With the ever-increasing probability of a new bankruptcy bill¹ being enacted this year, it appears that many new ethical issues will confront bankruptcy practitioners in 2001.² However, this month's column will not speculate as to what changes the pending legislation may bring, but instead will focus on proposed new changes to Bankruptcy Rule 2014, which is to replace current Rule 2014, and how "new" Rule 2014 will impact the duty of a professional to disclose his relationships and connections. Unlike the current bankruptcy legislation, which may still yet be subject to significant revisions, New 2014 will likely take effect in its present form in December 2001.³ Although the changes to Rule 2014 are described as being made to make Rule 2014 "conform more closely to applicable provisions of the [Bankruptcy Code],"⁴ the changes will have an important impact on the amount and detail of disclosure required in bankruptcy employment applications.

What Are Connections Under the Current Version of Rule 2014?

Under 11 U.S.C. §327(a), in order to be employed as a professional by a bankruptcy estate, the professional must not "hold or represent an interest adverse to the estate" and must be "disinterested."⁵ Attorneys employed as special counsel to the estate under 11 U.S.C. §327(e) and professionals employed under 11 U.S.C. §§1103 and 1104 face less stringent requirements.⁶ However, all professionals whose employment must be approved by the bankruptcy court are required to make disclosure under Rule 2014.

Currently, Rule 2014⁷ does not provide any limits on the disclosure of connections related to 11 U.S.C. §327 employment issues. Courts have generally applied Rule 2014 broadly and have held that professionals have little discretion in determining what is a relevant or material connection.⁸

Rule 2014 requires disclosure of all of a professional's connections with (1) the debtor, (2) any creditors, (3) other parties in interest, (4) the debtors, creditors and other parties in interest's attorneys and/or accountants, and (5) the U.S. Trustee and persons employed by the U.S. Trustee's office (collectively, "2014 parties").⁹ Currently, courts have recognized three broad categories of "connections"—financial, business and personal¹⁰—that must be disclosed pursuant to Rule 2014.¹¹

Financial Connections. Perhaps the most common form of connection that professionals must disclose are financial connections that the professional may have with 2014 parties. One of the first decisions that discussed the need for professionals to fully disclose financial connections was In re Arlan's Dept. Stores Inc.,¹² where estate counsel was denied all compensation after, among other things, failing to disclose that its $125,000 retainer was paid by taking almost all of the cash receipts from the debtor's department stores.¹³

More recently, courts have used Rule 2014 to require debtors' professionals to disclose the sources¹⁴ of fee payments and/or retainers¹⁵ paid to the professionals. The most important case concerning the degree of disclosure of financial connections needed to comply with Rule 2014 is In re Park Helena Corp.¹⁶ In Park Helena, the debtor's counsel received a $150,000 retainer from the debtor's president. While counsel disclosed the retainer, they did not disclose the actual source of the retainer until their first fee application. At that time, the debtor's counsel disclosed that the retainer was paid by the debtor's president, but argued that it was part of a repayment of a loan the debtor had made to the president prior to the bankruptcy.¹⁷ The Ninth Circuit found that debtor's counsel violated 11 U.S.C. §329 as well as Bankruptcy Rules 2014 and 2016.¹⁸ In finding a violation of Rule 2014, the Ninth Circuit held that even if the retainer was paid from the debtor's funds, and there was no conflict of interest, the "failure to describe the circumstances of the payment" was a violation of Rule 2014. The Ninth Circuit ultimately denied all requested fees.¹⁹

Business Connections. Courts have also determined that a professional's business connections to 2014 parties (i.e., working for or representing a 2014 party) are covered by Rule 2014. Courts have held that representation of an entity that may be able to control or influence a bankruptcy estate must be disclosed.²⁰ Courts also have held that pre-petition work, which in and of itself was adverse to the estate, must also be disclosed.²¹

