Opinion 2131

Issue Statement
Whether it is unethical for an attorney to file an adversary proceeding in bankruptcy on his behalf to determine the dischargeability of student loan obligations based on undue hardship.

Brief Answer
All attorneys need to follow the Washington Rules of Professional Conduct (WRPC) when representing clients, even when the client is the attorney. The rules neither specify any additional or reduced ethical standards attorneys should follow when representing themselves. Therefore, it is not per se unethical for an attorney to file an adversary proceeding on his behalf in bankruptcy. But if an attorney does not otherwise follow the WRPC, he will be in violation of the rules in the same sense that he/she would be in violation if representing another.

Discussion
It is not per se unethical for a pro se attorney to file an adversary proceeding in bankruptcy because attorneys, as lay-persons, have a basic right to self representation. In many cases pro se attorneys have represented themselves in adversary proceedings in bankruptcy to discharge their student loans based on undue hardship, and the courts did not bring up ethics as an issue. See Great Lakes Higher Educ. Corp. v. Brown (In Re Brown), 239 B.R. 204 (S.D. Cal. 1999). The courts ruled solely on whether the attorney-debtor met the undue hardship threshold. If the attorney proved undue hardship, his loans would be discharged.

When determining whether a student loan obligation should be discharged because repayments create undue hardship a court considers: (1) the debtor’s current level of income and expenses and whether a minimal standard of living can be maintained by the debtor if he/she must repay the student loans; (2) additional circumstances that might suggest that the debtor’s current financial condition would likely continue for a significant portion of the repayment period; and (3) whether the debtor has made a good faith attempt to repay the student loans. Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir. 1987).

Although the WRPC are silent concerning the ethics of attorney self-representation, a relevant law review article proposes that since attorneys have a professional duty to conform to certain ethical standards when representing others, those same standards should apply when attorneys represent themselves. Alicia L. Downey, Fools and Their Ethics: The Professional Responsibility of Pro Se Attorneys, 34 B.C.L. Rev. 529, 532 (1993). At least three broad ethical principles can be drawn from the model rules: attorneys are required to (1) remain objective when exercising legal judgment; (2) avoid legal process for the purpose of harassing others; and (3) avoid the appearance of inappropriate financial self-interest. Id. Following these standards will minimize the potential for ethical violations.

Even though it would seem that the third principle is likely to be violated by pro se attorneys seeking to discharge their student loan obligations, bankruptcy courts have not found any appearance of inappropriate financial self-interest. This is probably because the undue hardship threshold that the pro se attorneys have to meet would weed out such inappropriate behavior.

It should be noted, however, that various ethical obligations under Title 3 and Title 4 of the WRPC present additional problems for the pro-se attorney. The old adage about the attorney who represents him/herself having a fool for a client can be explained, in part, by the lack of objectivity in evaluating and handling the matter. WRPC 3.1 (meritorious claims and contentions), 3.3 (candor toward the tribunal) and 3.4 (fairness to opposing party and counsel), all of which address the attorney’s duties and responsibilities to persons other than his/her client, contemplate and require realistic and objective participation. For example, under WRPC 3.4(a), we suggest that there could be inherent difficulties in the pro se lawyer deciding what is attorney work product versus discoverable evidence. Similarly, WRCP 4.1 (truthfulness in statements to others) can present peculiar problems, particularly in the area of disclosure of material facts to a third person when disclosure is necessary.

Finally, and while it is unlikely, there could be issues of conflict of interest if the pro- se lawyer had represented or was still representing the educational institution or financial/governmental organization from which the student loans had been obtained. That situation would bring WRPC 1.7, 1.8 and 1.9 into consideration.

In summary, we believe that while there is no specific restriction against a pro se attorney filing an adversary proceeding in bankruptcy to determine the dischargeability of his student loan obligations, h/she still must prove the undue hardship standard and meet the same ethical duties as any other attorney presenting the case. Some of those ethical duties may be more difficult to see and evaluate because of lack of objectivity, but that difficulty, alone, does not preclude the pro-se representation.