General Practice, Solo & Small Firm Division

A service of the ABA General Practice, Solo & Small Firm Division

TheBuzz

American Bar Association - Defending Liberty, Pursuing Justice

Apr 2008

Committee Highlight

For the past several years, Larry B. Feinstein and Marc S. Stern have been the dynamic co-chair team of the active Bankruptcy Committee. The main purpose of the Bankruptcy Committee is to represent the interests of the small firm and main street lawyers on bankruptcy matters within the American Bar Association (ABA) and nationally.

The vast majority of consumer and small business bankruptcy proceedings involve solo practitioners and small firms whose concerns are not otherwise represented within the ABA. The committee voices their concerns and advocates for their interests both within the ABA and in Congress and the Rule-Making Bodies. In this capacity, it has lobbied Congress on attorney liability issues, proposed and helped adopt a report on the Scope of Inquiry Required by §707(b) of the Revised Bankruptcy Code, and is working with the Ad Hoc Committee on Bankruptcy Court Structure and Insolvency Process on Rules for Discipline of Attorneys in the Bankruptcy Courts. The leadership of this committee believes that this will bring due process and standards to what has otherwise been an ad hoc process at best, and a "Best Practice" guide for complying with all the requirements of the revised Bankruptcy Code. It led the effort to establish a uniform national rule for Electronic Court Filing that the Division took to the House of Delegates (HOD) at the 2006 Midyear Meeting.

What is the Impact of Bankruptcy?

Bankruptcy is one way of dealing with debts you cannot pay. It frees you from overwhelming debts so you can make a fresh start (subject to some restrictions) and makes sure your assets are shared out fairly among your creditors. There are different insolvency procedures for dealing with individual partnerships and companies themselves. There are alternatives to bankruptcy, such as individual voluntary arrangement, debt management and debt consolidation.

Though considered a complicated practice area, many are faced with the destruction of bankruptcy. This involves persons and businesses that for one reason or another do not have sufficient assets to pay their creditors. The bankruptcy system is administered by both federal and state systems. In the Federal System there is the United States Bankruptcy Court and Title 11 of the United States Code, also known as the Bankruptcy Code. There are two sides, creditors and debtors. The committee has members from both sides. There are also state and other federal remedies. These include receiverships, assignments for the benefit of creditors, and various other state specific institutions.

The committee presents Continuing Legal Education (CLE) to GP|Solo members at the various Division and ABA meetings. The committee also encourages its members to publish articles and books of interest in this practice area. Several of the members have published books through the ABA and the GP|Solo Division, such as Letters for Bankruptcy Lawyers , by Marc S. Stern and Joel Pelofsky, and Attorney Liability in Bankruptcy , by Corinne Cooper and Catherine E. Vance. The committee leaders actively communicate through one of the largest discussion lists within the Division to disseminate recent case law, briefs and statutes.

The bankruptcy committee typically meets at the Division's Fall and Spring meetings. At the ABA's Annual and Midyear meetings, Larson Frisby, the ABA Legislative Counsel for Bankruptcy Matters, usually briefs committee members on ongoing ABA Initiatives in Congress.

Some of the committee’s work is done through sub-committees. It represents the Division on the Joint Ad Hoc Committee on Bankruptcy Court Structure and Insolvency Process. This is a committee housed in and funded by the Business Law Section and includes members from most other entities in the ABA with bankruptcy interests. For the past several years, the Ad Hoc Committee has coordinated the ABA’s response to Bankruptcy initiatives in the Legislature (Amendments to the Bankruptcy Code) and the Administrative Office of the Courts (Amendments to the Bankruptcy Rules). One of the initiatives of the Ad Hoc Committee that resulted from a Division initiative was a model local rule on obtaining Case Management/Electronic Case Files (CM/ECF) passwords for attorneys not practicing the district. This passed the HOD. There is a working group on ABA technical corrections to the Bankruptcy Code. Division representatives participated in a Working Group on Bankruptcy Appellate Rules that recommended a resolution to the HOD opposing changes. One of the working groups of the Ad Hoc Committee is the Task Force on Attorney Discipline.

When the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) passed in 2005, the Task Force produced a report on the Scope of Inquiry required under SS707(b). This has been widely circulated. The committee plans to produce a working paper on the diligence required to prepare schedules that will help explain the scope of inquiry required from a more practice oriented basis. At the beginning of BAPCPA the committee established a brief bank. Although not actively maintained it does contain some timely and useful briefs and other materials on other issues. Members of the committee have made numerous trips to Capitol Hill to lobby Congress on various bankruptcy positions supported by the ABA.

All GP|Solo committees are staffed by volunteer members just like you! To get involved, visit abanet.org/genpractice/committee now.