Parker v. U.S. Trustee Office Region 4-R
Filing
10
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 09/26/14. (kyou, )(mailed to Pro se party)
IN THE
UNITED
FOR THE
STATES DISTRICT
8
COURT
L
EASTERN DISTRICT OF VIRGINIA
SEP 26 2QI4
Richmond Division
CLERK, U.S. DISTRICT COURT
RICHMOND. VA
IN
RE
DARRYL
A.
Civil Action No.
PARKER
3:14cv241
MEMORANDUM OPINION
This matter is before the court on pro se appellant Darryl
Parker's
Court
appeal
for
from
the
Huennekens,
an
order
B.J.).,
the
District
Eastern
of
of
pursuant to 28
reasons set forth below,
United
States
Virginia
U.S.C.
§
Bankruptcy
(Phillips
158(a)(1).
and
For the
the decision of the Bankruptcy Court is
affirmed.
PROCEDURAL AND
This
which
the
is an
appeal
FACTUAL
BACKGROUND
from a January
15,
2014
the Bankruptcy Court suspended Parker
Bankruptcy
Court
of
the
Eastern
joint order
in
from practicing in
District
of
Virginia,
ordered that Parker undergo legal education regarding bankruptcy
law and ethics,
the
Eastern
showing
legal
that
and allowed Parker to apply for reinstatement to
District
he
training
had
and
of
Virginia's
completed
that
he
his
had
Bankruptcy
suspension
satisfied
Courts
and
upon
additional
previously-entered
make-whole
clients.
A.
orders
Bankr.
The
Rec.
required
him
to
remit
fees
to
certain
5-6.
Individual Case Orders
Throughout
debtors,
of
that
2013,
Parker,
acting
as
counsel
to
various
filed several bankruptcy cases in the Richmond Division
the
United
States
Bankruptcy Court
for
the
Eastern
District
of Virginia (collectively called the "Five Cases").1
Upon motion
of the United States Trustee,
to whom the
the Bankruptcy Judges
cases were assigned2 issued orders to Parker to show cause why he
should not receive both monetary sanctions and a suspension for
his
actions
held
and
hearings
See Dkt.
Nos.
Judge
2014
their
in
that
Parker
1-17),
No.
had
Case No.
cases
Cases.
on
The judges
December
Alonzo
to
late
Tucker,
Lisa Vaughan,
13-35495;
in
Smith
Huennekens
Chavis,
and
timely
filings;
Vanessa
Sr.,
and
Case No.
file
had
D.
R.
2013.
January
on
documents;
January
Chavis,
Huennekens.
15,
to
had
falsely
advise
clients
Smith, Case No.
Bland
13-34220;
14,
among other things,
failed
Joyce
and Kenneth Staten,
on
Tucker,
Danielle
Case No.
13-31565;
Case
No.
Rae Chavis,
13-35780.
2 Smith was assigned to the Honorable Keith L. Phillips.
Vaughan,
10,
issued a combined
Staten
These opinions held,
1 The cases at issue are:
13-31527;
Five
opinion
Judge
Tucker,
failed
for
an
while
1-11).
debtors
Alphanse
in the
respective
issued
Vaughan,
(Dkt.
to act
2, 3, and 4.
No.
2014
blamed
in
Phillips
(Dkt.
opinion
failures
Tucker,
and Staten were assigned to the Honorable Kevin
regarding
the
make
of
(including
obligations
status
the
monthly
with his
had
payments);
clients;
filed
Several
Parker
additional
document
advise,
with the
were
detrimental
Nos.
1-17,
The
R.
court;
to
to
various
attend
attend
-
his
P.
personal
counseling
several
Parker
and
meetings
made,
had
including
by
that
to
clients,
-
filing
"failed to
that:
a
false
adequately
and maintain the proper
Parker's
and
and
statements.
and had violated the Virginia
and
value
false
9011
keep informed,
Conduct;
no
were
Bankr.
that
clients",
Rule
"unprofessional
in
some
cases,
subjecting
them
to
actually
peril."
Dkt.
1-11.
orders
issued
opinion in Vaughan,
the
Fed.
of
to
and
containing
findings
communicate with,
services
failed
documents
violated
Professional
obligation
had
legal
demeanor with his
of
case
had filed false compensation disclosures;
several
had
their
Bankruptcy
in
conjunction
Tucker,
Court
had
Chavis,
found
with
the
January
15,
2014
and Staten also recite that
"Darryl
A.
