Keith Higginbotham from KPMarch:
Posted: Tue Jul 26, 2016 2:34 pm
Sent: Tue, Jul 26, 2016 10:08 am
Subject: Keith Higginbotham from KPMarch:
072615
To Keith Higginbotham from KPMarch:
As we discussed at lunch program yesterday, I am forwarding you the COMMENT opposing proposed CD CA LBR change to Rule 9011-3( c ).
This proposed change should NOT be adopted for reasons stated in my below comment. Anything you can do (or get word out for others to do) would be good to do.
Not proper for a local rule cannot change (aka replace) the standard set by a FRBP national rule, here FRBP Rule 9011, which mirrors FRCP Rule 11.
Every motion/complaint/response delays proceedings, while the motion/complaint/response is considered and ruled on. So this new proposed standard if you piss me off, by advocating for something I, the Judge, disagree with, I will sanction you, or terrorize you and your client into withdrawing your pleading that advocates for something, I, the Judge, disagree with, by threatening to sanction you. If you dont withdraw your pleading, when I threaten you, I will rule against you on the merits, even if my ruling is reversible error, and I will sanction you, and then you will have to appeal both my erroneous substantive ruling, and the sanctions order. Your client will pay you to appeal the erroneous substantive ruling, but it wonanctions order, so you will have to appeal that yourself (since the sanctions wont just be against your client, the sanctions will be against you), putting in all your time free. So even if you get both the erroneous substantive ruling, and the sanctions order, reversed on appeal, you will still be the loser. No, you cannot count on judges to follow the law, and you cannot count on the good faith of judges, because sometimes judges have an agenda that is contrary to law. Bottom line, sometimes to do your job for your client, you, the attorney need to take positions that are NOT popular with the Judge. So long as the position you take is supported by facts and law, you cant be sanctioned under FRBP Rule 9011. But you CAN be sanctioned, if this new proposed CB CA Local Rule 9011-1 is adopted. CDCBAA bky attorneys should OPPOSE IT being adopted!
The comment period was very short, was over 4th of july, and was not well publicized, or I would have seen it sooner. Please post my foregoing email and comment on CDCBAA website Keith.
Kathleen P. March, Esq.
The Bankruptcy Law Firm, PC
10524 W. Pico Blvd, Suite 212
Los Angeles, CA 90064
Phone: 310-559-9224
Fax: 310-559-9133
E-mail: kmarch@BKYLAWFIRM.com
Website: www.BKYLAWFIRM.com
071816
The Bankruptcy Law firm, PC, by Kathleen P. March, Esq., submits a comment regarding proposed change to CD CA LBR 9011-3(c): This proposed change should NOT be adopted for reasons stated below. Read below please. Yes, this comment is after the deadline, but Court should still consider this comment, because Court did NOT sufficiently publicize this proposed change, and only givein gfrom 6/10/16 through 7/10/16 to comment on a change that is not to take effect til 1/2017, is an unreasonably short time to comment.
Here is what is wrong with the proposed change to LBR 9011-3(c):
Local Rules cannot be CONTRARY/INCONSISTENT to what national rules say. National Rule 9011 (FRBP Rule 9011) specifies, in detail, the conduct that can be sanctioned per Rule 9011, and also, very importantly, requires that a 21 safe harbor be given for anything except filing a bky petition. The wording of proposed LBR 9011-3(c) is NOT the standard stated in Rule 9011(b)(1)-(4). In fact, its not the standard stated in ANY of 9011(b)(1)-(4). The new proposed wording is improper, for being contrary to/inconsistent with present FRPB Rule 9011
The proposed Rule 9011-3(c) standard, of unnecessary motion vague, probably so fatally vague as to violate due process rights of the party or attorney sought to be sanctioned.
In addition, FRBP Rule 9011 has years and years of case law giving additional content to the words used in Rule 9011. In contrast, this new proposed unnecessary motion or unwarranted opposition to a motion LBR Rule 9011-3(c) will have NO case law helping to define those terms. The modifier which unduly delays the course of can action or proceeding does NOT give content, because by definition, filing any motion, or any opposition to a motion causes more delay that NOT filing a motion or opposition to a motion.
