Daniel Doyon

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Case 02-66141 Doci96 Filed 10/01/04 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

In re: Daniel Doyon * Bk. Case No. 02-66141-SD
*

* * * * * * *
*

Mare L. Jordan *
*

Vv. * Civil Action No. WMN-04-0050
*

George Leibmann, Chapter 7 *

Trustee, et al. *

*

MEMORANDUM

This is an appeal from a decision of Judge E. Stephen
Derby of the United States Bankruptcy Court for the District
of Maryland significantly limiting the attorney’s fees
recoverable by Appellant Marc L. Jordan for his representation
of Debtor Daniel Doyon in his Chapter 13 Bankruptcy
proceedings. The relevant facts follow.

The Debtor’s bankruptcy was commenced on October 16,
2002, as a no asset, Chapter 7 case. Debtor was represented
by Appellant Marc L. Jordan. With the petition, Jordan filed
the requisite Rule 2016(b) statement setting forth his fee of
$1,500.00 for representing Debtor in the Chapter 7
proceedings. On February 11, 2003, Jordan filed a motion to
convert the case from Chapter 7 to Chapter 13. On February
21, 2003, the Bankruptcy Court granted the motion to convert.

With the motion to convert, Jordan also filed a Rule

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2016(b) Disclosure stating that he had agreed to accept
$1,950.00 for the representation of Debtor in the Chapter 13
case. The Disclosure specified that in return for that fee
Jordan

agreed to render legal service for all
aspects of the bankruptcy case, including:

a. Analysis of the debtor’s financial
Situation, and rendering advice to the
debtor in determining whether to file a
petition in bankruptcy;

b. Preparation and filing of any petition,
schedules, statement of affairs and plan
which may be required;

c. Representation of the debtor at the
meeting of creditors and confirmation

hearing, and any adjourned hearings
thereof;

e. advice and consultation on chapter 13,
preparation of plan, amended schedules,
motion to convert and proposed order.
Pl. 39.+ The Disclosure specifically excluded representation
for “adversary proceedings and contested matters.” Id.? It

also indicated that Jordan had already received $1,000.00 of

the fee from Debtor. Id.

1 The “Pl.” designation referred to the pleading number on
the bankruptcy docket.

? Jordan makes no claim that his representation
encompassed these excluded categories.

2

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On April 30, 2003, less than three months after filing
the Rule 2016(b) Disclosure, Jordan filed a fee application
for $6,142.50 for services rendered to Debtor in the Chapter
13 case. On June 25, 2003, Jordan filed a supplemental Rule
2016(b) Disclosure, making a claim for additional fees in the
amount of $4,292.00. Two days later, on June 27, 2003, Jordan
moved to withdraw his appearance.* The motion to withdraw was

granted on July 2, 2003, and Debtor hired a new attorney to

3 In the motion, Jordan provided no reason for the
withdrawal. In his current pleadings, he is somewhat cryptic,
if not inconsistent, as to why he filed this motion. [In
arguing that his withdrawal should not have influenced the
Bankruptcy Court’s determination of fees, he posits,
“{w]ithdrawal of counsel is governed by the Maryland Rules of
Professional Responsibility” and that “[u]Jnder those rules,
withdrawal is mandatory if the client so requests.” Reply
Brief at 4. He immediately undermines any potential relevance
to this argument with a footnote stating, “Appellant is not
referring to the actual attorney/client relationship with the
debtor in this case but is positing a hypothetical situation.
The debtor has not waived any privileges with respect to
communications with Appellant and has not authorized Appellant
to make any such waiver.” Id. at 4 n.2. Jordan was much more
forthcoming in his representations to the Bankruptcy Court
when arguing for his fees. Waiver or no waiver, in the
hearing before that court on his application for compensation,
Jordan disclosed, “I don’t mind telling you that the only
reason I filed [the motion to withdraw] was simply the time
involved in this was just extraordinarily beyond what I was
able to do. I mean I have a small office and, you know, there
just came a point where there was no - you know, we weren’t
getting paid for the time, the time was being spent and just
couldn’t keep doing it.” December 4, 2003 Hearing Transcript
at 12. It is of note that in his opening brief in this
appeal, Jordan represents that the decision was made by the
Debtor; “[Debtor] directed Appellant not to spend more time on
the matter.” Appellant’s Brief at 4.

3

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whom he had to pay $2,000.00.

Debtor’s Chapter 13 plan was never confirmed as Debtor
was not making plan payments. On September 29, 2003, the
Bankruptcy Court granted a motion filed by Appellee Heidi
Richardson, Debtor's former spouse and current creditor, to
re-convert the case to a Chapter 7.

On December 4, 2003, the Bankruptcy Court held a hearing
on Jordan’s fee application. On December 22, 2003, the
Bankruptcy Court entered its Order Limiting Fees, in which the
court denied Jordan’s request for additional compensation and
limited Jordan’s compensation to the $1,000 already paid. It
is from this order that Jordan now appeals.

The bankruptcy court's findings of fact are reviewed for
clear error and its conclusions of law are reviewed de novo.
In re Park-Helena Corp. 63 F.3d 877, 880 (9 Cir. 1995). The
bankruptcy court's determination as to the proper amount of
legal fees to be awarded is reviewed for an abuse of

discretion, and that discretion is broad. In re Mulberry

Phosphate, Inc., 151 B.R. 948, 949 (M.D. Fla. 1992).