Parker
to
be
in
contempt for violation of various Rules of the Federal Rules of
Bankruptcy
Procedure,
for
this Bankruptcy Court,
standards
of
The
sanction
this
Bankruptcy
payable
to
of
various
Local
Rules
of
and for failure to adhere to the minimum
professional
practicing before
14.
violations
conduct
Court."
Court
the
Dkt.
then
Chapter
3
required
Nos.
proceeded
13
of
1-16,
to
Trustee
1-15,
impose
in
each
attorneys
1-12,
a
1-
$1,000
case
and
required disgorgement of all fees in each case.
issued on
2014
January 14,
Smith
contempt.
States
opinion
Dkt.
disgorgement
B.
No.
Trustee's
payment.
2014
for
not
1-13.
fees
The order
in conjunction with the January 15,
does
make
an
However,
Motion
Id.
to
paid
it
Examine
in
Smith
explicit
does
grant
Fees
in
finding
Paid
the
United
and
addition
of
orders
to
another
Id.
The Miscellaneous Proceeding - In re Darryl A. Parker
In addition to the individual proceedings in each of the Five
Cases,
Judges Phillips and Huennekens together issued a separate
order
in
a
Trustee's
before
miscellaneous
request
this
continuing
that
Court
and
legal
proceeding
Parker
that
education
ethics." That order was
"be
he
directly
suspended
be
required
focusing
on
issued on January
addressing
from
to
practicing
participate
bankruptcy
15,
the
2014.
law
Bankr.
in
and
Rec.
at 5 and granted the Trustee's request and suspended Parker from
practicing in the Eastern District of Virginia for four months3
and ordered Parker to complete eight hours of legal education on
bankruptcy law and four hours of legal education on legal ethics
in
bankruptcy
law.
Parker
was
permitted
before
the
Bankruptcy
provided
that
he
had
Id.
at
to
The
apply
Court
made
6.
for
after
the
order
provided
reinstatement
his
payments
suspension
ordered
This suspension was to end on May 16, 2014.
4
also
to
practice
period
in
the
Bankr. Rec.
that
ended
above-
at 5
mentioned individual cases and had completed his legal training.
Id.
Parker filed a notice of appeal of the miscellaneous order.4
The notice states that it was sent by certified mail on January
28,
2014.
However,
it was received and entered by the clerk of
the Bankruptcy Court on January 30, 2014.
brief with this Court on May 15,
2014.
Id.
Dkt.
Parker filed his
No.
8.
The Trustee
filed his response brief with this Court on June 13,
No.
9.
Parker
has
not
filed
his
reply
to
2014.
the
Dkt.
Trustee's
response.
DISCUSSION
A.
Jurisdiction of the Court
1.
Time for Appeal
As
a
threshold matter,
is without
the
Trustee
jurisdiction to consider
argues
the
that
appeal
this
because
Court
Parker
failed to timely file his notice of appeal with the Bankruptcy
Court.
Appellee Brief, Dkt. No. 9, at 13.
The Federal Rules of
Bankruptcy Procedure require that an appellant file a "notice of
appeal...with the clerk [of the Bankruptcy Court] within 14 days
of
the
date
appealed
of
the
from."
entry
Fed.
R.
of
the
Bankr.
judgment,
Pro.
order,
8002(a).
or
"It
decree
is
well
4 The notice of appeal identified "the ORDER of the Bankruptcy
Judge,
entered
on
the
Miscellaneous
Proceeding
Misc.
14-301,
15th
Pro.
No.
Dkt.
No.
No.
Day
of
14-301
4.
5
January
as
the
2014"
order
and
lists
appealed.
settled
his
that,
notice
if
of
jurisdiction
v.
prospective
appeal,
to
the
hear
Biotechnologies,
Smith
a
Dairymen,
484
Inc.,
("[OJnly a party who
District
the
Inc.,
appellant
Court
appeal."
B.R.
790
(E.D.
1107,
to
is
timely
stripped
Chien
659
F.2d
fails
v.
Va.
1111
file
of
its
Commonwealth
2012)
(4th
(citing
Cir.
1986)
files a notice of appeal properly invokes
the appellate jurisdiction of the district court."))
In
this
case,
the
appeal was taken was
Bankruptcy
Court
order
entered on January 15, 2014.
under the Rules,
Parker had until January 29,
Notice
of
with
Notice
of Appeal
Bankr.
