Criminal Bankruptcy Attorneys - Part II The Hard Road from Dealing with Troubled Clients to Living with Troubling Cellmates

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Mar 2003

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In the case of United
States v. Dolan,<a href="#1" name="1a">1</a> the attorney was convicted for
conspiracy to conceal property from the bankruptcy estate by his actions in
representing an individual in his chapter 11 proceedings.

In this case, Dolan, the attorney, testified that he filled out the
debtor's admittedly inaccurate bankruptcy schedules to the best of his
ability, but that the debtor initially failed to give him correct information
concerning the ownership of various assets, including stock in certain
companies, which were ultimately discovered to have been owned by the debtor.
However, attorney Dolan's problems, which ultimately led to his criminal
convictions, arose from his treatment of two assets of which he had extensive
knowledge: a 1981 Ferrari, and a lawsuit that the debtor had against a third
party. In regard to the Ferrari, Dolan attempted to have the bank, which held a
security interest in the Ferrari, change the title over to the debtor's
son after the bankruptcy had been filed. When that suggestion was rejected by
the bank's counsel, Dolan then suggested the debtor would be willing to
agree to relief from the stay and a third party paying off the balance owed the
bank, some $27,000, if the bank would cooperate in this matter. Knowing that
the Ferrari was worth more than $85,000, the bank's counsel refused to go
along with what he characterized as a scheme to remove equity from the
bankruptcy estate. Dolan never revealed the existence or value of the Ferrari
in the debtor's schedules.

The lawsuit matter was far more serious. After the
filing of the bankruptcy case, another attorney who was litigating the lawsuit
for the debtor against a third party negotiated a settlement of that lawsuit
for $1.9 million. Dolan received $50,000 of this settlement as a personal
bonus, which he did not disclose to the bankruptcy court.

<blockquote><blockquote>
<hr>
<big><center>
[W]hether the extent of such abuses are
real...is unimportant compared to the fact that even the mere perception of
such legal chicanery has led to proposals for significant restrictions on
attorney representation of debtors, as well as to a general mistrust of bankruptcy attorneys.
</center></big>
<hr>
</blockquote></blockquote>

When required to amend the debtor's bankruptcy
schedules to reflect the ownership of stock in certain corporations, Dolan
failed to list either the Ferrari or the settlement proceeds of the lawsuit in
the amendments he prepared to the debtor's bankruptcy schedules. Dolan
testified he failed to disclose these matters because he had been instructed by
his client, the debtor, not to make any such disclosure and, after an
independent review of the Code of Professional Responsibility, Dolan believed
that he was not required to disclose the settlement or Ferrari against his
client's orders, and he was not required to withdraw from his
representation of the debtor in light of this fraud. Both the district and
appeals courts were unimpressed with Dolan's defenses, and he was
convicted of two counts of bankruptcy fraud.

One of the critical pieces of evidence against Dolan in
this case was his continued representation to creditors throughout the chapter
11 proceeding that the debtor had no funds with which to make payments to them
and that they should accept a very low percentage payout plan under chapter 11
when, at the time, Dolan knew of the $1.9 million settlement and the ownership
of the Ferrari. Such affirmative misrepresentations, the courts found, fell
well outside the bounds of zealous representation and into the dark arena of
criminal conspiracy.

<h3>It's Not Nice to Fool Bankruptcy Trustees</h3>

In the case of United States v. Rosen,<big><a href="#2" name="2a">2</a></big> an attorney, Rosen, represented the owners of an entity known as
New England Tri-State Development Corp. (Tri-State) and Tri-State's
owners. In 1992, Tri-State filed a voluntary chapter 11 petition. In the winter
of 1993 through 1994, Tri-State's owners informed Rosen that an
individual was interested in purchasing their Maine property for $1 million, to
be paid in installments. In March 1994, prior to the consummation of this
transaction, the Tri-State case was converted to
a chapter 7 liquidation. During the chapter 7 case, Rosen appeared as
Tri-State's attorney, falsely stated that Tri-State had received an offer
of $500,000 for the main property and further stated that Tri-State believed
the property was worth at least $750,000.

At numerous times during the chapter 7 case, Rosen
indicated to the trustee that he believed he could find a buyer for the
debtors' Maine property for approximately $500,000 in cash. Incorrectly
trusting Rosen, the trustee allowed him to pursue this possible deal. However,
at the same time, Rosen was attempting to sell Tri-State's Maine property
for $1 million with $500,000 of that price being transferred to
Tri-State's owners in the form of consulting fees and/or employment
agreements.

Ultimately, Rosen was able to negotiate an agreement
with the purchaser whereby the bankruptcy estate would receive $500,000 for the
property, and Tri-State's owners would receive $475,000, payable over
four years, for their consulting services. Rosen would receive a $25,000 fee
for his services in this matter.

