FOCUS ON DISINTERESTEDNESS- All Debtors Should Have the Same Opportunities to Hire Professionals that Subchapter V Debtors En]oy

Section 101(14) provides the definition of a disinterested person that means a person that (A) is not a creditor, an equity security holder, or an insider; (B) is not and was not, within 2 years before the date of the filing of the petition, a director, officer, or employee of the debtor; and (C) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor, or for any other reason. The trustee, with the court's approval, may employ, for a specified special purpose, other than to represent the trustee in conducting the case, an attorney that has represented the debtor, if in the best interest of the estate, and if such attorney does not represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed. Counsel for the debtor argued that the employment of the divorce counsel to complete the divorce should be approved under § 327(e) as the attorney knew the case and it would cost significant time and money to switch counsel in the middle of the divorce and the plan had to pay the debt anyway5 The bankruptcy judge held that she was compelled to follow the plain language of § 327(a) and since the divorce counsel was not disinterested, the divorce counsel could only be retained if the divorce counsel filed a waiver of her pre-petition fees within one week.6 The divorce counsel refused to waive her pre-petition fees.