Bankruptcy Forms: Filing Bankruptcy Chapter 7 Bankruptcy Software Chapter 13

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TITLE 11–BANKRUPTCY

CHAPTER 3–CASE ADMINISTRATION

Sub Chapter II –Officers

Sec. 328. Limitation on compensation of professional persons

  (a) The trustee, or a committee appointed under section 1102 of this 
title, with the court's approval, may employ or authorize the employment 
of a professional person under section 327 or 1103 of this title, as the 
case may be, on any reasonable terms and conditions of employment, 
including on a retainer, on an hourly basis, or on a contingent fee 
basis. Notwithstanding such terms and conditions, the court may allow 
compensation different from the compensation provided under such terms 
and conditions after the conclusion of such employment, if such terms 
and conditions prove to have been improvident in light of developments 
not capable of being anticipated at the time of the fixing of such terms 
and conditions.
    (b) If the court has authorized a trustee to serve as an attorney or 
accountant for the estate under section 327(d) of this title, the court 
may allow compensation for the trustee's services as such attorney or 
accountant only to the extent that the trustee performed services as 
attorney or accountant for the estate and not for performance of any of 
the trustee's duties that are generally performed by a trustee without 
the assistance of an attorney or accountant for the estate.
    (c) Except as provided in section 327(c), 327(e), or 1107(b) of this 
title, the court may deny allowance of compensation for services and 
reimbursement of expenses of a professional person employed under 
section 327 or 1103 of this title if, at any time during such 
professional person's employment under section 327 or 1103 of this 
title, such professional person is not a disinterested person, or 
represents or holds an interest adverse to the interest of the estate 
with respect to the matter on which such professional person is 
employed.

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2563; Pub. L. 98-353, title III, 
Sec. 431, July 10, 1984, 98 Stat. 370.)


                      Historical and Revision Notes

                         legislative statements

    Section 328(c) adopts a technical amendment contained in the Senate 
amendment indicating that an attorney for the debtor in possession is 
not disqualified for compensation for services and reimbursement of 
expenses simply because of prior representation of the debtor.


                        senate report no. 95-989

    This section, which is parallel to section 326, fixes the maximum 
compensation allowable to a professional person employed under section 
327. It authorizes the trustee, with the court's approval, to employ 
professional persons on any reasonable terms, including on a retainer, 
on an hourly or on a contingent fee basis. Subsection (a) further 
permits the court to allow compensation different from the compensation 
provided under the trustee's agreement if the prior agreement proves to 
have been improvident in light of development unanticipatable at the 
time of the agreement. The court's power includes the power to increase 
as well as decrease the agreed upon compensation. This provision is 
permissive, not mandatory, and should not be used by the court if to do 
so would violate the code of ethics of the professional involved.
    Subsection (b) limits a trustee that has been authorized to serve as 
his own counsel to only one fee for each service. The purpose of 
permitting the trustee to serve as his own counsel is to reduce costs. 
It is not included to provide the trustee with a bonus by permitting him 
to receive two fees for the same service or to avoid the maxima fixed in 
section 326. Thus, this subsection requires the court to differentiate 
between the trustee's services as trustee, and his services as trustee's 
counsel, and to fix compensation accordingly. Services that a trustee 
normally performs for an estate without assistance of counsel are to be 
compensated under the limits fixed in section 326. Only services that he 
performs that are normally performed by trustee's counsel may be 
compensated under the maxima imposed by this section.
    Subsection (c) permits the court to deny compensation for services 
and reimbursement of expenses if the professional person is not 
disinterested or if he represents or holds an interest adverse to the 
estate on the matter on which he is employed. The subsection provides a 
penalty for conflicts of interest.


                               Amendments

    1984--Subsec. (a). Pub. L. 98-353 substituted ``not capable of being 
anticipated'' for ``unanticipatable''.


                    Effective Date of 1984 Amendment

    Amendment by Pub. L. 98-353 effective with respect to cases filed 90 
days after July 10, 1984, see section 552(a) of Pub. L. 98-353, set out 
as a note under section 101 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 326, 330 of this title.



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Legal Resource Center: United States Code TITLE 11 Filing Bankruptcy Forms Software