Friday, March 21, 2008

Sanctioned Lawyer Wins Reprieve From District Court; Court Clarifies Standards for Non-9011 Sanctions

This blog previously reported on In re Cochener, 360 B.R. 542 (Bankr. S.D. Tex. 2007), a case in which an attorney was sanctioned under 11 U.S.C. Sec. 105 and 28 U.S.C. Sec. 1927 based on events which had occurred years earlier. See "Brief Representation Comes Back to Haunt Attorney." (May 7, 2007). Now, a U.S. District Court has reversed most of the sanctions award and the case is on its way to the Fifth Circuit. Barry v. Sommers, No. H-07-0629 (S.D. Tex. 12/28/07).

What Happened in the Bankruptcy Court

The underlying case involved a debtor who had made questionable transfers prior to bankruptcy. When the trustee began asking difficult questions at the 341 meeting, the first attorney realized that he was in over his head and referred the case to a board certified attorney. The second attorney realized that the debtor was not helping herself by being in bankruptcy and tried to get the case dismissed. While the motion to dismiss was pending, the attorney advised the debtor not to attend a re-scheduled 341 meeting or to produce documents which the prior counsel had agreed to hand over. When the trustee sought to conduct a Rule 2004 examination, the second attorney argued against producing documents going back four years on the basis that 11 U.S.C. Sec. 548 only allowed the trustee to recover transfers made within one year prior to bankruptcy. The debtor failed to appear for the examination, after which the second attorney sought permission to withdraw. The second attorney was given permission to withdraw, but the court reserved the power to issue sanctions.

Over four years later, the trustee brought a motion for sanctions under Rule 9011 and 11 U.S.C. Sec. 105. Because the trustee had never given the safe harbor notice under Rule 9011, the court concluded that this relief was not viable. However, after hearing four days of testimony, the court granted relief under both Sec. 105 and 28 U.S.C. Sec. 1927 based upon the following actions:

(1) The attorney concocted a reason for the debtor not to attend the continued 341 meeting and then advised the debtor not to appear;
(2) The attorney did not attend the continued meeting of creditors;
(3) The attorney filed a motion to dismiss which included "blatantly false factual and legal allegations;"
(4) The attorney wrote a letter to the trustee which misstated the law regarding the appropriate lookback period for a fraudulent transfer case;
(5) The attorney instructed the debtor not to produce the documents requested at the initial meeting of creditors.

Based on these actions, the court awarded sanctions of $25,121.89 based upon disgorgement of the retainer paid to the attorney and payment of the trustee's attorney's fees incurred in resisting the motion to dismiss and prosecuting the motion for sanctions.

Reversal on Appeal

On appeal, the District Court reversed all of the sanctions, except for the disgorgement order. However, to get there, it had to work through several preliminary issues first.

The District Court refused to apply laches based on the delayed prosecution of the sanctions motion. While the four year delay in bringing the sanctions motion represented a long period of time, it was not prejudicial because the attorney had been placed on notice of the claim at the time of his withdrawal and because no evidence had become stale in the meantime.

The District Court also rejected the argument that the Bankruptcy Court lacked authority to issue sanctions under 11 U.S.C. Sec. 105. The Court noted the recent Supreme Court opinion in Marrama v. Citizens Bank of Massachusetts, 127 S.Ct. 1105 (2007)in which the court stated that section 105(a) provides Bankruptcy Courts broad authority to "take any action that is necessary or appropriate to prevent an abuse of process." The Court concluded that Sec. 105(a) gave bankruptcy courts the inherent power to sanction bad faith conduct that was applicable to Article III Courts under Chambers v. NASCO, Inc., 501 U.S. 32 (1991).

However, before sanctions could be awarded under the Court's inherent powers under Sec. 105(a), the court had to find bad-faith conduct. Bad faith conduct was equated with either an attempt to abuse the judicial process or an affirmative misrepresentation. After an exhaustive analysis, the District Court upheld the Bankruptcy Court's finding that the attorney had engaged in bad faith conduct when he told the debtor not to appear or produce documents at the continued 341 meeting. However, the District Court reversed the other findings as being clearly erroneous.

