In re Haberman, Bankruptcy No. 91-00679-JES
| Decision Date | 05 February 1992 |
| Docket Number | Bankruptcy No. 91-00679-JES,Adv. No. 91-0157. |
| Citation | 137 BR 292 |
| Parties | In re Donald Clifford HABERMAN and Diana Dorothy Haberman, Debtors. BOARD OF ATTORNEYS PROFESSIONAL RESPONSIBILITY, STATE OF WISCONSIN, Plaintiff, v. Donald Clifford HABERMAN, Defendant. |
| Court | U.S. Bankruptcy Court — Eastern District of Wisconsin |
Mark J. Brunner, Bass & Moglowsky, S.C., Milwaukee, Wis., for plaintiff.
Robert M. Waud, Milwaukee, Wis., for defendant-debtor.
DECISION
In 1985, Donald C. Haberman's license to practice law was suspended by the Wisconsin Supreme Court for two years commencing January 1, 1986. Mr. Haberman was also ordered to pay to the Board of Attorneys Professional Responsibility, State of Wisconsin ("BAPR"), the costs of the disciplinary proceedings. The court further provided that, until such time as the costs were paid, his license would remain suspended until further order of the court. Disciplinary Proceedings Against Haberman, 126 Wis.2d 411, 430, 431, 376 N.W.2d 852 (1985). On December 16, 1985, a judgment for the costs was entered by the Wisconsin Supreme Court in favor of BAPR and against Mr. Haberman for $10,125.58, which remains unpaid. Mr. Haberman's license remains suspended. On February 1, 1991, Mr. Haberman filed a chapter 7 petition in bankruptcy and listed the unpaid costs among his debts.
This adversary proceeding was commenced by BAPR seeking a declaration that the costs constitute a nondischargeable debt under 11 U.S.C. § 523(a)(7).1 The matter has been presented upon a stipulation of facts.
The following two issues are involved in this dispute:
For reasons more fully set forth hereafter, the court answers both of these questions in the affirmative.
A "governmental unit" is defined in § 101(27) of the Bankruptcy Code as:
United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States (but not a United States trustee while serving as a trustee in a case under this title), a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.
11 U.S.C. § 101(27) (1991).
The legislative history to this provision states that the definition of a "governmental unit" was intended to be construed in the "broadest sense." H.R.Rep. No. 595, 95th Cong., 1st Sess. 311 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 6268.
BAPR was created in 1976 by the Wisconsin Supreme Court. Its duties, with respect to enforcement of attorneys professional responsibility, and the procedures for implementing these duties are set forth in the Wisconsin Supreme Court Rules ("SCR") Chapters 21 and 22. The parties have stipulated that BAPR is an arm of the Wisconsin Supreme Court and is primarily responsible for investigating complaints against members of the Bar and making recommendations to the Wisconsin Supreme Court regarding appropriate disciplinary actions. The preamble to SCR 21 recites, in part, that BAPR's role is "to supervise the practice of law and protect the public from professional misconduct by members of the Bar." SCR 21 Preamble.
It is fundamental that the Wisconsin Supreme Court, as the highest state tribunal of the Wisconsin judicial branch, is itself a governmental unit. BAPR, created as an arm of the Wisconsin Supreme Court, is an agency or instrumentality of a governmental unit within the clear contemplation of § 101(27) of the Bankruptcy Code.
The Bankruptcy Appellate Panel in In re Wade, 115 B.R. 222, 228 (Bankr.9th Cir. 1990), addressed this issue and decided that the Arizona State Bar, while carrying out its duties in attorney disciplinary proceedings, was a "governmental unit." The Bankruptcy Appellate Panel examined the underlying function exercised by the Bar and concluded that the Bar was acting in a governmental capacity. The Bankruptcy Appellate Panel also emphasized the close relationship between the Arizona Supreme Court and the Bar. Wade was recently affirmed by the Ninth Circuit Court of Appeals which held that, although the Bar may not be considered a governmental unit for all purposes, it is so considered when enforcing its regulatory powers with respect to attorney disciplinary proceedings. In re Wade, 948 F.2d 1122, 1123 (9th Cir. 1991).
