1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 v.

IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - -X JOHN M. LAMIE, Petitioner : : : : No. 02-693

UNITED STATES TRUSTEE.

- - - - - - - - - - - - - - - -X Washington, D.C. Monday, November 10, 2003 The above-entitled matter came on for oral

argument before 10:03 a.m. APPEARANCES:

the Supreme Court of the United States at

THOMAS C. GOLDSTEIN, ESQ., Washington, D.C.; on behalf of the Petitioner. LISA S. BLATT, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

1 Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF

C O N T E N T S PAGE

THOMAS C. GOLDSTEIN, ESQ. On behalf of the Petitioner LISA S. BLATT, ESQ. On behalf of the Respondent REBUTTAL ARGUMENT OF THOMAS C. GOLDSTEIN, ESQ. On behalf of the Petitioner 46 28 3

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 payees' debtor's rhetoric that the that is

P R O C E E D I N G S (10:03 a.m.) CHIEF JUSTICE REHNQUIST: We'll hear argument

first this morning in No. 02-693, John Lamie v. the United States Trustee. Mr. Goldstein. ORAL ARGUMENT OF THOMAS C. GOLDSTEIN ON BEHALF OF THE PETITIONER MR. GOLDSTEIN: please the Court: The parties to this case agree on one thing, and that section 330(a) of the Bankruptcy Code about Mr. Chief Justice, and may it

contains a mistake of some

kind.

Now, we disagree

what the mistake is, but there clearly is one. The United States Trustee, for all of its says

about the

statute's plain two of

text, actually

statute contains but the list

errors in

two different providers

places,

compensable to the

inadvertently that the

includes a

reference

attorney and inadvertently

statute's so-called

payees' list

omits the necessary conjunction or. We say there was a different mistake, omits the that the the

list inadvertently attorney, It is and our

reference to two

reading

of the

is the with

superior one.

the one that's most consistent

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the -- the structure of past bankruptcy

the statute as a whole, the legislative

with the history,

practice, with

and frankly, with common sense. QUESTION: Mr. Goldstein, who's covered by fees

available for a professional person employed under section 327 or 1103? MR. GOLDSTEIN: That would be an attorney who's U.S. Trustee, a debtor in

retained by a trustee, and according to the it would also be an attorney retained by

possession in a chapter 11 case. The -QUESTION: But not chapter 7. That's correct. The reason -and

MR. GOLDSTEIN: and let me take you

through the you --

statutory scheme,

perhaps

I should take

everyone to the

text, and

it's in the blue brief at page 2a of the appendix. QUESTION: importance. One piece That's, obviously, of critical

of background information please. have authorized the debtor's I

Could the chapter

11 court

attorney to do this work? -- and I

I mean, how does

that work?

-- I do agree that

the chapter 7 --

the -- the

debtor's attorney really is often required to do some very important things to get the chapter 7 filed. But if the

-- if it's an 11 first, as this one was, could the chapter 11 court have authorized the work to be done?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just no. Let

MR. GOLDSTEIN:

According to the

U.S. Trustee, this in for

me, if I could, just This is a

step back and put just

context.

converted case,

like,

example, the Hartford few terms ago.

Underwriters case this Court take it the question

had a

And so I

might be,

look, if they were a debtor's attorney at one point -- and we all clearly agree that for the chapter 11 proceedings, they

were authorized to be paid

under 330(a) -- could And I think the answer

that authorization have continued? is no because at some point

there

will

be

a

fee

application and the fee application and what will happen is exactly

will be under 330(a), what happened in this

case.

The U.S. Trustee or

the objector will

say, look,

for the period that it was a chapter 7, there's a -- a gap in the statute. QUESTION: Even if you tell the court in the need

chapter 11 proceeding, we're going to go to 7 and we the debtor to do some work, the -- the court

just has no

power to authorize that work I guess is your position. MR. GOLDSTEIN: to the contrary. -- they're point. We view the structure of as it has for -the statute to operate Code has for 100 The Oh, no, no, no. Our position is it

U.S. Trustee's position is that I think it's an

without

power.

important

the Bankruptcy

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years,

and

that

is,

that

the

bankruptcy court

is

a

gatekeeper.

It has to decide, in what are now the literal

terms of the statute, whether the services of the debtor's attorney are both necessary and beneficial to the estate. The position of the U.S. Trustee is that even

when the services are both necessary and beneficial to the estate -money all that is to say, even when they produce more

for the creditors, which is you still can't perform

the whole point, after the services and be

--

compensable -QUESTION: Well, why can't the -- I mean, their do it. The trustee's object

argument is the trustee can

is the maximize the -- the value for the estate and so on, and -- and therefore there's no built-in conflict there.

Why isn't that a way out of this drafting mess? MR. GOLDSTEIN: the Bankruptcy Code Because there are things that to the

assigns

as responsibility

debtor,

not the trustee.

And second, the provision that

-- and so let me -- let me separate -QUESTION: trustee saying, No, but is there any conflict in the can do these things for the

look, you

debtor and I'll pay you? MR. relevant GOLDSTEIN: Yes. Let me take you is in to the

statutory provision.

This one

the gray

brief in the appendix.

That's 327(e).

There is a passing

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suggestion in Justice, that bottom.

the Government's is at 1a

brief --

and, Mr. It's

Chief at the

of the gray

brief.