Rosen disclosed part of this deal to the trustee and advised
the purchaser not to disclose the employment consulting agreements to the
trustee if he was contacted by trustee's counsel. The sale was ultimately
approved by the bankruptcy court, with no mention being made of the side deal
with the owners of Tri-State. It was only after the sale was approved by the
bankruptcy court, and an attorney for the purchaser learned of the nature of
the side deal, that all the terms of the sale were disclosed to the trustee and
the court. Ultimately, the trustee was able to restructure the agreement with
the purchaser, whereby the Tri-State estate would receive $730,000 for the
Maine property, and the owners of Tri-State would receive nothing. Rosen was
convicted of four counts of federal mail fraud stemming from the misrepresentations
he made to the bankruptcy trustee in this case.

<h3>Representing Debtors in Complex Chapter 11s Is not the Way to Learn Bankruptcy Law</h3>

As noted in the introduction to this article, attorney
Parkhill in the case of U.S. v. Parkhill was
convicted of fraudulent concealment of assets and the improper transfer of
assets from bankruptcy estates by virtue of a complex set of transactions.
Specifically, after the conversion of an involuntary chapter 7 petition to a
voluntary chapter 11 proceeding, Parkhill assisted the principal of the debtor
in transferring various pieces of property and motor vehicles out of the name
of the debtors to a third party for payments of $150,000, which the
debtor's principal received and which were not disclosed in the debtor's
bankruptcy case. Parkhill was not helped by his co-defendant in this case, the
owner of the debtor corporations, who insisted that all of his actions were
taken solely upon the advice of his attorney.<a href="#3" name="3a">3</a>

<h3>Yes, Selling the Entire Business in a Chapter 11 Proceeding Does Require Bankruptcy Court Approval</h3>

The case of United States v. Edgar<a href="#34" name="4a">4</a> shows that forgetting "small" things, such as
obtaining bankruptcy court approval for the sale of all of a chapter 11
debtor's assets, can cause an attorney significant criminal liability. In
this case, the debtor, Dupli Tech Corp., had filed a chapter 11 bankruptcy.
Edgar, acting as the debtor's owner's attorney, negotiated the sale
of the chapter 11 debtor's assets for payments to be made directly to the
owner, which the owner would "use" to pay off or compromise the
bankruptcy claims against the debtor. The owner of the debtor was also given a
lucrative employment agreement under the terms of the sale. Perhaps not
surprisingly, the attorney structured the sale so that the assets and proceeds
would be difficult to trace and the owner of the debtor did not use any of the
proceeds to pay any of the Dupli Tech creditors.

After this "minor oversight" was uncovered,
the subsequently appointed trustee sued the purchaser of the assets and settled
for $300,000, the present value of the payments to be made under the sale
agreement and, with the help of the FBI, obtained the indictment of the
debtor's owner and Edgar for bankruptcy fraud. Given the blatentness of
the fraud in this case, Edgar did not appeal the underlying merits of his
conviction, but rather appealed only certain technical determinations of his
sentencing under the U.S. Sentencing Guidelines.

<h3>How Not to Make 2014 Disclosures—the Most Infamous Bankruptcy Criminal Case</h3>

Although within the scope of this particular article,
the case of U.S. v. Gellene<a href="#5" name="5a">5</a> has already been
discussed in detail by a large number of commentators and will not be rehashed
in any great detail in this article.<a href="#6" name="6a">6</a> The most important lesson that attorneys
can take from this Gellene case is to compare
the findings made by the jury in Gellene—i.e., that Gellene (1) knew of his firm's representation of a
secured creditor, (2) knew under Bankruptcy Rules and Code the representation
had to be disclosed, and (3) deliberately failed to disclose this
representation in order to conceal that information from the court—to the
findings of the Seventh Circuit decision in Matter of Firstmark Corp.,<a href="#7" name="7a">7</a> where the Seventh Circuit found that the inadvertent failure to
disclose a conflict warranted only a fine or a reduction in fees, not
disgorgement and certainly not criminal sanctions. This distinction is at least
some comfort to those, like this author, who have to conduct many of the
conflicts checks in large chapter 11 representations, as it indicates that they
will not go to jail if they merely make a mistake in their affidavits in
support of their firm's retention. Gellene

clearly shows that knowledge and intent to conceal are required for such severe
sanctions.<a href="#8" name="8a">8</a>

The case of United States v. Zehrbach<a href="#9" name="9a">9</a> does not involve the criminal conviction of an attorney for
bankruptcy fraud, but rather demonstrates a common issue chilling competitive
bidding that is prohibited by <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=1…
U.S.C. §363(n)</a> and that often confronts
attorneys. In Zehrbach, the principal defendant,
a businessman knowledgeable in acquiring assets from bankrupt companies,
entered into a series of agreements to "buy out" the bidding
positions of various competitive bidders for the purchase of an airline
manufacturing company from a bankruptcy trustee. After consulting with one of
his attorneys, Zehrbach was informed that his course of action constituted a
bankruptcy crime. Zehrbach dismissed that first attorney's opinion and
sought a second attorney's opinion who, being informed by Zehrbach that
the transactions were "joint ventures" for the purchase of the
debtor's assets, opined that the transactions were, in fact, legal.

