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Vol 12, Num 1 l March 2014

Technology and Intellectual Property

► In This Issue:

In re Kimberly Nifong Mitchell, Case No. 11-08880-8-ATS (Bankr. E.D.N.C. Sept. 20, 2013)


by Brian Behr

Office of the U.S. Bankruptcy Administrator (E.D.N.C.)
Raleigh, N.C.

In re Kimberly Nifong Mitchell, Case No. 11-08880-8-ATS (Bankr. E.D.N.C. Sept. 20, 2013), is a chapter 11 case involving the law firm of Oliver, Friesen, Cheek PLLC (OFC) and Bankruptcy Code §§ 503(b)(1)(A) and 507(a)(2). OFC was disqualified due to an undisclosed potential conflict of interest between two of its clients. The basis of the conflict was an eve-of-bankruptcy property transaction between the debtor and a corporate entity. OFC did not represent the corporate entity, but did represent John Glass Hamilton, Sr., the 50 percent owner of the entity, who was also a chapter 11 debtor. In the disqualification order, the court found that the facts of the property transaction “create a colorable fraudulent conveyance claim” and that OFC “owed a duty to the debtor to fully investigate the nature of the transaction and file an action to recover for fraudulent conveyance if necessary. This obligation is at odds with OFC’s duty not to undo the transaction in Mr. Hamilton's case.” In re Mitchell, No. 11-08880-8-ATS (Bankr. E.D.N.C. June 14, 2012) (Leonard, J.).

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Trustee Compensation: Facts Justified Reduction to Less than 50 Percent of Statutory Commission Calculated Pursuant to 11 U.S.C. § 326(A)


by Candace Carlyon

Carlyon Law Group, PLLC
Las Vegas

In In re Rowe,[1] the court considered the propriety of deviating from the percentage compensation set forth in Bankruptcy Code § 326(a) based on the chapter 7 trustee’s failure to perform as required. This case illustrates the effort needed to reconcile the tension between recognizing the trustee’s fee as a “commission” calculated by the formula set forth in § 326(a) and the court’s directive to award “reasonable” compensation to trustees and other professionals.

Trustee Gold sought payment of his “commission” pursuant to § 326(a) in the amount of $17,254.61. Finding that Gold “did not properly or timely complete his duties as trustee,”[2] Bankruptcy Judge Robert G. Mayer awarded the reduced amount of $8,020 (based on the trustee’s hourly rate).

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Texas Bankruptcy Court Elucidates Application of Pro-Snax Standard to § 330 Fee Applications


by Robert M. Charles

Lewis Roca Rothgerber LLP
Tucson, Ariz.

In the context of five firms’ fee applications exceeding $5.7 million, the U.S. Bankruptcy Court for the Northern District of Texas in Amarillo thoughtfully reviewed the cases applying the Fifth Circuit’s Pro-Snax[1] decision that fees may be awarded under Bankruptcy Code § 330(a)[2] when the services “resulted in an identifiable, tangible, and material benefit” to the estate. The court rejected the idea that success must be proven as a condition of a fee award. Instead the fees may be allowed where they provided an enhancement or benefit to the estate at the direction of an estate representative acting within its sound business judgment.[3]

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Trying to Clear the Fog over Blogs


by Jamie L. Edmonson

Venable LLP
Wilmington, Del.

Two recent ethics opinions issued by the New York State Bar Association’s Committee on Professional Ethics,[1] as well as a recent decision from the Virginia Supreme Court,[2] are spotlighting some of the issues surrounding the ethical standards regarding the propriety of attorney blogs and the contents thereof.
NYSBA Opinion 912: “Publishing Criticism of Other Attorneys”

Opinion 912, issued on March 5, 2012, holds that the New York Rules of Professional Conduct do not prohibit a lawyer from hosting or participating in a blog dedicated to publishing factually accurate criticism of another lawyer’s professional conduct. The New York Committee on Professional Ethics initially looked to New York Rule 8.2 for guidance; however, that rule only addresses lawyer criticism of members of the judiciary.[3] There is no comparable provision specifically addressing public criticism of a lawyer by another lawyer.

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Annual Spring Meeting Topics Announced

The Ethics & Professional Compensation Committee has finalized their plans for the 2014 Annual Spring Meeting! Working with the Business Reorganization and Secured Credit committees, the committee will present the session titled “Dilemmas of Dying Businesses — Representing Businesses on Death’s Door: Practical and Ethical Issues Representing Businesses on Death’s Doorstep.” The conference is back in DC at the JW Marriott, on April 24-27 this year! Check out the full schedule to review the complete list of excellent panels, esteemed speakers and to register.
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Annual Best of ABI 2013: The Year in Business Bankruptcy Available Online

The best ABI Journal articles and selected papers from ABI's top-rated educational seminars are compiled in this must-have reference, which covers the most important developments in business bankruptcy for 2013. This edition delves into such timely topics as municipal bankruptcy, avoidance actions, intercreditor, confirmation and post-confirmation issues, jurisdiction and venue, and much more, and also features relevant case summaries drawn from ABI's Volo site.

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