ING Bank, fsb v. Ahn et al

Filing 135

ORDER re: Special Master's fees. An order to show cause will issue if fees are not paid or resolved by 11/26/10. Signed by Judge Thelton E. Henderson on 11/19/10. (tehlc3, COURT STAFF) (Filed on 11/19/2010)

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ING Bank, fsb v. Ahn et al Doc. 135 1 2 3 4 5 6 7 8 9 10 v. ING BANK, fsb, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Plaintiff, NO. C09-995 TEH ORDER RE: SPECIAL MASTER'S FEES CHANGSEOB AHN, et al., Defendants. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 CHANGSEOB AHN and SOOKHEE AHN, Counterclaimants, v. ING BANK, fsb, Counterdefendant. On September 22, 2010, this Court issued an order appointing Edward Swanson, Esq., 20 of Swanson & McNamara, LLP, as Special Master to supervise and preside over all 21 remaining discovery. The order set the Special Master's hourly fee at $500.00, and gave the 22 Special Master discretion to allocate and assess the payment of his fees among the parties. 23 The order followed a hearing on September 20, 2010, in which the Court notified the parties 24 that he intended to appoint a Special Master, and that the Special Master would have 25 discretion to apportion costs among the parties. At no time did either party or their counsel 26 object to this arrangement on the basis of ability to pay. The Special Master's duties are now 27 complete. 28 Dockets.Justia.com 1 On November 16, 2010, the Special Master notified Defendants Changseob Ahn and 2 Soohkee Ahn ("the Ahns") that they owe $1,575 for his services. Kit Knudsen, counsel for 3 the Ahns, responded by e-mail the same day. His clients cannot pay, he wrote. He explained: 4 5 6 7 You may already know that we have been handling the Ahns' defense on a pro-bono basis since they were sued by ING in 2008. We are working very hard to keep them and their three adolescent children out of bankruptcy. The ING mortgage delinquency on the Ahns' credit record has made credit unavailable to them. 8 As far as the Court is aware, this is the first communication by the Ahns or their counsel 9 indicating they cannot afford to pay the Special Master's fees. 10 Rule 53 of the Federal Rules of Civil Procedure requires the Court to fix the United States District Court 11 compensation of special masters. When communicating with the Court about this or any For the Northern District of California 12 other matter, counsel owes a duty of candor. California law makes it a misdemeanor to 13 intentionally mislead or deceive a judge, conduct that is also proscribed by the state's rules of 14 professional conduct. Cal. Bus. & Prof. Code § 6128; Cal. R. Prof. Conduct 5-200. A State 15 Bar of California committee has held that silence violates the duty of candor under some 16 circumstances. This is true even where an attorney owes a simultaneous duty of 17 confidentiality to the client. As the committee explained, 18 19 20 [i]f the attorney's silence appears to be relied upon by the court as an affirmation . . . , the attorney is obligated by the duty of candor to inform the court that the silence is not intended as an affirmation, and that it is not appropriate for the attorney to comment further. 21 Ca. Eth. Op. 1986-87, 1986 WL 69067 (Cal. St. Bar. Comm. Prof. Resp.). 22 Grave concerns regarding Defendants' counsel's conduct during past depositions 23 urged the Court to appoint a Special Master in this case. Appointing a Special Master is an 24 extraordinary measure. Even more extraordinary, however, is Defendants' counsel's 25 persistent silence on the question of his clients' ability to pay the Special Master's fees. This 26 silence broke only after the Special Master had completed his duties on the parties' behalf. 27 By the terms of the Court's September 22 order, the Special Master's fees must be 28 paid within ten calendar days of assessment, unless excused by the Special Master or this 2 1 Court. The deadline for payment, therefore, is November 26, 2010. If the Special Master's 2 fees are not paid or resolved by that date, this Court will issue an order to show cause 3 inquiring into the conduct described above, including the conduct which prompted the 4 appointment of the Special Master. 5 6 IT IS SO ORDERED. 7 8 Dated: 11/19/10 9 10 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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