Wednesday, February 17, 2010

A paradox in bankruptcy law

And now for something completely different: a possible legal paradox.

(The further thoughts I promised on the SCAT hypothesis are coming soon.)

Consider the following situation:

A debtor walks into a lawyer's office and declares that he's bankrupt. The lawyer advises him that a declaration of bankruptcy might be more legally effective if done in a formal legal proceeding. The debtor says okay, and asks the lawyer to represent him in such as proceeding. She agrees. The debtor and the lawyer sign a contract where the lawyer agrees to represent the debtor for a flat fee of $2000, payable in quarterly installments of $500, with the entire agreement being subject to the court's agreeing to appoint the lawyer as the debtor's representative – a necessary procedure under bankruptcy law.

The lawyer petitions the bankruptcy court to be appointed as the debtor's representative. The court reasons as follows:

If we appoint the lawyer, she becomes a creditor of the debtor she's representing.
If she's a creditor, she has a potential conflict of interest, since her duties to the client include trying to discharge as many of his debts as possible.
Since a lawyer cannot be in such a potential conflict of interests with her client, we cannot permit the appointment.

But by not appointing her, the court prevents the conflict of interest from arising. And in the absence of a potential conflict of interest, there is no reason not to appoint the lawyer, and the court ought to appoint her.

And repeat.

Of course, the court has the discretion to disqualify the lawyer for any other good reason, including that representation would give rise to a paradox. But this gives rise to the same problem: if the court doesn't appoint her, it does not give rise to a paradox, meaning the court should appoint her.

This may fall short of a genuine paradox, since the lawyer probably does not have an actual right to be appointed, subject only to a good reason not to appoint her. The court would certainly be right to disqualify her. I just don't know why.