In re Long

553 B.R. 266, 2016 Bankr. LEXIS 2379, 2016 WL 3582753
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedJune 24, 2016
DocketCase No.: 1-15-bk-02415-MDF, Case No.: 1-15-bk-02486-MDF, Case No.: 1-15-bk-02675-MDF, Case No.: 1-15-bk-04854-MDF
StatusPublished
Cited by2 cases

This text of 553 B.R. 266 (In re Long) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Long, 553 B.R. 266, 2016 Bankr. LEXIS 2379, 2016 WL 3582753 (Pa. 2016).

Opinion

OPINION

Mary D. France, Chief Bankruptcy Judge

A hearing on confirmation was set on the Chapter 13 plan filed in each of the above cases. In each case either Charles J. DeHart, III, the Chapter 13 trustee (the “Trustee”), filed an objection to counsel’s request for attorneys’ fees, or I raised an issue regarding the fees at the confirmation hearing. The fee requests were challenged because the amounts proposed to be paid through each plan conflicted with the attorney’s Disclosure of Compensation (“2016(b) Statement”), Local Bankruptcy Form (“L.B.F.”) 2016-2(a), the Rights and Responsibilities Agreement (the “R & R Agreement”), or both. The plan was confirmed in each case, but I reserved ruling on the fee request.

Local Bankruptcy Rule (“L.B.R.”) 2016-2 (the “Rule”) was adopted in September 2014, and it became effective for Chapter 13 cases filed on or after October 1, 2014. The Rule governs requests for the payment of compensation by debtors’ attorneys in Chapter 13 cases.

In the course of hearing numerous objections to fee applications after the Rule was adopted, I became aware that attorneys were not applying the Rule as intend[269]*269ed. Accordingly, in addition to ruling on the fee request in each case, this Opinion is rendered to clarify the requirements of L.B.R.2016-2.1

I. Background

A. History of “no-look fees” in the Middle District of Pennsylvania

Before the adoption of the Rule, there was no specific provision in the local bankruptcy rules governing the compensation of debtors’ attorneys in Chapter 13 cases. .When a professional sought compensation from a debtor’s estate, an application was required under the general provisions of L.B.R.2016-1. Despite the requirements of the local rule, a practice developed whereby the Trustee would not object to a request for the payment of fees through a Chapter 13 plan if it did not exceed a certain amount, adjusted periodically by the Trustee. The trustee-imposed fee limit was referred to as a “no-look fee.” The Court gave tacit approval to this procedure, which simplified the fee review process in Chapter 13 cases.

By 2012, I had concluded that the nature and extent of services being provided for the same fee amount varied widely among practitioners appearing before me. Concerned about the growing disparity in services being offered for the no-look fee, the Court established a fee committee to study the matter and to make recommendations. After spending approximately one year evaluating the local rules and standing orders of other bankruptcy courts and analyzing current local practices, the committee proposed a new rule specifically addressing the compensation of debtors’ attorneys in Chapter 13 cases, which, with some amendments,. was adopted in the Rule.

The comment to the Rule explains its purpose as follows:

L.B.R.2016-2 is being adopted as of September 1, 2014, to provide for specific procedures for the approval of attorneys’ fees in chapter 13 cases. The new rule will apply to chapter 13 cases which are filed on or after October 1, 2014. The' general rule will be applicable to attorneys who have agreed to provide services using the lodestar approach. A fee application form is adopted as L.B.F. 2016-2(b). To provide a more efficient means of approving fees in chapter 13 cases, a presumptively reasonable fee is being adopted; this will enable attorneys to obtain approval for fees in certain amounts without filing a fee application. The rule also adopts a Rights and Responsibilities Agreement form to be completed by all represented debtor(s) and their attorneys. The Agreement specifies the services an attorney will perform, if required under the circumstances of a particular case, as well as the responsibilities of the debtor(s) to assist in the prosecution of the case. The Agreement also will specify the compensation arrangements agreed to by the debtor(s) and the attorney. The rule also provides for a Request for Payment of Chapter 13 Compensation and Expenses to be filed prior to confirmation to allow the chapter 13 trustee to determine the amount of fees that will be paid through the plan. The rule also provides that when a case is converted or dismissed and the chapter 13 trustee is required to return payments made to the debtor(s), counsel may request the payment of outstanding attorneys’ fees.

[270]*270A presumptively reasonable fee (“PRF”), which is actually a range of fees, was adopted as an alternative to the traditional lodestar approach. Unlike the old no-look fee, to take advantage of the streamlined approval process, an attorney is required to perform all ordinary and customary services through confirmation of the plan. Concomitantly, the Court adopted the R & R Agreement so a debtor would know at the beginning of the ease whether the attorney was requesting a specific flat fee for services through confirmation or billing on an hourly basis. The R & R Agreement was adopted not only to clarify the' responsibilities owed by an attorney to his client, but also to explain the client’s obligation to cooperate with the attorney.

Neither the use of a presumptively reasonable fee nor the adoption of a rights and responsibilities agreement are unique to this Court. During the process of drafting the Rule, the fee committee adapted forms developed and used successfully in other jurisdictions. See, e.g., Rights and Responsibilities of Chapter 13 Debtors and Their Attorneys, EDC 3-096' (Bankr. E.D.Cal.); Chapter 13 Agreement Between Debtor and Counsel, Rights and Responsibilities of Chapter 13 Debtors and Their Attorneys, Local Form 8 (Bankr.D.Mass.); Declaration of Rights and Responsibilities of Chapter 13 Debtors and Their Attorneys, Local Form for Toledo and Canton Divisions (Bankr.N.D.Ohio); Minn. Local Rule 2016-l(d) (providing for simplified application process for flat fees in Chapter 13 cases); Mont. Local Rule 2016-l(b) (providing for a “presumed” reasonable fee in Chapter 13 cases if the attorney uses a specified retention agreement and the plan is confirmed); In re Debtor’s Attorney Fees in Chapter 13 Cases, 374 B.R. 903 (Bankr.M.D.Fla., Tampa Div., 2007); W.D. Pa. Local Rule 2016-1 (providing for a “no look attorney fee” in Chapter 13 cases); E.D. Pa. Local Rule 2016-2 (providing for a short form application process for attorneys receiving certain flat fees for services).

Under section (a) of the Rule, if a debtor is represented by an attorney, both parties must execute the R & R Agreement. If the R & R Agreement provides for the payment of the PRF, an attorney is not required to file the fee application otherwise required under section (b). Rather, the attorney may submit an abbreviated request for payment. The Rule specifically provides that “[w]hen an attorney agrees to accept a presumptively reasonable fee, all covered legal services rendered by the attorney through confirmation of the plan, must be included in the fee” unless the attorney can demonstrate to the court that the services exceed the “normal and customary services in a chapter 13 case_” L.B.R.2016-2(c), (e).

The R & R Agreement sets out these alternative compensation arrangements, as does the District’s Model Chapter 13 Plan. See L.B.F. 3015-1. For services rendered through plan confirmation, an attorney and his client may agree either to a fee calculated through a lodestar analysis or to the PRF, but not both. As the R

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Cite This Page — Counsel Stack

Bluebook (online)
553 B.R. 266, 2016 Bankr. LEXIS 2379, 2016 WL 3582753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-long-pamb-2016.