In 2009 the Kentucky Supreme Court substantially revised the Kentucky Rules of Professional Conduct.
Articles in this index written before 2009 citing Kentucky Rules of Professional Conduct must be checked for any changes to the rule cited.

BEWARE the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

Download

Malpractice Avoidance: Steps taken to evaluate substantive areas of practice or methods of practice and to make decisions about whether to avoid or eliminate certain areas of law because of the malpractice risks and exposure involved.

The new bankruptcy act is described as a “labyrinth of administrative, procedural, and substantive requirements”. It has made bankruptcy practice and adjudication more time consuming and expensive for clients, more labor intensive for lawyers and judges, while increasing malpractice exposure for lawyers. If this was not enough, the legislation is frequently criticized for being poorly written and ambiguous.

CCH offers a special eight page report on this new law in “Bankruptcy Overhaul Enacted – New Rules for Bankruptcy Implemented” available on its Web site at http://www.cch.com/bankruptcy/Bankruptcy 04-21.pdf. It provides a useful overview of the law and flags significant changes. Of particular interest to lawyers are those provisions that:

  • Require the debtor’s lawyer to certify the accuracy of factual representations in bankruptcy petitions and schedules -- errors in these representations can lead to civil penalties and liability for trustee costs and fees for the lawyer.
  • Require the debtor’s lawyer to certify the debtor’s ability to pay under reaffirmation agreements. This potentially opens the lawyer to claims from creditors when the debtor defaults.
  • Include lawyers in the category of “debt relief agency” with the result that debtors’ lawyers must comply with client disclosure requirements that include alternatives to bankruptcy. They must also state in advertising and other communications an announcement that: “We are a debt relief agency.”

Even if you do not practice bankruptcy law it may affect your practice. For example, the new law has implications for employee-benefits lawyers, real estate lawyers involved with reorganizing a single-asset real estate business, and lawyers representing active-duty military personnel with debt problems. This new law should be given a high priority in your CLE program regardless of how much bankruptcy law you practice.

Sources for this item in addition to the CCH article are “Bankruptcy bar braces for impact of new code,” Peter Geier, The National Law Journal, page 1, 9/5/2005; “Bankruptcy Law – Costs of the New Act,” Craig Rankin & Christopher Alliots, The National Law Journal, page 13, 4/11/2005; and “Debtor’s attorneys see red in Senate bill,” Marcia Coyle, The National Law Journal, page 1, 3/14/2005.

 


323 West Main Street, Suite 600 | Louisville, Kentucky 40202 | Phone: 502-568-6100 | Fax: 502-568-6103

Disclaimer: The contents of this Web site are intended for general information purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. It is not the intent of this Web site to establish an attorney’s standard of due care for a particular situation. Rather, it is our intent to advise our policyholders to act in a manner which may be well above the standard of due care in order to avoid claims having merit, as well as those without merit. In the event any statement on the Web site differs from a statement in an issued policy the policy will control.

SITE BY SCARNEGIE INTERACTIVE, LLC