There is a suggestion by the U.S. Trustee that if really needs to do something, the

the debtor's attorney

trustee's lawyer will hire the

debtor's lawyer, and so it

all will work out in the end, and I take it that's a point you're picking up. The statute is much more limited than that. says the trustee, for a specified the with the court's approval, may It

employ

special purpose, other than

to represent

trustee, and it goes on

to say, an attorney that has

represented the debtor. The way hard to find out this works how often -- and we have tried Mr. very

this happens.

Lamie's years

firm, for example, has been doing bankruptcy for 23 and has represented In that the debtor in more

than 4,000 cases. the debtor's

entire time, the

trustee has hired

counsel two times. QUESTION: about have. MR. GOLDSTEIN: the case, Justice as Well, we because know that that's the Bankruptcy not Code it, but maybe Maybe -those are not to -- not to be cute

the only times

he should

Souter,

does,

Justice Kennedy

has suggested,

give important are

responsibilities to the

debtor qua

debtor, not that

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distinct from you an example

the duties of the trustee. of that.

And let me give

And so those are jobs that can't They're the responsibility of

be handled by the trustee. the debtor. QUESTION: conflict of -conflict if

But is

there

any conflict

-- any

of -- you if

know, ethical or the trustee says, got to

quasi-ethical look, these these

the ---

responsibility

you've

shoulder

responsibilities.

It's very Okay,

difficult for somebody who's I -- I will employ a lawyer any conflict between

not a lawyer to do it. to help you. Is

there -- is there

the trustee and the lawyer there? MR. the problem is have GOLDSTEIN: Yes, actually there is. The --

that the debtor and That's

the trustee sometimes why the legislative

divergent interests.

history to 327(e) says we want to limit the times that the trustee will hire the debtor's lawyer. QUESTION: But --

Would you give me -- just give me an

example, a garden variety example -MR. GOLDSTEIN: QUESTION: An exemption fight.

-- of a conflict situation? An exemption fight.

MR. GOLDSTEIN: QUESTION: MR. decide

Yes, okay. When the you're trying to to -- to an

GOLDSTEIN: or not

whether

debtor

gets

claim

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exemption. And so let me give you a couple more examples

just about how this operates. QUESTION: true that in most Before you do, Mr. Goldstein, this is an is it

chapter 7's,

academic

question because

there's not any money to pay even the --

any -- the administrative creditors? MR. GOLDSTEIN: Yes, but the fact that in

relative terms, in terms of the percentage of chapter 7's, it's not that it's not. big a deal does not mean in absolute terms

We know, for In

example, that there are at least particular, we have complicated

40,000 asset cases. business cases.

Hartford Underwriters,

which you all had

as a case, is an example. QUESTION: These end up as chapter 7 cases? Yes, Mr. Chief Justice. There

MR. GOLDSTEIN: are a

lot of converted business cases.

Generally when we

believe there's

going to be an asset, they are pursued as with the 7's.

a 11's, but lots of times the ability to keep up creditors breaks down and And -QUESTION: this problem

they can get converted to

Mr. Goldstein, you know, Congress had attention a number of times

brought to its

and -- and has chosen not to enact something, putting that language back in. That I find somewhat persuasive.

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MR. GOLDSTEIN: I think that's that's going

In all candor, Justice O'Connor, It's just not one indications of what

a point in their favor. to overcome So let me the other

Congress' intent. the other --

speak to that and then

QUESTION: Congress, I'm

Before

you get

to

the

intent of I mean,

rather stuck

with the

language.

what we'd have to do, in order to come out your way, is to read the examiner, words, a the court may award to a trustee, under an

professional person

employed

327 or

1103, and the lawyer.

Is there one case that you've found you're very thorough --

-- I'm sure you've looked because in the history of the world -(Laughter.) QUESTION:

-- where -- I couldn't find any,

but

I don't know all the cases in the history of the where -where, in fact, a court, when

world -a

faced with

definite list persons or

like this and unable to say, and other such Maybe you'll think stuck

-- fool with the language.

of some way of doing it

-- where a court is simply

in words of insignificance that weren't there because they thought the me a such? MR. GOLDSTEIN: Yes, and then I will come back legislature had made a mistake. relevant such cases, Can you give if there are

list of the most

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to Justice O'Connor. The cases -point here cite is that there are a our brief -number of that the

and we

these in

expressio

unius canon, on which you're -- to which you're

adverting -QUESTION: No. I'm not adverting to any canon. Well -the fact that the

MR. GOLDSTEIN: QUESTION: words aren't there. MR. GOLDSTEIN: to

I am adverting to

Justice Breyer, let me

explain

why I think you are, and then

you can tell me why I'm

misguided, I'm sure. (Laughter.) QUESTION: where a court -MR. GOLDSTEIN: QUESTION: United States v. Wilson. No. All I want is the name of a case

All right. United States v. Wilson, and

MR. GOLDSTEIN: then I'll come back

to why I think

their argument is an

expressio unius Wilson. It's

one, and then I'll explain to you U.S. v. on page 10 of the yellow brief that we

discuss it. The statute says trustee, an examiner, or that the court may award to a employed It

professional person

under section 327.

I'm back on 2a

of the blue brief.

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has

a list. There as

It

doesn't say

only,

and there

are many

cases.

are legions of cases in which a list is not exclusive of when -but I think there's a

regarded

presumption

exclusivity,

when

the

contrary

indications in

the text or the history of the drafting or you that Congress didn't intend the

something else tells

list to be exclusive, and this is such a case. The that's a case reason I cite U.S. v. Wilson to you is

in which the statute

referred specifically

to the Attorney General.

The Attorney General, before the

statute was revised, was supposed to compute the amount of time that is given as credit from pretrial detention.

