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Ethics Committee Meeting Minutes

2007 Annual Spring Meeting

On April 13th, ABI’s Ethics and Litigation Committees joined forces to present a program entitled “Email gone awry – Ethical Issues and Practical Problems that Arise in Litigation.”  The panel was comprised of moderator, Judge Barry Russell (Bankruptcy Judge for the Central District of California); Terri L. Gardner, Esq., Poyner & Spruill LLP (Raleigh, NC); Ted Gavin, CTP, NachmanHaysBrownstein, Inc., (Wilmington, DE.); Karl Schafer, Esq., Carter Ledyard & Milburn LLP (New York, NY), and Steven R. Skirvan, Dion-Kindem & Crockett (Woodland Hills, CA.).

The panel addressed two interesting hypothetical situations based upon the inadvertent emailing of privileged information to an adverse party.  Specifically, the panelist discussed the issues, problems and dilemmas that arose when an associate in a law firm accidentally sent an email containing a confidential memorandum to opposing counsel. In the first hypothetical, the email reflected, on its face, that the memorandum was confidential.  In the second hypothetical, the email did not contain clear language that would have alerted opposing counsel to the nature of the memorandum until counsel began reading it.

In order to determine the duties of opposing counsel with regard to the erroneously sent email and memorandum, the panel considered ABA Model Rule 4.4(b), which provides that  a lawyer receiving information that he/she knows was inadvertently sent shall promptly notify the sender of the receipt of the information.  Also, the ethics rules and/or opinions in many states were discussed.  Other than notification to the sender, the rules in most states do not provide guidance on whether the opposing counsel should read, not read, or stop reading the email upon learning that it was sent in error.

The panelist also addressed the various theories followed by courts to determine if the attorney-client privilege has been waived.  Specifically, the panel noted  FRCP 26(b)(5), effective as of December 1, 2007, which provides that in litigation matters where privileged information is inadvertently disclosed, upon notice from the producing party the recipient “must promptly return, sequester or destroy” privileged information, may not use or disclose the information until any claim of privilege has been resolved and if, the recipient disseminated the information before being notified by the sending party, the recipient  must take “reasonable steps” to retrieve the information. This rule does not resolve whether inadvertent disclosure waives the attorney-client privilege, but it does presume that the privilege exists.  FRCP 26(b)(5) appears to take effect only on notice by disclosing party of the error.      

If a recipient reviews an inadvertently sent email and the court finds that the privilege was not waived, then the recipient -- if opposing counsel -- could be disqualified from representing her client.  The panel discussed several relevant decisions and noted, among others, a court’s determination that, in an appropriate case, disqualification might be justified if an attorney inadvertently receives confidential materials and fails to conduct himself in the manner specified by case law, assuming that other factors compel disqualification.         

The audience participated actively in the discussion and provided first-hand accounts of inadvertent disclosures they had observed.  

At the conclusion of the panel discussion, Ethics Co-Chair Rick Meth invited participants to become actively involved in the various activities and opportunities provided by the Ethics Committee and encouraged the submission of articles to him or Co-Chair, Terri Gardner.  Rudy Cerone, Co-chair of the Litigation Committee with Judge Russell, also invited participation in the Litigation Committee’s efforts to better serve its members. 

2006 Winter Leadership Conference

On December 1, 2006, ABI’s Ethics Committee and Commercial Fraud Task Force Committee met in conjunction with the 2006 Winter Leadership Conference in Scottsdale, Ariz.  A well-qualified panel discussed  protection of the attorney-client privilege and other “secrets” in the digital age.  The topic was timely in that amendments to the Federal Rules of Civil Procedure related to discovery of electronically stored information  and protection of the attorney-client privilege regarding such information went into effect on December 1. 

The panel was comprised of moderator, Jayne South, General Counsel for EPIQ Systems; U.S. Magistrate for the District of New Jersey, Judge Ronald J. Hedges (Newark, N.J.); Ira L. Herman of Thompson & Knight LLP (New York); and Steve Katzman, U.S. Trustee for Region 15 (Los Angeles).

