In re Fondiller, BAP No. NC-81-1019-GLK
| Decision Date | 03 December 1981 |
| Docket Number | NC-81-1025-GLK.,BAP No. NC-81-1019-GLK |
| Citation | 15 BR 890 |
| Parties | In re Harry FONDILLER, Debtor. Rosalyn FONDILLER, Appellant, v. Jerome E. ROBERTSON, Appellee. Harry FONDILLER, Appellant, v. Jerome E. ROBERTSON, Appellee. |
| Court | U.S. Bankruptcy Appellate Panel, Ninth Circuit |
Darrel C. Horsted, San Francisco, Cal., for appellant.
Edward A. Kent, Palo Alto, Cal., for appellee.
Before GEORGE, LASAROW and KATZ, Bankruptcy Judges.
This is an appeal from an order of the bankruptcy court which authorized the employment of the law firm of Gendel, Raskoff, Shapiro and Quittner as special counsel for the trustee for the limited purpose of investigating and recovering certain assets allegedly concealed or transferred by appellant Harry Fondiller. We affirm.
The question raised by this appeal is whether the trial court erred in approving the employment of special counsel to the trustee even though counsel refused to terminate its representation of creditors in connection with the case.
Appellant Harry Fondiller is a debtor in the Northern District of California under chapter 7 of the Bankruptcy Reform Act. The law firm of Gendel, Raskoff, Shapiro and Quittner represents Citibank, Peoples National Bank of Washington and Roderick N. McAuley, trustee in bankruptcy of Holosonics, Inc., all of whom are creditors of Fondiller in this bankruptcy case. That law firm also represented those creditors in the previously filed bankruptcy case of Holosonics, Inc., in the Western District of Washington. Fondiller was a principal of Holosonics, Inc.
While representing the above named clients in the Holosonics bankruptcy, Gendel, Raskoff, Shapiro and Quittner engaged in an extensive investigation into allegedly concealed assets and fraudulent conveyances in which Fondiller may have been involved. Fondiller and his wife, Rosalyn Fondiller, alleging abuses in the conduct of that investigation, filed lawsuits in the Superior Court of the State of California for the County of Santa Clara, naming as defendants Citibank, Peoples National Bank of Washington and Arnold M. Quittner of the firm of Gendel, Raskoff, Shapiro and Quittner. The trustee in the present bankruptcy case requested authority to employ Gendel, Raskoff, Shapiro and Quittner as special counsel for the specific purpose of continuing to investigate and attempting to recover the assets concealed or fraudulently conveyed. The requested employment was approved by the creditors' committee. The only objections to the employment were made by the debtor and his wife, who is not a debtor in the bankruptcy proceedings. The bankruptcy judge authorized that employment, and it is from his order that this appeal is taken.
Appellants contend that the trial court erred by authorizing the appointment of the firm of Gendel, Raskoff, Shapiro and Quittner as special counsel to the trustee because, first, it is not a "disinterested person" within the meaning of §§ 327(a) and 101(13) of the Bankruptcy Code; second, it has an interest adverse to the estate; and, third, it continues to represent creditors in connection with this bankruptcy case.
Section 327(a) provides that, with the court's approval, the trustee "may employ one or more attorneys ... that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee...." The firm of Gendel, Raskoff, Shapiro and Quittner qualifies as a "disinterested" entity because it is not included in the categories of persons that are defined as "not disinterested" by § 101(13) of the Bankruptcy Code. While creditors are specifically named as "not disinterested" by § 101(13)(A), attorneys for creditors are not. The only attorneys specially noted as "not disinterested" by this section are those who have represented certain investment bankers involved in the securities of the debtor.
Gendel, Raskoff, Shapiro and Quittner does not hold or represent an interest adverse to the estate with respect to its duties as special counsel. We interpret that part of § 327(a) which reads that attorneys for the trustee may "not hold or represent an interest adverse to the estate" to mean that the attorney must not represent an adverse interest relating to the services which are to be performed by that attorney.
Appellants contend that § 327(c) of the Bankruptcy Code which provides, in part, that "a person is not disqualified for employment under this section solely because of his employment by or representation of a creditor, but may not, while employed by the trustee, represent, in connection with the case, a creditor" applies to the facts of this case. It is apparent that § 327(c) would require Gendel, Raskoff, Shapiro and Quittner to sever its relationship with its creditor clients connected with this case if it were to act in the role of general counsel to the trustee rather than as special counsel. The reason for this result is that there exists a potential for conflict if an attorney represents both a creditor and the trustee as general counsel. It should be borne in mind that general counsel for the trustee, in order to accomplish a maximum distribution to creditors, usually must perform services that are adverse to certain individual creditors. For example, creditors' claims should be reviewed to determine which should be disputed, or an investigation of pre-bankruptcy transactions between the debtor and individual creditors might be conducted for the purpose of determining whether a preference has occurred. An attorney representing the trustee as general counsel would be required to give legal advice and to proceed with appropriate litigation in connection with these matters. Any number of...
To continue reading
Request your trial