In re Fullenkamp
In re Fullenkamp
Opinion of the Court
MEMORANDUM OPINION ON CREDITOR’S OBJECTION TO DEBTOR’S APPLICATION TO EMPLOY HAHN, LOESER & PARKS, LLP
(Doc. Nos. 12 and 122)
Bankruptcy Code Section 327(a) provides that a debtor-in-possession may employ a law firm only if it (i) does not hold or represent an interest adverse to the estate; and (ii) is otherwise disinterested. Here, the Debtor seeks to employ Hahn Loeser & Parks, LLP. But Multibank 2009-1 RES-ADV Venture, LLC — an alleged creditor in this case — complains that Hahn Loeser failed to disclose that it currently represents an entity whose attorney-in-fact is a subsidiary of Multibank’s attorney-in-fact in a separate foreclosure action. According to Multibank, that representation — and Hahn Loeser’s failure to disclose it — disqualifies the firm from representing the Debtor in this case.
The Court concludes that Hahn Loeser’s representation of the other entity is not a conflict of interest. Nor does it otherwise preclude the firm from being disinterested. Although Hahn Loeser should have disclosed that representation under Bankruptcy Rule 2014, the Court is satisfied the failure to do so was inadvertent. And in any event, it is not grounds for disqualifying Hahn Loeser from representing the Debtor. Accordingly, the objection to the Debtor’s application to employ Hahn Loeser should overruled and the Debtor’s application should be granted.
Background
The Debtor filed his voluntary petition for relief under chapter 11 of the Bankruptcy Code on May 27, 2011. Five days later, the Debtor filed his application to employ Hahn Loeser.
Attached to the Debtor’s application was the declaration of John S. Sarrett, a Hahn Loeser partner. Mr. Sarrett testified in his declaration that Hahn Loeser, as set forth in the Debtor’s application, neither represents nor holds any interest materially adverse to the interests of the Debtor’s estate or any class of creditors or equity security holders.
Multibank initially raised three grounds for its objection: (i) the Debtor’s estate should not have to pay for Hahn Loeser’s travel costs (the lead attorney is located in Cleveland, Ohio); (ii) the Debtor is not entitled to use cash collateral to pay Hahn Loeser; and (iii) Hahn Loeser failed to disclose a potential conflict of interest.
The significance of that relationship, so the Court is told, is that Rialto is also the attorney-in-fact for Multibank’s sole managing member — RL RES 2009-1 Investments, LLC. Multibank alleged in its objection that it was reviewing the consequences of that relationship, but as of the date of its objection (filed 48 days after the Debtor filed his application), it was not certain of the impact that relationship had on the firm’s disinterestedness.
After receiving Multibank’s objection, Daniel DeMarco (a Hahn Loeser partner) filed a supplemental declaration in support of the Debtor’s application.
Vice-presidents for each of the attorneys — in-fact-Rialto and Rialto NY — testified that those entities work together to manage the loans owned by Multibank and RL BB-OH (as well as other entities).
Multibank claims this relationship gives rise to an impermissible conflict of interest.
Conclusions of Law
Multibank Does Not Have Standing to Challenge Hahn Loeser’s Appointment
Only the U.S. Trustee, creditors, and other parties-in-interest have standing to object to a professional employment application under Section 327.
It does not appear from the record that Multibank has either. Multibank did file a proof of claim in this bankruptcy based solely on a multi-million dollar state court judgment.
Because it assigned its rights under the promissory notes giving rise to the final judgment, Multibank does not hold a prepetition claim, nor does it have a pecuniary interest in this bankruptcy case. Accordingly, Multibank does not have standing to challenge Hahn Loeser’s application. Nevertheless, the Court will consider Mul-tibank’s objections because the Court has an independent obligation to ensure that the application satisfies Section 327’s requirements.
Hahn Loeser Satisfies Section 327’s Requirements
Section 327(a) provides a two-prong test to determine whether a debtor-in-possession may employ an attorney.
Hahn Loeser Does Not Hold or Represent an Interest Adverse to the Bankruptcy Estate
The Bankruptcy Code does not define the phrase “hold or represent an interest adverse to the bankruptcy estate.” But most courts follow the definition set out in In re Roberts.
Courts, however, generally agree that Sections 327(a) and 327(c) impose a per se disqualification on any attorney who has an actual conflict of interest.
Here, there is no active competition between the Debtor’s interests and those of RL BB-OH. RL BB-OH’s claims — a state court foreclosure action in Ohio — are wholly unrelated to the Debtor and this bankruptcy case. Nor is there any likelihood that Hahn Loeser would represent the Debtor any differently than if it was not also representing RL BB-OH. The only conceivable evidence of that claim is Multibank’s concern that Hahn Loeser’s representation of the Debtor will create an ongoing appearance of impropriety that will prejudice Multibank’s efforts to resolve its claims against the Debtor because, at least according to Multibank, interested parties may attack any settlement as not being negotiated at arm’s length. That claim is unconvincing. And even if true, it would not create a disqualifying conflict of interest.
