Bankruptcy

Recent Article on Ethics

By mcbride

Here is a link to a very interesting article on an ethical conundrum faced by many bankruptcy lawyers.  It is written by Gregory Duhl, who is a law professor from William Mitchell College.

Abstract:

Section 524 of the Bankruptcy Code divides the consumer bankruptcy attorney?s loyalties between the client and the court. On the one hand, the attorney is the gatekeeper for the court in ensuring that whether a debtor enters into a reaffirmation agreement is balanced against one of the primary objectives of the bankruptcy system - to give the debtor a ?fresh start.? On the other hand, the attorney has an obligation under the Model Rules of Professional Conduct to pursue the client?s objectives during the bankruptcy representation.

This Article is about the lawyer-client relationship. Ethics scholars have traditionally adopted either a client-autonomy or paternalistic model to analyze the lawyer-client relationship. This Article rejects both and proposes a collaborative model of lawyer-client decision-making. Congress must free bankruptcy lawyers of their ethical conflict, so that lawyers can work in collaboration with their clients to help debtors improve financially post-bankruptcy. Then, the client might be able to be her own gatekeeper, freeing both the courts and attorneys from that responsibility.

Here is a link, note that to see the entire article, one has to click the “ONE-CLICK DOWNLOAD” button at the top of the page: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1710094

Michael

Full post as published by Texas Lawyer Blog on December 06, 2010 (boomark / email).