; In re Reyes, 361 B.R. at 279 (adopting the opinion of Judge Rosenbaum in Milavetz) ; In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 69.
55. See Milavetz, 355 B.R. at 768; In re Reyes, 361 B.R. at 279 (adopting the opinion of Judge Rosenbaum in Milavetz) ; In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 69-70.
56. See Milavetz, 355 B.R. at 768; infra Part II.A.1 .
57. See In re Reyes, 361 B.R. at 279.
58. See id. at 280-81; infra Part III.B. (discussing how the debt relief agency provisions affect non-debtor attorneys).
59. Milavetz , 355 B.R. at 763-67 ( holding that if attorneys are debt relief agencies, §§ 526(a)(4), 528(a)(4) and (b)(2) violate their First Amendment right to free speech) ; In re Reyes, 361 B.R. at 279 (adopting the decision of Milavetz with regard to the constitutional challenges ).
60. See Hersh v. United States , 347 B.R. 19 (N.D. Tex . 2006 ); Olsen v . Gonzales , 350 B.R. 906 ( D. Or . 2006 ); Zelotes v . Martini , 352 B.R. 17 ( D. Conn . 2006 ), aff'd sub nom ., Zelotes v. Adams , 363 B.R. 660 ( D. Conn . 2006 ).
61. See Hersh, 347 B.R. at 23-25 ( holding that § 526(a)(4) is not sufficiently narrow ); Olsen, 350 B.R. at 916 (determining that “the regulation is both underinclusive and over inclusive”); Zelotes, 352 B .R. at 21-25 ( holding that § 526(a)(4) is overbroad ).
62. See Hersh, 347 B.R. 25 - 27 ; Olsen, 350 B.R. at 917-19.
63. See 350 B.R. at 916-17, 919 - 21 .
64. See id.
65. 356 B.R. 496 (N.D. Cal . 2006 ).
66. 368 B.R. 492 ( Bankr. E.D. Va . 2007 ).
67. No. 06 -70859-A, 2006 Bankr. LEXIS 2925 (Bankr . E.D. Va. Oct. 24 , 2006 ).
68. See In re Gutierrez, 356 B.R. at 496 (debtor asserting claims against his former attorney, alleging violations of the debt relief agency provisions) ; In re Robinson, 368 B.R. at 500 (determining whether supplemental compensation for the debtor's attorney should be approved ); In re Norman, 2006 Bankr. LEXIS 2925 , at * 11 -* 16 ( determining whether the Chapter 13 Trustee was entitled to attorney-client documents under the debt relief agency provisions).
69. See In re Gutierrez, 356 B.R. at 496; In re Robinson, 368 B.R. at 500; In re Norman, 2006 Bankr. LEXIS 2925 , at * 11 - * 16.
70. See In re Gutierrez, 356 B.R. at 496; In re Robinson, 368 B.R. at 500; In re Norman, 2006 Bankr. LEXIS 2925 , at * 11 - * 16.
71. 356 B.R. at 469 (holding the debtor's attorney liable under the debt relief agency provisions and sanctioned him). This Note does not delve into the issue of standing, but several cases challenging the debt relief agency provisions have speculated on standing . Compare Geisenberger v. Gonzales , 346 B.R. 678 , 683 (E.D. Pa . 2006 ) (refusing to hear the plaintiff attorney's claims because he lacked standing), and In re Matter of Francis I. McCartney, 336 B .R. 588 , 591 ( Bankr. M.D. Ga . 2006 ) (holding that the plaintiffs lacked standing and finding the court lacked jurisdiction), with Olsen v . Gonzales , 350 B.R. 906 , 913 - 15 ( D. Or . 2006 ) (continuing the proceedings after holding that the plaintiffs had standing), and Zelotes v . Martini , 352 B.R. 17 , 20 - 22 ( D. Conn . 2006 ) (confirming that plaintiffs possessed standing).
72. See definitions cited supra note 10.
73. See Hersh v. United States , 347 B.R. 19 , 21 (N.D. Tex . 2006 ); Olsen, 350 B.R. at 910; Milavetz, Gallop & Milavetz P.A. v. United States , 355 B.R. 758 , 758 (D. Minn . 2006 ); Zelotes, 352 B.R. at 19; In re Attorneys at Law & Debt Relief Agencies, 332 B.R. 66 , 67 ( Bankr. S.D. Ga . 2005 ).
