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*This outline is adapted from Chapter 27, Ethical Responsibilities,
Norton Bankruptcy Law & Practice 2d (Thomson-West 2005)
may diverge in part, their interests may be aligned in connection with specific litigation, warranting employment of the attorney as special counsel to the committee for a specific purpose.384 In some instances, a member's counsel may act on behalf of the entire committee, and be entitled to fee payment by the estate.385
6. While there is no statutory privilege with respect to communications by the DIP to the creditors' committee and its counsel, a duty of confidentiality must be implied, and upheld, if the committee is to carry out effectively its function of investigating the debtor and operation of its business, and other matters relevant to the case and formulation of a plan.386 Recognition of the need to protect the confidentiality of debtor disclosures to the committee has led courts to insulate sensitive information from competitors.387 The 2005 amendments to the Bankruptcy Code include requirements that committees provide access to information for creditors who hold claims of the kind represented by the committee but arenot committee members, solicit and receive comments from such constituents, and be subject to a court order that compels any additional report or disclosure to them.388
VI. Client Misconduct and Improper Requests.
1. The 2005 amendments to Bankruptcy Code § 111 require a prospective consumer debtor to undergo credit counseling before filing the bankruptcy petition. State professional responsibility ethics opinions are divided on the ethical propriety of attorneys receiving referral fees from such entities.389 Fee sharing may also be illegal under 18 U.S.C. § 155. Clients need to understand what to expect of the credit counseling process required under the 2005 amendments to the Bankruptcy Code, and that they may need to bear the additional cost to access the bankruptcy system.
2. Attorneys must explain the benefits, burdens and consequences of