The two most famous cases involving failure to disclose business connections are U.S. v. Gellene²² and In re Leslie Fay Companies Inc.²³ In Gellene, a bankruptcy attorney failed to disclose his representation of a large secured creditor in a chapter 11 case in which his firm was employed as debtor's counsel and was ultimately convicted of making false oaths in a bankruptcy proceeding.²⁴ The court found the failure to disclose this connection made the 2014 disclosure false, notwithstanding Gellene's contentions that disclosure was not necessary.²⁵

In Leslie Fay, the debtor's counsel was sanctioned for failing to disclose their pre-petition representation of board members and the debtor's outside auditors, who could be sued by the debtor.²⁶ The court rejected the professional's contention that no such disclosure was necessary because counsel's investigation disclosed that neither party would be liable to the debtor²⁷ and imposed significant sanctions on the professional.

Personal Connections. The final important category of connections, which courts are increasingly requiring to be disclosed, are personal connections. Although the full range of personal connections between professionals and 2014 parties, which must be disclosed, has not been fully developed,²⁸ three recent cases illustrate the types of connections that need to be disclosed.

In In re El San Juan Hotel Corp.,²⁹ counsel for a successor chapter 7 trustee was denied all fees due to his failure to disclose (1) his retention, in a separate bankruptcy case, by the previous trustee of the estate, who was ultimately convicted of embezzlement from the bankruptcy estate, and (2) his close friendship with the attorney who served as counsel to the previous trustee in litigation with the current trustee.³⁰

In In re Bonneveille Pacific Corp.,³¹ counsel for the unsecured creditors' committee resigned from the case when it was discovered that an "of counsel" attorney with the committee and counsel were married to an insider to one of the debtor's subsidiaries.³² This connection had not been previously discovered or disclosed.

Finally, in the Merry-Go-Round³³ case, the accountant for a chapter 11 debtor was forced to settle a lawsuit against it for $185 million. One of the reasons for the settlement was an allegation that the accounting firm had concealed, from the debtor and the court, various relationships, including personal relationships, that members of the accounting firm had with the debtor's counsel, which kept the counsel from disclosing the accountants' alleged malpractice in the debtor's case.³⁴

Is There Such a Thing as a de Minimis Connection? While cases such as In re Park-Helena Corp.³⁵ and In re Crivello36 contain sweeping dicta that all connections, no matter how de minimis, must be fully disclosed, the holdings of these cases and other decisions addressing Rule 2014 clearly indicate that the "missing" disclosures were, in most cases, material³⁷ to a determination of whether a professional could be employed. This was recognized by the bankruptcy court in In re Rusty Jones,³⁸ where the noted ownership of a hot dog stand 20 years ago by a professional and an owner of the debtor would be so de minimis that they need not be disclosed.³⁹ The Rusty Jones court noted that connections that are either related to the bankruptcy proceedings or could "reasonably have an affect on the attorney's judgment in the case" are the types of connections that must be disclosed.⁴⁰ Unfortunately, neither Rusty Jones nor any other decisions clearly define what connections could "reasonably affect" an attorney's judgment.

New Rule 2014: Interest, Connections and Relationships

The new version of Bankruptcy Rule 2014 totally replaces current Rule 2014. Subsection (b) covers the disclosures a professional employed under 11 U.S.C. §327, 1103 or 1114, and provides:

The application shall be accompanied by a verified statement of the person to be employed, made according to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, which shall state: (1) that the person is eligible under the Code for employment for the purposes set forth in the application; (2) any interest that the person holds or represents that is adverse to the estate; (3) any interest, connection or relationship that the person has relevant to determining whether the person is disinterested under §101; (4) any relationship the person has with the U.S. Trustee, or with any employee of the U.S. Trustee, for the region in which the case is pending; (5) the information required to be disclosed under §329(a) if the professional is an attorney; and (6) whether the person shared or has agreed to share any compensation with any person, other than a partner, employee or regular associate of the person to be employed, and if so, the details.

While the new version of Rule 2014 will change professional employment application processes in a number of areas, of particular importance to this article is subsection (b), which "limits" disclosure of connections to "interests, connections or relationships" that are "relevant to determining whether a professional is disinterested under [11 U.S.C. §101]."