74. See Hersh, 347 B.R. at 21; Olsen, 350 B.R. at 910; Milavetz, 355 B.R. at 758; Zelotes, 352 B.R. at 19; In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 67.
75. See Olsen, 350 B.R. at 910 (beyond noting that one of the petitioners was not a bankruptcy attorney, the court did not otherwise distinguish the plaintiffs from one another) ; In re Reyes, 361 B.R. 276 , 280 - 81 (Bankr. S.D. Fla . 2007 ).
76. See Milavetz, 335 B.R. at 768; In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 69.
77. Milavetz , 335 B.R. at 768.
78. In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 69.
79. 11 U.S.C. § 110(a)(1) (“'[B]ankruptcy petition preparer' means a person, other than an attorney for the debtor or an employee of such attorney under the direct supervision of such attorney . . . .”).
80. See Milavetz, 335 B.R. at 768; In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 69.
81. In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 69.
82. See Milavetz, 335 B.R. at 768; In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 69-70.
83. See 11 U.S.C. § 527 (b); Milavetz, 335 B.R. at 768; In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 69-70.
84. In re Attorneys at Law & Debt Relief Agencies, 332 B.R. at 70 (citing United States v . Katz , 271 U.S. 354 , 357 ( 1926 )).
85. Milavetz , 335 B.R. at 768.
86. Id . (citing Edward J . DeBartolo Corp . v. Fla. Gulf Coast Bldg. & Constr. Trades Council , 485 U.S. 568 ( 1988 )).
87. See id.
88. See id. at 768.
89. See 11 U.S.C. § 101 ( 4A ).
90. See id. § 101 ( 12A ). 911 - 12 ( D. Or . 2006 ).
98. See Hersh, 347 B.R. at 23; Olsen, 350 B.R. at 912.
99. Olsen , 350 B.R. at 912; see supra notes 27-29 and accompanying text.
100. See supra notes 19-25 and accompanying text.
101. See Hersh, 347 B.R. at 23 (noting that Congress mentioned “attorneys” 164 times in the House Report on BAPCPA); Olsen , 350 B.R. at 912 (discussing the legislative history ).
102. See Chemerinsky, supra note 5 , at 576; Sommer, supra note 6, at 204 ( mentioning that “those mostly likely to innocently violate the provisions will be attorneys who do not regularly represent consumer debtors”); Vance, supra note 6 , at 295-96.
103. See Chemerinsky, supra note 5 , at 576; Sommer, supra note 6, at 204, Vance, supra note 6 , at 295- 96 . Anyone whose debts consist primarily of consumer debts can be an assisted person. The bankruptcy assistance provided need not be related to that person's own debts . See 11 U.S.C. § 101 ( 4A ).
104. See Chemerinsky, supra note 5 , at 576; Vance, supra note 6, at 294-96 ( listing specific instances where a non-debtor could become an assisted person, rendering their attorney a debt relief agency).
105. 11 U.S.C. § 527 (b).
106. Id . ; see also infra Part II.C.2 .
117. 11 U.S.C. § 526(a)(4).
118. See Hersh v. United States , 347 B.R. 19 , 21 - 22 ( N.D. Tex . 2006 ); Milavetz, Gallop & Milavetz P.A. v. United States , 355 B.R. 758 , 762 (D. Minn . 2006 ); Olsen v . Gonzales , 350 B.R. 906 , 910 (D. Or . 2006 ); Zelotes v . Martini , 352 B.R. 17 , 20 (D. Conn . 2006 ).
119. See Hersh, 347 B.R. at 23 (discussing two issues-the applicable standard and constitutionality-the parties raised regarding § 526(a)(4)) .
120. See id. at 23-24.
121. See id. ; Milavetz , 355 B.R. at 763-66; Olsen, 350 B.R. at 915-16; Zelotes, 352 B.R. at 22.
122. 501 U.S. 1030 ( 1991 ) ; see also Brief in Support of Motion to Dismiss at 12-13 , Olsen v. Gonzales , 350 B.R. 906 ( D. Or . 2006 ) (No. 05 - 6365 -HO) [hereinafter Olsen Brief]; Reply Brief in Support of Federal Defendant's Motion to Dismiss at 2, Hersh v . United States , 347 B.R. 19 (N.D. Tex . 2006 ) (No. 3-05- CV- 2330-N) [hereinafter Hersh Reply Brief].