Having concluded that only one act was sanctionable, the District Court turned to the proper sanction to be applied. The Court noted that "Inherent powers may be exercised only if essential to preserve the authority of the court, and the sanction imposed must employ the least possible power adequate to the purpose to be achieved." Memorandum Opinion and Order, p. 81. The Court found that disgorgement of the retainer was appropriate under this standard. "Attorneys who instruct their clients to violate duties imposed by the Bankruptcy Code have not provided effective assistance of counsel and have not earned a fee." Memorandum, p. 83.

The District Court reversed the award of attorney's fees to the trustee. Because the Court found that filing the motion to dismiss was not sanctionable, it found that the Trustee could not recover his fees incurred in opposing the motion to dismiss. The District Court denied the attorney's fees incurred in prosecuting the motion for sanctions on the basis that the debtor's attorney (who had already withdrawn at this point) did not commit any sanctionable conduct during the time that the trustee was pursuing the motion for sanctions. As a result, an award of attorney's fees in connection with the motion for sanctions was not necessary to deter sanctionable conduct.

The District Court also found that the Bankruptcy Court abused its discretion in imposing sanctions under 28 U.S.C. Sec. 1927. The Court found that there were three elements to an award of sanctions of Sec. 1927: (1) the attorney must engaged in "unreasonable and vexatious" conduct; (2) the "unreasonable and vexatious" conduct must be conduct that "multiplies the proceedings;" and (3) the dollar amount of the sanction must bear a financial nexus to the excess proceedings, i.e., the sanction may not exceed the "costs, expenses and attorneys' fees reasonably incurred because of such conduct." The Court found that the motion to dismiss did not merit sanctions under Sec. 1927 because it could not be plausibly argued that it was filed in bad faith. Although the District Court found that the attorney could be sanctioned under Sec. 105 for advising the debtor not to attend the creditors' meeting, this conduct did not merit sanctions under Sec. 1927 for the reason that it did not multiply the proceedings.

The Final Analysis

In the final analysis, it appears that while Rule 9011, Sec. 105(a) and Sec. 1927 serve similar purposes, they each have slightly different focuses. Rule 9011 applies to pleadings and papers only. It applies where motions are filed for an improper purpose or are legally or factually frivolous. However, the mere filing of a frivolous or odorous pleading is not enough. It is the refusal to withdraw a sanctionable pleading after fair warning which triggers the penalty. This means that a victorious party cannot go back after the fact and decide that his opponent's position was friviolous. Sec. 105(a) and Sec. 1927, on the other hand, apply to any conduct and allow for an after the fact examination. As a result, these sections require a higher standard before sanctions can be awarded. In order to violate the Court inherent power under Sec. 105(a), counsel must make an affirmative misrepresentation or try to abuse the judicial process, either of which will add up to the requisite finding of bad faith. Sec. 1927 invokes the three-party test discussed above, which must include a finding that court proceedings were multiplied.

In this case, advising a client not to obey her duties under the Code was sanctionable, while filing a questionable motion to dismiss and taking a questionable position on a discovery matter (which was later abandoned) were not.

The Trustee has appealed this case to the Fifth Circuit, so that we may hear from this case again.

Kudos to the District Court

As a final note, U.S. District Judge Sim Lake deserves high praise for the diligence and speed with which he handled this bankruptcy appeal. He produced his thoughtful, 93-page opinion just ten months after the notice of appeal was filed and seven months after the last brief was filed. The Court did the parties and the bar a service with the prompt manner in which this case was handled.


On October 23, 2008, the Fifth Circuit reversed the opinion of the District Court and affirmed the opinion of the Bankruptcy Court. Matter of Cochener, No. 08-20048, 2008 WL 4681579 (5th Cir. 2008).

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