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*This outline is adapted from Chapter 27, Ethical Responsibilities,
Norton Bankruptcy Law & Practice 2d (Thomson-West 2005)
such as conversion of estate property, the professionals will sometimes be obligated to report the debtor's breach to others); In re United Utensils Corp., 141 B.R. 306, 309 (Bankr. W.D. Pa. 1992)("If the debtor is not fulfilling its fiduciary obligation to the estate, it is the responsibility and duty of Debtor's counsel to bring such matters to the attention of the court"); In re Wilde Horse Enterprises, 136 B.R. 830, 847 (Bankr.
C.D. Cal. 1991); ABA Formal Opinion 92-366 (Aug. 8, 1992)(ethical obligations of "noisy withdrawal"); ABA Formal Opinion 93-376 (Aug. 6, 1993)(lawyer's obligation where client lies in response to civil discovery request).
446 Model Rule 1.6 Comment; see In re Saturley, 131 B.R. 509 (Bankr. D. Me. 1991)(inform trustee that schedules are incomplete if concerns about client's candor, to prompt trustee investigation); In re Matthews, 154 B.R. 673 (Bankr. W.D. Tex. 1993)(same; alert U.S. Trustee, court, or another interested party that schedules are incomplete or inaccurate; failure to withdraw contributed to debtor's dishonesty by not setting up early alarm that something was amiss); ABA Formal Opinion 92-366 (Aug. 8, 1992)(ethical obligation of "noisy withdrawal").
447 Model Rule 1.16; In re Alderson, 114 B.R. 672 (Bankr. D. S.D. 1990).
448 Model Rule 1.16; In re Meyers, 120 B.R. 751 (Bankr. S.D.N.Y. 1990) and cases cited therein.
449 Model Rule 1.16(d). The court may order turnover of the attorney's files regardless of any charging lien rights. 11 U.S.C. § 542(e).
450 Model Rule 1.6 (lawyer shall not reveal information "relating to representation of a client" without client informed consent or as impliedly authorized to carry out the representation, and as required by way of candor to the tribunal under Model Rule 3.3). See discussion at section VI B, supra. See also United States v. Ballard, 779 F.2d 287, 293 (5th Cir. 1986), cert. denied, 475 U.S. 1109 (1986)("The attorney-
client privilege exists apart from, and is not coextensive with, the ethical confidentiality precepts").
451 Model Rules 1.6, 1.16, 3.3.
452 In re OPM Leasing Services, Inc., 670 F.2d 383 (2d Cir. 1982).
453 Bankruptcy Rule 9017; In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005); In
re Carter, 62 B.R. 1007 (Bankr. C.D. Cal. 1986); In re Carmean, 153 B.R. 985 (Bankr. S.D. Ohio 1993)(state spousal privilege applicable in § 544 fraudulent conveyance suit). 454 11 U.S.C.§ 542(e). The work product doctrine is applicable in bankruptcy, however. In re Financial Corp. of America, 119 B.R. 728 (Bankr. C.D. Cal. 1990). 455 U.S. v. White, 950 F.2d 426 (7th Cir. 1991); In re Eddy, 304 B.R. 591 (Bankr. D. Mass. 2004); compare In re Stoutamire, 201 B.R. 592 (Bankr. S.D. Ga. 1996) with In re French, 162 B.R. 541 (Bankr.
D.S.D. 1994). See U.S. v. Bauer, 132 F.3d 504 (9th Cir. 1997)(recognizing White but holding attorney statement to client about full disclosure when preparing schedules to be privileged). 456 In re Eddy, 304 B.R. 591 (Bankr. D. Mass. 2004). 457 Model Rule 1.6.
458 Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343 (1985). The court also reasoned that reposing the privilege in the trustee would promote maximization of estate value by facilitating the trustee's investigation of prior management's conduct, and noted that the privilege must be exercised in accordance with the trustee's fiduciary duties to both creditors and shareholders. See In re ANR Advance Transportation Co., Inc., 288 B.R. 208 (Bankr. E.D. Wis. 2002) (maximizing the estate is not a precondition of trustee's ability to waive the privilege). The Weintraub case concerned a chapter 7 bankruptcy. The reasoning is equally applicable to chapter 11 cases. In re Michigan Boiler & Engineering Co., 87 B.R. 465 (Bankr. E.D. Mich. 1988). An examiner may also assume so many of the DIP's functions (in conjunction with the creditors' committee) that he may control exercise of the privilege as well. In re Boileau, 736 F.2d 503 (9th Cir. 1984). The same is true of a liquidating trustee appointed under a reorgan
