Summary:

 

What Judge Edwards has done in the DBMP decision—and what In re Wolbert foreshadowed years earlier—is to remind us that attorney-client privilege in bankruptcy is not a static shield. It is a conditional protection, one that can erode—sometimes quickly—once the debtor crosses the line from considering bankruptcy to committing to it.

And that line matters.

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I. The Core Tension: Confidential Advice vs. Mandatory Disclosure

Bankruptcy is different. Unlike most litigation, it is built on compelled transparency.

As Wolbert explains, the privilege protects candid communications only so long as they are intended to remain confidential. But once those communications are made for the purpose of producing a public filing—the petition, schedules, SOFA—the expectation of confidentiality evaporates.

That produces a two-stage framework:

1. Pre-decision phase (privilege intact)

• Discussions about whether to file

• Strategy, alternatives, risks

• Legal advice about exemptions, timing, or consequences

These remain privileged because they are not yet destined for public disclosure.

2. Post-decision phase (privilege erosion)

Once the debtor has decided to file, communications:

• Supplying facts for schedules

• Drafting petitions

• Explaining assets, transfers, liabilities

are no longer confidential in the same way—because they are intended to be published.

That is the doctrinal hook both Wolbert and Judge Edwards rely on:

privilege is lost when communications are made with the understanding they will be disclosed.

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II. What Counts as a “Decision to File”?

This is where the DBMP analysis becomes especially instructive—and dangerous if misapplied to consumer practice.

Judge Edwards did not rely on a formal board resolution alone. Instead, she looked at objective conduct demonstrating commitment:

• Structural steps (entity formation, restructuring)

• Movement of significant assets (e.g., $25 million transfer)

• Implementation of a pre-packaged legal strategy

• Board-level actions consistent with an inevitable filing

In other words, the court inferred the “decision” from actions inconsistent with anything else.

Translating that to consumer cases

A court could find that a debtor has “decided to file” when:

• The debtor has retained counsel and paid a bankruptcy-specific retainer

• The debtor is actively compiling documents for schedules

• There is no meaningful exploration of alternatives

• The debtor has taken pre-filing actions uniquely tied to bankruptcy
  (e.g., asset conversions, timing transfers, stopping payments solely for filing)

But—and this is critical—none of those are necessarily dispositive.

The real question is:

Has the client committed to filing, or are they still evaluating options?

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III. Can a Retainer Agreement Preserve Privilege?

A well drafted retainer agreement may not just be good practice,  but  may be likely essential.

A provision stating:

"Even though the debtor has consulted with the attorney, viable alternative options, including debt settlement and/or defense, refinancing, etc., an ultimate decision whether to file bankruptcy, what chapter and what, if any plan for reorganization to propose, will not be made until the Debtor has reviewed and signed as complete and accurate the final bankruptcy petition." ”

does two important things:

1. It preserves the “pre-decision” characterization

It creates a record that:

• The client is still evaluating alternatives

• The attorney is still providing advisory services, not merely transcription

2. It rebuts objective inference

If later challenged, it helps counter arguments like those in DBMP that:

• the decision had already been made during document preparation

That said, a contract alone is not dispositive. Courts will look at conduct over language.

If everything about the representation screams “this filing is happening,” the clause may not save privilege.

But it significantly strengthens the argument.

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IV. Third-Party Assistance: Does It Preserve Privilege?

Third-Party Confidentiality Agreements, as sample of which is attached and for which I would welcome comments and suggestsion,  are often necessary to preserve attorney-client privilege for consumers who need the assistance of family or friends—but it is not a magic wand.

 

A. When third-party involvement does NOT waive privilege

Privilege can be preserved when the third party is:

• An agent necessary to facilitate communication

• A translator, advisor, or functional equivalent

• Someone whose involvement is reasonably necessary to the representation

Such an agreement hits these points well:

• Identifies the son as agent/confidant

• States his involvement is necessary

• Limits use of information to the representation

These are exactly the facts courts look for.

B. Where the risk remains

Courts are skeptical when the third party is:

• Merely supportive (emotional or logistical)

• Not actually necessary to legal advice

• Functioning as a “family observer”

The key vulnerability is this:

If the third party’s presence is not necessary, it may be treated as a “stranger,” destroying privilege.

A Third-Party Confidentiality agreement tries to solve that by declaring necessity. That helps—but courts will still ask:

• Could the client have communicated without this person?

• Was the person adding substantive assistance?

• Or simply present?

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V. Joint Interest vs. Agency: Don’t Confuse the Doctrines

A common mistake is to treat family members as part of a “joint defense” or “common interest” group.

That usually fails.

Joint/common interest doctrine requires:

• Separate clients

• Separate counsel

• Shared legal interest in anticipated litigation

A parent and adult child helping with finances typically do not meet this test.

Instead, the better framework—correctly used in your agreement—is:

👉 Agency / necessary intermediary

That is far more defensible in consumer bankruptcy.

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VI. The “Draft for Publication” Waiver Problem

Both Wolbert and the Fourth Circuit authorities it relies on make a broader point:

If a communication is intended to result in a public filing, privilege may be waived not just for the final document—but for drafts and underlying communications.

 

This creates real exposure in bankruptcy practice:

• Draft schedules

• Intake notes

• Emails about asset disclosure

• Paralegal communications

All potentially discoverable once tied to the petition.

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VII. Practical Takeaways

This is where doctrine meets the trenches.

1. Preserve the “decision gap”

Maintain a clear distinction between:

• Consultation phase (privileged)

• Execution phase (potentially not)

Document that distinction.

2. Use retainer language strategically

Your proposed clause is not boilerplate—it is litigation positioning.

3. Be careful with third parties

• Use written agreements (as you did)

• Frame them as necessary agents

• Limit their role and participation

4. Assume petition-related facts are discoverable

Operate under the working assumption that:

• Anything used to prepare schedules may be examined later

5. Train staff accordingly

Paralegals—like in Wolbert—can become witnesses.

That is not theoretical.

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VIII. The Bigger Picture

The throughline from In re Wolbert to the DBMP decision is this:

Bankruptcy trades confidentiality for transparency.

Attorney-client privilege survives—but only at the margins:

• before the decision to file

• outside the scope of required disclosure

• and only when confidentiality is carefully preserved

Everything else risks becoming evidence.

To read a copy of the transcript, please see: