StayViolation.Com

Lead Them Not Into Temptation

The problem for many big corporations, insurance companies, financial institutions and even consumers to a lesser degree is that it is easy for a lawyer to lead them into temptation.  To the lawyer it is the means of getting paid more per case.  To the entity it is the feeling of feeling vindicated, even if the final result does not necessarily turn out that way (kind of like the last act of defiance).

We all know lawyers that do this.  Not only do we know who they are, they know who they are.  They probably live a little better than the rest of us, they are never in their offices because they are always in depositions somewhere, and they probably have the best hourly and collection rates around.  In East Texas we say that they are "Board Certified in Billing".

From my perspective typically representing the Plaintiffs, it comes at me this way.  "My client does not think it did anything wrong".  Or, their client wants to argue that a 1949 decision out of Puerto Rico represents a line of cases that represents good law, even if it goes against every decision in the circuit in which the suit resides.  Or, the one I love the best, is that the attorney is concerned not for his client, but what message this sends if he allows his client to settle this claim.  There is of course the so-called "Wal-Mart Defense" in which not only will there be no settlement, they will try to bury you regardless of the costs, for the principal of the thing.  It has to be the delight of those attorneys who think to highly of themselves to convince their clients that this is a viable option.

The problem for many big corporations, insurance companies, financial institutions and even consumers to a lesser degree is that it is easy for a lawyer to lead them into temptation.  To the lawyer it is the means of getting paid more per case.  To the entity it is the feeling of feeling vindicated, even if the final result does not necessarily turn out that way (kind of like the last act of defiance).

We all know lawyers that do this.  Not only do we know who they are, they know who they are.  They probably live a little better than the rest of us, they are never in their offices because they are always in depositions somewhere, and they probably have the best hourly and collection rates around.  In East Texas we say that they are "Board Certified in Billing".

From my perspective typically representing the Plaintiffs, it comes at me this way.  "My client does not think it did anything wrong".  Or, their client wants to argue that a 1949 decision out of Puerto Rico represents a line of cases that represents good law, even if it goes against every decision in the circuit in which the suit resides.  Or, the one I love the best, is that the attorney is concerned not for his client, but what message this sends if he allows his client to settle this claim.  There is of course the so-called "Wal-Mart Defense" in which not only will there be no settlement, they will try to bury you regardless of the costs, for the principal of the thing.  It has to be the delight of those attorneys who think to highly of themselves to convince their clients that this is a viable option.

Damned If You Do, Damned If You Do Not

You have really got to feel for Tenny Zahn, whether you agree or not with the outcome of her confirmed plan.

Essentially, Ms. Zahn found herself in the strange situation where she was aggrieved by her own proposed plan.  This is so because she was left with the Hopson's choice of proposing a Chapter 13 plan that she herself did not want, or risk having her Chapter 13 case dismissed.  So she chose to file the plan required of her and then file an objection to her own plan.  Neither the Bankruptcy Court of the BAP seemed to appreciate such ingenuity, but the Court of Appeals did.

In Tenny Shikaro Zahn vs. Richard Fink the Eighth Circuit Court of Appeals found that Tenny Zahn was an aggrieved party allowing the appeal of the confirmation of her proposed Chapter 13 plan to go forward.

Initially the Bankruptcy Court denied confirmation of Ms. Zahn's Chapter 13 plan because she had failed to include distributions from her non-filing husband's individual retirement account (IRA).  She then appealed that denial of confirmation to the Bankruptcy Appellate Panel (BAP).  The BAP dismissed her appeal as being interlocutory.  Having little choice, Ms. Zahn then proposed a new plan that included the IRA distributions, but filed an objection to her own plan.  The Bankruptcy Court approved this plan over Ms. Zahn's objection.  So, then she appealed the confirmation of that plan in that the decision was not now interlocutory.  The BAP dismissed this appeal as well stating Ms. Zahn lacked standing to appeal the order granting confirmation of her own amended plan because she was not an aggrieved party.  The BAP stated, "a party cannot prosecute an appeal from a judgment in its favor", reasoning that "[w]hen the court confirmed her plan, [Zahn] got all of the relief for which she asked".

The Eighth Circuit stated simply "there is a flaw in the BAP's reasoning".

The Circuit court stated that Ms. Zahn "was forced, over her express objection, to propose an amended plan" and "amended her plan with provisions she believed were erroneous and not required by the Bankruptcy Code, in order to avoid dismissal".  As a result Ms. Zahn can appeal a judgment that was not in her favor and which was prejudicial toward her.  Given these facts, Ms. Zahn was an aggrieved party.  "Not to allow a debtor to appeal confirmation of her own plan would require a debtor to comply with a plan that contains provisions the debtor does not believe are required by the Bankruptcy Code, while losing her right to appeal those provisions".

To me this is much like coercing a confession out of some criminal defendant, and then telling him he cannot appeal his conviction because of the confession.

Wizard Of OZ

Someone recently compared what we attorneys do as being something similar to the Wizard of Oz, in  that what is behind our organizations might be a little smaller than and less intimidating than as we try to make it appear.

