Finding Debtor’s Counsel

Authors

Anthony Casey
Emma Lotts

Abstract

In this Essay, we explore the question of how to assess the independence of debtor’s counsel in Chapter 11. The question has arisen in recent high-profile bankruptcy cases, attracting renewed attention from commentators. We examine these cases and revisit the unique role that debtor’s counsel serves.

From this analysis, a few guiding principles emerge for determining independence and managing conflicts that may arise. First, consistent with the rules outside of bankruptcy, sophisticated parties are capable of waiving conflicts and should be free to do so when their interests alone are affected by the conflict. Second, the possibility of conflicts—both real and apparent—is much higher for debtor’s counsel than for attorneys in other roles. This creates a challenge for courts, which must address both the real conflicts and the weaponization of apparent conflicts to shift leverage. Conscious of this, courts should rely, whenever possible, on intermediate remedies—such as conflicts counsel and ethical firewalls—to address allegations that debtor’s counsel is not independent. Finally, one should be careful to separate the analysis of the independence of a debtor’s managers (including its directors and officers) from that of its counsel.

With this framework in mind, notwithstanding several criticisms from commentators, most of the outcomes in recent cases are easy to explain and reconcile.

Rights

© 2026 Brigham Young University Law Review

Recommended Citation

Anthony Casey and Emma Lotts, Finding Debtor’s Counsel, 51 BYU L. Rev. 673 (2026).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol51/iss3/8