So what this new proposed local rules change comes down to, at bottom, is saying if the bky judge does not agree with a pleading, the bky judge can sanction the attorney or party filing the pleading, with no 21 day safe harbor, and NOT using the standard in FRPB Rule 9011. That is wrong. Attorneys (or parties) should not be sanctioned because a bky judge disagrees with a motion or opposition.
Every time a judge rules, the judge is agreeing with some partys pleading, and disagreeing with the other partys pleading, and being on the losing side of a bky judges ruling should NOT be grounds for being sanctioned, particularly as bankruptcy judges sometimes make erroneous rulings, which get reversed on appeal. But any attorney (or party) on the losing side of a bankruptcy judges ruling, could be sanctioned, under this unnecessary motion or unwarranted opposition to a motion, because this proposed standard is so vague. Doing that would be contrary to FRPB Rule 9011, which has specific, narrow, standards for when an attorney, or party is subject to Rule 9011 sanctions.
There is something even worse about this proposed local rule, which is that its improperly broad and vague scope will chill advocacy that is proper, necessary advocacy. A bankruptcy judge who wants to scare an attorney/party into dismissing a motion, or dismissing an opposition, can and will threaten sanctions, to bludgeon the attorney/party, into dismissing the motion/opposition, so the bankruptcy judge can do what the judge wants, even if what the judge wants to rule is contrary to controlling law. Yes, bankruptcy judges do on occasion make rulings that are contrary to controlling US Supreme Court and Ninth Circuit law, and/or contrary to Bankruptcy Code and Rules. Appellate reversals are testament to that. OR the attorney/party can refuse to give in to the judges threats, and then the attorney/party have to appeal both the erroneous bankruptcy judge ruling on the merits, and the attorney/party have to appeal the sanctions. It wonctioned will be appealing, without being paid for that time.
Sent: Tue, Jul 26, 2016 10:08 am
Subject: Keith Higginbotham from KPMarch:
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072615
To Keith Higginbotham from KPMarch:
As we discussed at lunch program yesterday, I am forwarding you the COMMENT opposing proposed CD CA LBR change to Rule 9011-3( c ).
This proposed change should NOT be adopted for reasons stated in my below comment. Anything you can do (or get word out for others to do) would be good to do.
Not proper for a local rule cannot change (aka replace) the standard set by a FRBP national rule, here FRBP Rule 9011, which mirrors FRCP Rule 11.
Every motion/complaint/response delays proceedings, while the motion/complaint/response is considered and ruled on. So this new proposed standard unnecessarily delays proceedings comes down to: if you piss me off, by advocating for something I, the Judge, disagree with, I will sanction you, or terrorize you and your client into withdrawing your pleading that advocates for something, I, the Judge, disagree with, by threatening to sanction you. If you dont withdraw your pleading, when I threaten you, I will rule against you on the merits, even if my ruling is reversible error, and I will sanction you, and then you will have to appeal both my erroneous substantive ruling, and the sanctions order. Your client will pay you to appeal the erroneous substantive ruling, but it wont be worth your clients time/money to pay to appeal the sanctions order, so you will have to appeal that yourself (since the sanctions wont just be against your client, the sanctions will be against you), putting in all your time free. So even if you get both the erroneous substantive ruling, and the sanctions order, reversed on appeal, you will still be the loser. No, you cannot count on judges to follow the law, and you cannot count on the good faith of judges, because sometimes judges have an agenda that is contrary to law. Bottom line, sometimes to do your job for your client, you, the attorney need to take positions that are NOT popular with the Judge. So long as the position you take is supported by facts and law, you cant be sanctioned under FRBP Rule 9011. But you CAN be sanctioned, if this new proposed CB CA Local Rule 9011-1 is adopted. CDCBAA bky attorneys should OPPOSE IT being adopted!
The comment period was very short, was over 4th of july, and was not well publicized, or I would have seen it sooner.
The post was migrated from Yahoo.