Record
Appeal
was
at
from
the
Accordingly,
2014
to
file his
The
stamped by the Clerk on January 30,
2014.
Thus,
the
the
the
Bankruptcy Court.
9.
Clerk of
which
Trustee
maintains
that
Parker
filed his notice of appeal outside of the time permitted by the
Rules.
Parker has not responded to this argument.
"In
most
instances,
%filed'
when it
filed."
Chien,
U.S.
(1988)).
266
a
notice
of
appeal
is
considered
is received by the court with which it is to be
484
B.R.
at
However,
663
the
(citing
Houston
United States
v.
Court
Lack,
487
of Appeals
for the Fourth Circuit has adopted a different rule when dealing
with
appeals
from
This
rule
called
369,
371
of
is
(4th Cir.
appeal
is
the
Bankruptcy
the
1976).
"timely
mailbox
Court
rule.
to
In
the
re
District
Pigge,
Court.
539
F.2d
The mailbox rule states that a notice
filed"
when
6
"the
[appellant's]
counsel
placed
the
notice
Fourth Circuit
in
has
the
mails."
Id.
never overruled In
at
re
371.
Because
the
Pigge and the mailbox
rule is not inconsistent with the Rules of Bankruptcy Procedure,
it is controlling in this case.
"Unfortunately,
records
the
mail."
Chien,
responded
date
notice
filed
postmark
on
at
Additionally,
B.R.
the
jurisdiction to
Bankruptcy
the
of
484
to
the
Trustee's
alert
in the mail.
is
dated
However,
the
28,
retains
that
are
the
the Notice
sent
Parker
asserting
as to
2014.
neither
filings
Brief
this Court
January
considering that
663.
Court
nor
by
not
lack
a
has
of
date he placed the
of Appeal
that
to
Parker
It
is
reasonable
assume,
Bankruptcy Court
in
Richmond received and
filed the notice on January 30, 2014, that the notice was mailed
by
Parker
(who
January 29,
day
resides
2014.
in
Richmond)
on
either
January
28
or
As both January 28 and 29 are within the 14-
filing period,
under the mailbox rule,
Parker's
filing was
timely and therefore the Court has jurisdiction over the appeal
from the Bankruptcy Court in In re Darryl A. Parker.
2.
Jurisdiction
Over
"Make
Whole"
Orders
in
Individual
Cases
The
considered
order
Trustee
also
timely,
entered
in
this
the
argues
Court
that,
only
Miscellaneous
has
should
filing
be
over
the
over
the
jurisdiction
Proceeding
orders entered in the individual proceedings.
7
the
and
not
Appellee's Brief,
Dkt.
No.
9,
at
18.
The
Trustee
points
out
that
notice of appeal stated that he was appealing
"Mr.
Parker's
xthe ORDER of the
Bankruptcy Judge, entered on the 15th Day of January, 2014'" and
was filed solely in the miscellaneous proceeding entitled In re
Darryl
Id.
A.
Parker
rather
(citing Bankr.
Rec.
than
at
the
9) .
As
individual
a result,
bankruptcy
cases.
the Trustee argues
that Parker "did not appeal the orders entered in the bankruptcy
cases,
make
which had directed him to return money to the debtors and
payments
to
the
case
attendant to his conduct
28
U.S.C.
U.S.C.
§§
158
to
in their cases."
§158(c)(2)
(a) and
trustees
provides
that
offset
Id.
at
"an
their
expenses
19.
appeal
under
[28
(b) ] shall be taken in the same manner as
appeals in civil proceedings generally are taken to the courts
of
appeals
from
the
Bankruptcy Court
§ 158(a),
must
district
courts."
to a District
follow
the
Court,
procedural
Thus,
an
appeal
of
a
authorized by 28 U.S.C.
guidelines
set
forth
for
appeals from District Courts to Courts of Appeals.5
5 The Trustee argues that this rule weighs in favor of ignoring
Fourth Circuit precedent in In re Pigge and instead applying the
general rule of "filed when received" to the determination of
the filing date in this case.
As discussed above, that argument
has
been
rejected.
However,
there
is
no
Fourth Circuit
precedent that conflicts with the general guidelines as laid out
in the statute and Supreme Court precedent.
Thus, the rules
governing appeals from the District to the Circuit Courts will
definitively apply to this issue.
Fed.
R.
App.
P.
