Congress Says Board Certification Matters. Bankruptcy Courts Should Too
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ABC Update: Statutory Fee Enhancements with Board Certification
The July 2026 ABI Journal includes an article that I had the pleasure of co-authoring with Johnathan Bolton, Chair of the Bankruptcy and Creditors' Rights Practice Group at Goodsill in Honolulu. We examine an often-overlooked provision of the Bankruptcy Code that expressly directs bankruptcy courts to consider whether an attorney is board certified when determining reasonable compensation under 11 U.S.C. § 330(a)(3)(E).
Summary:
The article begins by reviewing the history of the American Board of Certification (ABC), which was originally established with the support of the American Bankruptcy Institute to create objective standards recognizing attorneys with substantial expertise in bankruptcy law. To become board certified, an attorney must demonstrate years of concentrated bankruptcy practice, undergo peer review, satisfy extensive continuing legal education requirements, and pass a rigorous written examination.
While many lawyers think of board certification primarily as a marketing credential, Congress gave it much greater significance when BAPCPA amended § 330(a)(3) in 2005. The statute now specifically instructs bankruptcy courts to consider "whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field" when evaluating professional compensation.
The article explains that this statutory recognition extends well beyond large Chapter 11 cases. Courts routinely evaluate experience, efficiency, specialized knowledge, reputation, and skill when determining whether requested compensation is reasonable, and board certification provides objective evidence supporting those considerations.
Several bankruptcy courts have incorporated that congressional directive into their local Chapter 13 presumptive fee structures. The Middle District of Tennessee and the Western District of Michigan expressly provide enhanced presumptive compensation for attorneys with demonstrated bankruptcy expertise. The Middle District of North Carolina has likewise recognized the value of specialized knowledge by allowing a higher presumptive "no-look" fee both for Board Certified Bankruptcy Specialists and for attorneys who have completed substantial bankruptcy-specific continuing legal education.
Commentary:
One reason I wanted to write this article is that, in addition to being Board Certified in Consumer Bankruptcy Law since 2007, I now have the privilege of serving on the Board of Directors of the American Board of Certification. I have seen firsthand the rigor of the certification process, the commitment required to maintain that designation and the dedication of other certified specialists in review their peers for recertification.
Consumer bankruptcy practice has become dramatically more complex over the past two decades. Today's practitioners routinely deal with mortgage servicing litigation, Rule 3002.1 practice, student loan discharge litigation, evolving Department of Education regulations, tax issues, exemptions, consumer protection statutes, sophisticated creditor litigation, and constantly changing procedural requirements. This is no longer simply a high-volume practice of preparing petitions and attending meetings of creditors.
Congress recognized that reality in 2005 when it amended § 330(a)(3) to expressly instruct bankruptcy courts to consider whether an attorney is board certified or otherwise has demonstrated skill and experience in bankruptcy law. That language was not accidental. Congress deliberately concluded that specialized expertise has value when courts determine what constitutes reasonable compensation.
Some bankruptcy courts have acted accordingly. The Middle District of Tennessee and the Western District of Michigan expressly reward demonstrated bankruptcy expertise through enhanced presumptive Chapter 13 fees. The Middle District of North Carolina has taken an important step in the same direction by recognizing both Board Certified Bankruptcy Specialists and attorneys who have completed significant bankruptcy-specific CLE.
If I had my preference, however, enhanced presumptive fees would be limited to attorneys who undertake the considerably more demanding process of obtaining and maintaining board certification. Certification requires years of concentrated practice, peer review, a comprehensive written examination, continuing legal education, and periodic recertification. Completing a number of CLE hours is certainly commendable, but it is not the same thing.
Even so, the Middle District's approach is still far better than what occurs in the majority of bankruptcy courts, where § 330(a)(3)(E) is effectively ignored.
Unfortunately, North Carolina illustrates that disconnect. The Western District of North Carolina recently increased its presumptive Chapter 13 "no-look" fee to $7,000—a much-needed and welcome increase—but did not incorporate any recognition of board certification or specialized expertise into that fee structure. The Eastern District of North Carolina has done even less. Its presumptive Chapter 13 fee has now languished for more than six years without any increase despite substantial inflation, dramatically increased case complexity, additional administrative burdens on consumer practitioners, and Congress's express instruction that board certification should be considered when evaluating compensation.
None of this is meant to suggest that every board-certified attorney is necessarily superior to every attorney who is not certified. North Carolina has many exceptional bankruptcy lawyers who have chosen not to pursue certification. Nor should board certification automatically result in higher compensation in every case.
But Congress has already resolved the broader policy question. Board certification is expressly included in the Bankruptcy Code as a factor bankruptcy courts should consider when determining reasonable compensation. Too many courts simply overlook that statutory directive.
As consumer bankruptcy practice continues to become more sophisticated, recognizing demonstrated expertise encourages professional excellence, benefits debtors and creditors alike, improves the administration of bankruptcy cases, and most importantly, follows the law that Congress enacted more than twenty years ago.
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