Unfortunately for Mr. Zehrbach, his first attorney was
correct, and the sale was set aside under <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=1…
U.S.C. §363(n)</a>; ultimately, Zehrbach was
convicted of bankruptcy fraud. The important lesson from the Zehrbach case that bankruptcy attorneys should note is that the two
attorneys involved in this case, the one who gave proper advice as to the
criminality of Zehrbach's scheme and the other attorney, who carefully
documented the facts given to him, thereby proving he had been lied to by
Zehrbach, were absolved of criminal liability and did not become the subjects
of a criminal prosecution.

<h3>Being Friendly with the Clerk's Office Is One Thing, But...</h3>

Perhaps the strangest bankruptcy-related crime an
attorney has been convicted of is the crime of circumventing the blind case
draw system of assigning judges to bankruptcy cases found in the case of U.S.
v. August.<a href="#10" name="10a">10</a> In August, the attorney was having an affair with a bankruptcy court's
"intake" clerk. The attorney conspired with the intake clerk to
ensure that his cases were not assigned to a bankruptcy judge who was
conservative in awarding attorney fees. While the crime in August is unlikely to be repeated, it does illustrate that any attempt to
manipulate the bankruptcy system in a questionable manner could lead to federal
criminal charges.

<h3>The Sentencing Report (Conclusion)</h3>

The above-discussed cases, while interesting
reading—perhaps on the level of a lurid novel—for those attorneys
who take legal ethics seriously, do represent a serious problem for our
profession in that the public at large, politicians and some members of the
federal judiciary increasingly believe that there is significant amount of
corruption in the bankruptcy bar. This suspicion is not new and can be traced
back to the early investigations of the alleged "bankruptcy rings"
that were thought to control bankruptcy proceedings in the early part of the
1900s. However, whether the extent of such abuses are real, or merely a legal
version of urban legends, is unimportant compared to the fact that even the
mere perception of such legal chicanery has led to proposals for significant
restrictions on attorney representation of debtors, as well as to a general mistrust
of bankruptcy attorneys. The bankruptcy bar should work hard to ensure that
the cases discussed in this article become even more of an aberration than they
already are. Therefore, keep reading this column, and hopefully it will help
you avoid involuntary vacations at federal government expense.

<hr>
<h3>Footnotes</h3>

<a name="1">1</a> <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=1…
F.3d 856 (8th Cir. 1997)</a>. <a href="#1a">Return to article</a>

<a name="2">2</a> <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=1…
F.3d 5 (1st Cir. 1997)</a>. <a href="#2a">Return to article</a>

<a name="3">3</a> This defense did not help the owner
defendant, as his convictions were affirmed by the <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=7…
Circuit. 775 F.2d at 617</a>. <a href="#3a">Return to article</a>

<a name="4">4</a> <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=9…
F.2d 89 (8th Cir. 1992)</a>. <a href="#4a">Return to article</a>

<a name="5">5</a> <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=1…
F.3d 578 (7th Cir. 1999)</a>. <a href="#5a">Return to article</a>

<a name="6">6</a> See, generally, Yochum, "When Conflicts Become Crimes: Professionals
Representing Parties in Bankruptcy," 10 Jour. Bank. Law & Practice
235 (2001), Sept. 29, 1998; Bankruptcy Court Decisions New and Comment,
"Special Issue on Conflicts on Conflicts: Why John Gellene Received the
Sentence He Did." <a href="#6a">Return to article</a>

<a name="7">7</a> <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=1…
F.3d 1179 (7th Cir. 1997)</a>. <a href="#7a">Return to article</a>

<a name="8">8</a> However, significant losses of fees may be
considered crimes by your firm's executive or compensation committee as a
form of criminal activity. <a href="#8a">Return to article</a>

<a name="9">9</a> <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=4…
F.3d 1252 (3rd Cir. 1995)</a>. <a href="#9a">Return to article</a>

<a name="10">10</a> <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=7…
F.2d 400 (6th Cir. 1985)</a>. <a href="#10a">Return to article</a>

Journal Authors

C. R. Bowles

Journal Date

Saturday, March 1, 2003 - 12:00

Bankruptcy Rule

2003