Ginger v. Cohn

• Decision Date: 06 July 1970
• Docket Number: No. 19954.,19954.
• Parties: George L. GINGER, Plaintiff-Appellant, v. Avern L. COHN, Trustee, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

426 F.2d 1385 (1970)

George L. GINGER, Plaintiff-Appellant, v. Avern L. COHN, Trustee, Defendant-Appellee.

No. 19954.

United States Court of Appeals, Sixth Circuit.

June 1, 1970.

As Amended July 6, 1970.

George L. Ginger, in pro. per.

Allan B. Schmier, Detroit, Mich., Schmier & Schmier, Detroit, Mich., on the brief, for appellee.

Before PHILLIPS, Chief Judge, and COMBS and BROOKS, Circuit Judges.

PHILLIPS, Chief Judge.

This is a protracted bankruptcy proceeding which began with the filing of an involuntary petition on January 5, 1954. The bankrupt is Ginger Machine Products Corporation, a Michigan corporation, of which George L. Ginger and Aurelia Ginger were officers and principal stockholders. There were two proceedings in the District Court involving this corporation, Nos. 33,703 and 35,521.

On May 29, 1964, the Circuit Court of Wayne County, Michigan, revoked and cancelled Mr. Ginger's license to practice law. Thereafter the United States District Court for the Eastern District of Michigan entered an order striking Mr. Ginger's name from the roll of attorneys admitted to practice before that court. This court affirmed. In Matter of Disbarment Proceedings of Ginger, 372 F.2d 620 (6th Cir.); Ginger v. Circuit Court for County of Wayne et al., 372 F.2d 621 (6th Cir.), cert. denied, 387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 998. Prior to his disbarment Mr. Ginger had served as general counsel to the bankrupt corporation and represented it in the bankruptcy proceedings.

In the opinion and order of the Referee in Bankruptcy entered January 25, 1968, the Referee allowed Mr. Ginger an attorney's fee of $2,500 for services rendered by him in the bankruptcy proceedings prior to May 29, 1964, the date of his disbarment. On petition for review, Chief Judge Ralph M. Freeman affirmed the decree and order of the referee. Mr. Ginger, appearing pro se, appeals from the order of the District Court, undertaking to raise numerous questions on behalf of his former client, the bankrupt corporation. He also contends that the attorney's fee of $2,500 is grossly inadequate and unreasonable. He asserts that over a period of more than 18 years he has devoted in excess of 3,000 hours in the two involuntary bankruptcy proceedings involving the corporation and that he is entitled to a fee of $88,000.

On appeal Mr. Ginger was permitted to make oral argument pro se only with respect to the issue affecting him personally, i. e., the reasonableness of the attorney's fee allowed to him by the referee and affirmed by the District Court. He was not permitted to make oral argument on behalf of the corporation, which as a disbarred attorney he no longer is permitted to represent. Nor can he represent it in his capacity as an officer of the bankrupt corporation. An officer of a corporation, who is not a licensed attorney, is not authorized to make an appearance in this Court on behalf of the corporation. Annotation, 157 A.L.R. 284. As said by Judge Parker in Acme Poultry Corp. v. United States, 146 F.2d 738, 740 (4th Cir.), cert. denied, 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417: "The handling of the case in court for the corporation is a matter for its counsel, not for its officers."

In fixing the fees of the receiver, trustee and attorneys, including the fee of Mr. Ginger for services rendered as attorney for the bankrupt prior to his disbarment, the Referee said:

"All that remains is the determination of fees. In this regard we have read the petitions for compensation and examined the file for the express purpose of evaluating the services rendered. While we are impressed with the time consumed and the effort expended by those rendering the services, in retrospection, however, we cannot avoid concluding that some of the time and effort was wasteful, particularly on the part of the Attorney for the Bankrupt."

Mr. Ginger claims that he should be compensated for legal services rendered by him in three appeals to this Court. As heretofore stated, there were two proceedings in the District Court, Nos. 33,703 and 35,521. On March 12, 1959, the referee in bankruptcy, after a show cause hearing, ordered case No. 33,703 closed. Mr. Ginger and others filed a petition for review and the decision of the referee was affirmed by District Judge Frederick W. Kaess on September 29, 1960. This Court affirmed, speaking through a panel composed of the late Chief Judge Shackelford Miller, Jr. and Judges Weick and O'Sullivan, on December 4, 1961. Ginger Machine Products Corp. v. Detroit Trust Co., 296 F.2d 107 (6th Cir.). On a previous appeal by Mr. Ginger in case No. 33,703 this Court affirmed the judgment of the District Court, speaking through a panel composed of Judges John D. Martin, Shackelford Miller, Jr. and Potter Stewart, now an Associate Justice of the Supreme Court of the United States. Ginger v. Cohn, Trustee, 255 F.2d 99 (6th Cir.). In a third appeal, involving case No. 35,521, a second collateral attack was made upon orders entered by the bankruptcy court in case No. 33,703. The judgment of the District Court denying relief in that case was affirmed by this Court, speaking through a panel composed of Judges Miller and Weick and the late Judge Leslie L. Darr, sitting by designation. Ginger v. Guardian Steel Corp., 325 F.2d 664 (6th Cir.).

Thus, only one of the appeals to this Court was made by Mr. Ginger in case No. 33,521. Two earlier cases for which he now claims compensation originated in case No. 33,703, which is not now subject to collateral attack in a later proceeding, as held in Ginger v. Guardian Steel Corp., supra, 325 F.2d 664.

The brief of the trustee asserts that the attorney's fee of $88,000 claimed by Mr. Ginger is far in excess of the funds available to the bankruptcy estate.

It is well settled that when there are concurrent findings of fact by the referee and the District Judge in a bankruptcy proceeding the findings will not be set aside on appeal on anything less than demonstration of a plain mistake. Ray...