Scope of Representation: Attorney Non-Delegable Duties to Chapter 13 Debtor and Debtor's Duties

(a)  Duties for Chapter 13 Debtor's Attorney. 

(1)  This Rule applies to Chapter 13 cases. The term “Debtor” includes both spouses in a joint bankruptcy case.

(2)  In addition to the general duties outlined in Local R. Bankr. P. 9010-1, any attorney retained to represent a debtor in a Chapter 13 case has certain non-delegable duties in the administrative case that the attorney must personally perform and cannot be delegated. An attorney for the Chapter 13 debtor shall, at a minimum, perform all non-delegable duties outlined in Local Form 9010-13A, Declaration of Responsibilities of Debtors and Debtor’s Counsel in Chapter 13 Cases.

(b)  Debtor's Duties.  A represented debtor has certain duties before, during and after the case. The debtor must, at a minimum, provide the information and perform the duties set forth in Local Form 9010-13A.

(c)  Certification of Compliance with Attorney's Non-Delegable Duties and Debtor's Duties.  Within seven days from the commencement of the case or within seven days after conversion to Chapter 13, the attorney for the debtor is required file Local Form 9010-13A with the Clerk of the Court.  The attorney’s signature on the Form shall certify that the attorney provided, at a minimum, the enumerated services and non-delegable duties through the date of filing the Petition and will continue to do so until the case is closed. The debtor's signature on the Form shall certify that debtor has received and reviewed the entire Form, received advice from the debtor's attorney as described therein and received a fully executed copy of the Form.  The certification filed with the court's electronic filing system shall contain a digital image of the original signatures of both the attorney and the debtor.

(d)  Attorney Fees.  Attorney fees for representing a Chapter 13 debtor may be approved and paid as part of the Chapter 13 plan confirmation process as follows:

(1)  No Look Attorney Fee.  An attorney may seek approval for fees and receive approval in an Order for an amount no greater than the presumptive No Look fee as defined in Local Form 9010-13A without filing a formal fee application or an itemized statement of services rendered if:

  (A)  Attorney provides and agrees to provide all duties as defined in Local Form 9010-13A;

  (B)  There is no objection to the requested fees within the deadline to a file plan objection; and

  (C)  The Court does not determine that the fees were unreasonable or unearned.

(2)  Adjustment of Fee Amounts.  On April 1, 2016 and at each three-year interval ending on April 1 thereafter, the No Look amounts in Local Form 9010-13A shall be reviewed and may be adjusted by the Court.

(3)  Fee Applications Exceeding the No Look Amount.  The Court will not approve additional fees exceeding the No Look amount unless the attorney submits an Application for Allowance of Compensation and Reimbursement of Expenses in compliance with 11 U.S.C. § 330 and Fed. R. Bankr. P. 2016. The application must document all services provided from the beginning of the case, including services that were covered by the No Look fee and services rendered pre-petition. 

  (A)  Any such application shall include, as an exhibit or attachment, an itemized time record of each specific service for which an award of compensation is sought. This itemized time record shall:

(i)  State the date each service was rendered;

(ii)  Identify the attorney or paralegal who performed the service and their hourly rate;

(iii) Describe with particularity the services rendered. Each task must have its own time entry. Unrelated tasks or services must not be grouped or lumped together; and

(iv) State the time spent performing the service. All time listed must be recorded reasonably contemporaneously, represent the actual time required to perform the activity, and be stated in increments of a tenth of an hour. The minimal billing increment shall be no more than one-tenth (.1) of an hour.

(B) The rate charged must be commensurate with the level of skill required for a particular task; for example, attorney rates or paralegal rates may not be charged for non-legal work, such as copying or delivering documents, preparing or filing proofs of service, or for duties generally performed without the assistance of an attorney. 

(C) Post-Confirmation Fee Applications.

(i)  If the confirmed plan does not provide for the payment of additional fees and approval of the fees would negatively impact the distribution to unsecured creditors, then the fee application must clearly and conspicuously specify how the additional fees will affect the distribution to creditors or otherwise adversely affect the parties in interest.

(ii)  If the additional fees will require an increased plan payment amount or increased plan duration, the attorney must file a modified plan, contemporaneously with the fee application, providing for the increased plan payment amount and/or duration. The additional compensation will not be disbursed until the court confirms the modified plan.  Any order approving a fee application lodged by the applicant must not provide otherwise.

(iii) The fee application and any necessary modified plan must be served on all parties listed on the current Master Mailing Matrix.

(4)  Payment of Fees Through Trustee.   Except for fees received prepetition, all fees under this subsection shall be paid through the Trustee unless otherwise ordered by the Court or as provided in section (5) below.

(5)  Payment of Attorney Fees for Newly Retained Attorney. After the case has been filed or converted to Chapter 13, if the debtor seeks to retain a new attorney, that attorney may accept payment of fees directly from funds not otherwise committed to the plan.

(A)  The newly retained attorney must file the disclosure statement required by Fed. R. Bankr. P. 2016, and must disclose the services to be performed and the fees for those services, and provide a copy of the disclosure to the debtor.

(B)  Any fees accepted or sought by the newly retained attorney are subject to review by the Court and must be applied for pursuant to the requirements of section (d).

(e)  Duty to Represent Debtor in Administrative Case.  Nothing in this provision excuses Attorney from representing the debtor in all matters in the administrative case, unless and until an order is entered allowing attorney to withdraw.

(f)  Scope of the Representation.  Absent a court order, an attorney is not permitted to limit the scope of the representation in the administrative case.  An attorney who prepared documents to be filed in the case must appear as attorney of record and comply with the requirements of the Local Form.  A debtor’s attorney is not required to represent a debtor in any adversary proceeding or appeal, unless otherwise agreed to between debtor and debtor’s attorney.

(g)  Disgorgement of Fees.  All fees are subject to subsequent disgorgement upon an order of the court. Failure to comply with all of the requirements of Local Form 9010-13A may result in disgorgement of some or all of the fees collected from a debtor or on behalf of a debtor. No plan or confirmation order shall bar by res judicata or otherwise the subsequent review and potential disgorgement of the fees.

(h)  No limitation.  Nothing in this rule shall be construed to limit Local Rule 9010-1, or counsel’s duties pursuant to Arizona’s Rules of Professional Conduct.

Committee Notes 2016: The concept of a Flat Fee case has been eliminated in this Rule. All cases are essentially hourly cases. However, an Attorney whose fees in a particular case will not exceed the No Look fee amount as provided in Paragraph (d)(1) will not need to keep hourly time records for that case. If there is any chance that the complexity of the case may exceed the No Look fee amount, then hourly time records will be required to have been kept as of the beginning of the case.