Bankruptcy Law - Representing the ‘Small Business’ Bankruptcy - Opportunities and Risks

Aug 25, 2026

Guidance on representing small business debtors in bankruptcy emphasizes both the potential benefits of electing a “small business” case and the heightened risks, particularly when strict statutory deadlines constrain plan filing. The article outlines how attorneys should quickly assess debts, assets, and reorganization feasibility with sensitivity, and stresses upfront disclosure of costs and attorney fees. It details the role of independent accountants and advisers, including preparing a 12-month projection for initial operating reports and evaluating executory contract strategies.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages4

Reading Time10 min

AccessFree to download

Bankruptcy Law

Opportunities and risks of small business bankruptcy

Client consultation, feasibility assessment, and cost awareness

Accountant/business adviser roles and 12-month projection

Executory contract and creditor treatment strategies

VOL. CLXXV – NO. 11 – INDEX 1091 MARCH 15, 2004 ESTABLISHED 1878 Bankruptcy Law Representing the ‘Small Business’ Bankruptcy Opportunities and risks abound By Douglas S. Stanger Representing the small debtor successfully can challenging. There are business be quite potential benefits for electing to file a small business bankruptcy, however, such a filing is not devoid of risk — especially if there is a question as to whether the debtor will be able to file a plan within the strict statutory deadlines. Typically, whenever the chief executive officer and/or shareholder of a company enter an attorney’s office to discuss financial problems, the company has been undergoing problems for some time. And the attorney needs to be prepared for the additional emotional element when an individual who operates a small business walks through the door. In all likelihood, they have never done anything else, and often cannot envision themselves as able to do anything else. While they might have some understanding of what caused the financial difficulty, their emotional involvement limits that understanding, which frequently is not well developed or even correct. Stanger, a partner and member of the bankruptcy practice group at Flaster/Greenberg of Cherry Hill, is an approved mediator for the Bankruptcy Court, and serves on the U.S. Department of Justice Panel of Trustees. The decision to openly discuss those problems with an attorney in many cases only occurs after running head-on into a “wake up” event. Wakeup events may be, for example, judgments entered or checks bouncing due to the execution by a judgment creditor or taxing authority. The debtor must be made aware of the risks, potential benefits and costs of filing for bankruptcy. Prior to completing the initial consultation, fees must be discussed. The debtor must recognize that the bankruptcy process is not an inexpensive course of action. Even in a small business bankruptcy, fees can run anywhere from $7,500 to $50,000 . Typically, in a large business, attorneys and accountants may be on staff. The CEOs and shareholders are well aware of the issues and potential advantages and disadvantages of filing a bankruptcy. This awareness comes much later to your typical small business debtor. The attorney’s initial task should be to focus on the business. A thorough understanding of the debts and the assets must be quickly obtained. Is there really potential for a successful reorganization? This needs to be handled with sensitivity. If there is no hope that the business can be reorganized, it is in the client’s best interest to concede and move on . All too often, Chapter 11 bankruptcies are filed and individuals go forward without any potential of success, not having the benefit of closure until a substantial amount of time passes, lengthening the time and extent of emotional turmoil. The best method to help clients recognize whether a successful reorganization is feasibile is to suggest they seek appropriate guidance from an accountant and/or business consultant. An attorney should not accept employment as counsel for a small business unless the client is willing — prior to the bankruptcy — to have an accountant independently review the foundation of its financial status. They must understand the reasons for their financial problems and the potential for a successful outcome . Counsel must have a 12-month projection prepared with the assistance of an accountant or other financial professional. That 12-month initial budget is a requirement for filing with the initial operating report by the U.S. Trustee’s Office. It is a document to which much thought and attention must be given prior to the decision to file a bankruptcy. Accountants and business consultants must properly understand their role. They are not expected to initially be an advocate for the position of the owner; they must perform an independent review of income and expenses for the last f

FAQs

What are the key opportunities and risks in choosing a small business bankruptcy filing?

The article highlights potential benefits in electing a small business bankruptcy, but stresses that filing is not risk-free. Risks increase especially when questions exist about meeting strict statutory plan deadlines.

How should counsel determine whether a successful reorganization is feasible?

Counsel should focus on the business by quickly obtaining a thorough understanding of debts and assets, and handling the assessment with sensitivity. If reorganization is not hopeful, the article advises conceding and moving on.

What role do accountants and business advisers play before filing?

They must perform an independent review of income and expenses from recent years and assess factors behind financial difficulties. They also assist in preparing a 12-month projection required for the initial operating report to the U.S. Trustee’s Office.

Aug 25, 2026

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