The Continuing Lack of Guidance on Professional Retention in Bankruptcy and Its Potential Impact on Corporate Debtors’ Retention of Adequate Legal Counsel

This Article analyzes the continuing uncertainty surrounding the requirements of the Bankruptcy Code and state ethical codes with respect to a chapter 11 debtor’s retention of legal counsel. The Article suggests that the current approach to the application of each set of rules is inconsistent and untenable, particularly with respect to large corporate debtors and the attorneys they have sought to retain. The Article also suggests that some of the inconsistency and confusion may arise from what Professor Ted Schneyer has described as the conflict between “internal” rules (such as state ethical codes) and “external” rules (such as the Bankruptcy Code). The Article then discusses several courses of action that have been suggested for remediating this uncertainty and looks to why those courses of action have not been taken.