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The Rusty Jones court noted that connections that are either related to the bankruptcy proceedings or could "reasonably have an effect on the attorney's judgment in the case" are the types of connections that must be disclosed.

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While this language eliminates the largely theoretical questions about whether irrelevant "hot dog stand" connections must be disclosed, it provides no guidance as to what connections are relevant to determining whether a professional is disinterested. New Rule 2014(b) does offer some assistance in dealing with how to make a disclosure by indicating that a professional is required to "undertake a reasonable inquiry under the circumstances to identify any facts relevant to that determination."⁴¹

Under new Rule 2014, professionals should take a three-step approach to making the required Rule 2014 disclosures. First, professionals should describe, in detail, what steps he has taken in investigating his firm connections, relationships and interests for purposes of this Rule 2014 disclosure, including a statement that he or she is eligible for employment under the Code.⁴² A detailed discussion of the nature of the inquiry will greatly reduce the possibility that a court will later determine a professional "did not look very hard" for possible conflicts, as well as give the court, U.S. Trustee's office and other interested parties an opportunity to immediately explore other relevant areas—rather than wait until late in the case—to second-guess a professional's choices in investigating his firm's connections, relationships and interests.

Second, professionals must disclose any connection, interest or relationship that they may have with the debtor or any other party that could have some possible impact on a court's determination of whether the professional should be employed. If there is any doubt, disclose.⁴³ At worst, you will not be employed, but in those circumstances disclosure is clearly required. At best, the issue will be fully and finally resolved before expending a great deal of time and expense have been put into the case.

Finally, professionals are advised to describe any particular interest, connection or relationship in some detail. Boilerplate statements that "you represent various creditors of the debtor in other non-related matters" is in some respects worse than no disclosure, as the court and other parties' view of what is trivial or unimportant representations may vary greatly from the view of the disclosing professionals. The detail given in a disclosure under either new or old Rule 2014 must at least be sufficient to put the court and other parties on notice as to what ethical issues may be involved in a particular connection or relationship.⁴⁴

Conclusion

New Rule 2014 is clearly a step in the right direction to simplify disclosure in employment applications, as it attempts to limit and clarify what interests, connections and relationships must be disclosed. Unfortunately, this additional clarification does not resolve a number of key issues, including what is a relevant interest, connection or relationship and how much disclosure is needed to meet New Rule 2014's requirements. It will be left to courts to answer those questions when (and if) New Rule 2014 enters the world of Bankruptcy Rules.

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Footnotes

¹ As of March 15, the House and Senate had both passed their own versions (H.R. 333, S. 420)of the new bankruptcy bill, with conference of the two bills pending. President Bush is expected to sign either version of the new bankruptcy bill. Return to article

² A future column (or columns) will address the various new ethical issues that will arise as a result of the new bankruptcy law. Return to article

³ While almost all formally proposed amendments to the Bankruptcy Rules are ultimately enacted, all bankruptcy attorneys remember the fate of the infamous "litigation package" of Bankruptcy Rule amendments that were withdrawn from consideration due to widespread protest. Return to article

⁴ Report of the Advisory Committee on Bankruptcy Rules to Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (May 11, 2000). Return to article

⁵ See 11 U.S.C. §101(14) (definitions of disinterested person). Return to article

⁶ See 11 U.S.C. §§327(e), 1103 and 1104. Return to article

⁷ 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 U.S. 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 U.S. Trustee, or any person employed in the office of the U.S. 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 U.S. Trustee or any person employed in the office of the U.S. Trustee. Return to article

⁸ See, generally, In re Crivello, 134 F.3d 831 (7th Cir. 1998); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995); Rome v. Braunstein, 19 F.3d 54 (1st Cir. 1994). Return to article

⁹ For an excellent discussion of the scope of disclosure required of professionals seeking approval of their employment by a bankruptcy court, see Rapaport, Nancy B., "Avoiding Judicial Wrath: The 10 Commandments for Bankruptcy Practitioners," 5 J. Bankr. L. & P. 615 (1996) [hereinafter "10 Commandments"]. Return to article