The principles enunciated in Wade apply here. In Wisconsin, BAPR carries out the role performed by the Arizona State Bank in Wade. BAPR's purpose is to protect the public interest and maintain the integrity and standing of the Bar. If the Arizona State Bar, a body closely related to the Arizona Supreme Court, is a "governmental unit" when it functions in the area of attorney disciplinary proceedings, then surely BAPR, an agency or instrumentality of the Wisconsin Supreme Court, is also a "governmental unit" when it functions to perform the same type of duties.
Mr. Haberman's reliance upon Levine v. Supreme Court of Wisconsin, 679 F.Supp. 1478 (W.D.Wis.1988), is misplaced. Although Levine held that the State Bar of Wisconsin was not acting as a governmental unit, the circumstances in that case are readily distinguishable from the case at bar. Levine involved an Eleventh Amendment immunity issue, not an attorney disciplinary proceeding. Further, Judge Crabb carefully and specifically limited the holding in Levine to the context of the defendant's Eleventh Amendment argument. 679 F.Supp. at 1488 n. 3.
Even if the Levine holding were not so limited, a determination that the State Bar of Wisconsin is not a governmental unit would not affect the applicability of Wade to the present case. The State Bar of Wisconsin does not function in the same capacity as the Arizona State Bar; it is BAPR, not the State Bar of Wisconsin, that enforces attorney disciplinary proceedings. The analogous functions of BAPR and the Arizona State Bar serve to make the reasoning in Wade applicable to the case at bar. Nothing in Levine operates to preclude this application.
Applying the governmental function approach adopted in Wade and recognizing the pervasive nature of the definition of "governmental unit," there can be no doubt that BAPR is a "governmental unit."
The following types of authorized discipline are contained in SCR 21.06:
Payment of costs clearly falls within the second type of discipline as one form of condition for seeking reinstatement of the license to practice law. It may also fall within the third type of discipline as a "monetary payment." The words "misconduct" and "types of discipline" as used in SCR 21.06 indicate that the purpose of the rule is more akin to punishment than to compensation for actual pecuniary loss. According to Black's Law Dictionary, "misconduct" means:
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior. . . . Term "misconduct" when applied to act of attorney implies dishonest act or attempt to persuade court or jury by use of deceptive or reprehensible methods.
Black's Law Dictionary 999 (6th ed. 1990).
"Discipline" is defined in Black's Law Dictionary as:
Correction, chastisement, punishment, penalty. To bring order upon or bring under control.
Both definitions are penal in nature. Even though assessed costs may result in reimbursement to BAPR, compensation is not the primary objective of the rule. Rather, the rule is primarily intended to deter attorneys from engaging in improper conduct and to convey the message to attorneys and to the public alike that the practice of law is closely scrutinized in order to maintain the Bar's integrity and high standards of professional conduct. Reimbursed costs to BAPR do not represent any "actual" pecuniary loss. BAPR is not dependent upon such reimbursement. Its funding is provided from state appropriations under Wis.Stat. § 20.680(3)(h). See also SCR 21.12.
Wisconsin case law as developed reflects a policy of treating assessed costs as penal in nature. In Disciplinary Proceedings Against Kelly, 109 Wis.2d 348, 361, 325 N.W.2d 729 (1982), the court refused to apportion costs where only some, but not all, of the counts brought against an attorney were proven. In Disciplinary Proceedings Against Wheeler, 108 Wis.2d 573, 577-78, 322 N.W.2d 885 (1982), the court declined to award costs to a respondent attorney where allegations of unprofessional conduct were not proven. In Disciplinary Proceedings Against Hur, 126 Wis.2d 119, 122, 375 N.W.2d 211 (1985), the court rejected the disciplined attorney's request that he be excused from paying the costs because he was "bankrupt" with tax liens and his home was in the process of being foreclosed.
The Sixth and Seventh Circuit Courts of Appeals both have ruled that costs...
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