In re Findley

Decision Date01 February 2010
Docket NumberNo. 08-60024.,08-60024.
Citation593 F.3d 1048
PartiesIn re John William FINDLEY, III, Debtor. The State Bar of California, a Public Corporation, Appellant, v. John William Findley, III, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Kevin W. Coleman; San Francisco, CA; Nancy Winkelman and Nilam A. Sanghvi; Philadelphia, PA; Schader Harrison Segal & Lewis LLP; Philadelphia, PA; for the appellant.

John W. Findley; Ventura, CA; Pro Se appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Klein, Markell, and Jury, Bankruptcy Judges, Presiding. BAP Nos. NC-07-01187-KJuMk, 06-4180-LT.

Before: DAVID R. THOMPSON and SIDNEY R. THOMAS, Circuit Judges, and ANN ALDRICH,* District Judge.

THOMAS, Circuit Judge:

In this appeal, we consider whether § 523(a)(7) of the Bankruptcy Code protects from discharge attorney disciplinary costs imposed under California law. Pursuant to the 2003 amendments to the California Business and Professions Code, we conclude that the costs imposed are non-dischargeable.


Appellee John William Findley, III is an attorney and member of the State Bar of California ("State Bar"). After the California State Bar Court determined that Findley had violated provisions of the California Rules of Professional Conduct and the Business and Professions Code in his dealings with a client, the Bar Court recommended a one-year suspension and a two-year probationary period. The Bar Court Review Department adopted that recommendation with minor modifications.

The State Bar assessed Findley a $14,054.94 fee to cover the cost of his disciplinary proceedings pursuant to § 6086.10(a) of the California Business and Professions Code, which mandates such an assessment, absent proof of hardship, when an attorney has been disciplined. The sum included $406.80 for the cost of certifying court documents, $128.25 for the cost of Review Department transcripts, and $56.89 for witness fees. The remaining $13,463.00 was a standard, preset charge based on the procedural point at which the disciplinary proceeding was resolved —in Findley's case, at the State Bar Review Department. The California Supreme Court adopted the disciplinary cost award order and the Review Department's opinion. California law requires the payment of attorney disciplinary costs as a prerequisite to reinstatement. Cal. Bus. & Prof.Code § 6140.7.

While his case was pending before the Review Department, Findley had filed for Chapter 7 Bankruptcy. Although the disciplinary cost order became final after Findley filed for bankruptcy, the costs were imposed because of misconduct committed prior to his bankruptcy filing. Therefore, the discharge order applies to the disciplinary cost debt unless the debt is excepted under § 523(a)(7). See 11 U.S.C. § 727(b); Papadakis v. Zelis (In re Zelis), 66 F.3d 205, 209 (9th Cir.1995) (a debt arises for purposes of discharge in bankruptcy when the act giving rise to liability occurs). Findley successfully concluded his Chapter 7 proceedings and received discharge of his debts. Asserting that his bankruptcy discharge excused payment, Findley declined to pay the disciplinary cost award and sought reinstatement to the practice of law.

The State Bar subsequently brought this action against Findley in Bankruptcy Court, seeking a determination that 11 U.S.C. § 523(a)(7) excepted the disciplinary cost award from discharge. The Bankruptcy Court held Findley's disciplinary award non-dischargeable and granted summary judgment for the State Bar. The Bankruptcy Appellate Panel ("BAP") reversed, relying on our decision in State Bar of California v. Taggart (In re Taggart), 249 F.3d 987 (9th Cir.2001) ("Taggart"), which held attorney disciplinary costs imposed under a previous version of Cal. Bus. & Prof.Code § 6086.10 eligible for discharge. This timely appeal followed.

"Because we are in as good a position as the BAP to review bankruptcy court rulings, we independently examine the bankruptcy court's decision, reviewing the bankruptcy court's interpretation of the Bankruptcy Code de novo and its factual findings for clear error." Taggart, 249 F.3d at 990 (quoting United States v. Hatton (In re Hatton), 220 F.3d 1057, 1059 (9th Cir.2000)) (internal quotation marks omitted).


In Taggart, we held that an attorney disciplinary cost award imposed under prior California law was dischargeable in bankruptcy, because the award was not a "fine, penalty, or forfeiture payable to and for the benefit of a governmental unit," but rather provided "compensation for actual pecuniary loss." 11 U.S.C. § 523(a)(7); see 249 F.3d at 989. In response to Taggart, California amended the California Business and Professions Code in 2003. The central question in this case is whether the 2003 amendments are sufficient for us to conclude that attorney disciplinary costs imposed under § 6086.10 now satisfy the requirements of § 523(a)(7) and are not subject to discharge in bankruptcy.

