Ethics for Examiners

“Litigate or settle” is the choice generally available to disputants in American courts, including federal bankruptcy courts. In authorizing examiners, however, the Bankruptcy Code provides one very specific procedural device peculiarly suited to introduce inquisitorial process into a chapter 11 case. Until recently, examiners were seldom employed, and even when employed were not a true inquisitorial alternative to “litigate or settle.” Rather, examiners would determine the legal sufficiency of a disputed claim but not opine on the merits or undertake to resolve factual disputes. In "A Third Way: Examiners As Inquisitors," 90 <em>Am. Bankr. L. J.</em> 59 (2016), I identify and assess an emerging new approach to the bankruptcy examiner's role. While not quite fully embracing an inquisitorial alternative to traditional bankruptcy dispute resolution, In re Tribune Co. and a series of post-Tribune investigations show that inquisitorial methods may be productively employed in certain large bankruptcy cases to resolve complex legal disputes. It may well be that chapter 11 examiners are the perfect persons to launch the inquisitorial experiment in American civil process. This Symposium Article discusses the professional responsibility implications of conducting an inquisitorial-style bankruptcy examination. The inquisitorial bankruptcy examiner faces unique ethical quandaries and considerations, and requires a code of ethics tailored to his role if he is to fully achieve the promise of improving chapter 11 through the introduction of inquisitorial investigative methods. This Article points the way towards developing guidelines to regulate the conduct of examiners that mitigate real, potential and perceived abuses, and further the legitimacy of such investigations