In the meeting, Judge Hedges took the lead in presenting a helpful powerpoint presentation that outlined the key issues faced by attorneys in dealing with discovery of digital information or “e-discovery.”  In today’s highly technological world, valuable information is stored on computers and issues of preserving, accessing and reviewing the information are difficult.  Federal Rules of Civil Procedure  16, 26, 33, 34, 37 and 45 were amended and must be understood by practitioners involved in litigation.  The panel, explained that “document discovery” in Rule 34 includes “data or compilations.” Under Rules 16 and 26, the parties must meet and confer regarding issues relating to disclosure of electronically stored information (“ESI”) and how the attorney-client privilege can be preserved in the event of inadvertent disclosure.  Form 35 of the FRCP requires that the parties describe how they propose to handle the disclosure of ESI.  This can certainly be difficult due to the volume and dynamic nature of ESI. Nevertheless,  Rule 26(a) does require that a copy of or description by category and location of all ESI and other discoverable information must be provided.  In addition to discussion of the Rule changes and the practical issues involved, the panel discussed the Sedona Principles – fourteen principles published by the Sedona Conference Working Group in 2003 and revised in 2006 – which offer practical guides for the bench and bar in the production of ESI and other documents.

Regarding privilege waiver, the inadvertent  disclosure of privileged information presents tremendous problems. Even though parties can reach an agreement on how such unintentionally disclosed information will be handled, such as return of the information to the producing party, such an agreement may not protect the information from waiver as to other third parties.   The panel discussed the practical problems in trying to “contract” around privilege waiver and the problems associated with a waiver.  

Finally the panel addressed the issue of how ESI is produced – the form of production- and the issues related to spoilation and loss of ESI.  Because companies and individuals may have a procedure for regular deletion of ESI, Rule 37 provides that a court may not impose sanctions for failure to provide ESI lost as a result of the good faith operations of an electronic information system. 

It is clear that the production of ESI will present many new and difficult challenges as litigation proceeds in the bankruptcy courts and other federal courts.  Attendees of the panel presentation received a helpful primer on issues they need to become very familiar with. The chairs of the Ethics and Commercial Fraud Task Force Committee thanked the speakers and attendees and for their participation.

2006 Annual Spring Meeting

On April 22, 2006, ABI’s Ethics Committee, Professional Compensation Committee and Investment Banking Committee met in conjunction with the Annual Spring Meeting held in Washington, D.C. An excellent panel was on hand to discuss “The Three Deadly D’s – Disclosure, Disinterestedness and Disgorgement: How to Get What You Earned and Keep What You Got!” The panel was comprised of moderator Claude R. “Chip” Bowles of Greenebaum Doll & McDonald PLLC (Louisville, Ky.); Francis A. Monaco, Jr. of Monzack and Monaco, PA (Wilmington, Del.); Benjamin A. Kahn of Nexson Pruitt & Kleemeir, P.A (Greensboro; NC), Judith Greenstone Miller of Jaffe, Raitt, Heuer & Weiss, PC (Southfield, Mich.); Anthony Schnelling of Bridge Associates, LLC (New York City); and Peter S. Kaufman of Gordian Group, LLC (New York City). Richard Meth, Co-Chair of the Ethics Committee, introduced the panel.

The panel first focused on the new provisions of BAPCPA regarding the requirement that investment bankers be “disinterested.” A manuscript entitled “A Weird New World: Disinterestedness for Investment Bankers under 11 U.S.C. §101(16)” was provided by the panel and is available on ABI’s website.

The panel thereafter discussed decisions involving disclosure issues that have required disqualification of counsel and the disgorgement of fees. In particular, the group discussed the decision of the Delaware Bankruptcy Court in In re eToys, Inc. (Bankr. D. Del. 2005), in which Debtor’s counsel was ordered to disgorge fees for nondisclosure of counsel’s prior representation of two creditors. Committee counsel also agreed to disgorge $750,000 for failing to disclose its connections with an officer of the Debtor. This decision emphasizes the critical importance of thorough investigation and immediate disclosure of all connections that give rise to an actual or potential conflict.

The problems in identifying conflicts and what may be considered to be a conflict of interest engendered comments from numerous attendees at the meeting. Taken to an extreme, the group agreed that even very remote connections of a social or professional nature could present problems in the legal environment today, and thus they should be disclosed to present future problems, including the potential loss of significant fees. The use of conflicts counsel was also discussed as a new trend to insulate some professionals from conflicts and avoid disqualification.