Moreover, Hahn Loeser’s representation of the Debtor does not violate Rule 4-1.7, Rules Regulating the Florida Bar. Under Rule 4-1.7, an attorney shall not represent a client if the representation will be directly adverse to another client.
None of those situations exist here. Multibank does not claim that there is any discrepancy in testimony, incompatibility in the positions taken in relation to an opposing party, or different settlement possibilities as result of Hahn Loeser representing the Debtor. Multibank does suggest that Hahn Loeser is advocating against a client it represents in another matter. But, in fact, the Debtor is not adverse to RL BB-OH, and Multibank is not a firm client. Rather, the attorney-in-fact for RL BB-OH’s sole managing member is a subsidiary of the attorney-in-fact for Multibank’s sole managing member. Multibank does not cite — and the Court is not aware of — any legal authority for the proposition that Hahn Loeser’s represen
The only conceivable basis for the existence of a conflict under the Rules Regulating the Florida Bar is Multibank’s claim that confidential Information may be shared. But that claim fails for two reasons. First, the professional rule of conduct (4-1.9) and case law (State Farm Mutual Auto Insurance Co. v. K.A.W.) that Multibank relies on both presuppose the existence of an attorney-client relationship and the use of information gained by the attorney during the course of representing a former client against that former client in a later proceeding. Here there is no allegation that Hahn Loeser’s is using confidential information gained during its representation of RL BB-OH against that entity.
Second, even if there is concern that Hahn Loeser will use that information against Multibank, that concern can be remedied by screening the lawyers involved in both cases. Multibank suggests that screening is not permitted. But that is true only where there is an actual conflict of interest under Rule 4-1.7 or 4-1.9. No such conflict exists here.
Because no actual — or, for that matter, potential — conflict exists and any concerned about confidential information can be remedied by screening, the Court concludes that Hahn Loeser does not represent or hold an interest adverse to the Debtor’s estate.
Hahn Loeser is Disinterested
Bankruptcy Code Section 101(14)(C) defines a “disinterested person” as a person that “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.”
So Hahn Loeser is disinterested unless the firm itself has an interest adverse to the estate. Multibank, however, does not allege Hahn Loeser has an adverse interest. Nor could it. There is no evidence that Hahn Loeser, for example, is a creditor in this case. Instead, the sole basis for Multibank’s claim that Hahn Loser is not disinterested is Multibank’s allegation that Hahn Loeser represents the holder of an adverse interest. But a professional does not run afoul of Section 101(14)(C) — in other words, the professional is not interested — -simply because it represents a party holding an adverse interest. Because Hahn Loeser does not have an adverse interest, the Court concludes it is disinterested under Section 101(14)(C).
Hahn Loeser’s Failure to Disclose its Representation of RL BB-OH Does Not Disqualify the Firm
Even though Hahn Loeser’s representation of RL BB does not disqualify the firm under Section 327, the firm nevertheless should have disclosed that representation to the Court under Bankruptcy Rule 2014. Rule 2014 requires that a professional seeking employment in a bankruptcy case submit a “verified statement ... setting
The requirements under Rule 2014 are more encompassing than the disinterested inquiry under Section 327.
Courts have expressly held “there is ‘no merit to the ... argument that [a party] did not have to disclose its connections ... because its attorneys did not feel that a conflict existed.’ ”
But that is not what happened here. Daniel DeMarco (a partner at Hahn Loeser) testified that he failed to disclose the firm’s relationship with RL BB OH because he did not learn of that relationship (or that Rialto was the attorney-in-fact for that entity and Multibank’s managing member) until Multibank filed its objection.
Multibank is correct that the failure to adequately disclose potential conflict under Rule 2014 can, in some instances, warrant disqualification.
The Court concludes that Hahn Loeser’s inadvertent failure to disclose in this case does not rise to the level of the failure to disclose in Leslie Fay — principally relied on by Multibank — where the bankruptcy court held that the failure to disclose warranted disqualification. At
Conclusion
Based on the foregoing, the Court concludes that Hahn Loeser does not hold or represent an interest adverse to the bankruptcy estate and that it is disinterested. Accordingly, Multibank’s objection to the Debtor’s application to employ Hahn Loeser should be overruled, and the Debtor’s application to employ the firm should be granted. The Court will enter an Order consistent with this Opinion.
. Doc. No. 12.
. Id. at ¶ 23.
. Id. at ¶ 23.
. Id. at Exhibit A, ¶¶ 16-21.
. Doc. No. 122.
. Id.
. Id. at ¶¶ 12 & 13.
. Id.