Congress,

as it did with section 330, rewrote the statute this Court said, look, we admit that the looks

entirely, and

reference to the like it just got

Attorney General is lost in the

gone, but it

shuffle if we

look at the

other indications of Congress' intent. Now, let me just make one other important -QUESTION: the shuffle? MR. GOLDSTEIN: QUESTION: that I hope -MR. GOLDSTEIN: QUESTION: Yes. Yes. asking you a question Well, you think this just got lost in

That's why I'm

-- you'll be allowed to answer --

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(Laughter.) QUESTION: -about what about Congress'

opportunity to correct it -MR. GOLDSTEIN: QUESTION: Yes.

-- which they didn't -Well, this Court has never

MR. GOLDSTEIN: really taken

that view of subsequent legislative history,

Justice O'Connor, but let me turn to the events. In 1997, there were two bills that were proposed the Congress that were a part of general correction

legislation including

that had a

variety of this one.

different provisions, I think the important

one fix for

point is that at that time, interpreting the It was

the only case in the circuits then stood went our way. in Ames. that

statute as it

the 1996 decision of don't think

the Second Circuit infer from

And so I

you can

the fact

Congress didn't change the statute to confirm the

rule in

the circuits means that they intended to reject it. QUESTION: Isn't there a current -- isn't there correction

correction --

bankruptcy technical

bill pending, and isn't this absent from it? MR. GOLDSTEIN: so now we have not exists, but It is, but Justice Ginsburg -legislation

just the failure to enact

the U.S. Trustee is relying on the failure to

enact legislation that doesn't even exist.

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The point, I think, is the statute, ambiguous. if you look at

that, look, if you now, it's

read

it right

simply

There's a reference to

the attorney that's in

there, and a reference to the attorney that's missing. This is -in not a which case -there and this a is absolutely to the

was

reference

there

was only

one,

and it

disappeared, and

we're asking you to read it back in. the statute, as written, The two

Our position is that

stands essentially in equipoise.

references to the attorney in the 1978 version of inextricably intertwined, and so if you

the statute were look at changed

the text right now, the fact that Congress hasn't it doesn't tell you anything about whether or not it to be in there or not to be in there

they intend

because the split is almost even. QUESTION: But

There's one -called to their other technical

now it has been

attention and it isn't in the bill making corrections. MR. GOLDSTEIN:

Justice Ginsburg, I agree, and I What

obviously not making this point well enough. that the inference to fix a that would be

I'm saying is drawn cut in

normally

from the failure

statutory error doesn't as I began in the that

either direction here because,

introduction, both sides there's an error.

believes there -- believes

But we both think there's a

mistake in

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the statute.

The fact that Congress us anything

hasn't corrected the mistake

mistake doesn't tell was. QUESTION: overlooking one

about what the

But,

Mr.

Goldstein, I think.

you're Before

-- one

other argument

this statute was enacted, the Association of Bankruptcy -whatever the this name of it is and -- called their attention to a drafting

drafting error

said we

think it's

error. MR. GOLDSTEIN: QUESTION: We -- yes.

And nothing was done. Justice Stevens, let me put that and that is

MR. GOLDSTEIN: series of that in events in

slightly more context, bill was not

the House, when the

pending there, 718-page

there was a hearing, and there

is one line in a

record of just written materials submitted that says there is an inadvertent omission. The -- the one canon of construction that runs

through this Court's bankruptcy cases -QUESTION: Let me just add one thought. They

said this appears to have been some minor drafting errors, including the attorneys apparently inadvertent removal the list of of debtors' whose

from

professionals

compensation awards are covered by 330(a). oppose this provision since it

NACBA does not so

contains language and

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forth and so on. saying even

So they

-- it's -- one can read that as don't -- we don't oppose

with the error, we

the provision. QUESTION: Right. We actually -that

reference, we do not oppose this provision, we believe, in the context of those remarks, to be referring to the

addition of section

(a)(4)(B).

Congress in

1994 added a

provision that's much debated in 12 and 13 bankruptcies. of Consumer

the briefs about chapter this is the National what

Remember, Bankruptcy

Association they were

Attorneys, and

not objecting to is the addition of a provision

that relates to consumer bankruptcies. But let's be perfectly clear. The -- the of this hearing,

United States has change and has and it

scoured the legislative record in one House The

found one sentence it was

says that

a mistake.

principle in

bankruptcy clear on

is if there's a statutory

change and it's not

the text or at least in the legislative history,

it's presumed not to change -QUESTION: But isn't -- isn't it possible also

to read this as saying, yes, so, it's mistake, still a good we're

you made a mistake, but even we think even with -- and the then

bill and of

in favor

it, and

then

Congress looks at it and says, yes, we did make a mistake, but -- but the -- our -- we'll stick to that decision

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because the United States' position wise -- the provision is a wise one? MR. GOLDSTEIN: It is

now is that that's

a

important to

note, of the U.S. did not

course, that when Trustee commented say that this

the Department of Justice and on the bill at the time, they

would be the result of

the statute or that

they proposed it. But I don't that when someone -- Justice Stevens, I don't think

says there's a mistaken omission -- and

remember, it's of course at the time when the U.S. Trustee says language When someone is mistakenly says there's included at a mistake, the same that's a time. very

different

thing from Congress

-- let's engage

in all of

the false assumptions that people actually read this thing in the Senate and people paid attention acknowledged, The standards policy as yes, we're -- that Congress bankruptcy

actually policy.

changing

for changing settled as

bankruptcy policy, this one, are much

particularly a higher --

QUESTION:

Well, are the standards for changing

bankruptcy policy in Congress different from the standards of changing other kinds of policy? MR. GOLDSTEIN: Mr. Chief Justice, the to

indications in this

Court's precedents

-- the answer

that question is yes.