Judy Miller’s presentation concerning disgorgement, which focused on the Sixth Circuit’s decision in Specker Motor Sales Co. v. Eisen (6th Cir. 2004) and the more recent decision by Judge James Gregg in In re U.S. Flow (Bankr. W.D. Mich. 2005), was based on her article entitled “Protecting Professionals from Disgorgement - Obtaining Carveouts from Secured Creditors to Protect against Uncertainties.” Distributed to all attendees, the article has now been published in the June 2006 issue of the ABI Journal.

Several other recent decisions involving disgorgement in administratively insolvent cases were discussed, including pending litigation in Midway Airlines (Bankr. E.D.N.C.). Based upon the trend in case law, the panel focused upon and emphasized the precautions that professionals must take in order to be protected from the risk of disgorgement when there simply isn’t enough money to pay the allowed fees and expenses of all retained professionals. The panel further agreed that it is very difficult for professionals to totally protect themselves from the possible requirement of disgorgement – often imposed by courts as a means of “sharing the pain” – in the event a chapter 11 case becomes administratively insolvent. Nevertheless, obtaining a carve-out from the secured lender may provide at least one means for softening the blow – at least for those lucky enough to obtain such a back-stop for their fees.

Unfortunately, the Committees were able to touch only briefly on the multitude of issues raised by the ever present challenges faced by retained professionals in getting paid for the services they provide. A more in-depth review of the issues is therefore expected at future programs.

The joint meeting concluded with reminder to all attendees to “get involved” in ABI – through writing, participation in meetings, and all of the other avenues offered through the Committee structure and ABI programs.

2005 Winter Leadership Conference

The Joint Committee Meeting of the Ethics and Consumer Bankruptcy Law Committees of the ABI featured a lively panel discussion on the effects of BAPCPA on the practices of consumer bankruptcy lawyers for both debtors and creditors. The distinguished panel consisted of Professor Jean Braucher (Univ. of Arizona), Steven Jay Katzman (UST for Regions 15 and 16 (acting)), Richard Nelson (Cohen, Todd, Kite & Stanford, LLC, Cincinnati, OH), and Thomas Yerbich (Rules Atty, D. AK). The discussion was moderated by outgoing Ethics Committee Co-Chair Richard Carmody —(Adams and Reese LLP, Birmingham, AL). Many of the approximately fifty attendees participated in the discussion with questions and comments.

The panel’s presentation focused upon consideration of the designation "Debt Relief Agency" and the ethical problems created by attorneys and petition preparers being so designated. Steve Katzman provided a helpful power-point presentation concerning the salient provisions of the new Act involving "DRAs". From those provisions there flowed a discussion of the Act’s impact on the attorney-client privilege, the impact on state ethics requirements, advertising and possible suits against DRA’s by "assisted persons". The panel focused, in particular, on the potential for litigation by "assisted persons", which has attracted the attention of malpractice insurers.

The panel next discussed the duties of, and risks to, Debt Relief Agencies who must advise their clients on disclosure, values and the incurring of additional debt. This led to observations on the retention letter process as a way of clarifying responsibilities for clients and their counsel. Several comments were made, and a colloquy ensued, on the ability of attorneys to "unbundle"; their services in an a la carte fashion. The consensus of the panel was that the core debtor representation should not be allowed to be unbundled, although some federal districts would apparently allow the practice.

Finally, the panel discussed the effect of the Act on the pro bono practices of historically non-consumer firms. Since a pro bono case does not involve charging a fee for services to an "assisted person", it was posited that the firms should not bear the DRA designation. However, the panelists generally agreed that if such work can be done under the auspices of a §501(c)(3) entity, attorneys could achieve greater assurance of non-DRA status.

Two observations merit further attention. The new Act is going to increase the workload on both debtor’s counsel and bankruptcy case trustees. However, while counsel can increase their fees, the trustee’s fees were not increased by BAPCPA. In addition, it is expected that US Trustee enforcement of the Act’s provisions will focus on those practitioners who are seen as trying to shirk their responsibilities in representing debtors and creditors in consumer case

The meeting concluded with remarks by Co-Chairs for both the Ethics and Consumer Bankruptcy Law Committees and requests that committee members "get involved" . To that end, ABI members interested in writing, programming and/or other activities of the Ethics Committee are urged to contact Ethics Co-Chairs, Rick Meth (973-966-8319) and/or Terri Gardner (919-783-1037); those interested in the Consumer Bankruptcy Law Committee should contact the Hon. Dennis R. Dow or Hon.Thomas F. Waldron.