. Id.
. Id. at ¶ 14.
. Doc. No. 145.
. Id. at ¶ 2.
. Id. at V 3.
. Id. at ¶ 4.
. Id.
. Doc. Nos. 210 & 231.
. Doc. No. 210 at ¶5; Doc. No. 231 at ¶ 5.
. Doc. No. 210 at ¶ 5; Doc. No. 231 at ¶5.
. Doc. No. 210 at ¶ 5.
. Doc. No. 231 at ¶ 5.
. Doc. No. 210 at ¶¶ 10-12; Doc. No. 231 at ¶¶ 10-12.
. Doc. No. 210 at ¶¶ 10-12; Doc. No. 231 at ¶¶ 10-12.
. Doc. No. 210 at ¶¶ 10-12; Doc. No. 231 at ¶¶ 10-12.
.Doc. No. 195 at ¶¶ 25-39.
. Id. at ¶¶ 34-39.
. Id. at ¶¶ 25-33.
. Id. at ¶¶ 16-24.
. In re Elias, No. 02-41640, 2005 WL 4705220, at *2-3 (Bankr.D.Idaho June 10, 2005); In re Stone, No. 03-40013, 2003 WL 25273852, at *2-3 (Bankr.D.Idaho June 11, 2003).
. 11 U.S.C. § 101(10)(A).
. In re Elias, 2005 WL 4705220, at *2; In re Stone, 2003 WL 25273852, at *3.
. Claim No. 72-1.
. Id. at Summary of Claim, p. 2 n. 2.
. Fla. R. Civ. P. 1.260(c).
. In re Elias, 2005 WL 4705220, at *5 n. 7; In re Stone, 2003 WL 25273852, at *3; Schafer v. Maerlender (In re Maerlender), Adv. No. 04-2034, 2006 WL 996556, at *3 n. 4 (Bankr. M.D.N.C. Apr. 14, 2006); In re Penney, 334 B.R. 517, 520 (Bankr.D.Mass. 2005).
. In re Keller Fin. Servs., 248 B.R. 859, 892 (Bankr.M.D.Fla. 2000).
. 11 U.S.C. § 327(a); In re Keller Fin. Servs., 248 B.R. at 892.
. 11 U.S.C. § 327(a); In re Keller Fin. Servs., 248 B.R. at 892 (citing In re Angelika Films 57th Inc., 227 B.R. 29, 37 (Bankr.S.D.N.Y. 1998)).
. In re Keller Fin. Servs., 248 B.R. at 892 (In re Benjamin’s-Amolds, Inc., No. 4-90-6127, 1997 WL 86463, at *4 (Bankr.D.Minn. Feb. 28, 1997)).
. Electro-Wire Prods., Inc. v. Sirote & Per-mutt P.C. (In re Prince), 40 F.3d 356, 361 (11th Cir. 1994) (following In re Roberts, 46 B.R. 815, 826-27 (Bankr.Utah 1985)).
. Id.
. See, e.g., In re AroChem Corp., 176 F.3d 610, 623 (2d Cir. 1999).
. In re Am. Energy Trading, Inc., 291 B.R. 154, 156-57 (Bankr.W.D.Mo. 2003).
. Id.
. In re Leslie Fay Cos., Inc., 175 B.R. 525, 533 (Bankr.S.D.Fla. 1994).
. R. Regulating Fla. Bar 4-1.7.
. Id. at comments.
. 11 U.S.C. § 101(14)(C).
. In re AroChem Corp., 176 F.3d at 629; see also 11 U.S.C. §§ 101(14)(C), 327(a).
. In re AroChem Corp., 176 F.3d at 629.
. Fed. R. Bankr.P.2014(a).
. In re Leslie Pay, 175 B.R. at 536.
. In re Citation Corp., 493 F.3d 1313, 1321 (11th Cir. 2007); In re Leslie Pay, 175 B.R. at 533 (explaining that Rule 2014 requires disclosure of "[a]ll facts that may have any bearing on the disinterestedness of a professional.”).
. In re Leslie Fay, 175 B.R. at 536.
. Id. (quoting In re Rusty Jones, Inc., 134 B.R. 321, 345 (Bankr.N.D.I11. 1991)).
. Id. (quoting In re Arlan’s Dep't Stores, Inc., 615 F.2d 925, 932 (2d Cir. 1979)).
. 417 F.2d 1302, 1304 (9th Cir. 1969).
. In re Keller Fin. Servs., Inc., 243 B.R. 806, 812 (Bankr.M.D.Fla. 1999).
. Doc. No. 145, ¶ 3.
. In re Leslie Pay Cos., Inc., 175 B.R. at 533.
Reference
- Full Case Name
- In re Dennis J. FULLENKAMP, Debtor
- Cited By
- 5 cases
- Status
- Published