In re Champagne Services, LLC

560 B.R. 196, 2016 Bankr. LEXIS 3650, 63 Bankr. Ct. Dec. (CRR) 57, 2016 WL 5854209
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedOctober 6, 2016
DocketCase No. 16-11683-RGM
StatusPublished
Cited by1 cases

This text of 560 B.R. 196 (In re Champagne Services, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Champagne Services, LLC, 560 B.R. 196, 2016 Bankr. LEXIS 3650, 63 Bankr. Ct. Dec. (CRR) 57, 2016 WL 5854209 (Va. 2016).

Opinion

MEMORANDUM OPINION

Robert G. Mayer, United States Bankruptcy Judge

This case was before the court on the debtor’s application to employ counsel (Docket Entry 14), the United States trustee’s responses and supplemental objection (Docket Entries 16, 25 and 42) and the debtor’s response (Docket Entry 45). The application will be denied without prejudice.

[198]*198The Employment Application and the Retainer Agreement

The debtor filed an application to employ counsel and his law firm. The Verified Statement signed by proposed counsel stated that there were no connections between proposed counsel and the creditors, parties in interest, their respective attorneys and accountants, or the United States trustee. However, he stated that the law firm had previously represented the debtor in various unrelated matters such as “defense of warrant in debt, demand letters and employment disputes.” Verified Statement at ¶¶ 1-3. The United States trustee replied that the Verified Statement should “disclose the status of the prior litigation, dates when the representations occurred, and the amount of money paid” for the matters. In addition, the United States trustee asked that the retainer agreement be filed with the court. The debtor did not file any additional disclosures or the retainer agreement but provided the United States trustee with additional information about the prior engagements. At the conclusion of the hearing on the application, the court was satisfied that the prior representations did create actual conflicts of interest and announced that it would approve the employment application if the debtor filed the retainer agreement and the United States trustee had no further objections.

The debtor emailed a copy of the retainer agreement to the United States trustee but did not file it with the court. After reviewing the retainer agreement, the United States trustee filed additional objections and attached the 16-page retainer agreement as an exhibit. The United States trustee noted that Geoff Crawley, the debtor’s sole owner, guaranteed proposed counsel’s fees; that Mr. Crawley was a codebtor on various corporate debts; and that Mr. Crawley was paid $167,088 within one year prior to the filing of the petition in this case. The retainer agreement also contained two provisions of concern to the United State trustee. The United States trustee set them out in her objection:

(D) “Client [Debtor] and Guarantor [Mr. Crawley] hereby irrevocably guarantee that the Client shall not declare the Firm as a creditor in any possible bankruptcy proceeding and that the obligation for payment of any fees shall be reaffirmed after any discharge in bankruptcy.” ¶16, page 8, retainer agreement.
(E) “Client and Guarantor hereby grant us a lien on any and all claims or causes of action that are subject to our representation under this Agreement. Our lien will be for any and all sums owing to us. The lien will attach to any recovery you may obtain, whether by arbitration award, judgment, settlement or otherwise.” ¶ 17, page 8, retainer agreement.

Retainer Agreement at ¶¶ 16-17.

The debtor, in response to the United States trustee’s new objections, argued that the personal guarantee of the sole member of the debtor was not a per se conflict that disqualified counsel and that there was no actual conflict of interest. At the hearing on the objections, proposed counsel confirmed that Mr. Crawley was the sole member of the debtor limited liability company. See also Statement of Financial Affairs at ¶ 28.

The court raised additional concerns with the employment application and the retainer agreement. The employment application stated that the debtor paid an initial retainer to proposed counsel of $2,000 “for legal services in this case and for the filing fee and other anticipated expenses.” Application at ¶3. However, the retainer agreement stated that the debtor would pay a retainer of $96.25. Retainer Agreement at ¶ 7. Proposed [199]*199counsel’s Rule 2014 Disclosure of Compensation of Attorney for Debtor stated that the agreed retainer was $10,000 of which $3,500 had been paid. The debtor’s Statement of Financial Affairs stated that there were no payments made within the year preceding the filing of the petition related to bankruptcy. Statement of Financial Affairs at ¶ ll.1

There were other concerns with the retainer agreement. It proposed to pay counsel travel time on a “portal to portal” basis. While the court understands proposed counsel’s concern, the established protocol in this court is to pay travel time at one-half counsel’s hourly rate. There was no disclosure of the proposed departure from the protocol in the employment application.

The retainer agreement provided that services would be charged in minimum increments of one-quarter of an hour. There was no disclosure of this in the employment application. In this court, the minimum increment is one-tenth of an hour. In re Computer Learning Centers, Inc., 285 B.R. 191, 214 (Bank.E.D.Va. 2002). There are other minimum fees, such as one hour for any appearance outside the office; one-quarter hour for any telephone call; one-quarter hour for any email; and one-half an hour for any motion or order except an initial pleading for which there is a minimum of one hour. There are two hourly rates for counsel — one for out-of-court work and the other for trial work. Dual rate structures are not generally allowed. Id. at 217-18.

The retainer agreement required an additional trial deposit within one week after the debtor is notified of the amount if it appears that a matter will proceed to trial. “If the trial deposit is not made within ten (10) days from the date of notification, or at least ten (10) days before trial, you understand and agree that the Firm will withdraw as counsel of record.” Retainer Agreement at ¶ 8.

The retainer agreement granted proposed counsel a lien. It also asserted an attorney’s lien on “the cause of action for the fees incurred and owed by the Client to the Firm, against assets, marital property, spousal support and/or child support.” Id. at ¶ 19. “If the Firm collects any funds on behalf of the Client, said funds will be used to pay the Client’s current account balance with the Firm, if any. The remainder, if any, will be turned over to the Client.” Id. at ¶ 20. There is a confession of judgment provision. Id. at ¶ 14.

The retainer agreement provided that proposed counsel would recover his attorney’s fees in any collection matter, even if proposed counsel represents himself. The attorney’s fees will not be less than 33% of all monies due to proposed counsel. See Baker Botts LLP vs. ASARCO LLC, — U.S. —, 135 S.Ct. 2158, 192 L.Ed.2d 208 (2015). Interest will be charged at the rate of 18% per annum. Retainer Agreement at ¶ 7.

' Monthly invoices were to be emailed to the debtor and proposed counsel could withdraw from the case if payment is not made within 10 days of billing. Id. at ¶ 12. If a billing is not disputed in writing within thirty days after receipt, it “will be presumed to be correct and fair.” Id. at ¶ 10.

The retainer agreement contains a five-page bankruptcy addendum. It sets out the [200]*200fees in chapter 7, 11 and IB cases, the fee in a chapter 11 case being a retainer of $8,500 against an hourly rate.

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Cite This Page — Counsel Stack

Bluebook (online)
560 B.R. 196, 2016 Bankr. LEXIS 3650, 63 Bankr. Ct. Dec. (CRR) 57, 2016 WL 5854209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-champagne-services-llc-vaeb-2016.