123. Gentile v. State Bar of Nev., 501 U.S. 1030 , 1075 ( 1991 ).
124. Ohralik v. Ohio State Bar Ass'n , 436 U.S. 447 , 460 ( 1978 ).
125. See Gentile, 501 U.S. at 1073.
126. Id .
127. Id . at 1075.
128. Olsen Brief, supra note 122 , at 14; see also Hersh Reply Brief, supra note 122 , at 2.
129. See U.S. v. Scarfo, 263 F.3d 80 ( 3d Cir . 2001 ); In re Morrissey, 168 F.3d 134 , 140 ( 4th Cir . 1999 ).
130. See Milavetz , Gallop & Milavetz P.A. v. United States , 355 B.R. 758 , 764 (D. Minn . 2006 ).
131. See United States v. Playboy Entm't Group, Inc., 529 U.S. 803 , 813 ( 2000 ).
132. See Milavetz, 355 B.R. at 764.
133. Id . (quoting Turner Broad . Sys. v. FCC , 512 U.S. 622 , 641 ( 1994 )).
134. See supra notes 125-27 and accompanying text.
135. See Milavetz, 355 B.R. at 764.
136. Id .
137. Id . (quoting NAACP v . Button , 371 U.S. 415 , 429 ( 1963 )).
138. See Hersh v. United States , 347 B.R. 19 , 23 - 24 ( N.D. Tex . 2006 ); Olsen v . Gonzales , 350 B.R. 906 , 915 - 16 ( D. Or . 2006 ); Zelotes v . Martini , 352 B.R. 17 , 22 (D. Conn . 2006 ), aff'd sub nom ., Zelotes v. Adams , 363 B.R. 660 ( D. Conn . 2007 ) ; infra Part III.C.1 .b.
139. Under the Gentile test, the state must have a “legitimate interest .” Gentile v. State Bar of Nev., 501 U.S. 1030 , 1075 ( 1991 ). Under the strict scrutiny standard, the government must have a “compelling interest.” United States v . Playboy Entm't Group, Inc., 529 U.S. 803 , 813 ( 2000 ).
140. See supra notes 19-25 and accompanying text.
141. See Milavetz, 355 B.R. at 765; Zelotes, 352 B.R. at 23 (citing Bankruptcy Reform Act of 1998: Part I: Hearing on H . R. 3150 Before the H. Comm. on the Judiciary, 105th Cong . 25 ( 1998 )).
142. Zelotes , 352 B.R. at 23 ( quoting H.R. Rep . No. 109 - 31 (I), at 1 ( 2005 ), reprinted in 2005 U.S. C.C. A .N. 88 , 92).
143. Under the strict scrutiny test, the government must have a compelling interest to restrict speech. See United States v . Playboy Entm't Group, Inc., 529 U.S. 803 , 813 ( 2000 ).
144. Under the Gentile test, the government must have a legitimate interest to restrict the speech of an attorney . Gentile v. State Bar of Nev., 501 U.S. 1030 , 1075 ( 1991 ).
145. Both tests require that the statute be narrowly drawn to serve the government interest . See supra notes 125 , 133 and accompanying text.
146. 11 U.S.C. § 526(a)(4) ( 2006 ).
147. See Hersh v. United States , 347 B.R. 19 , 24 - 25 ( N.D. Tex . 2006 ); Milavetz, Gallop & Milavetz P.A. v. United States , 355 B.R. 758 , 765 (D. Minn . 2006 ); Olsen v . Gonzales , 350 B.R. 906 , 916 (D. Or . 2006 ); Zelotes, 352 B.R. at 24.
148. See Zelotes, 352 B.R. at 24 (citing Hersh, 347 B.R. at 24; Olsen, 350 B.R. at 916- 17 ).
149. See Conant v. Walters , 309 F.3d 629 , 638 - 39 ( 9th Cir . 2002 ) (holding that government could not justify a policy that threatened to punish a physician for 169 . 11 U.S.C. § § 528(a)(4), (b)(2) ( 2006 ).
