Volume 8, Number 4 / August 2011
In This Issue
by Stuart Gold
Gold Lange & Majoros PC; Southfield, Mich.
Kelly Beaudin Stapleton
Alvarez & Marsal; New York
David W. Houston, IV
Burr & Forman LLP; Nashville, Tenn.
This edition of the Ethics and Professional Compensation Committee newsletter marks the first edition from the new leadership. Richard Carmody of Adams & Reese has done an amazing job as our newsletter editor, and we would be remiss not to thank him for his work. Thanks, Richard! John Weiss with Alston & Bird's New York office has stepped in as the newsletter editor and is off to a running start with his first edition. John was previously the committee's membership relations director, which is now being filled by Charles Bullock of Stephenson & Bullock in Southfield, Mich. To round out the new leadership, Kelly Beaudin Stapleton with Alvarez & Marsal's New York office has moved up to the co-chair role from her previous post as education director. Stuart Gold of Gold, Lange & Majoros in Southfield, Mich., remains in his post as co-chair, and David W. Houston IV with Burr Forman's Nashville, Tenn., office has been named as a new co-chair for the group. Andrew R. Vara, Assistant U.S. Trustee in Cleveland, has agreed to come aboard as a new education director and will serve along with Steve Schwaber of San Marino, Calif., who remains as one of the education directors. Eve Karasik with Stutman, Trester & Glatt in Los Angeles has agreed to serve as our listserv facilitator. Theresa (“Terri”) V. Brown-Edwards of Potter, Anderson & Corroon, LLP in Wilmington, Del., has remained on as Special Task Force leader for the group and contributed to this piece with a report on the current activities of the task force included below. We all look forward to serving the members of the committee and would love to hear any feedback from the membership on ways we can add value to your ABI experience.
Read the full Co-Chairs Corner.
by Isaac D. Rothschild
Mesch, Clark & Rothschild, P.C.; Tucson, Ariz.
The Ninth Circuit recently upheld a motion for sanctions against an attorney and his law firm for improperly removing a case. This raises the question of whether there is a trend of courts developing less tolerance for aggressive litigation tactics or whether this was an isolated incident where the facts justified the application of sanctions at any period of time.
Read the full article.
by Gregory W. Werkheiser
Morris, Nichols, Arsht & Tunnell LLP; Wilmington, Del.
A ruling that an entity lacks standing in a bankruptcy case is usually a frustrating development that means that the party will not have the opportunity to be heard on a matter that may have negative consequences for it. In Savage Associates PC v. K & L Gates LLP (In re Teligent, Inc.), [1] the absence of standing in the bankruptcy case actually produced a favorable outcome for a law firm that later had to defend a malpractice suit in another court.
Read the full article.
by Brendan Best
Schafer and Weiner PLLC; Bloomfield Hills, Mich.
Creditors and parties in interest frequently file objections to bankruptcy professionals’ fee requests incurred during the case. According to the U.S. Trustee’s Annual Report of Significant Accomplishments for FY 2009, [1] the U.S. Trustee alone filed 511 objections to the allowance of professional fees in 2009 (the last year reported as of the date of this article), and 91.9 percent of which were successful, lowering the total amount of fees awarded in those cases by $28,524,879. In the heat of battle of a chapter 11 restructuring, bankruptcy estate professionals, especially debtors’ counsel, simply do not have the luxury of constantly analyzing their ongoing work under the rubric of 11 U.S.C. § 330’s standards for allowance of professional fees and the case law interpreting that statute, nor does anyone familiar with the nature of chapter 11 cases expect them to. Rather, it is hoped that § 330 of the Bankruptcy Code, which governs the court’s authority to allow professional fees in chapter 11 cases, is written and designed in such a way as to permit the allowance of fees and expenses of a chapter 11 professional who acts reasonably and with the best interest of the estate in mind.
Read the full article.
While a conventional bankruptcy filing is frequently a viable option for a company seeking to reform its capital structure and operations, it is certainly not the only alternative. Recent years have seen a significant rise in prepackaged bankruptcy filings. A Practitioner's Guide to Pre-packaged Bankruptcy: A Primer serves as a guide to prepackaged bankruptcy and assists practitioners in the evaluation of restructuring alternatives, comparing the advantages and disadvantages of prepacks to the advantages and disadvantages of out-of-court restructurings or conventional filings. The book delves into the foundation for prepacks established in the Bankruptcy Code and in local bankruptcy rules and guidelines, as well as the historical basis for prepacks. It also summarizes the prepack process and contrasts this process with the process for conventional filing. Finally, the primer examines several significant prepacks and identifies a number of recent ones.
