Lack of Experience — And Filing A Subchapter V Case

By: Donald L Swanson

It’s been a while—quite a long while, actually—since bankruptcy cases were booming.

A Problem

The result of such time lag is this:

• younger attorneys have missed-out on opportunities to grow in the bankruptcy realm; and
• the bankruptcy bar is aging, without adequate development of its younger and less-experienced members.

So, with the new Subchapter V law in effect for small businesses, we hear comments from consumer-debtor attorneys like this:

• “I’d love to do a Subchapter V case but don’t feel that I have adequate background and experience to venture into that realm!”; and
• “If only I could get help from an experienced attorney, I’d give Subchapter V cases a try!”

A Solution

So . . . here’s the deal: 

• When a business entity hires an attorney to file a Subchapter V case, that entity’s non-bankruptcy owner often needs separate representation—by an attorney from a different law firm;
• If Debtor’s counsel can find an experienced bankruptcy practitioner to fill that separate representation role, who can work in a cooperative, restrained and instructive manner, Debtor’s counsel can draw on that attorney’s background, experience and judgment in handling the Debtor’s Subchapter V case; and
• The experienced bankruptcy practitioner will be retained and paid by the owner—not by the Debtor in the Subchapter V case.

I’ve filled such a role in many cases (both inside and outside of bankruptcy)—remaining in the background, mostly, and loving every minute of it.  And there are many experienced attorneys who’ve filled a similar role in many cases.

Conclusion

With some creativity, a debtor’s attorney can shore-up his/her lack of Subchapter V experience by finding an experienced practitioner to represent the debtor’s non-bankruptcy owner and, thereby, add experience and seasoned judgment to the process.   

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