Robert G. Mayer, United States Bankruptcy Judge
Three of the four owners of Gordon Properties, LLC, are defendants in this case. Two of the owners ask that their counsel be permitted to withdraw and that counsel for the debtor be permitted to represent them.
The three owners have the right to retain counsel of their choice, but the range of their choice is affected by counsel's other representations. In this instance, counsel of their choice is already representing the debtor. An attorney must satisfy the requirements of 11 U.S.C. § 327(a) to be employed by a chapter 11 debtor and must continue to satisfy them in order to remain employed by the debtor. There are two essential elements. Counsel may not "hold or represent an interest adverse to the estate" and must be a disinterested person as defined in 11 U.S.C. § 101(14). Complications in satisfying
The Court of Appeals for the Fourth Circuit addressed the employment of professionals in Harold & Williams Dev. Co. v. United States Trustee (In re Harold & Williams Dev. Co.), 977 F.2d 906 (4th Cir. 1992). The question presented was whether one individual could be employed by a chapter 11 debtor in possession as both its attorney and its accountant. It held that there was no per se prohibition and remanded the case so that the bankruptcy court could exercise its discretion in determining whether to approve the dual employment. The Court stated:
In re Harold & Williams Dev. Co., 977 F.2d at 909-910 (citations omitted).
The Court of Appeal continued its analysis of § 327(a) by noting that while Congress had established certain per se rules prohibiting appointment of professionals for a debtor, "courts must take care not to fashion absolute prohibitions beyond those legislatively mandated without some measure of assurance that the purposes of the Bankruptcy Code always will be served thereby." Id. at 910. It concluded:
Id. at 910 (citation omitted). The Court remanded the case to the bankruptcy court to exercise its discretion with respect to the proposed employment. In short, the proposed professional must first satisfy the adverse interest and the disinterested
This case does not involve the employment of counsel by a chapter 11 debtor, but, instead, the employment of the debtor's counsel by non-debtors in other litigation. The employment, though, is directly related to the bankruptcy case. Employment affects the ability of Mr. King and his law firm to continue to represent the debtor.
The simultaneous representation of the debtor and the debtor's owners in this case violates the adverse interest test in § 327(a). It is not the prospective clients' ownership interest in the debtor per se that is the disqualifying factor, but the combination of being both owners and creditors of the debtor. There are four members of the debtor limited liability company.
The bankruptcy case was commenced on October 2, 2009, when Gordon Properties filed a voluntary petition in bankruptcy under chapter 11 of the United States Bankruptcy Code. There has been extensive litigation in this court between the debtor and First Owners' Association of Forty Six Hundred Condominium ("FOA"). There have been several suits in this court and state court and an arbitration proceeding. As a result of the extensive litigation in this court, this court disallowed FOA's proof of claim for $315,673.36
The eleven members alleged that Gordon Properties filed this bankruptcy for an improper purpose and that it used improper means to take over the board of directors. They sought declaratory and injunctive relief, essentially to invalidate the election of the three Gordon Properties-affiliated directors to the board of directors and to prevent the board from concluding a settlement agreement. It also sought damages against the three Gordon Properties-affiliated directors for breach of fiduciary duties as directors.
The debtor is a limited liability company and the owners have full and direct management control over it. At the same time, they are the debtor's largest creditor. The loans are secured by the debtor's real estate. The debtor has not had sufficient cash flow to pay all of its expenses, particularly its legal fees, without the substantial loans from the owners. The litigation in this bankruptcy has been very expensive. There are indications that the combined attorney's fees of both FOA and the debtor exceed $2 million. For the debtor's part, it was authorized to borrow $1.7 million from its owners. Part of this was undoubtedly for payment of attorney's fees. Another portion was used to fund its wholly-owned subsidiary, Condominium Services, Inc., ("CSI") which is also in bankruptcy in this court. The funding was made as an equity contribution from Gordon Properties to CSI. FOA holds a judgment against CSI for $448,446.44.
The Monthly Operating Report for March 2013, the most recent filed with the court, illustrates the issues. Three law firms have been employed by the debtor. Fee applications totaling $1,046,142 have been approved, however, the March Monthly Operating Report states that only $721,396 of those fees have been paid. At the same time, the accounts payable are stated as $40,012.
The first Monthly Operating Report, for October 2009, reflects an investment in CSI of $726,066. The most recent Monthly Operating Report shows an investment in CSI of $1,024,266, an increase of almost $300,000.
CSI's March 2013 Monthly Operating Report contains an Income and Expense Statement which shows the current period and year-to-date income and expenses and the yearly budget. The yearly budget shows management fees of about $340,000 of which about $180,000 is from third-party condominiums and homeowner associations.