Did you know that all of ABI's publications are written by experts in the field and are widely used by the bankruptcy bar and bench? You can own these same publications by visiting the online ABI Bookstore. The ABI Bookstore carries over 40 publications, offers several bundled packages for your convenience and includes free ground shipping!
Click here to order your copy today and have it sent directly to your home or office!
There were two excellent ethics sessions at the recently concluded 16th Annual Southeast Bankruptcy Workshop held last month in Kiawah Island, S.C. The panelists for the first session titled, "Is There an 'App' for That? Ethics Challenges Arising from New Technology" discussed the use and misuse of Facebook in the legal profession, including advertising and confidentiality issues and juror utilization, as well as cloud computing and related cases from Ohio and Florida. David A. Wender of Alston & Bird, LLP in Atlanta moderated the session. Panelists included Terri L. Gardner of Nelson Mullins Riley & Scarborough LLP in Raleigh, N.C., the Hon. James M. Hopkins of the U.S. District Court for the Southern District of Florida in West Palm Beach and Patricia E. Lowry of Squire, Sanders & Dempsey, LLP in West Palm Beach, Fla. Click here to view "Is There an 'App' for That? Ethics Challenges Arising from New Technology" educational materials.
The session titled, "Ethics: 'Civility Is Not a Sign of Weakness': Civility and Professionalism," was comprised of a panel of judges who discussed the topics found in the June edition of the Ethics & Professional Compensation Committee Newsletter. The session was moderated by Richard P. Carmody of Adams and Reese LLP in Birmingham, Ala. Panelists included the Hon. Helen Elizabeth Burris of the U.S. Bankruptcy Court for the District of South Carolina in Spartanburg, the Hon. Mary Grace Diehl of the U. S. Bankruptcy Court for the Northern District of Georgia in Atlanta, the Hon. David W. Houston, III of the U.S. Bankruptcy Court for the Northern District of Mississippi in Aberdeen, the Hon. Catherine Peek McEwen of the U.S. Bankruptcy Court for the Middle District of Florida in Tampa, the Hon. C. Ray Mullins for the U.S. Bankruptcy Court for the Northern District of Georgia in Atlanta and the Hon. Katharine M. Samson for the U.S. Bankruptcy Court for the Southern District of Mississippi in Gulfport. Click here to view "Ethics: 'Civility Is Not a Sign of Weakness': Civility and Professionalism" educational materials.
At ABI's Northeast Bankruptcy Conference, held in July in Newport, RI, there was a session titled, "Bankruptcy Ethics in an Electronic Age," which will prove to be an interesting read. The panelists provided attendees the materials for with a comparison of Rule 7.3 of professional conduct across the states, offered a sample desk appearance ticket and discussed a variety of related cases. The Hon. Brian K. Tester of the U.S. Bankruptcy Court for the District of Puerto Rico in San Juan moderated the session. Panelists included Thomas O. Bean of McDermott, Will & Emery, LLP in Boston, Joseph Looby of FTI Consulting, Inc. in New York, John P. McVeigh of Preti, Flaherty, Beliveau & Pachios, LLP in Portland, Maine and Andrew Z. Schwartz of Foley Hoag LLP in Boston. Click here to view "Bankruptcy Ethics in an Electronic Age" educational materials.
In early August, the ABI held its 7th Annual Mid-Atlantic Bankruptcy Workshop in Hershey, Pa. This year's event offered a set of educational materials relevant to the committee titled, "Ethics Proxies, E-mail and the Rules of the Road." The panelists for this session provided attendees with relevant sections of the Code and CPA Rules of Conduct, ethical issues arising from the use of social media and used In re Universal Building Products as a case study for the session. Panelists included Roberta A. DeAngelis of the Office of the U.S. Trustee in Philadelphia, Bonnie Glantz Fatell of Blank Rome, LLP in Wilmington, Del., Alvin E. Mathews, Jr. of Bricker & Eckler LLP in Columbus, Ohio, Louis A. Modugno of McElroy, Deutsch, Mulvaney & Carpenter, LLP in Morristown, N.J. and Allen D. Wilen of EisnerAmper LLP in Edison, N.J. Click here to view "Ethics Proxies, E-mail and the Rules of the Road" educational materials.
Click here to view all materials related to the Ethics & Professional Compensation Committee.