3(a)
directs
that
"an appeal permitted by
law as of right from a district court to a court of appeals may
be
taken
only
by
filing
Fed.
R.
App.
clerk."
contents of the
of]
P.
App.
3
P.
County,
P.
order,
3(c) (1) (B) .
are
notice
3(c)
355
appeal
with
the
district
specifies
the
required
this includes a "designat[ion
or part thereof being appealed."
"Generally,
liberally
Maryland,
of
further
notice of appeal;
the judgment,
R. App.
a
the requirements of
construed."
Fed.
Jones
Appx.
724,
v.
728
Fed.
Prince
(4th
Fed.
R.
George's
Cir.
2009)
(holding that a notice of appeal which explicitly referenced one
order
but
failed
to
designate
another
did
not
grant
the
court
jurisdiction to hear the non-designated order)(citing Torres v.
Oakland
"this
Scavenger
principle
compliance
(1992).
nature,
with
and
the
Rule."
U.S.
312,
construction
Smith v.
satisfaction
is
a
(1988)).
does
Barry,
"Rule 3's dictates
of
Notice
the
of
Appeal
However,
not...excuse
502
U.S.
non
244,
248
are jurisdictional in
prerequisite
Bankruptcy
states
Judge,
that
entered
he
on
to
appellate
and
number
(MP
No.
14-00301-KLP)
mention
of
any
of
the
Bankr.
individual
9
of
"appeals... from
the
2014" and he lists only the case name
proceeding on the Notice of Appeal.
no
316
Id.
ORDER
Parker)
liberal
their
Parker's
January,
487
of
Additionally,
review."
the
Co.,
15th
(In re
the
Rec.
at
Day
of
Darryl A.
miscellaneous
9.
proceedings
There is
in
Smith,
Tucker,
Chavis,
Vaughan,
the fact that an
was
also
Notice
and
Staten.
opinion in Tucker,
issued on January 15,
of
Appeal),
there
Additionally,
Chavis,
2014
is
no
(the
other
Vaughan,
than
and Staten
date mentioned in the
indication
that
Parker
was
attempting to appeal those orders in this case.
While
Rule
manipulated
the
3
is
beyond
contents
of
to
be
all
the
liberally
recognition.
individual
construed,
To
case
allow
orders
it
cannot
be
Parker
to appeal
this
proceeding
in
would be to ignore the directive that "liberal construction does
not
...excuse
compliance
with
the
skirt the rules and precedent.
Thus,
this
Court
lacks
rule"
Jones,
jurisdiction
entered in Smith, Tucker,
Vaughan,
and
allow
355 Fed.
to
to
Appx. at 728.
consider
Chavis,
Parker
the
orders
and Staten and will
only consider an appeal of the order entered in In re Darryl A.
Parker,
B.
MP No.
14-00301-KLP.
The Appeal
This Court reviews the Bankruptcy Court's legal conclusions
de
novo.
Factual
also
In
findings
Fed.
imposing
McGahren
re
R.
Johnson,
are
Bankr.
sanctions
v.
F.3d 1159,
First
1169
960
F.2d
396,399
reviewed only for
P.
is
8013.
reviewed
Citizens
(4th Cir.
A
Bank
1997).
10
&
(4th
clear
error.
Bankruptcy
for
Trust
abuse
Co.
Cir.
(In
Id.;
Court's
of
re
1992).
see
order
discretion.
Weiss),
111
Parker
Brief,
Dkt.
raises
No.
8,
several
at
2-3.
issues
in
First,
he
his
brief.
Appellant's
argues that the sanctions
imposed by the Bankruptcy Court was "too severe and did not fit
the alleged misconduct."
Id. at 2.
Second,
he argues that the
Bankruptcy Court's finding that its order of contempt was civil
was
incorrect.
was
criminal
and
jurisdiction
evidence
Id.
to
Id.
that
the
enter
it.
was
Finally,
"discriminating,
in
conduct...and have
at
he
thus
presented
contempt.
Third,
argues
that
Bankruptcy
Id.
to
contempt
Court
Fourth,
insufficient
the
he
did
argues
support
a
order
not
that
charge
have
the
of
Parker argues that his prosecution was
that
others
have
committed
the
same
never been prosecuted. .. in this manner."
Id.
3.
1.
Abandoned Issues
Parker
raises
section of his
and
Argument"
brief
two
issues
that
section.
are
in
not
the
"Assignments
addressed
Appellant's
further
Brief,
of
Error"
in the
Dkt.
