Know What You Don't Know

Several years ago we all made fun of Defense Secretary Donald Rumsfeld because he talked about things we know, things we know that we don't know and things we don't know that we don't know. Once you get past all of the tongue twisting, however, he was making a lot of sense. His comments are a good lesson for all of us: know what you don't know and make sure that the lawyer you hire has the necessary skills and experience to do the job.

Over the last few years more and more lawyers have tried to handle Chapter 11 cases. They do this by finding a document in another case which they believe is appropriate, and then they adapt it for their own case. The Bankruptcy Court has encouraged this trend by creating fill-in-the-blank forms. The problem, of course, is that practicing law in general and bankruptcy law in particular is just not that simple. Documents filed with a Court are merely tools to an end. It is up to the lawyer to know how and when to use those tools. Mishandling a tool can cause some pretty serious damage.

Bankruptcy Judge Alan Jaroslovsky, whose Courtroom is in Santa Rosa, California, recently wrote an opinion entitled In re Wilson, Case No. 13-11374 (N.D.CA). There he took to task a lawyer with little or no Chapter 11 experience. Not only did the lawyer not know the rule, but the lawyer did not, in the Judge's view, even seem to understand or grasp the problem when it was explained to him. That lawyer's lack of experience and knowledge landed him in very hot water. What's even more troubling to this observer is that many lawyers seem surprised, perhaps even shocked by Judge Jaroslovsky's decision.

The recent economic downturn has encouraged a lot of lawyers to try their hand at practicing bankruptcy law. As a result, those new to the Chapter 11 world include lawyers with expertise (sometimes considerable expertise) in consumer bankruptcy, lawyers entirely new to the field of bankruptcy law and even a few lawyers who have recently passed the bar.

To state it clearly, such lawyers don't know what they don't know. Handling Chapter 11 cases requires not only a technical understanding of the law, but also an appreciation for how best to use the available tools to get the best possible result for a client. Chapter 11 is not something you can "pick up as you go".

If you believe Chapter 11 is the right tool for you, make sure that your attorney has experience, that he or she has handled such cases before or, at the very least, has worked for and trained with another experienced attorney. When interviewing an attorney, ask whether he or she has ever handled a Chapter 11 case before, how many times and for how many years. Ask whether the attorney has ever confirmed a reorganization plan. Ask the attorney to give you a copy of that plan (it is a matter of public record) and get a copy of the Court's Order saying that it was approved.

Your financial problems are not "just another case". Make sure that you get qualified and experienced help from someone who cares about you and your situation.

The Law Offices of David A. Tilem has been handling Chapter 11 cases for more than 25 years. We can help you too.