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QUESTION:

And

what --

what

precedents

are

MR. GOLDSTEIN: cases that of them, thing.

Those would be principally with Midatlantic. We

the cite

begin

several sort of

Hartford

Underwriters, Ron

Pair, that back to

The Court

has recognized, going

well before the '78 code and subsequent to the '78 -QUESTION: Well, but some of the -the

Midatlantic, for example, was shortly after the Bankruptcy Code was adopted succeeding the 1898 act, and there, there was probably a good reason for saying when you have that

sort of a comprehensive revision, if something -it's not

the presumption is that where something was

clear

changed, we meant to retain the old. sort of thing. MR. Justice, but that Cohen v. GOLDSTEIN: I think that de la That's

But this wasn't that

correct,

Mr.

Chief be

the relevant

answer would with a much

Cruz, which deals

more

minor revision of the Bankruptcy Code than the 1984 revision applies this Court has

even this one, is

the same principle and that the provisions

recognized that are incredibly that has

of the

Bankruptcy Code

interrelated. built up

There's a and

longstanding practice

over time,

that Congress doesn't lightly change it. And let me talk about why this would have to be

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the -QUESTION: first question? MR. GOLDSTEIN: QUESTION: Yes. At some point, will you go back to my

I just -- you have just a few -Yes. -- because I looked at this at be given spent in say by a

MR. GOLDSTEIN: QUESTION: United all.

I mean, why It

States v. Wilson.

doesn't seem like a defendant shall

The statute there said

credit towards his prison. It's in

sentence for time previously the passive voice.

It doesn't

whether it shall district court.

be given credit by Well, obviously,

the AG or also you could

read the

language either way. What I'm don't see any way out with having problems here with is that I

to read this language so that putting in three

it comes

your favor without And I

words that the if

aren't there.

haven't heard from Justinian -ever having done that, and

time of Justinian, a court

there is a court that did it, it wasn't Wilson. MR. GOLDSTEIN: to -QUESTION: You can have -I -- I think -- I think we have point is Okay. I think I'm responding

MR. GOLDSTEIN: a new thread.

Perhaps the

best answer to your

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Green v.

the Bach

Laundry, which

is not

a case

that's

discussed in the -- in the this arises. And that is,

briefs, but I will explain how Federal Rule of Evidence 609 to

said, look, if there's going to

be -- if you're going

impeach a defendant, you get to use prior convictions, and the Court looked at it and said, really, it says

defendants, and we the plain language

acknowledge it means all of that is

-- you know, and the

all defendants,

Court inserted the word criminal and said from the -QUESTION: Inserted the word what? Inserted the only word criminal. to It

MR. GOLDSTEIN: said that rule 609

would

apply

criminal

defendants. QUESTION: But that's -- you're not missing --

you're missing my point. MR. GOLDSTEIN: QUESTION:

There are millions of ways -Yes.

-- to read language in a statute -Yes.

MR. GOLDSTEIN: QUESTION:

-- so that it has a limited scope or That's so common

a scope over here or only applies there.

every day of the week, and very often I look at the policy and I see if the statute is possibly construed in that way through that kind of limitation. What I've never seen is

a statute which you just can't word by -- read by limiting the scope or saying other things like this, et cetera.

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MR. GOLDSTEIN: QUESTION:

Right. seen a court just take

I've never

three words out of the blue and insert them in that way in a statute. MR. GOLDSTEIN: that I probably All right. Justice Breyer, to have a I

am not going

case that

satisfies you, but I think that I can dispute successfully the premise, and that is, is that back to I do believe that your premise

expressio unius applies. that point. And

I promised I would come says, the court may

the text

award to a

trustee, an examiner, or

professional person. What I'm telling you indications of

It doesn't say to only those people. is that the other -the

remaining

Congress' intent indicate that Congress limit the payment to go to those people. And second,

did not intend to

this is not a case in which only we Remember that the U.S. Trustee,

a textual problem.

just as

you say we have to read in a -- a word, they have

to read out a word. QUESTION: Well, they don't have to read it out. There's -- there's there

They just say the word is superfluous. no explanation for why it's are a lot of statutes that there.

But, you know,

have superfluous

words, and

that does

a lot less violence certainly to the statute to

leave in a word that doesn't have to be there than -- than

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to insert a phrase, which is what you're asking us to do. MR. GOLDSTEIN: I think you and Justice Breyer look, if

may be making a similar point here, and that is, we had the text and all we had was the

text, it would do

less violence you say, and I think

I can concede it would

do less violence to read in the -- the word rather than to render the other one don't think superfluous or read it question before If you -out. But I

that's the

you because

you that It

don't just have there was,

the text.

this was all that one.

you could

apply a

canon like

would do less harm, you know, the principle of no harm. But what ambiguity payees' in the the I'm telling you is that the

sort of do

there is

an

statute, that providers'

provisions are

of the

and

lists

inextricably

intertwined, that the trustee can be paid for the services of the trustee, the examiner for services of the examiner, the professional person for And then services of the professional gap for services And so just resolve a of the

person. attorney. other

there's this

There's an in

ambiguity. have to

like any statutory

case

which you

ambiguity, you look to other things. QUESTION: Why don't you just say the first

correction, which is -- or the

first, in -- in your view, That's really what

slip is the elimination of four words?

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they wanted to do because then in the that they statute, I main one

that's the lead provision, there's only one looking at

and word the

subsidiary provision, So if you

left in.

