Vermont State Approved Sessions

This panel will explore the ethical boundaries of secrecy and confidentiality issues in a bankruptcy case. May and should a creditor/attorney for the debtor serve on a creditors’ committee, and to what extent may relevant information be divulged? To what extent may an attorney reveal information received by him/her during a retention interview if he/she is not hired but is later retained by another party? What problems arise if information to be divulged by one client could have an adverse impact on another? To what extent does a debtor’s duty to reveal information trump its desire to protect business secrets, and how should the situation be handled? Can a case tolerate disparate scopes of information being given to parties in interest? Do the ethical issues change with the “environment” (court, mediation, negotiation, pitch for business)?

Section 363 sales are frequently invoked in an effort to render the debt side of a balance sheet irrelevant. Buyers and sellers generally spend much of their time negotiating pre-sale issues, such as bidding procedures, “break-up fees” and other bidding protections, perhaps relying on the “free and clear” language of § 363(f) to absolve the buyer of any liabilities associated with the assets. Buyers at § 363 sales typically assume that they take the assets free and clear of all liens and claims. Lending credence to the old adage “caveat emptor,” this program will focus on the issues that may prevent assets sold under § 363 from being cleansed of all liens, claims and interests, and will examine the limits of “free and clear” sales under § 363 of the Bankruptcy Code. The panel will identify those claims that may come back and haunt a buyer, no matter what a § 363 sale order provides, paying particular attention to cases where holders of claims that were unknown or perhaps unknowable at the time of a sale come in post-closing and successfully assert liability against a purchaser.

ABI has embarked on a significant review of the Bankruptcy Code of 1978. It has been more than 30 years since the Code was enacted, and a consensus has emerged that the current law needs an overhaul. The world has changed, including the financial environment and the operation of the markets, and the Code even as amended was not designed to deal with many of these changes. The ABI Commission to Study the Reform of Chapter 11 will study and propose reforms to chapter 11 and related statutory provisions that will better balance the goals of effectuating the effective reorganization of business debtors, with the attendant preservation and expansion of jobs and the maximization and realization of asset values for all creditors and stakeholders. Presenters will outline the work that the Commission has conducted to date, its mission and its findings. Further discussion will map out a way forward and perhaps include some crystal ball work to see what reforms might — ahem — emerge from Congress.

The chapter 11 plan has been confirmed, and consummation is on the horizon. But unforeseen circumstances have put the plan in peril or, worse yet, have caused the plan to fail. This panel will discuss the issues that arise when a plan fails post-confirmation. What alternatives exist? What provisions should be included in a plan to anticipate and guard against failure? Where can the parties go for court assistance?

State courts are increasingly relaxing their rules to allow attorneys to provide a-la-carte services to parties in cases appearing before them. However, bankruptcy courts have been reluctant to do so. Is it because the Bankruptcy Code is so complicated? Or is it because what is good for parties in state court is not good for those in bankruptcy court? This panel of experts will examine whether counsel can provide limited representation services to parties in bankruptcy matters and maintain their ethical obligations to the client.

How can you best advise a client who is unsure whether the stay or the discharge applies? How can you protect a debtor’s benefits offered by the automatic stay and the discharge? Stay violation litigation and discharge analysis are just two of the topics that this expert panel will examine.

Chapter 13 practice is complicated, and the days when a debtor’s 13 plan was quickly confirmed are few and far between. In addition to proposing confirmable chapter 13 plans, debtors’ attorneys (and in some cases chapter 13 trustees) are litigating defective mortgage claims and contentious objections to confirmation. How can debtors’ counsel ensure that they are compensated for these complicated cases that not only sit on the bankruptcy court’s docket, but often end up on appeal? This panel will discuss the challenges and practicalities of compensating chapter 13 debtors’ counsel in this ever-evolving area of bankruptcy law.

More and more litigation is emerging over the sloppy practices that were rampant during the real estate boom. Defective mortgages, flawed trusts and faulty deeds have all produced much litigation, but how can you tell if there is really a defect that you can either make a case out of, or need to protect your client from? In this practical and hands-on program, attendees will examine at least 10 different documents, all based on real cases, that demonstrate the defects that counsel need to not only be aware of, but to actually look for.

Parties can view social media as a treasure-trove of information: Does a debtor discuss assets on Facebook that are not found on the schedules? Do parties make statements in their online posts that conflict with legal positions they are taking in bankruptcy court? Does the ethical duty of a reasonable investigation encompass an obligation to investigate a client’s social media activity? This panel of experts will review the ethical obligations of investigating social media websites of clients and parties, and what may — and in some cases, must — be done to remain zealous advocates.

Texts, IMs, emails and metadata might contain information that could be helpful — or could be harmful to your client’s claims. You might want to obtain that information from your adversary, but you will undoubtedly also want to see your own client’s information before your adversary does. Where do you look? This expert panel will discuss and debate the myriad electronic discovery issues that exist and the challenges facing parties in bankruptcy cases, including asserting and avoiding claims of spoliation. It is a discussion you will want to be a part of — before your client hits “DELETE.”