2004 Winter Leadership Conference

This joint committee with Court Administration program discussed the challenges faced by both professionals and the courts in connection with selection of "the right venue" for the filing, management and "successful conclusion" of a bankruptcy case. Offering differing perspectives from representatives of the debtor, the Court/Bankruptcy Clerk's Office, creditors and "the outside world", this program addressed the various criteria which factor into a debtor's (and/or it's counsel's) decision to choose one bankruptcy court over another, as well as the Court's ability to administer the case once filed and its procedures for managing the debtor(s) and creditors (and their claims) going forward.  In addition, the panelists explored issues such as the "best" way and time to file a motion to transfer venue, the impact of local rules and procedures, the extent to which local case law on ethics issues influences the venue selection process, and the roles and responsibilities of local counsel, the Court and the Clerk's Office.

2004 Annual Spring Meeting

On April 17, 2004, the Ethics Committee conducted a joint educational program with the Mass Torts and Professional Compensation Committees. This was the first tri-committee meeting at ABI that encompassed back-to-back time slots. Thus, the program lasted about 2.3 hours with a short break between sessions. Short business meetings for each committee followed the program. The program consisted of a panel discussion of a variety of substantive, compensation and ethics issues in mass tort cases, some of which are peculiar to these types of cases. We were fortunate to have three experienced panelists, each of whom has had intensive exposure to the issues in these types of cases: Hon. Leslie J. Tchaikovsky, U.S. Bankruptcy Judge for the Northern District of California; Theodore L. "Ted" Freedman, Kirkland & Ellis, New York; and Robert M. "Bob" Fishman, Shaw, Gussis, Fishman, Glantz & Wolfson LLC, Chicago. The panel discussion was moderated by Richard P. Carmody, Adams and Reese/Lange Simpson LLP of Birmingham, Ala. Also participating were the committee co-chairs: Richard "Rick" Meth, Pitney, Hardin LLP of Morristown, N.J. (Ethics); and James D. Sweet, Murphy & Desmond of Madison, Wis. and C. R. "Chip" Bowles Jr., Greenbaum, Doll & McDonald PLLC of Louisville, Ky. (Professional Compensation). Ted Freedman is one of the co-chairs of the Mass Tort Committee. Unfortunately, Hon. Judith K. Fitzgerald, Chief Bankruptcy Judge for the Western District of Pennsylvania, was unable to attend because of family illnesses (though she was instrumental in planning the program).

The panelists discussed the following issues.

• The status of the Asbestos Bill (S. 2290), its prospects for passage and the constitutionality of "rolling up" trusts established since 1993.
• When a case is "ripe" for filing so that it is not dismissed as a "bad-faith" filing. (SGL Carbon, 3d. Cir.)
• The cast of professionals usually appearing during a mass tort case, with elaboration on the roles and duties of special insurance counsel for the debtor and the future claimants' representative and his/her counsel, who have duties of due diligence in valuing the debtor and establishing the parameters of the trust established under §524(g) of the Code.
• Whether insurance companies, particularly non-settling companies, have standing as claimants or parties-in-interest.
• The payment of "facilitation fees" by the debtor, its affiliates or the settling insurers to claimants’ attorneys who can influence the acceptance of a consensual plan of reorganization, and the potential conflicts that can result (Combustion Engineering and Western MacArthur).
• The retention of special counsel, particularly insurance counsel on a contingent-fee basis, under §328, the criteria for approval and the ability of the court to re-visit the fee arrangement as "improvident" (Matter of Barron – 5th Cir.).
• Payment of fees to counsel for committee members in addition to committee counsel (First Merchants Acceptance Corp. – 3d. Cir.) and payment of fees to those creditors making a "substantial contribution."
• Contribution by the settling insurers to the payment of the debtor’s administrative expenses as part of a consensual plan of reorganization.