-- just

assume you would say the lead provision is the other, the subsidiary provision, four

and the

words in one case, one word in the other. MR. GOLDSTEIN: get down to the number like that. again, I don't think that we have to anything --

of words or syllables or a more fair

I think perhaps

-- if we're

in the world

of tie-breakers looking

only at the requires you

text, it's that to conclude

the U.S. Trustee's position there are mistakes in

that

two different

places, in both the payees'

list, the missing conjunction

or, and the providers' list, the inadvertent -QUESTION: of missing or's. on that. MR. GOLDSTEIN: Well, Justice Ginsburg, that says we find I don't errors But there were umpteen illustrations

I mean, we

really can't put much weight

think there's any greater canon

presumptively in second provisions rather than first ones. There are much greater indications of Congress' intent

than that.

We have a lot more to work with. The first

I do think I need to make two points. is Justice O'Connor has, to some extent,

focused on what I think

happened here,

you know, what did Congress know.

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it's

important to recognize,

as I

started to

say, this

would be a change without any consideration by Congress at all. This statute started -QUESTION: material I called But how can you say that if this the

to your

attention was

called to

attention at the staff

least of the staff of the committee? recognized that because I

Surely presume

would have

they read it, and presumably they would have with the Congressmen and said, do

discussed it ought to

you think we

make a change, and somebody said no. MR. GOLDSTEIN: Right, Justice Stevens, let me I was about to -- the

distinguish two different periods of time. talk about words got me answer -- and we'll come back to

when this

dropped out. your question

You're focusing later, and so let with -- try and answer it in a

somewhat different way,

and that is, the

only thing that And

was pointed out to them was that there was a mistake. if you look at the text, you don't know

what Congress' to delete

intent was. it?

Was it to leave the language in or there are two parallel,

Because

intertwined

references to the attorney. I had said that I would come back to the '94 change. This the '84 -thought

is what the Fourth Circuit

was so important.

That is, it mistakenly thought -May I just get one other thought out?

QUESTION:

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What is the parallel provision that you say remains in? MR. GOLDSTEIN: on 2a of the That is the reference in -- I'm 11 U.S.C. 330(a), subsection And this

blue brief,

(1)(A), what we've

called the providers' list.

providers' list parallels the one in section 331. QUESTION: MR. actual, Right. Reasonable rendered compensation by the for

GOLDSTEIN: services

necessary

trustee, So what

examiner,

professional

person,

or attorney.

happened is that -QUESTION: Why -- why couldn't that refer to an

attorney appointed by the trustee? MR. suggested, surplusage trustee. GOLDSTEIN: it Well, could. say it -as has been it

literally or

You could

render

you could

it's the

attorney

of the

But a few things about that. We know it really is surplusage because there's attorney of the trustee.

already

a

reference

to

the

That's the professional person. questions -QUESTION:

This was one of the first

No, but it --

not -- the --

the --

there's another possibility: trustee.

any attorney employed by the You have given me a

And that's not surplusage.

reason why there may be a conflict involved if the trustee does employ an attorney for the debtor, but whatever it

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is, it's not surplusage. MR. GOLDSTEIN: line to It is, Justice Souter. person is The the

reference in this professional the

a professional

person employed under The It

section 327. the United that

That's States it is

trustee's attorney. dispute this.

-- and

doesn't

acknowledges

surplusage. QUESTION: No, but if the trustee appoints an

attorney not for himself, but for the debtor -MR. GOLDSTEIN: QUESTION: Ah.

-- then it's not surplusage. I apologize. The trustee is not you back

MR. GOLDSTEIN:

empowered to -- I -- I think I may have confused at the beginning of this.

The trustee is not empowered to

hire a person to represent the debtor. QUESTION: misspoke. I -let me -let's assume I

The trustee may

very well be empowered to

pay

the person employed by the debtor. MR. GOLDSTEIN: QUESTION: sections together. MR. GOLDSTEIN: (Laughter.) MR. GOLDSTEIN: to follow. And there will be an explanation Okay. If so, we win. No. way of reading these two

That's a

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QUESTION:

I did not expect that answer. Yes.

MR. GOLDSTEIN: (Laughter.) QUESTION: Why?

MR. GOLDSTEIN: the answer what would

We all should assume that all -if so, we win, because the

to all the questions, happen is that,

remember,

literally

debtor's attorney may be -- provides compensable services, and then the and then you ambiguity that Justice Breyer has focused on have is that we have the question of, okay,

who -- who gets the money.

Does it go to the trustee, the person? So if the trustee --

examiner, or the professional gets paid for the

services of the

debtor's attorney

remember, this

is a case in which

Mr. Lamie acted at the

request of the trustee -- then the trustee has to turn the money over. provided together. debtor's this The money actually belongs That's how to Mr. Lamie. would all He

the services.

it

work

And that is, in a case like this one, where the attorney acts at the request of the trustee -to the the

case is your who then

hypothetical. obviously has

The money goes to turn it

trustee

over

attorney. it.

That's who would have the equitable interest in

If I could retain the balance of my time. QUESTION: Very well, Mr. Goldstein.

