Attorney Liability Under Section 707(b)(4) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

摘要

The American Bar Association's Ad Hoc Committee on Bankruptcy Court Structure and the Insolvency Processes recently established a Task Force on Attorney Discipline. Its ultimate goal is to draft a model local rule for the Bankruptcy Courts regarding attorney discipline. During its initial deliberations, the Task Force determined that guidance regarding the new "reasonable investigation" and "inquiry" requirements imposed on attorneys under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") would be helpful. The Task Force concluded that, in addition to the longer term goal of drafting a model rule and in light of the October 17, 2005, effective date for BAPCPA (and the new §707(b)(4)), it would be helpful to the bar for the Task Force to publish a report with recommendations on interpreting the provisions of § 707(b)(4), particularly with a view as to how existing law may be applicable. An overarching recommendation of the Task Force to provide guidance to attorneys is that § 707 (b) (4) should be limited to the pre-filing conduct of attorneys representing consumer debtors in Chapter 7 cases to ensure that the debtor's case is not an "abuse" under the means test and is not filed other than in good faith. The Report, dated September 20, 2005, provides recommendations in the interpretation of several key words and phrases in § 707(b) (4). Following is a list of those key words and phrases and a very brief summary of the recommendations of the Task Force. 1. "reasonable investigation"-As a standard, "reasonable investigation" should be governed by the case law interpreting and applying the "reasonable inquiry" standard under Rule 9011. 2. "not an abuse under §707(b)(1)"-An attorney's certification that the case is not an abuse should be analyzed from the perspective of the pre-filing investigation and what the attorney knew or should have known based on that investigation. 3. "inquiry"-Attorneys should conform their "inquiry" requirement under §707(b) (4) (D) to the "reasonable inquiry" standard under Rule 9011. 4. "knowledge"-should be interpreted to include what the attorney knew or should have known with respect to the accuracy of the debtor's schedules. 5. "incorrect"-Attorneys should be liable for "incorrect" information only where, after reasonable inquiry, the attorney knew or should have known of the incorrectness. Further, an attorney should not be liable for information not discoverable prior to the filing of the petition. The Task Force did not make a specific recommendations with respect to the phrases "well grounded in fact" or "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law," instead suggesting that these phrases must await judicial interpretation.