2003 Winter Leadership Conference

The joint meeting of the Ethics and Professional Compensation Committees featured an excellent presentation by Roberta DeAngelis, Acting Region 3 U.S. Trustee, John Tittle of Crossroads LLC, Robert Rosenberg of Latham & Watkins, and William H. Schorling of Klett Rooney Lieber & Schorling. An outline of the presentation and the remaining meeting agenda is set forth below.

A. Presentation: "The Service Professional's Nightmare: What to Do if Your Client Files for Bankruptcy, and How to Avoid Getting There..."

1. Can You Be Retained by the Debtor?
   1. Disinterestedness and Adverse Interest—Bowles, "Fighting Nazgul, Trolls and Orcs is Easy; Disclosing under Rule 2014 is Hard," April 2003 ABI Journal.
   2. Waiver of Pre-Petition Fees
   3. The Role of Special Counsel
   4. Officers, Directors and Shareholders
   5. Protocol on Dual Service of Financial Advisors—The "Delaware" Restrictions
   6. Debtor Affiliates ­ What is an "operating agreement"?
      
2. Getting Paid...and Keeping It!
   
   
   1. In re Pillowtex, 304 F.3d 246 (3d Cir. 2002), and Other Warnings—Friedlander and Nylen, "Accounts Receivable and Retainer Management: Lessons from Pillowtex," December/January 2003, ABI Journal.
   2. Retainers, Security Deposits and Other Payment Arrangements; Selection of Important Cases on Retainers and Pre-Petition Payments

      A. In re First Jersey Securities Inc., 180 F.3d 504 (3rd Cir. 1999), rev'g., In re Brennan, 187 B.R. 135 (Bankr. D. N.J. 1999). Case involving First Jersey and its 100 percent shareholder, Robert Brennan. Prior to Bankruptcy, First Jersey owed its law firm more than $389,000 for work done in the unsuccessful defense of securities fraud litigation, which resulted in a $75 million disgorgement order against First Jersey and Brennan. On the day of First Jersey and Brennan's chapter 11 filings, the law firm received stock ultimately sold for $600,003 to be held and ultimately sold by the law firm to provide the law firm with a $200,000 retainer for representing the debtors as special counsel under 11 U.S.C. §327(e) and to pay the debtors $250,000 in full satisfaction of their pre-petition fees. The balance of any sale proceeds would be returned to the debtors. While the transfer of the stock for the purposes set forth above was disclosed, the fact the transfer occurred within the 90-day preference period was not initially disclosed.

      The bankruptcy court found that the law firm did not receive a preference and that there was no conflict of interest by the possible receipt of the preference by the special counsel. The bankruptcy court also stated that the receipt of the preference did not disqualify the special counsel in this case. The district court affirmed.

      The Third Circuit reversed, holding that the receipt of an initially undisclosed preference under the facts of this case disqualified special counsel in this case. The Third Circuit also found the transfer in question was clearly a preference and that no defenses applied to the preference and remanded for further proceedings.

      B. In re Bressman, 214 B.R. 131 (Bankr. D. N.J. 1997) (Discussing problems with "non refundable retainer and discussing the types of retainers permissible in bankruptcy proceedings).

      1. The Professional on the Creditors' Committee—Fiduciary Duties. Supplemented by a handout prepared by John Tittle and Bowles, "They Filed Bankruptcy on Me!", published in the November 2003 ABI Journal.
      2. Privilege Issues
      3. Can the Committee Hire the Professional's Firm?
         
3. The Professional as Litigation Target.
   
   
   1. Creditor and Shareholder Lawsuits
   2. Malpractice Claims
   3. Issues Resulting from Prior Negotiations with a Pre-Petition Committee
      
4. Committee Business
   
   
   1. Ethics Committee:
      • ABI Journal: "Straight and Narrow"
      • Programs: Regional Conferences/Workshops, Coordination with Other Committees
      • Committee Projects
      • Other
   2. Professional Compensation Committee:
      • Committee Projects
      • Other