No.
"Law
8.
Assignment 4 states that "the evidence presented at the trial of
this matter was totally insufficient for the Court's finding of
Contempt."
Additionally,
Assignment
5
states
that
"the
prosecution of [the] Appellant was discriminating in that others
have
committed
the
same
conduct
as
[the]
Appellant
never been prosecuted by this Court in this manner."
11
and
have
Id. at 2-
3.
Even though these assignments were
of his brief,
Fed.
the beginning
Parker does not otherwise address them.
R. App.
contain...the
P.
28
states that the Appellant's brief "must
argument,
contentions
and
the
authorities
and
parts
relies."
listed in
Fed
R.
which
reasons
App.
of
P.
must
for
the
contain:
them,
with
record
on
28(a)(8)(A).
citations
which
The
appellant's
the
Fourth
to
the
appellant
Circuit
held that "failure to comply with the specific dictates of
has
[Rule
28] with respect to the particular claim triggers abandonment of
that
claim on
241,
249
178
(4th Cir.
F.3d 231,
U.S.C.
appeal."
Suarez-Valenzuela
2013)
n.6
241
v.
Holder,
714
F.3d
(quoting Edwards v. City of Goldsboro,
(4th Cir.
1999)).
§158(c)(2)'s directive and Fed.
R.
Thus,
App.
pursuant to
P.
28
28 (a) (8) (A) 's
requirements, the Court will not consider Parker's Assignments 4
and
5.
2.
The Appealed Sanctions
Parker
orders
alleges
in
constituted
Bankruptcy
Court
Additionally,
Court
Appellant's
Brief,
appeal
criminal
lacked
Parker
Bankruptcy
his
the
alleges
No.
the
Bankruptcy
contempt
sanctions
power
impose
that
constituted
Dkt.
that
9,
to
the
an
at 2,
those
sanctions
"abuse
of
Assignments
The sanctions appealed include monetary sanctions,
hours of
legal
education,
and
Court's
that
the
sanctions.
issued
by
the
discretion."
1,
2,
and
3.
a required 12
and a suspension from legal practice
12
in
front
of
Virginia.
the
Bankruptcy
Id. at 3.
a.
In
re
for
the
Eastern
District
Each will be addressed in turn.
Darryl
that the
A.
four-month
Parker,
suspension order,
"punishes...Appellant
issued
for
past
behavior" and thus constitutes a criminal contempt order,
lies outside the power of the Bankruptcy Court.
the reasons stated below,
It
Darryl
Parker
Id.
at 4.
whether
the
January 15,
Bankruptcy Court
2014
was
its
whether
civil
it
was
contempt
For
authority under
exercising
its
inherent
11
U.S.C
power
to
in
In re
issuing
suspension as a punishment upon a finding of contempt,
to
which
this argument is rejected.
is unclear from the order of
A.
of
The Suspension Order
Parker argues
in
Court
the
pursuant
§105(a)6
sanction.
or
A
federal court has an inherent power "to control admission to its
bar and to discipline attorneys who appear before it."
v. NASCO,
Inc.,
501 U.S.
32,
43
(1991).
Chambers
This power to sanction
has been recognized in the Fourth Circuit as with the Bankruptcy
Court
in
addition
to
Article
III
courts.
See
McGahren
(In
re
Weiss).
6 "The court may issue any order, process,
or judgment that is
necessary or appropriate to carry out the provisions of this
title. No provision of this title providing for the raising of
an issue by a party in interest shall be construed to preclude
the court from, sua sponte, taking any action or making any
determination necessary or appropriate to enforce or implement
court orders or rules,
or to prevent an abuse of process."
13
The
who
Court's
appear
lawyers
does
before
whose
not
underlying
encompasses
conduct
impose
"Attorney
it
warrants
a criminal
suspension
investigation
ability
in
is
to
to
the
ability
such
[sic]
nor is
civil
the
those
to
A
it
nor
lawyers
suspend
treatment.
sanction,
^neither
sanction
those
suspension
uniquely civil.
criminal,
of
conduct
but
lawyer-
the
an
respondent ... [and aims to] maintain the integrity of the courts
and
profession."
the
F.3d
1052,
1059
Price
v.
Lehtinen
(9th Cir.
2009).
F.2d 347,
349-50
(7th Cir.
1970);
Comm.
