A couple of exciting events are on the calendar for next week:
Brown Bag Lunch: On Tuesday, May 12 at 12:00 p.m. at the Boston Bar Association, the Consumer Bankruptcy Committee will be hosting Proofs of Claims in Chapter 13’s: Standing Order 2015-03, New Practices, and Best Practices. If you would like to attend this event, you can register here.
Bench Meets Bar Conference: On Thursday, May 14 from 3:00 p.m. to 6:00 p.m., the Bankruptcy Section celebrates the 25th Annual Bankruptcy Bench Meets Bar Conference. The Bankruptcy Section is bringing the program back to the historic Omni Parker House, the site of the first Bankruptcy Bench Meets Bar Conference. If you would like to attend this event, you can register here.
The United States Bankruptcy Court for the District of Massachusetts recently issued Standing Order 2015-03. The Standing Order sets forth changes to Massachusetts Local Bankruptcy Rule 13-13, which details the procedure for filing and objecting to claims. The amended rule includes several new subsections and applies to all cases commenced on or after May 1, 2015. To view the Standing Order and amended rule, please click here.
On March 15, the SJC promulgated new rules of Professional Responsibility, effective July 1, 2015 (available here). Of interest to bankruptcy lawyers is comment 2A to Rule 1.15. That comment provides that a lawyer is not required to deposit a “flat fee” (an all-in agreed amount for specific work) in a client trust account, and can immediately place the funds in the law firm’s operating account. The comment originated with the SJC’s own Standing Advisory Committee on the Rules of Professional Conduct. During the public-comment period, the BBA Bankruptcy Section championed the Advisory Committee’s proposed comment, while another Committee expressed concerns. The BBA reported the views of the two constituencies to the SJC, which accepted the position of the Bankruptcy Section.
The new language protects lawyers who represent a chapter 7 debtor and, although more rare, counsel who represents a chapter 11 debtor—as compared with a debtor-in-possession. The Bankruptcy Section’s concerns were that 1) any funds that were still subject to conditions at the time of a bankruptcy filing would become property of the estate, and 2) under Lamie v. U.S. Trustee, 540 U.S. 526 (2004), a debtor’s counsel is not entitled to compensation for post-petition work. The combination of those two factors would make it impossible for a debtor’s attorney to access the funds to be paid for the services rendered once a petition for relief was filed, except to the extent that the lawyer could establish what percentage of the work had been completed pre-petition.
The comment makes clear that a lawyer must return money paid for services where the lawyer has failed to complete the anticipated work, as provided in Rule 1.16(d). Obviously this new rule does not affect the powers of the Bankruptcy Court to review fees and, where appropriate, order a lawyer to repay them or otherwise make provisions relating to fees. Rather, the new rule removes any ethical taint from a lawyer’s election not to deposit a flat fee in a trust account.
A lawyer is still free to deposit flat fees into a trust account, in which event the lawyer must comply with all the rules applicable to such accounts.
On April 6, 2015, new members of the Boston bankruptcy bar, together with numerous law students, gathered at the Boston Bar Association to participate in the 8th Annual Young Bar Meets the Bankruptcy Bench event. As in past years, the program was well attended and received the robust support of the Massachusetts bankruptcy bench. All of the bankruptcy judges from the District of Massachusetts were in attendance – Judge Bailey, Judge Boroff, Judge Feeney, Judge Hillman, and Chief Judge Hoffman. The Clerk of the Bankruptcy Court, James Lynch, also participated. The program kicked off with an informative question and answer session covering topics such as written presentations, oral argument, and careers in bankruptcy practice. Thereafter, the participants had the opportunity to engage with the judges in an intimate round table format. The program was co-chaired by Ben Chapman of Brown Rudnick and David Koha of Casner & Edwards, who also co-chair the Boston Bar Association Bankruptcy Section’s New Bankruptcy Lawyers Committee.
Several exciting bankruptcy-related events are taking place in and around Boston in the coming weeks, including:
The American College of Bankruptcy’s The World of Insolvency, a panel discussion on the importance of effective domestic and cross-border insolvency and creditor-debtor regimes to commerce and economic growth. The program will be held at Boston College Law School in Newton, MA from 1:00-4:00 p.m. on March 20, 2015. Please click here for more information and to register.