      C. Miscellaneous and "Good-Will"

2003 Annual Spring Meeting

The Ethics Committee and the Unsecured Trade Creditors Committee conducted a joint meeting; attendance for the program exceeded 75. The highlight of the meeting was a presentation entitled "Behind Closed Doors: The Ethics and Mechanics of Committee Formation and Selection of Professionals." The meeting was hosted by Richard M. Meth and Lynnette R. Warman, co-chairs of their respective committees. The panelists were Jay R. Indyke of Kronish, Lieb, Weiner & Hellman LLP (New York), Joseph E. Myers, Managing Director of Clear Thinking Group (Hillsborough, N.J.) and W. Clarkson McDow Jr., U.S. Trustee, Region 4 (Columbia, South Carolina). Rick Meth of Pitney, Hardin, Kipp & Szuch LLP (Morristown, N.J.), was the moderator. The panel explored in-depth such issues as the procedures for forming a committee, the fiduciary duty of committee members, the ethical constraints upon solicitation of committee members by professionals, contents of presentations to the committee by professionals and issues that can cause conflicts for committee members. A copy of the presentation materials can be obtained by contacting Rick Meth directly at rmeth@pitneyhardin.com.

2000 Annual Spring Meeting

The Ethics Committee of the American Bankruptcy Institute met from 8:00 a.m. to 9:30 a.m. on Sunday, April 30, 2000. Approximately 18 lawyers, accountants and judges attended the meeting. The primary focus of the meeting was a presentation by James Sprayregen and David Erie of Kirkland & Ellis, which considered that firmºs procedure for making the disclosures required of debtorºs counsel in chapter 11 cases. The presentation and the discussion of various aspects of that presentation lasted for approximately one hour.

After the presentation, the committee considered the areas where it will focus during the next six months to one year. It was decided that the committee would prepare a response to a newly proposed restatement of Bankruptcy Rule 2014 concerning the disclosures required for the employment of professional persons. Co-chair, Lynn Tavenner, will head a Task Force that will include participants from both the Ethics Committee and the Professional Compensation Committee in preparing this response. It is envisioned that the Ethics Committee will join with the Professional Compensation Committee and the Bankruptcy Rules Subcommittee at the Winter Leadership Conference in Scottsdale, Ariz. in December.

Co-chair, Richard Carmody, requested Chip Bowles of Greenebaum, Doll & McDonald to prepare an article for the ABI Journal on a recent decision involving professional fee applications and waiver of malpractice actions. The committee also discussed the necessity of becoming a regular contributor to the ABI Journal.

1999 Winter Leadership Conference

During its first meeting, the newly established Ethics Committee, previously a subcommittee of the Business Reorganization Committee, discussed "From Here to Eternity: Professional Ethics Rules of the Past, Present and Future," presented by Prof. Nancy Rapoport, Dean of the University of Nebraska School of Law. Prof. Rapoport led the 19 attendees in a discussion of the development of state ethics laws. One of the recognized problems with the application of current ethics laws is that they contemplate a two-party adversary system, whereas the bankruptcy practice involves multi-party proceedings with ever-changing issues and parties; Prof. Rapoport offered family law practice as a useful analogy.

The participants discussed the fact that proposed amendments to the Bankruptcy Code will change the role of the debtor's attorney in the bankruptcy practice. Another participant observed that the Ethics 2000 project was not particularly sympathetic to the ethics problems of bankruptcy professionals; however, one of the project's recommendations was that a written retainer agreement should be required between individuals and their attorneys. Another observation made was that the Restatement of Law Governing Lawyers considered drafting a set of multi-party ethics rules, but later abandoned that effort. Several topics for future programs or committee work were suggested, including consideration of a separate federal code of ethics for bankruptcy professionals in commercial cases (there were opposing views on this topic), an examination of applicable ethics laws in multi-state representations, a survey of local bankruptcy rules pertaining to the application of state ethical rules, and the possible "unbundling" of bankruptcy services in bankruptcy representations.

At the Annual Meeting in Washington in April 2000, when the committee next meets, we anticipate a program on disclosure of conflicts—how much disclosure should be required? At the Winter Leadership Conference in Scottsdale next December, the committee's program may focus on the abandoned efforts of the Restatement to develop multi-party ethics rules. Lastly, the committee requested those who are interested to submit interesting ethics decisions to the committee co-chairs (rcarmody@langesimpson.com or ltavenner@leclairryan.com) for possible discussion in the ABI Journal.