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Ms. Blatt, we'll hear from you. ORAL ARGUMENT OF LISA S. BLATT ON BEHALF OF THE RESPONDENT MS. BLATT: the Court: The Bankruptcy Code contains no authority to use estate funds that are held for the benefit of creditors to compensate the chapter 7 debtor's the code authorized all debtors' attorney. Before 1994, Mr. Chief Justice, and may it please

estate funds to be used to compensate but the 1994 amendments attorneys

attorneys, deleted the

unambiguously

chapter

7 debtors'

from the class of persons eligible to receive compensation under the statute. QUESTION: from the It eliminated of persons them unambiguously entitled to be I

class

paid of

directly, persons

but did

it eliminate

them from

the class

who

might ultimately

be compensated, Subsection (a).

i.e., the

class in -- in -- what is it? MS. BLATT: Yes.

Only the -- if -- an attorney,

including the debtor's attorney, can still be compensated, but he has to be appointed and then he stands as by the court under section 327 a professional person that's

retained under 327, but that has to be retained under 327. QUESTION: surplusage in (a). So -- so the -- so the reference is

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question omits the people.

MS. BLATT: reading of attorney is persons. QUESTION: MS. BLATT:

It's superfluous in this sense.

Our

the statute is the same regardless because the nothing more than a subset of professional

Yes. But Congress may -it may have

failed to make a conforming change, but it's also possible that Congress specifically left the word in because

Congress often objectives. at least could be

uses overlapping

terms to

accomplish its

And it was doing

no harm there, and it would

remove any doubt that even the debtor's attorney paid as long as he qualified as a professional

person that was retained under 327. QUESTION: But the word attorney in 330 would it

then have a different meaning after the amendment than had before because before the amendment, it

clearly

referred to the debtor's attorney, did it not? MS. BLATT: That's correct, but there's no

that the --

the code, as it from one

now stands, has -of the authorized

debtor's attorney

And what petitioner is basically seeking, Justice of the code because

Stevens, is a substantive enlargement

he wants to do something, that is, receive a -QUESTION: Well, he's arguing the word attorney words, in

means the same thing it always meant.

In other

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330. MS. BLATT: QUESTION: different. MS. BLATT: It could still mean the debtor's That's fine. The debtor's -it means something

And you're saying

attorney, but there's no question was not authorized to

in this case petitioner by the trustee under

be retained

section 327.

The debtor's attorney is of people in 330(a) who

unambiguously not is authorized to is

one of the list

receive compensation, just

like a creditor's attorney

not on that list or a debtor's spouse is not on that list. QUESTION: considering that must be that the Why does it make any sense,

code does give

obligations, duties And some of

done by the chapter

7 debtor?

them are pretty complex. MS. BLATT: Well, I think it reflects and all In a the

fundamental distinction between codes. case, That's

chapter 7 13.

other

chapters 11, 12, and the work

chapter 7 It's

the bulk of

is done pre-petition.

advising the debtor out the

about which chapter to the debtor

file, filling is

schedules, telling

what property

exempt, and so forth. whole game and the

And in chapters 11, 12, and 13, the

is in doing a plan which is all post-petition, the -- excuse me to figure -- the out a

trustee and the debtor, the creditors

debtor and

work together

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plan. QUESTION: petitioner? But -- but why doesn't that help the

As Justice Ginsburg is indicating, before the 7 debtor has to comply advised of -with

petition is filed, a chapter some rather

complex forms, plus be Don't take there's a

of his back

duties and liabilities. door and so forth. So

assets out the

chronological problem

here that -- the -- the trustee can't appoint the attorney until the proceeding is filed, but the attorney is really

required to do some advance work. MS. BLATT: Justice Kennedy, there's no question 1994 amendments, chapter 7 they do so in the flat pre-

that both before and after the debtors retained counsel,

but

overwhelming majority fee, usually

of cases

with a pre-petition pay their lawyer

$750-$850.

They

petition. QUESTION: MS. BLATT: QUESTION: QUESTION: avoidable preference? MS. BLATT: course of -QUESTION: MS. BLATT: For current services? Yes. This is done day in and day Absolutely. It's in the ordinary And that can be paid. Absolutely. That is paid the lawyer -Is it established that's not

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out.

The

United States

Trustees

have

supervised the

liquidation of a million cases each year. QUESTION: It would be avoidable preference if

it's too high, wouldn't it? MS. BLATT: about the standard, in If it's routine too high, but fee of under I'm talking $1,000 if

somebody

walks

because they've

been

overwhelmed by

credit card debts or gambling debts or had a divorce, they need representation on how to fill out the schedules, what types of property are exempt, and they retain counsel, the counsel takes that money, gets the standard flat fee, that -- and all the exception. QUESTION: bounced and there's and the lawyer What if the -- what if the check services are earned pre-petition with one

now been a conversion to 7 and the -be paid for my 11 work?

says, I ought to

On your theory, does he get paid? MS. BLATT: probably clear -Not out of estate funds. have the check cleared He should before he

performs the services. QUESTION: QUESTION: MS. BLATT: QUESTION: He clears the check. Yes. Bankruptcy counsel do this -So you're saying at this point,

regardless of chapter 11 work,

chapter 7 work, no payment

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out of the -- the estate funds. MS. BLATT: Not out of estate funds, but it's -chapter 7, unlike all

it's critical to understand that in

other chapters, the -- the estate is frozen at the time of petition. individuals. 98 percent of all chapter 7 debtors are

If they

have

a job

or any

post-petition

income or there are exempt assets, they can use that money to pay the -pay counsel to assist them in completing

bankruptcy. And I want to -- do one class of very important think, Justice Souter, debtor and want to address one very -I

services that came up that that is when

you raised, and or

the

the trustee

creditors are

fighting over

objections to exemption. objections to discharge. often the debtor will need the

They could also be fighting over These are serious matters where and the debtor

is accused of misconduct

a lawyer.