Maybe so, but behind everything what we are trying to do is pin a conscience on corporations, banks, finance companies and creditors that pretend to tear their clothes and gnash their teeth over having to pay a little recompense to a financially vulnerable person to whom they have treated badly.  At the same time, most of the multi billion dollar corporations do not think twice of paying their badly performing management hundred million dollar compensation packages or in spending, like Citibank, hundreds of millions to change their logo from one side of their name to another side of their name on all of their signs and print material.

I had a major national bank recently tell me in an email that it would not be "bullied" by my debtor who was in bankruptcy.  Really?  Bullied by a debtor who was just minding his own business and wanted to be left alone from the constant harassment he was receiving despite the fact the lender knew it had been enjoined from this behavior and the fact that the bankruptcy attorney had warned the bank that it was violating the automatic stay.  And, what did the lender find as being bullied.  The Debtor asking them to stop, pay him $500.00 for his time in this matter, and to pay his attorneys' fees of a few thousand dollars that he had not wanted to spend but for the fact that the lender would not stop its activities when politely asked to obey the Court's order.

The last refuge is bankruptcy court, and in this the debtor is suppose to be safe for unilateral action without the knowledge and concern of the bankruptcy court.  And, when big business and big lenders do not obey the law we are increasingly fighting a war of hyperbole.

Not only bankruptcy, but predatory lending, junk fees, the inability to solve any problem or concern of a customer without litigation shows how the essential problem of big lenders and big business and big law firms that they have ceased to serve their customers.  We all feel it.  We are not now trusted customers as we feel more like targets.

Government offers few protections with the exception of the bankruptcy courts.  As a result, the Bankruptcy Code has become the de facto Code of Conduct that should be imposed on all corporations and all lenders.  Should it be so?  Maybe not, but that is what our government has left us, and they have left it to the debtors to enforce this Code of Conduct themselves.

Everybody needs a conscience.  Only it either does not come naturally to big business and those in finance or it is lost in the hierarchy.  It is necessary to ensure that individual actions do not violate a group's moral norms. Conscience consists in the internalization or acceptance of a group's moral norms as correct and overriding one's self-interest when they conflict.  These big lenders and big business do not do override, and these corporations desperately need a conscience to monitor and control their behavior.

William Langewiesche wrote in The Atlantic in November 2001: "The greatest pyramids ... are made not of stone but of people: they are the vast bureaucracies that constitute society's core, and they function not necessarily to get the "job" done but to reward the personal loyalty of those at the bottom to those at the top."  I tend to think he is right.

Adam Smith’s first major work was the Theory of Moral Sentiments. He understood, as an ethicist, that the mechanism of the “invisible hand” would be most efficient if self-interest was restrained by conscience. With remarkable prescience Smith warned that corporations would slip the restraints of human conscience.  These big companies and lenders have taken on a life of their own.  These are entities without a conscience with the potential to wreak havoc on the societies that have created them.

So, what is our job?  It is, I think, to try as best we can in individual cases to demand the respect of these big institutions and try to pin to them a little conscience -- a little concern -- as to what they do.

Barrett Burke Wilson Castle Daffin & Frappier (BBWCDF)

At what point does the law firm of Barrett Burke Wilson Castle Daffin & Frappier become toxic?

Let me say that I have known Mary Daffin for years.  She is one of the most gracious and upstanding people that I know.  She has achieved wonders helping this firm grow into the powerhouse that it is.  She has always been open, honest and above board with me.  The problem is, due to the size of the law firm, and the enormous duties undertaken, we do not get to deal with Mary Daffin.  So we have to say, despite Mary Daffin, that with every hit the firm takes and with sanction it receives, BBWCDF seems to redesign itself into some organization that is more discordant, more shrill, more mischievous, more authoritarian, and more impervious in its approach.

This now is nowhere more evident than in how it has decided to handle its adversary proceedings.

New Site Attempts To Recycle Pacer Documents

As mentioned on Robert Ambrogi's Lawsites, Carl Malamud and his public.resource.org are trying to "liberate" government documents, and his latest project is Recycle Your Used Pacer Documents!.  As you know, Pacer requires users to register and to pay a fee of 8 cents a page.  Public.resource.org believe that PACER's registration requirement and fees create work to deny the public access to Pacer.  Therefore, the site will provide a way for Pacer users to upload and share the documents they download, making them available to others without cost.

The Judiciary Gets Wiki With It

As reported on Robert Ambrogi's LawSites, the  7th U.S. Circuit Court of Appeals has entered into the brave new world of collaborative technology.  The first in the country, the Circuit has launched its own wiki that will allow lawyers and judges to post and change notes on procedure and practice.  It is reported that Chief Judge Frank Easterbrook, who spearheaded the project, stated, "The goal is to concentrate on procedure (in both the court of appeals and the district courts) but not to cover substance. We aren't interested in comments about the meaning of ERISA or the Internal Revenue Code and will take down any pages that go beyond the scope of practice and procedure (including jurisdiction)."  It is truly revolutionary because even though limited to procedure and practice issues, Court do not typically collaborate on any issue with anyone outside of its four walls.  It is something that I believe our local federal courts should try at least as in regard to the procedure and practice areas.  (Judge Easterbrook pictured).