On
Prof'l
Conduct,
542
Thus,
it
falls
See
within
the
(In re Lehtinen),
also
In
re
Echeles,
Richmond v. N.H.
F.3d
913,
court's
916
inherent
564
430
Supreme Court
(1st
Cir.
sanction
2008).
power
and
impose
the
should not be considered a criminal punishment.
Because
suspension,
abused
211,
have
next
discretion
216-17
(4t^h Cir.
abused
factual
Bankruptcy Court
the
its
erroneous
its
legal
125
Parker's
in
is
doing
2002) .
principals
or
(4th Cir.
2011).
so.
In
power
the
re
to
Bankruptcy
Morrissey,
Court
305
F.3d
"its
rests
LLC
decision
upon
v.
a
Mead
is
guided
clearly
Johnson
by
erroneous
& Co.,
639
It is clear that the Bankruptcy
its discretion here.
before
deficient
the
whether
when
Prods.
record
had
A Bankruptcy Court can be said to
PBM
did not abuse
The
issue
discretion
finding."
F.3d 111,
Court
the
this
performance
Court
is
before
14
rife
the
with
examples
Bankruptcy
Court
of
in
the
Five
Cases.
He
submitted
properly advise clients;
he
he
and
provided
incompetent
both
the
Bankruptcy
The
Bankruptcy
suspension
clearly
order,
not
correct.
as
Because
Parker
operations
To
in
services
and
of
the
the
well
under
within
its
inherent
suspend Parker's
of
four
with
bounds
power
such
to
of
judicial
sanction
That
the
bankruptcy
law
order
and
was
the
proceedings.
they
appear
ineptitude
are
clearly
for
such
a
the Bankruptcy Court
reasonableness,
attorneys
intended
it,
to
it for a period
ensure
Court's
the
acting
before
to
Bankruptcy
Because
its
Opinions,
future
standards
suspension
was within the Bankruptcy Court's power and was not an
discretion,
cases.
supporting
right to practice in front of
months.7
compliance
guiding
the
to
hindered
clients'
Memorandum
prolonged period of time in so many cases,
was
failed
that
his
fact
contrary,
displayed
he
attend court proceedings;
valueless
findings
stated
erroneous.
documents;
failed to
Court's
Court's
false
order
abuse of
Parker's challenge to it is denied.
b.
Legal Education Requirement
Parker additionally challenges the Bankruptcy Court's power
to
enter
continuing
an
order
legal
compelling
him
education.
Like
to
complete
the
12
challenge
hours
to
of
the
suspension order, this challenge is without merit.
7 Indeed,
the period of the suspension was quite lenient when
measured against the conduct that necessitated the suspension.
15
As
before,
it
is
education order was
unclear
imposed in
whether
the
continuing
legal
relation to the finding of
civil
contempt in the individual cases or whether it was limited only
to
the
Court's
miscellaneous
power
to
proceeding.
compel
an
However,
attorney
the
practicing
Bankruptcy
before
it
obtain further education is another manner of "maintain[ing]
integrity
of
Lehtinen),
the
the
564
courts
F.3d
at
and
the
1059.
profession."
Therefore,
inherent sanction power.
Because,
Price
that
power
the
scope
of
its
power
in
issuing
a
the
re
is within
as explained above,
sanction power extends to the Bankruptcy Court,
outside
(In
to
the
it did not act
compelled
legal
education order.
An
abuse
well.
in
of
discretion
standard
applies
to
this
review
The Bankruptcy Court clearly did not abuse its discretion
ordering
Parker
to
attend
12
hours
education on bankruptcy law and ethics.
clear
that
he
was
either
unaware
of,
of
continuing
legal
Parker's conduct makes
or
unconcerned
rules that govern practice in the Bankruptcy Court.
with,
that
entirely
Parker
reasonable
must
Bankruptcy Court
be
for
the
further
Bankruptcy
educated
and the ethical
obligations
before resuming practice in that Court.
entrusted with his clients'
financial
16
in
Court
the
of
the
Because his
actions and failures to act occurred in the Bankruptcy Court,
was
as
to
rules
the
it
conclude
of
the
profession
Requiring an attorney,
futures,
to understand and
follow
the
law
essential.
was
and
Thus,
within
the
court
rules
because
the
is
not
only
legal
continuing
Bankruptcy Court's
power
reasonable,
education
and did not
but
order
constitute
an abuse of discretion, Parker's challenge is denied.8
C.