There's no question that even before overwhelming majority of courts are services that benefit the

1994 amendments, the

would have held that those personal -and not

that go to the personal benefit of the debtor And they would not have been

the estate.

compensable even before 1994, and if this -- if this Court is going to take the extraordinary step of writing it back in, it will not affect those cases. QUESTION: And so --

Let me ask you about --

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MS. BLATT: QUESTION:

Sure. -- a provision of the statute you

didn't include in your brief, or at least in the appendix. Section 329 -MS. BLATT: QUESTION: debtor's attorney to it. MS. BLATT: That's for the code as it -- what -Yes. -specifically authorizes the

receive a retainer, as

I understand

this is a -- a pro-creditor provision that recognizes that debtors will often and go to counsel whether before or not they you file seek

bankruptcy,

anyone,

compensation under the statute, any who ultimately files for bankruptcy fee arrangement, and the court of it or return of the

lawyer for any debtor has to disclose their

can order the cancellation if it's excessive or

fee

unreasonable. QUESTION: But -- but if the court does not

cancellation of it, it seems to me that provision to the debtor's attorney for his

contemplates a payment services to the debtor. MS. BLATT:

Pre-petition.

This is for a -- any

type of fee arrangement that's pre-petition whether or not you apply for the chapter compensation. There are many cases where

-- excuse me -- the debtor's counsel will, in

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fact, be paid under 12, under 13, under 11, and those -QUESTION: This refers to 7. I think 329

applies to chapter 7 cases. MS. BLATT: Right. Any -- any debtor. Even if

there was an express prohibition to be paid, section 329 to require

for money for the estate

would still independently operate It

the counsel to disclose his fee agreement. not compensation is ever

applies whether or 330. QUESTION: the

sought under

Well, it --

in section (b), it

authorizes if it's

court to cancel

cancel the agreement So it seems to me reasonable,

unreasonable compensation. that if the compensation

it applies they could

was

approve it. MS. BLATT: petition. QUESTION: Well, I understand, but the money has Here, of course, it was, but he Right, but that's -- that's pre-

to be paid pre-petition.

kept it in escrow instead of putting it in his pocket. MS. BLATT: That's right. So it remained the

funds of the estate and it had to be paid under 330 and it was -- it was not a question of 329. But the other -- other point I want to get back policy objectives, not only

on why this serves reasonable

does the individual debtor have the ability to pay counsel

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with either or a

his exempt assets, his fee, but

post-petition income, 7, unlike the debtor all who

pre-petition flat it is

chapter and not

other cases,

the trustee

manages, represents, and code gives the trustee

liquidates the estate. the explicit

And the under

authority

section 327

of the code to retain

counsel, including the

debtor's counsel, to take actions that further the benefit -- the best interests of the estate. QUESTION: But not that would assist the debtor

in the exemption example. MS. BLATT: -if for some No. That's exactly right. the trustee could If the an

reason

not read

accounting form and it, the trustee

the debtor's counsel

couldn't answer

can go retain a

professional person like take

an accountant, and if the

trustee needs a lawyer to

actions to further the best interests of the estate, it is true that that lawyer there's no represent reason the -represents the meet with the

estate,

but

he can't

debtor and help him explain something. But 96 percent of all chapter 7 cases, there are no assets in the estate to begin with. These are the kind covered by a

of cases I was talking about, where they are routine flat fee that covers -QUESTION: argument because I really case just don't

understand the

that

this

involves

other 4

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percent, and aren't there?

there are a lot

of cases in

the 4 percent,

Several thousand. That's true, and in those cases -So what difference does it make that I don't

MS. BLATT: QUESTION: 96 percent -- it

doesn't make

any difference.

understand that argument. MS. given that BLATT: I a think it plain goes to the any idea that statutory sort

there's

absence of

authority to do this, the of absurd result intended? are assets, estate. there's He

question is, is this some could not have

that Congress

plausibly

And in the 4 percent of categories where there Justice Stevens, the manages it to be and he trustee represents liquidates it. -for counsel And the if

money

paid to

and the that

counsel's services are

needed, the

trustee can use

money and retain counsel. debtor -QUESTION: Has

At the same time, the chapter 7

retained counsel

to do work

to

benefit the estate, not retained debtor. MS. BLATT: there is -QUESTION: MS. BLATT: 1994 amendments that

counsel to represent the

That's right.

And at the same time,

Which he could have done before 1996. Right. And there's nothing in the taking his

prevents the debtor from

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post-petition salary, his exempt assets -QUESTION: case. MS. BLATT: Right. In a -- in a company, Your Not if he's a company, as in this

Honor, it's important, everything none

Justice Ginsburg, to keep

in mind

like objections to discharge, exempt assets -applies to corporations. Corporations,

of that

unlike individuals, do not survive bankruptcy, and so they don't have discharge. liquidating. And we think this case is a perfect illustration of what in happens when you have a case with marginal assets 7, with and no that's assets usually or where the -go, the is issues like You have exempt assets a defunct and objections to

corporation

that's

chapter

businesses chapter 7.

marginal assets authority to what

The trustee counsel,

had ample in

retain

petitioner's ultimately in

and is

fact,

happened what

this case

what --

the

bulk of

petitioner's counsel was doing was representing the estate in a fight with a creditor and -QUESTION: Well, he didn't have ample authority

to do it before the chapter 7 was filed, did he? MS. BLATT: No. When the case is in chapter 11,

the debtor is the debtor in possession with all the powers and duties of the trustee, and it's solely the debtor.

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There is

no trustee.

