Ethics

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)?

The panel will discuss due diligence requirements before bringing suits, suits or demands made for leverage, asserting claims in excess of estate value, and ethics complaints and litigation advantages.

Once again, dear fans, Boris Badenough is involved in a hot chapter 11 case — this time involving Time & Lord, the owner of a failed movie franchise, “Fat Contests” (based on the book of the same name about an eat-to-the-death contest involving ordinary citizens in a future ruled by junk-food companies). Boris’s wife, Sophia, has been retained by Dallick Capital, the debtor’s investment banker, to handle the sale of the debtor’s intellectual property. However, Tardis Industries, a potential purchaser and creditor, has a problem with Dallick’s disclosure related to Sophia in its employment application. Further, the debtor’s lead counsel, Ciber & Mann PSC, may also have some disclosure issues as one of Boris’ subsidiaries, Master Industries, is one of their clients — and Boris is now interested in buying the debtor’s intellectual property. Will Sophia remain true to her fiduciary duty to her client, or will she give Boris the deal of the century, and will everyone give disclosure a chance?

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.

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.

This panel will explain the practice of “unbundling,” along with the ethical and legal considerations involved, and will provide sample engagement letters where services are unbundled. The panel will discuss evolving case law on this issue wherein debtors and their attorneys attempt to use alternative agreements to limit the scope of their representation. ABI's Ethics Task Force Final Report might also be applied.

Review of GSC case (bankruptcy court decision pending); what are the lessons of GSC for practitioners regarding disclosure, fee sharing, disinterestedness and conflicts, etc?; review of disinterestedness standards under § 101(14) and related disclosure requirements; additional ethics topic might include conflicts waivers (when is it necessary to obtain a waiver? Distinctions may be drawn based on current vs. recent vs. former clients, directly adverse vs. positionally adverse, relatedness to a prior matter, use of confidential information); Brown Publishing

Dilemmas of Dying Businesses: Practical and Ethical Issues to Consider When Representing Businesses that Are on Death’s Doorstep