MOBAR 2016 ANNUAL BANKRUPTCY INSTITUTE - The Seven...wa 7769800.1 mobar 2016 annual bankruptcy institute the seven deadly ethical sins for the bankruptcy lawyer presented by: 1 j. nick badgerow spencer fane llp

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  • WA 7769800.1

    MOBAR2016ANNUALBANKRUPTCY

    INSTITUTE

    THE SEVEN DEADLY ETHICAL SINS FOR THE BANKRUPTCY

    LAWYER

    PRESENTED BY:1

    J. NICK BADGEROW SPENCER FANE LLP

    9401 INDIAN CREEK PARKWAY CORPORATE WOODS BUILDING 40,

    SUITE 700 OVERLAND PARK, KS 66210-2005

    (913) 345-8100 nbadgerow@spencerfane.com

    ERIC L. JOHNSON SPENCER FANE LLP

    1000 WALNUT, SUITE 1400 KANSAS CITY, MO 64106

    816-474-8100 ejohnson@spencerfane.com

    MATERIALS BY:

    ERIC L. JOHNSON SPENCER FANE LLP

    1000 WALNUT, SUITE 1400 KANSAS CITY, MO 64106

    816-474-8100 ejohnson@spencerfane.com

    ANDREA CHASE SPENCER FANE LLP

    1000 WALNUT, SUITE 1400 KANSAS CITY, MO 64106

    816-474-8100 achase@spencerfane.com

    1 DISCLAIMER: The written materials distributed and presentation made are intended for educational and

    discussion purposes only. The presenter and his firm are involved in cases regarding the various issues addressed in these materials and presentation. Any views or opinions expressed during the course of the presentation or in the materials are not intended to be attributable to the clients of the presenter or his firm, and are not intended to bind the presenter, his firm, or their clients to any position they may or may not take in those cases or in future cases.

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    GLUTTONY CONFLICTS OF INTEREST:

    YOU CANT REPRESENT EVERYONE APPLICABLE RULES OF PROFESSIONAL CONDUCT

    RULE 4-1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

    (a) Except as provided in Rule 4-1.7(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

    (1) the representation of one client will be directly adverse to another client; or

    (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

    (b) Notwithstanding the existence of a concurrent conflict of interest under Rule 4-1.7(a), a lawyer may represent a client if:

    (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

    (2) the representation is not prohibited by law;

    (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

    (4) each affected client gives informed consent, confirmed in writing.

    (Adopted Aug. 7, 1985, eff. Jan. 1, 1986. Amended March 1, 2007, eff. July 1, 2007)

    RULE 4-1.9: DUTIES TO FORMER CLIENTS

    (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

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    (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:

    (1) whose interests are materially adverse to that person; and

    (2) about whom the lawyer had acquired information protected by Rules 4-1.6 and 4-1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

    (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

    (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client or when the information has become generally known; or

    (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

    (Adopted Aug. 7, 1985, eff. Jan. 1, 1986. Amended March 1, 2007, eff. July 1, 2007.) RULE 4-1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE

    (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 4-1.7 or 4-1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

    (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

    (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

    (2) any lawyer remaining in the firm has information protected by Rules 4-1.6 and 4-1.9(c) that is material to the matter. (c) A disqualification prescribed by this Rule 4-1.10 may be waived by the affected client under the conditions stated in Rule 4-1.7.

    (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 4-1.11.

    (Adopted Aug. 7, 1985, eff. Jan. 1, 1986. Amended March 1, 2007, eff. July 1, 2007)

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    APPLICABLE BANKRUPTCY CODE SECTIONS AND RULES 11 U.S.C. 327. Employment of Professional Persons

    (a) Except as otherwise provided in this section, the trustee, with the court's approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee's duties under this title.

    (b) If the trustee is authorized to operate the business of the debtor under section 721, 1202, or 1108 of this title, and if the debtor has regularly employed attorneys, accountants, or other professional persons on salary, the trustee may retain or replace such professional persons if necessary in the operation of such business.

    (c) In a case under chapter 7, 12, or 11 of this title, a person is not disqualified for employment under this section solely because of such person's employment by or representation of a creditor, unless there is objection by another creditor or the United States trustee, in which case the court shall disapprove such employment if there is an actual conflict of interest.

    (d) The court may authorize the trustee to act as attorney or accountant for the estate if such authorization is in the best interest of the estate.

    (e) The trustee, with the court's approval, may employ, for a specified special purpose, other than to represent the trustee in conducting the case, an attorney that has represented the debtor, if in the best interest of the estate, and if such attorney does not represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed.

    (f) The trustee may not employ a person that has served as an examiner in the case.

    11 U.S.C 328(c). Limitation on Compensation of Professional Persons

    Except as provided in section 327(c), 327(e), or 1107(b) of this title, the court may deny allowance of compensation for services and reimbursement of expenses of a professional person employed under section 327 or 1103 of this title if, at any time during such professional person's employment under section 327 or 1103 of this title, such professional person is not a disinterested person, or represents or holds an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed.

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    Bankruptcy Rule 2014. Employment of Professional Persons (a) Application for an Order of Employment. An order approving the employment of attorneys, accountants, appraisers, auctioneers, agents, or other professionals pursuant to 327, 1103, or 1114 of the Code shall be made only on application of the trustee or committee. The application shall be filed and, unless the case is a chapter 9 municipality case, a copy of the application shall be transmitted by the applicant to the United States trustee. The application shall state the specific facts showing the necessity for the employment, the name of the person to be employed, the reasons for the selection, the professional services to be rendered, any proposed arrangement for compensation, and, to the best of the applicant's knowledge, all of the person's connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee. The application shall be accompanied by a verified statement of the person to be employed setting forth the person's connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee. (b) Services Rendered by Member or Associate of Firm of Attorneys or Accountants. If, under the Code and this rule, a law partnership or corporation is employed as an attorney, or an accounting partnership or corporation is employed as an accountant, or if a named attorney or accountant is employed,