170. See Milavetz , Gallop & Milavetz P.A. v. United States , 355 B.R. 758 , 766 (D. Minn . 2006 ); Olsen v . Gonzales , 350 B.R. 906 , 919 (D. Or . 2006 ).
171. See Milavetz, 355 B.R. at 766; Olsen, 350 B.R. at 919-20.
172. See Cent . Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y. , 447 U.S. 557 , 566 ( 1980 ).
173. See Milavetz, 355 B.R. at 766.
174. See id. (citing Zauderer v. Office of Disciplinary Counsel of the S.Ct . of Ohio, 471 U.S. 626 , 651 - 52 ( 1985 )).
175. See id. (citing Cent. Hudson , 447 U.S. at 566 ( 1980 )).
176. See id.; Olsen v. Gonzales , 350 B.R. 906 , 920 (D. Or . 2006 ) (determining that rational basis review applied, but nevertheless proceeded to analyze the case under intermediate scrutiny, concluding that even this greater standard was satisfied by the facts) .
177. See Milavetz, 355 B.R. at 766; Olsen, 350 B.R. at 919-20 (holding that the Zauderer decision is on point with the case at issue ).
178. See Milavetz, 355 B.R. at 766 (citing Cent. Hudson, 447 U.S. at 566; Zauderer, 471 U.S. at 641); Olsen, 305 B.R. at 919 (citing Cent . Hudson, 447 U.S. at 566; Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 , 477 ( 1989 )).
199. See Vance, supra note 6 , at 306-09 ( discussing how the vagueness of the provision creates an obligation to clients that otherwise would not exist under either ethical rules or applicable law).
200. See Olsen, 350 B.R. at 916-17.
201. Id . at 917.
202. See id.
203. Id .
204. See id.
205. See supra note 34 and accompanying text .
206. See Milavetz , Gallop & Milavetz P.A. v. United States , 355 B.R. 758 , 768 (D. Minn . 2006 ) ; supra notes 87-89 and accompanying text .
207. See Edward J. DeBartolo Corp . v. Fla. Gulf Coast Bldg. & Constr. Trades Council , 485 U.S. 568 , 575 ( 1988 ).
208. See 11 U.S.C. §§ 526 - 528 ( 2007 ).
222. See Milavetz , Gallop & Milavetz P.A. v. United States , 355 B.R. 758 , 764 (D. Minn . 2006 ).
223. See id. ; supra notes 132 , 134 - 35 and accompanying text.
224. See supra notes 125 , 133 and accompanying text.
225. Among Congress' stated purposes for BAPCPA was to curb the practice of debtors “gaming” the system, and to prevent their attorneys from helping them do so . See S. Res . 256 , 109th Cong., 151 CONG. REC. S2459 ( 2005 ) (enacted ); supra notes 19- 25 and accompanying text. 226 . See Olsen v. Gonzales , 350 B.R. 906 , 916 - 917 ( D. Or . 2006 ); Zelotes v . Martini , 352 B.R. 17 , 24 (D. Conn . 2006 ), aff'd sub nom . Zelotes v. Adams , 363 B.R. 660 ( D. Conn . 2007 ) (citing Hersh v . United States , 347 B.R. 19 , 24 (N.D. Tex . 2006 )).
227. See supra notes 150-52 and accompanying text (discussing the positive effects of violation of this section).
228. The First Amendment right to free speech includes both the right to speak and the right not to speak. See Riley v. Nat'l Fed'n of the Blind of N.C., Inc ., 487 U.S. 781 , 797 - 98 ( 1988 ); Wooley v . Maynard , 430 U.S. 705 ( 1977 ).
229. A statute is only constitutionally valid if it furthers a substantial government interest and provides no substantial obstacle or undue burden . See Planned Parenthood v. Casey , 505 U.S. 833 , 882 - 83 ( 1992 ).
230. See id. at 883.
231. See Olsen Brief, supra note 122.
232. See Milavetz , Gallop & Milavetz P.A. v. United States , 355 B.R. 758 , 766 (D. Minn . 2006 ); Olsen v . Gonzales , 350 B.R. 906 , 919 (D. Or . 2006 ).
233. See Cent . Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y. , 447 U.S. 557 , 566 ( 1980 ).
234. See Lundin, supra note 6 , at 69 ( arguing that the debt relief agency provisions de-professionalize bankruptcy attorneys).