¹⁰ These categories are solely the creation of the author, and there is a great deal of overlap between each group. Further, there are some connections that fall outside these categories. See Pearson v. First NH Mortgage Corp., 200 F.3d 30, 37 (1st Cir. 1999) (professional failed to disclose that it had a possible conflict of interest under state code of professional conduct). Return to article

¹¹ See "10 Commandments" at 619-622. Return to article

¹² 615 F.2d 925. (2d Cir. 1979). Return to article

¹³ Id. at 935. See, also, In re Burke, 147 B.R. 787 (Bankr. N.D. Okla. 1992) (debtor's attorney took all of the debtor's funds for retainer, which resulted in the starvation of the debtor's cattle herd). Return to article

¹⁴ See In re Park Helena Corp., 63 F.3d 877 (9th Cir. 1995); In re Smitty's Truck Stop Inc., 210 B.R. 844 (10th Cir. B.A.P. 1997). Return to article

¹⁵ See In re Downs, 103 F.3d 472, 478 (6th Cir. 1996). Return to article

¹⁶ 63 F.3d 877. Return to article

¹⁷ Id. at 881. Return to article

¹⁸ Id. at 882. Return to article

¹⁹ Id. Return to article

²⁰ In re Crivello, 134 F.3d 831 (7th Cir. 1998); In re EWC Inc., 138 B.R. 276 (Bankr. W.D. Okla. 1992). Return to article

²¹ In re Southern Kitchens Inc., 216 B.R. 819 (Bankr. D. Minn. 1998); In re Amdura Corp., 139 B.R. 963 (Bankr. D. Colo. 1992). Return to article

²² 182 F.3d 578 (7th Cir. 1999). Return to article

²³ 175 B.R. 525 (Bankr. S.D.N.Y. 1994). Return to article

²⁴ 182 F.3d at 585. Return to article

²⁵ Id. at 591-93. Return to article

²⁶ 175 B.R. at 553. Return to article

²⁷ Id. Return to article

²⁸ See, generally, In re Bennett Funding Group Inc., 226 B.R. 331 (Bankr. N.D.N.Y. 1998) (requiring disclosure of details of clients of accounting firms for which trustee provided regulatory and legislative advice); In re Cody, 122 B.R. 520 (Bankr. N.D. Ohio 1990) (failure to disclose attorney shared office space with creditors' attorney). Return to article

²⁹ 239 B.R. 635 (1st Cir. B.A.P. 1999). Return to article

³⁰ Id. at 639. Return to article

³¹ 196 B.R. 868 (Bankr. D. Utah 1996). Return to article

³² Id. at 879. Return to article

³³ See, generally, In re Merry-Go-Round Enterprises Inc., 222 B.R. 254 (D. Md. 1998). Return to article

³⁴ See "Ernst Pact Spells Caution in Bankruptcy," New York L.J. (May 6, 1999); "$185 Million Suit by Former Client Could Probe Bounds of Bankruptcy Law and Legal Ethics," Legal Times (March 20, 2000). Return to article

³⁵ 63 F.3d 877 (9th Cir. 1995). Return to article

³⁶ 134 F.3d 831 (7th Cir. 1998). Return to article

³⁷ See, generally, "10 Commandments" at 619-622. Return to article

³⁸ 134 B.R. 321 (Bankr. N.D. Ill. 1991). Return to article

³⁹ Id. at 346. Return to article

⁴⁰ Id. Return to article

⁴¹ See Committee Note to proposed Rule 2014 of Rules of Bankruptcy Procedure. Return to article

⁴² Proposed Rule 2014(b)(1) of the Rules of Bankruptcy Procedure. Return to article

⁴³ "10 Commandments" at 619-622. Return to article

⁴⁴ In re Crivello, 134 F.3d at 831; In re Park Helena Corp., 63 F.3d at 877. Return to article