In denying any further compensation beyond what Jordan
had already received, Judge Derby reasoned that Jordan was
“bound by his original fee agreement for the Chapter 13 case”

and “made [no] showing that would justify his claim for

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additional fees.” December 19, 2003 Order at 3-4. Noting
that as Jordan had already represented Debtor in the Chapter 7
phase, the court opined that Jordan “would be hard pressed to
assert that he did not know what he was getting into” when he
agreed to handle the Chapter 13 phase for $1,950.00. Id. at
3. Judge Derby stated that he “rejects the last minute change
of Mr. Jordan’s fee arrangement with Debtor, two days before
he was to withdraw, as having any weight whatsoever.” Id. He
further concluded that even that original flat fee must be
reduced because Jordan failed to complete the representation.
Id. ?

Jordan argues that Judge Derby should not have bound him
to his original fee agreement because “[flees in bankruptcy
cases are not a matter for private agreement, but must are

[sic] controlled by statute.” Reply at 6.5 To the contrary,

* Judge Derby also observed, and Jordan does not dispute,
that “{iln] this district fees for representing a debtor ina
Chapter 13 case normally fell within a range of $1,000 to
$1,500.” Id. at 3. The $1,000 payment that Jordan has
already received, is within that range. While perhaps at the
low end, it is also true that Jordan never completed the
Chapter 13 representation and significant additional
attorney’s fees were required to be paid because of Jordan’s

early withdrawal.

5 As his only support for this proposition, Jordan cites
Massachusetts Mutual Life Ing, Co. v. Brock, 405 F.2d 429 (5%
Cir. 1968). Jordan’s citation to Massachusetts Mutual is
curious. In Massachusetts Mutual, the Fifth Circuit held that
the fees awarded by the district court to the attorney and

5

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because bankruptcy courts are to award fees under § 330 of the
Bankruptcy Code that are comparable to attorney’s fees outside
of the bankruptcy context, bankruptcy courts have looked to
fee agreements between the debtor and the debtor’s counsel as
a measure of reasonableness. See In Re Palladino, 267 B.R.
825, 831 (Bankr. E.D. Ill. 2001) (limiting fees to the terms
of flat fee agreement, and observing “[t]he Court [] views the
attorney/client relationship as one in which the terms of the
engagement should normally be upheld, including the fee
arrangement, so as not to unduly intrude upon the bargain
struck between the parties who have entered into an important
professional relationship”).

That is not to say fee agreements control absolutely.
There will be occasions when an agreed-upon fee, evaluated

under the applicable factors,® is plainly excessive and must

trustee in a bankruptcy case should be significantly reduced
because the district court failed to adequately consider the
public interest of preserving the estate for its creditors.

In enacting § 330 of the Bankruptcy Code, Congress expressly
overruled Massachusetts Mutual on this precise point. Jn re

Public Service Co, of New Hampshire, 93 B.R. 823, 829 (Bankr.
D. N.H. 1988). Whatever precedential value Massachusetts

Mutual might still have, it certainly does not stand for the
proposition for which Jordan cites it.

6 The evaluation of fee applications in this circuit
includes an analysis of the following factors:

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be reduced. There undoubtedly will be other occasions when
unforeseen circumstances, or demands for representation that
fall outside of the agreed-upon fee, warrant an award beyond
the original fee agreement. In this instance, however, the
Court concludes that Judge Derby was well within his
discretion to base his fee award on Jordan’s February 11, 2003
Rule 2016(b) Disclosure.

In arguing before Judge Derby that he was entitled to
compensation beyond his initial agreement, Jordan repeatedly
referenced the 178 docket entries made in what should have
been a relatively straightforward Chapter 13 case. See Tr.
at 3, 9, 11, 33. Judge Derby, however, squarely placed the

blame for the undue expansion of the pleadings and proceedings

(1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required to
properly perform the legal services rendered; (4) the
attorney's opportunity costs in pressing the instant
litigation; (5) the customary fee for like work; (6) the
attorney's expectations at the outset of the litigation; (7)
the time limitations imposed by the client or circumstances;
(8) the amount in controversy and the results obtained; (9)
the experience, reputation and ability of the attorney; (10)
the undesirability of the case within the legal community in
which the suit arose; (11) the nature and length of the
professional relationship between attorney and client; and
(12) attorney's fees awards in similar cases.

Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n. 28 (4 Cir. 1978).

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on Jordan. He opined that “Mr. Jordan appears to have been
pursuing an agenda that involved objectives of the Debtor
other than the economical administration of this case and
other than the securing benefit for the estate.” Order
Limiting Fees at 3.

A review of the record supports Judge Derby’s conclusion
and demonstrates that Jordan’s efforts were generally of no
benefit, either to the estate or to the Debtor. As detailed
in Appellee’s brief, Jordan filed numerous motions and
objections that were without any merit and were denied or
overruled by the Bankruptcy Court. See Appellee’s Brief at 8-
9, 14-15. Other activities for which Jordan sought
compensation are clearly non-compensable under § 330, such as
the 1.2 hours he claims for preparing his fee application.
See In re Copeland, 154 B.R. 693, 703 (Bankr. W.D. Mich. 1993)
(“This court ordinarily will not award attorney's fees for
preparation of fee applications in the routine consumer
chapter 13 case because such work does not benefit the estate
but only the attorney requesting those fees.”)

For the reasons stated, this Court finds no flaw in the
Bankruptcy Court’s reasoning and concludes that Judge Derby's
findings are well supported by the record. Accordingly, the

Court will affirm the decision of the Bankruptcy Court denying

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Appellant’s request for additional attorney’s fees. A

separate order will issue.

/s/
William M. Nickerson
Senior United States District Judge

Dated: September 30, 2004

- + District of Maryland (CM/ECF Live) Page 1 of 1
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Utility Events
1:04-cv-00050-WMN Jordan v. Liebmann

U.S. District Court

District of Maryland

Notice of Electronic Filing

The following transaction was received from eg, Deputy Clerk entered on 9/30/2004 at 3:58 PM EDT
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Case Name: Jordan v. Liebmann
Case Number: 1:04-cv-50

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