Can Attorney Fees Be Included in Bankruptcy?

Filing for bankruptcy has many upsides. You get the benefit of an automatic stay to stop collections, including serious measures like wage garnishment or foreclosure. And once your case is processed and you receive a discharge, many of your debts are wiped away, and you can start with a clean slate. Most filers even see their credit scores improve. But to get to that point, you may need legal help from an attorney, and that means paying attorney fees. Or you may be dealing with old attorney fees that you can’t afford to pay as you enter your bankruptcy case.

When you file bankruptcy, you’ll be required to list all your debts. This includes attorney fees. They can, and should, be included in any bankruptcy filing. The larger question is, “Can attorney fees can be discharged in a bankruptcy proceeding?” The answer to that question is generally “yes.” Attorney fees are usually treated the same as any other unsecured debt. That means that in most cases you can walk away from that debt at the end of your bankruptcy. In this article, we’ll explain why this is the case and a few exceptions you should be aware of.

Most Attorney Fees Can Be Discharged

For the most part, any debt you owe to an attorney is treated just like your other unsecured debt in bankruptcy, such as credit cards or your medical bills. Consumers often file Chapter 7 and Chapter 13 cases. Each type of bankruptcy treats unsecured debt a little differently.

• In Chapter 7 bankruptcy you can walk away from prior attorney fees after receiving your discharge. 

• If you file Chapter 13 bankruptcy, you can eliminate attorney fees you owe (other than to your current bankruptcy attorney) as well. They’ll be treated like any unsecured debt in your Chapter 13 payment plan. This means you’ll pay a portion of the fees each month for the duration of your Chapter 13 plan, which is usually 3-5 years. After your Chapter 13 repayment plan is over, any remaining unsecured debt will be discharged. 

Are All Attorney Fees Treated the Same?

Most attorney fees are dischargeable in bankruptcy, but there are a few exceptions and other important things to know. 

Attorney Fees for a Bankruptcy Attorney

Ironically, it usually costs money to file bankruptcy and get debt relief. In addition to a court filing fee, you may also have bankruptcy attorney fees if you want legal advice to file your bankruptcy petition. Legal fees for a bankruptcy lawyer aren’t treated any differently than attorney fees for other legal services in Chapter 7. This is why most Chapter 7 bankruptcy attorneys require their clients to pay them in full before filing their Chapter 7. Otherwise, they risk having their fees discharged along with the rest of the client’s unsecured debts. 

This works differently in Chapter 13 because a part of your attorney fees is paid through your Chapter 13 plan. This means you don’t need to come up with all the money upfront. Instead, you’ll pay your bankruptcy attorney only a portion of the fees and costs for your case. The rest of the attorney fees will be paid in full by the Chapter 13 trustee. 

This is an important aspect of Chapter 13 bankruptcy because the attorney fees are usually higher than for Chapter 7 cases. Your bankruptcy costs, including attorney fees, will vary by the complexity of your case as well as which type of bankruptcy you choose to file.

Attorney Fees From a Divorce Proceeding

Attorney fees from a divorce proceeding can be a little trickier to deal with. Some divorce attorney fees are dischargeable but others aren’t. It depends on what exactly the divorce attorney was working on. 

• Attorney fees for many aspects of divorce, like a property settlement, are treated as unsecured debt. This means they can be discharged under bankruptcy law.

• If you owe attorney fees to a former spouse or partner for a proceeding dealing with alimony or child support, these attorney fees may not be eliminated if they’re considered part of the support awarded. That’s because the Bankruptcy Code states that alimony and child support are non-dischargeable in bankruptcy. 

Additionally, if attorney fees were incurred in the defense of something that is already non-dischargeable, such as a breach of fiduciary duty, an intentional tort, or a criminal action, those fees may also be considered to be non-dischargeable.

Attorney Fees Secured By a Lien

Finally, attorney fees might survive a bankruptcy filing if they are a secured debt. If you sign an agreement with an attorney that allows them to place a lien on your property, you’ve essentially turned an unsecured debt into a secured debt. You can walk away from an unsecured debt after a Chapter 7 bankruptcy case is complete, but walking away from a secured debt isn’t as simple. 

If you find yourself in this scenario you should consult with a bankruptcy attorney about your best next steps. There are some legal options to remove the security interest, but they can get technical, so you may want legal help. Keep in mind, many bankruptcy attorneys offer free consultations, and you can use this time to get a sense of your options.

Don’t Forget To List All Your Debts

When filing bankruptcy, be sure to list all debts in your bankruptcy forms as required by the Bankruptcy Code. If you owe outstanding attorney fees, that’s a debt you’ll want to list.

Remember that when you go to file your bankruptcy petition, you sign the forms under penalty of perjury, certifying that you’ve included all your financial information. This includes disclosing any and all debts you’ve incurred up until your filing date. If you’re currently pursuing any other legal action, you need to disclose it, especially if you’re hoping to eliminate attorney fees related to it. 

Let’s Summarize…

Most attorney fees incurred before filing bankruptcy will be treated as unsecured debt and eliminated in any consumer bankruptcy case. Unless one of the exceptions discussed above applies to you, once you receive your bankruptcy discharge, you’ll no longer have to pay outstanding attorney fees. They’re treated just like other unsecured debts, including credit card debt and medical bills. 

Your prior (or current) attorney will receive notice of your bankruptcy case once it’s filed. They can file an objection to having their debts discharged, but unless they fit into one of the discussed exceptions, the bankruptcy court will deny their request and find the attorney fees to be dischargeable.