Quick Answer
It depends entirely on what you are doing. Under Del. Bankr. L.R. 9010-1(e)(iii), you may file or prosecute a proof of claim, or respond to an objection to your claim, on your own or through your existing out-of-state lawyer. Almost anything beyond that requires Delaware counsel. And once your out-of-state lawyer files a paper on your behalf, a 28 day clock starts running.
Why This Question Comes Up So Often
Very few parties choose to be in Delaware. They end up there because the company they did business with was incorporated there.
An Ohio manufacturer sells components to a retailer headquartered in Texas. The retailer is a Delaware corporation, so when it files Chapter 11 it files in Wilmington. Eighteen months later the Ohio manufacturer receives a preference complaint from a Delaware liquidating trust. It has never had an employee, an office, or a customer in Delaware, and it now has a lawsuit in a court 500 miles away.
That party’s first instinct is to call the lawyer who handles its commercial disputes. That is the right instinct. It is just not a complete answer, because that lawyer cannot appear in the District of Delaware without doing two things first.
What the Rule Actually Requires
Del. Bankr. L.R. 9010-1 governs admission. Four provisions matter to you.
Who may practice. Under subsection (a), the Bar of the Court consists of attorneys admitted to practice in the United States District Court for the District of Delaware. Being licensed in Pennsylvania, New York, or California does not give your lawyer the right to appear.
Pro hac vice admission. Under subsection (b), an attorney in good standing in another jurisdiction may be admitted pro hac vice at the Court’s discretion, using Local Form 105. Admission is not automatic. It is expressly at the pleasure of the Court and may be revoked after notice and hearing for good cause. An applicant is ineligible if the applicant resides in Delaware, is regularly employed in Delaware, or is regularly engaged in business or professional activities in Delaware.
Delaware counsel is required, not optional. Subsection (c) is the provision most out-of-state parties do not expect. An attorney not admitted by both the District Court and the Delaware Supreme Court may not be admitted pro hac vice unless associated with Delaware counsel, meaning a member of the Bar of the District Court who maintains an office in the District of Delaware for the regular transaction of business. The rule then goes further. Delaware counsel must be the registered CM/ECF user and is required to file all papers, including petitions. Unless the Court orders otherwise, Delaware counsel must attend proceedings before the Court.
So Delaware counsel is not a signature on a motion. It is the party who files everything and appears in court.
The 28 day clock. Under subsection (d), a party not appearing pro se must obtain Delaware representation, or have its counsel associate with Delaware counsel, within 28 days after the first paper filed on its behalf, or after a case is transferred or removed to the Court. Failure to do so subjects the defaulting party to appropriate sanctions.
That deadline surprises people. It runs from the filing, not from a court order telling you to comply.
The Exception Worth Knowing About
Subsection (e)(iii) carves out claim litigation. Parties may file or prosecute a proof of claim, or respond to an objection to their own claim, either pro se or through out-of-state counsel, without Delaware counsel and without a pro hac vice motion.
This is a genuinely useful exception and it covers a lot of ordinary creditor activity. If your only involvement is asserting what you are owed and defending that amount, you may not need Delaware counsel at all.
The exception has a stated limit. The Court may direct a claimant to consult with Delaware counsel if the claim litigation will involve extensive discovery or trial time. A contested claim that turns into a real evidentiary fight can move out of the exception and into the general rule.
Two other exceptions exist. Government-employed attorneys may appear on filing a certification under subsection (e)(i). Attorneys admitted to the District Court Bar who do not maintain a Delaware office may appear with Court approval under subsection (e)(ii).
What Requires Delaware Counsel
As a practical matter:
- Defending a preference or fraudulent transfer adversary proceeding
- Filing or defending any other adversary proceeding
- Moving for relief from the automatic stay
- Objecting to a sale, a disclosure statement, or a plan
- Asserting or litigating an administrative expense claim beyond the ordinary claim process
- Filing a bankruptcy petition for a debtor
- Any contested matter requiring appearances and briefing
Can You Just Represent Yourself?
An individual may appear pro se. A corporation, LLC, or partnership generally may not. The rule that an artificial entity must appear through licensed counsel is long settled in the federal courts. See Rowland v. California Men’s Colony, 506 U.S. 194 (1993).
The narrow exception is the claim litigation carve-out above, which by its terms allows parties, including entities, to file and prosecute proofs of claim without counsel. Filing a proof of claim yourself is common and appropriate. Defending an adversary proceeding without counsel is not an option for an entity.
How This Works in Practice
The usual arrangement is straightforward. Your existing lawyer stays on the matter and continues to run it, because they know the underlying commercial relationship, have the documents, and know your business. Delaware counsel is admitted, handles the filing and appearance requirements the rule imposes, and advises on local practice, judicial preferences, and the procedural posture of the main case.
The alternative, which makes sense in some matters, is to retain Delaware counsel directly and dispense with the out-of-state firm. For a single preference defense where the exposure is modest and the underlying facts are contained, that is often the cheaper path. There is no reason to pay two firms to learn the same invoice history.
Which structure fits depends on the size of the exposure, how much your existing counsel already knows, and whether the matter is likely to be resolved through mediation or tried.
Frequently Asked Questions
How quickly do I need to act?
Sooner than the 28 day rule suggests. The rule is a deadline for associating Delaware counsel, but adversary complaints carry their own answer deadlines, and objection deadlines in the main case are often short. Do not treat 28 days as your planning horizon.
Can my regular lawyer handle this if they get admitted pro hac vice?
Only in association with Delaware counsel. Pro hac vice admission and the Delaware counsel requirement are not alternatives to each other. Subsection (c) conditions the first on the second.
Does Delaware counsel have to attend hearings, or can my lawyer appear?
Unless the Court orders otherwise, Delaware counsel must attend proceedings. Your pro hac vice counsel can and usually does argue. Both are present.
I only need to file a proof of claim. Do I need anyone?
Probably not. That is squarely within the exception in subsection (e)(iii). Filing the claim correctly still matters, and an error on a claim form can cost you the claim, so a review is often worth the small cost even where representation is not required.
Is this rule unusual?
The local counsel requirement is not unusual in itself. What is distinctive in Delaware is the volume of out-of-state parties affected by it, because so many corporate debtors are incorporated there, and the specificity of the obligations placed on Delaware counsel to file all papers and attend proceedings.
This article is general information about practice before the United States Bankruptcy Court for the District of Delaware and is not legal advice. Local rules are amended from time to time, and the current version should be confirmed on the Court’s website. Jenny R. Kasen has appeared before the United States Bankruptcy Court for the District of Delaware for more than thirteen years.