In conducting this analysis, we are mindful that three judge panels of our Circuit are bound by prior panel opinions "unless an en banc decision, Supreme Court decision or subsequent legislation undermines those decisions." Nghiem v. NEC Electronic, Inc., 25 F.3d 1437, 1441 (9th Cir.1994). In this case, however, our task is not to revisit Taggart, but to determine whether the amendments to the statute are sufficient to render the imposed costs non-dischargeable in bankruptcy. See Davis v. United States, 169 F.3d 1196 1199 (9th Cir.1999) (reconsidering prior precedent in light of statutory amendments).


Section 523(a)(7) excepts a debt from discharge "to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss."1 The parties agree that Findley's disciplinary cost debt is payable to and for the benefit of a governmental unit, but disagree over whether it constitutes a fine, penalty, or forfeiture or instead provides compensation for actual pecuniary loss.

In Taggart, we held that attorney disciplinary costs imposed under a prior version of § 6086.10 did not meet the requirements of § 523(a)(7). 249 F.3d at 989. At the time, § 6086.10 stated:

(a) Any order imposing a public reproval on a member of the State Bar shall include a direction that the member shall pay costs. In any order imposing discipline, or accepting a resignation with a disciplinary matter pending, the Supreme Court shall include a direction that the member shall pay costs.

(b) The costs required to be imposed pursuant to this section include all of the following:

(1) The actual expense incurred by the State Bar for the original and copies of any reporter's transcript of the State Bar proceedings, and any fee paid for the services of the reporter.

(2) All expenses paid by the State Bar which would qualify as taxable costs recoverable in civil proceedings.

(3) The charges determined by the State Bar to be "reasonable costs" of investigation, hearing, and review. These amounts shall serve to defray the costs, other than fees for the services of attorneys or experts, of the State Bar in the preparation or hearing of disciplinary proceedings, and costs incurred in the administrative processing of the disciplinary proceeding and in the administration of the Client Security Fund.

(c) A member may be granted relief, in whole or in part, from an order assessing costs under this section, or may be granted an extension of time to pay these costs, in the discretion of the State Bar, upon grounds of hardship, special circumstances, or other good cause.

(d) In the event an attorney is exonerated of all charges following a formal hearing, he or she is entitled to reimbursement from the State Bar in an amount determined by the State Bar to be the reasonable expenses, other than fees for attorneys or experts, of preparation for the hearing.

Cal. Bus. & Prof.Code § 6086.10 (2001).

In Taggart, we identified three reasons for our conclusion that the § 6086.10 attorney disciplinary costs served as "compensation for actual pecuniary loss." First, we analyzed the § 6086.10 costs in light of § 6086.13 of the California Business and Professions Code, a separate statute authorizing discretionary "monetary sanctions" for attorney misconduct. 249 F.3d at 991. We concluded that the statutory language of § 6086.10—which imposed "costs" for "actual expenses" and "reasonable costs"—as well as the existence of a hardship exemption under § 6086.10, but not § 6086.13, "support[ed] the impression that the California legislature intended monetary sanctions under § 6086.13, but not costs awards under § 6086.10, as punishment." 249 F.3d at 993 (footnote omitted). Next, we considered the legislative history of § 6086.13, and determined that "the section was enacted in order to create the possibility of fines in the context of attorney disciplinary proceedings, which did not exist under § 6086.10." 249 F.3d at 993 (citations omitted); see also id. at 993 n. 7 ("not[ing] that the drafter of § 6086.10 ... understood that section as not imposing a fine or penalty") (citations omitted). Finally, we observed similarities between attorney disciplinary costs imposed under § 6086.10 and the costs awarded to prevailing parties in civil litigation. Id. at 992-93.2 Reasoning by analogy that it was "highly unlikely" that California "imposed mandatory costs in civil proceedings in order to punish losing parties or to deter them from bringing litigation," we concluded that the legislature intended for the § 6086.10 costs to serve compensatory ends. Id. at 993 n. 6.

We acknowledged in Taggart that all of the reported cases to consider the issue had held attorney disciplinary costs nondischargeable. See 249 F.3d at 993-94 & n. 8 (listing cases). These cases, as we explained, "by and large, analogized the costs of attorney disciplinary proceedings to the costs of criminal litigation...

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