Bankruptcy and Free Speech: New Bankruptcy Code Provisions Restrict Attorneys\u27 Right to Properly Advise Clients

The 2005 amendments to the Bankruptcy code, known collectively as the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), marked a sweeping overhaul of the bankruptcy system in the United States, and also sparked considerable litigation. Some of the most significant litigation arising out of BAPCPA has come from attorneys arguing that portions of BAPCPA violate the First Amendment. The free speech challenges arise from portions of the act governing debt relief agencies, a new designation under BAPCPA. If courts determine that attorneys fall within the meaning of debt relief agencies, attorneys argue that the provisions of BAPCPA constitute an unconstitutional restriction on their speech. Several courts have decided the issue, with divided results, leaving attorneys unsure of their rights and responsibilities under BAPCPA. This note argues that attorneys do fall within the meaning of debt relief agencies, and that the BAPCPA provisions violate attorneys\u27 free speech rights by prohibiting them from advising their clients to take certain lawful, prudent actions