The relationships between Mr. King's prospective clients, Lindsay Wilson, Bryan Sells and Elizabeth Greenwell, and the debtor place them as individuals with interests adverse to the debtor. They are directors of FOA, the debtor's single largest non-insider creditor. The three owners have been authorized to loan the debtor $1.7 million. The March 2013 Balance Sheet shows an outstanding loan from the owners of $1,171,842.00. It also shows accrued but unpaid interest on the credit line to "Bryan" and "Julia" of $96,440.92 and $97,039.21, respectively, presumably meaning Bryan Sells. It is clear that the three owners, as creditors, control the debtor. They can fund the debtor to the extend they deem appropriate, without regard to whether funding or withholding funding is in the best interests of the debtor. The debtor has borrowed more money from the owners than FOA, unsuccessfully, claimed in its proof of claim and FOA's judgment against CSI combined. The debtor fought a long, hard and expensive fight over voting rights — a collateral issue — and when it was successful, elected the three individual owners to the FOA board of directors. That board chose the debtor's subsidiary, CSI, to manage the affairs of FOA. The combination of all of these factors create an interest adverse to the debtor and preclude an attorney from representing both the owners and the debtor.
Even if these factors did not create an adverse interest, the court would exercise its discretion to disapprove the employment because of the manner in which the parties have conducted the bankruptcy case. The court is not willing to lay the blame for the manner in which this case has been conducted entirely at the feet of one side. It is common that opposing sides are unhappy with each other and antagonistic. Here, though, everything gives the appearance that the interaction
One plaintiff in this suit sought to withdraw. The three owners had no objection, provided that they were able to reserve their right to seek fees and costs against the individual. The fees and costs to this point should be, at best, modest although in this case the court would not be surprised if they exceeded modesty. Moreover, the owners have asserted — and it appears that the FOA board on which they sit has agreed — to indemnify them for their fees as provided by FOA's bylaws. Whatever the merits of the owner's request to reserve their rights as to fees and costs, the request cannot help but be intimidating to the other ten plaintiffs whose counsel at the same hearing announced that it was likely that they, too, would seek to dismiss their complaint. The court notes that the debtor sued the prior directors in this court and again in state court.
At the same hearing, the debtor threatened to withdraw from the settlement. It, of course, cannot do so without leave of court. The holding in In re Frye, 216 B.R. 166 (Bankr.E.D.Va.1997) (Bostetter, C.J.) is equally applicable here:
Id. at 174.
The owners assert Ms. Wilson removed the state court suit to this court as a representative of the debtor and argue that the adversary proceeding is essentially against the debtor although not a party to the suit. They conclude that Mr. King, as debtor's counsel, properly made an appearance for Ms. Wilson and can also represent all three of them without jeopardizing his representation of the debtor.
These circumstances raise issues that must be addressed and resolved. There may be no substance to the matters, but the integrity of the settlement process depends upon knowing that. The open, transparent and fair resolution of competing claims is one of the objectives of the bankruptcy system. In ordinary litigation, there are only two parties — maybe a few. They are able to and are responsible for protecting their own interests. In bankruptcy there is a community of creditors and parties in interest and the resolution of any of the many claims that may exist has an impact on other members of the creditor community. The bankruptcy court must be sensitive to these considerations and assure that the resolution of claims is fair and transparent to all creditors and parties in interest. In doing this, the court not only protects the creditor community but also the bankruptcy estate. Appointing counsel for the debtor or permitting counsel to continue as counsel for the debtor should reflect these concerns. Harold & Williams Dev. Co. v. United States Trustee, 977 F.2d at 910.
One critical aspect of small corporate cases is that the owners understand the difference between their personal interests and the interests of the debtor. In this case, that can best be achieved by separate counsel. It is true that the owners will make the decisions for the debtor in their capacity as managers of the limited liability company, but requiring separate counsel enables each counsel to give candid advice in light of the client he represents and not be concerned or affected by the competing roles the owners have in the case. In the end, if the owners cannot distinguish between their roles as individual owners or creditors and as managers of a debtor in possession, the appropriate remedy is the appointment of a chapter 11 trustee or conversion of the case to chapter 7.
The combination of the ownership and creditor relationship in this case creates an adverse interest that precludes the same attorney from representing both the owner-creditors and the debtor. In addition, it is not appropriate for the same attorney to represent both the owners and the debtor in this case and the court will exercise its discretion to deny the simultaneous representation. The bankruptcy estate and the creditors are better served when the debtor and the owners are separately represented.
This conclusion is reenforced by the reason given by the three owner-creditors. They simply want to reduce their expenses by consolidating their defense in this case in a single law firm so that they will avoid duplication of effort and fees. That is a reasonable consideration, but that can also be achieved by having Blankingship & Keith which represents two of the owners represent all three of them.