The Critical Path Process
The primary and necessary control tool you can have to protect your company against The Club or even non-Club attorneys, is a Critical Path Meeting regimen:
a. A periodic Critical Path meeting between your head lawyer and you, and possibly your CFO, must occur on a regular pre-set basis, at least monthly. This Critical Path approach needs to be established and confirmed upon interviewing even the first prospective Chapter 11 attorney. That attorney’s refusal to agree up front to these regular meetings is a strong indication that he, unfortunately, is a member of The Club. Your first such meeting would occur after the attorney is officially hired.
b. By definition, the Critical Path Key Items (KIs-1, 2, 3, etc.) must be done in succession. The next one cannot be begun until the completion of its prior item. The major KIs must be listed on a single timeline, and then secondary items can be listed and done concurrently with additional parallel timelines on your chart.
c. Improper management of these two different timelines can result in higher fees and/or reduced effectiveness and communication.
d. These regular updates on the law firm’s legal fees and expenses will maintain pressure on the law firm and avoid surprises to you and your company.
e. These discussions should include the business impact of many legal decisions and deals the attorney has or will have to make that often have a direct impact on your business.
f. Without your having been advised in advance on these decisions, you will not have been aware of possible alternatives or challenges you can express.
g. Ongoing discussions, looking backward and forward, will continuously educate him about you, your decisions, and your beliefs, and vice versa. It will also help determine what information to share with others and what to keep private.
h. Following this format in managing your case will minimize the chances that the attorney will succumb to conflicts of interest temptations.
i. Assign probabilities of successful achievements to each major Critical Path item.
j. Whether leases or other executory contracts should be cancelled.
k. Proper understanding and use of the Automatic Stay, which “stays” all creditors from taking any action to enforce any activities to collect on “pre-petition debt”—even a phone call!
l. If the attorney realizes that an important Critical Path deadline might be missed, the attorney must call you that day—no texts or emails—so that you may respond or discuss immediately.
m. If your prospective or actual attorney turns out to be a Club member, that attorney is likely to resist this Critical Path degree of communication and accountability. Therefore, you must insist on it. Should he not agree, consider finding an alternative law firm.
n. Conflicts of interest
i. A regular item should be to inquire whether your attorney currently sees any conflicts of interest and whether one or more are expected in the future.
ii. You want to keep this sensitive topic on your lawyers’ minds regularly.
o. Later, items to be discussed
i. Feasibility requirement, and
ii. Plan of Reorganization