Disgorgement of Client Fees
Next,
Parker
challenges
the
monetary
the Bankruptcy Court in the Five Cases.
not
appealed,
Parker's
his
each
the
reinstatement
compliance
of
order
the
monetary
"with
Five
monetary
to
In
of
the
and
in
miscellaneous
in
each
A.
the
monetary
of
imposed
conditions
Bankruptcy
of
Five
proceeding's
Court
on
ordered
sanctions
"proof
the
Parker
in
payment
Cases"
the
Hence,
6.
his
the
Rec.
at
have
been
integrated
to
of
in
Bankr.
appear
by
While those cases were
Darryl
required
application.
sanctions
re
practice
all
Cases"
sanctions
reinstatement
in
sanctions
order
and will
thus
be
monetary
sanction
into
imposed on
the
addressed by
the Court for good measure.
The
the
first
Five
[debtor]
type
Cases
all
attorney's
was
fees
fees.
of
an
order
paid
See
in
[the]
Smith
Order,
Dkt.
No.
12;
Staten
Order,
15;
Vaughan
Order,
Dkt.
8 Like the
suspension
lenient
in
need
that
No.
Dkt
16.
period,
of
case",
No.
the
education.
for
perspective
Dkt.
Parker's
17
Parker
14;
"disgorge
including
No.
Parker
1-13;
Tucker
in
to
the
filing
and
Chavis
Dkt.
No.
upon
the
education requirement
was
conduct
the
This
is
Order,
Order,
based
demonstrating
Bankruptcy
Court's
to his clients.
No
1-17;
14;
determination
Dkt.
Tucker Order,
Dkt.
Bankruptcy
Courts
states
with
that
value
"if
of
payment."
paid
§ 329(b)
the
the
under
the
estate
§329(b).
the
of
11
return
or
The
attorney's
Thus,
the
the
entity
to
§329
reasonable
may
that
in
the
cancel
and
fall
made
the
such
Five
Cases
were
filing
orders
to
clients
Parker's
fees
§329.
any...payment,
opinions
payments
debtor's
court
the
1-
oversee
exceeds
of
No.
1-16.
U.S.C
the
Dkt.
Dkt.
Dkt. No.
to
compensation
services,
cases.
previous
its
from
provided
no
two
discretion
his
clients
value
disrespect
for,
negatively
affected
resulting
in
benefit.
Thus,
the
attorneys
value
fees
already
squarely
under
and are within the Bankruptcy Court's power.
abuse
received
power
no
Page 16-17,
Staten Order,
the
the
that
orders
1-12;
order
to
state
Like
not
or
U.S.C
in
have
their
11
disgorgement
provided
1-15; Vaughan Order,
[attorney]
excessive
clearly
No.
No.
[attorney]
any... agreement,
extent
Parker
See Smith Memorandum Opinion,
Chavis Order,
transactions
that
to
the
Parker
in
the
Cases.
Five
clients.
and
His
Court's
clients'
because the
Court's
Bankruptcy Court
ordering
Bankruptcy
his
the
in
his
dismissals,
Bankruptcy
sanctions,
orders
power
18
Parker's
rules
in
led
to
to disgorge
under
§
disgorge
ignorance
cases,
certainly
to
329(b)
and
some
more
money
services
of,
and
the
law
instances
harm
fees was
and
did
than
within
did
not
constitute
an
abuse
of
discretion,
Parker's
challenge
to
the
disgorgement provision is denied.
D.
Reimbursement Sanction
to Trustee
The
to
final
reimbursement
sanction
order
required him to
imposed
which
in
Parker
four
pay the Chapter
objects
of the Five
13 Trustee
is
the
Cases9 which
$1,000 in
each case
"as reimbursement for expenses incurred by the trustee attending
to
Parker's
Staten
transgressions."
Order,
Vaughan
Chavis
Dkt.
No.
Dkt.
No.
1-12;
Tucker
1-14;
Dkt.
Order,
No.
Order,
Order,
Dkt.
No.
1-15;
that
this
1-16.
Parker
argues
is
a
criminal contempt punishment and lies outside of the Bankruptcy
Court's
power.
Like
the
above
monetary
granting
this
reimbursement
were
not
However,
their
incorporation
into the
sanction,
appealed
order
in
the
this
in
In
orders
case.
re
Darryl A.
Parker weighs in favor of addressing their validity.
