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members' fiduciary duties require them to receive and retain information in confidence, and securities laws impose confidentiality obligations as well for committees of publiclytraded debtors. Further, maintaining confidentiality is necessary to preserve the committee's attorney-client privilege. An order incorporated into the Refco opinion was held to achieve the required balance between such confidentiality concerns and statutory communication requirements.
VI. Client Misconduct and Improper Requests.
1. While debtor clients outside of Chapter 11 are not quasi-trustees with fiduciary duties to their creditors, debtor counsel still has ethical duties to guide and counsel her client on compliance with bankruptcy legal obligations, and duties to the court of competency, good faith, candor and accuracy. 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. 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
©2010 Susan M. Freeman. This outline is adapted from Chapter 172, Ethical Responsibilities, Norton Bankruptcy Law & Practice 3d (Thomson-West 2008).