A Lunch Bunch session with Judge Joan N. Feeney will be held at the US Bankruptcy Court in Boston on April 2, 2015, at 11:45 a.m. For more information and to register, please click here.
The Young Bar Meets Bankruptcy Bench event has been rescheduled for April 6, 2015, from 4:30-6:30 p.m. The program will focus on practical skills and issues particularly important for those in their first ten years of practice. For more information and to register, please click here.
Student Loan Debt and Bankruptcy: Addressing the Problem and Finding Solutions, a CLE program, will be held on April 10, 2015, from 8:00 a.m. to 12:30 p.m. at the offices of the Boston Bar Association. Click here for more information and to register.
The Bankruptcy Court for the District of Massachusetts has adopted two new standing orders, which became effective on March 1, 2015. The first, Standing Order 2015-1, alters Massachusetts Local Bankruptcy Rule 13-7 on professional fees and prepetition retainers. Among other changes, counsel may use a new form, Official Local Form 17, to file an application for compensation in amounts less than $10,000 but above $3,500 prior to entry of a confirmation order or above $500 after the entry of a confirmation order. The second, Standing Order 2015-2, adds the new Form 17 to the Massachusetts Local Bankruptcy Rules.
The new Standing Orders may be viewed here: http://www.mab.uscourts.gov/mab/news/standing-orders-2015-01-2015-02
Join the Consumer Bankruptcy Committee for its most anticipated brown bag of the year — Updates from the Chapter 13 Trustee! Carolyn Bankowski, Chapter 13 Trustee, will highlight recent developments in the case law, point out some common pitfalls for debtors and their attorneys, and suggest best practices. Carolyn’s presentations are always extraordinarily helpful. So bring your questions and come learn how to perfect your Chapter 13 practice!
Tuesday, March 10, 2015, 12:00pm – 1:00pm at the BBA
For additional details and to register for the event please click on the following link:
In December 2014, after three year of study, the American Bankruptcy Institute’s (ABI) Chapter 11 Bankruptcy Reform Commission released 400 pages of recommendations to reform Chapter 11 bankruptcy. Come to the BBA on February 24 (4:00 – 6:00 p.m.) for an update on the efforts, status and results of the report.
Please click here to register for the program.
Fahey v. Mass. Dep’t of Revenue (In re Fahey), No. 14-1328 (1st Cir. Feb. 18, 2015).
Perkins v. Mass. Dep’t of Revenue (In re Perkins), No. 14-1350 (1st Cir. Feb. 18, 2015).
Gonzalez v. Mass. Dep’t of Revenue (In re Gonzalez), No. 14-9002 (1st Cir. Feb. 18, 2015).
Brown v. Mass. Dep’t of Revenue (In re Brown), No. 14-9003 (1st Cir. Feb. 18, 2015).
In a 2-1 decision the First Circuit has followed the Fifth and Tenth Circuits in holding that a late-filed state income tax return cannot qualify as a “return” for the purposes of the so-called “hanging paragraph” added to section 523(a) by the BAPCPA amendments, with the result that the tax debt relating to that return can never be discharged, section 523(a)(1)(B)(ii) notwithstanding. In so holding the First Circuit overturned two BAP decisions (and three bankruptcy court decisions) and upheld two district court decisions (and one bankruptcy court). The decision construed Massachusetts law (though it would seemingly have reached the same result with respect to all state and federal taxes where a return has a due date) in making a determination that a late-filed state return is not a return for the purposes of the hanging paragraph because the return does not satisfy the paragraph’s definition, i.e., that a return must satisfy “the requirements of applicable nonbankruptcy law (including applicable filing requirements).” To the extent there’s an “out” to be found in the decision, debtors might try hanging their hat on two footnotes in which the court appears to leave the door open to the argument that a late-filed return, though not a return, could still constitute an “equivalent report or notice” under section 523(a)(1)(B).
Nathan R. Soucy
Soucy Law Office
755 Dutton Street
Lowell, Massachusetts 01854
Tel: (978) 905-8010
Today’s program has been postponed. If you would like to be notified of the rescheduled date, please contact Liz Vincensi at [email protected].
Click here for the complete BBA post on the postponement.