Parker argues that the monetary sanctions were fines.
are,
however,
sanction
reimbursement
power
Bankruptcy
of
Court
the
has
orders
Bankruptcy
inherent
and
Court.
authority
thus
fall
under
the
stated
As
to
They
above,
the
sanction
attorneys
appearing before it for their failure to properly operate within
the
bounds
of
reimbursement
the
sanction
law.
meant
The
to
monetary
make
the
sanction
other
parties
was
to
a
the
9 This sanction was issued by Judge Huennekens in Chavis, Tucker,
Vaughan,
sanction
and
in
Staten.
Judge
Phillips
Smith.
19
did
not
incorporate
this
proceeding
punish.
the
whole
and
not
The Chapter
government
considerable
criminal
13 Trustee
agency
time
a
which
and
contempt
in each
employs
effort
into
of
the
the
order
the
to
Five Cases
Trustee
Five
meant
and
had
invested
and
Parker's
Cases,
transgressions resulted in that time and effort being wasted.
The
Bankruptcy
discipline
requiring
who
those
attorneys
negatively
Pipeline Serv.
Co.
(stating that
the
who
affected
power,
appear
by
inherent
fees)
allowing
before
attorneys
their
to
it
to
extends
it,
to
reimburse
wrongdoing.
v. Wilderness Soc'y,
attorneys'
grounds);
Cir.
sanction
deficiently-performing
were
assess
Court's
421 U.S.
See
240,
those
Alyeska
258
(1975)
sanction power permitted a court
(superseded
Knupfer v. Lindblade
by
statute
(In re Dyer),
322
on
to
other
F.3d 1178
(9th
2003) (upholding a bankruptcy court's award of the Trustee's
legal fees);
(court's
Oliveri v. Thompson,
exercise
exception
to
the
of
its
rule
litigation);
2260,
(Bankr.
at
12
"includes
the
attorneys'
Association,
D.
185
and
B.R.
In re
to
F.2d 1265
sanction
parties
assess
475
(2nd Cir.
power
their
1986)
creates
own
fees
2003 Bankr.
an
and
LEXIS
(The inherent sanction power
sanctions
costs...");
460,
bear
Couch-Ruzzell,
Idaho 2003)
ability
fees
inherent
that
expenses of
803
In
(Bankr.
re
in
72nd
S.D.N.Y.
the
St.
1995)
form
of
Realty
("A court
is empowered to assess costs and fees against an attorney and/or
his
client
where
a
party
acts
20
in
bad
faith,
vexatiously,
wantonly,
or
for
oppressive
reasons").
Thus,
the
Bankruptcy
Court properly exercised its power in imposing this sanction.
The
reimbursement
discretion.
order
Parker's
did
actions
not
and
constitute
failures
to
an
act
abuse
of
resulted
in
wasted time and effort by the Chapter 13 Trustee in each of
the
four cases in which the reimbursement sanction was imposed.
It
was not erroneous for the Bankruptcy Court to find that Parker's
misdeeds
course
cost
of
court
the
to
Trustee
cases,
nor
believe
corresponded
because
the
with
the
a
would
that
the
substantial
a
extent
the
Court
order
its
under
have
been
of
loss
had
sanction
was not an abuse of discretion,
over
order
Parker
the
time
the
for
the
erroneous
reimbursement
Bankruptcy
reimbursement
it
amount
caused.
power
power,
properly
Thus,
to
and
issue
a
its
doing
so
Parker's challenge is denied.
CONCLUSION
For
the
sanctions
foregoing
imposed
Parker's
arguments
to
the
issue
Parker
had
effectively
times.
system
against
been
in
or
given
the
the
warranted
the
Court
were
21
his
the
propriety
and
had
of
authority
has
merit.
to
perform
failed
multiple
clients
sanctions
four
None
Court's
opportunities
Court
appropriate
that
appropriate.
sanctions'
harmed
finds
Bankruptcy
several
Bankruptcy
failures
the
Parker
respecting
sanctions
Parker's
and
reasons,
that
and
are
the
court
aimed
to
ensure
future
compliance
with
court
rules,
ethics
laws,
and
statutory mandates and that emphasized to Parker the severity of
what he
had done and failed to do.
The order of the Bankruptcy
Court will be affirmed.
It
is
so ORDERED.
/s/
Robert E. Payne
BL
Senior United States District Judge
Richmond, Virginia
Date:
September "&£, 2014
22
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