The

debtor has to

take actions to converts to be

represent the estate. to a 7. Then it's

All that changes when it the trustee. The

keys have

turned over to the trustee and the trustee runs the show. QUESTION: But -- but I thought you indicated debtor's I

that the trustee had ample authority to hire the attorney, and said, I -in the chapter 7

proceeding, and

true, but does

he have

the authority to

hire the That's

debtor's

attorney before the chapter

7 is filed?

what we're talking about. MS. BLATT: chronologically. petitioner

He doesn't have that authority.

This -- I mean, I'll try to take you

The case started out an 11, and then the retained under section 327, had a

was -- was

specific order, and therefore was entitled to be paid from the estate. Once the case -For work done from that time forward. Work done just while it was an ceased. There 11. was and

QUESTION: MS. BLATT: Once it's in a

7, all

those duties to do who

nothing for cooperate

the corporation the

except liquidate had the

with

trustee,

statutory the

responsibility to represent and estate. QUESTION: chapter 7, is there? MS. BLATT: Well,

manage and liquidate

there's

no

trustee

until

That's right.

Right.

Once -- once

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it converts to chapter 7, take over. And the

then it's the trustee's job

to the

trustee eventually did take over bring the -- continue the

adversary proceeding and against the creditor. QUESTION: hire the but that

case

And he

can hire

the -- and

he can

debtor's attorney to do

work in the

chapter 7,

doesn't compensate for what -- the work that was

done before chapter 7. MS. BLATT: QUESTION: That's right. The work that was done before chapter

7 was compensated in this case. MS. BLATT: of fees Yes, it was paid. There was $2,000 $1,000 has happen,

in this case and

$3 in expenses, and in 11.

been paid for all the work if the Court

And what will Circuit, is

affirms the Fourth

when cases

convert, the

debtor's counsel will cease actually gets a court

performing work order approving to

unless the trustee their retention.

The trustee

can hire its own lawyer

assist with its -- with -- with his or her duties hire the debtor's counsel for a special purpose. would have been like this case

and can And that

where there's an adversary

proceeding either by or against the debtor. United States Trustees have supervised and

overseen the liquidation of millions of chapter 7 cases in the 9 years since the 1994 amendments, and it has been

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their experience

that the

statute, as

written, has

not

interfered with the smooth functioning of chapter 7 cases. QUESTION: Are all trustees in chapter They're not, are they? The United States of all 7 cases

United States Trustees? MS. BLATT:

None of them are.

Trustees supervise and cases

oversee the administration

under 7, 11, 12, and 13,

and one of their specific private trustees, who --

duties is to supervise trustees,

who perform their -- their jobs and duties as trustees. QUESTION: in the case. MS. BLATT: Right. There's always a -- there's Even if the Government isn't involved

always a private trustee appointed except in 11 cases, but the United States Trustees supervises and oversees, serves as a watch dog, looks at things to make sure there's no

waste, fraud, or

abuse, reviews all fee

applications for debtor's counsel

the -- by the trustee, the examiner, the in chapter 11 cases, and -QUESTION: trustee. MS. BLATT: The bankruptcy

judge appoints

the

I don't know if -- Justice Ginsburg,

I'm not sure whether it's the -- the bankruptcy court does appoint the trustee. Trustees within the of available That's right. But the United States a pool

Department of Justice manages can serve to be

trustees who

appointed by

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bankruptcy

courts.

And

so we oversee

trustees and make

sure they're fulfilling their duties. QUESTION: Does the bankruptcy court appoint a

U.S. Trustee in every single case? MS. BLATT: No, no. There are -- no. There are of and the

21 United States Trustees that oversee all the regions this country, Alabama, and with the they exception of overview North Carolina and supervise

just

administration of the cases in the sense of make sure that the cases are actually proceeding through the court, make

sure that cases that need to be converted -QUESTION: They -they do that without any

appointment by the bankruptcy court then I take it. MS. BLATT: it's -that That's right. Under 28 U.S.C. 586,

it's a laundry list of United

specific statutory duties have in 11 to comply with. it

the

States Trustees

Under the

Bankruptcy Code itself,

U.S.C. 307,

says that the United States or be heard on any matter

Trustees may be -- may in any

raise and

bankruptcy case,

that's why

they've been in

all of these

cases involving

fee applications because in their view, there's just complete absence of any

given the -- that

statutory authority

to pay chapter 7 debtor's to fee requests.

counsel, they've been objecting

The one thing I just want to get back to

on the

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statute is petitioner says that and we could the code not disagree more.

the statute is ambiguous, There is no language in What this

that authorizes the chapter 7 has relied on is a

to be paid. or and

petitioner

missing

overlapping or redundant reference to critical to understand or the reference to

attorney.

But it's

that nothing about the attorney in (a)(1)(A)

missing or affects the

substantive meaning of the statute or in any way prohibits the Court from applying the the code to literal language of the code requires the Court to do

or requires

do --

something the code prohibits. By substantive is no case has added contrast, what petitioner is seeking is a

enlargement, and as far as we can tell, there of this Court's jurisprudence where the Court in a

back language

in a statute

and where --

substantive way when there's

that Congress has specifically no language that will

taken out that

bear

interpretation. If there -QUESTION: MS. BLATT: QUESTION: but I want to read If you're through, let me just -Sure. Maybe this is a you two little repetitious, from Collier on

sentences

Bankruptcy, the

treatise that most of us

rely on perhaps

too much in this area.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this, it

After describing

the

Government's position

in

would represent a fundamental change in the law. Section 329 of the code permits the receive a reasonable retainer for

The treatise goes on. debtor's attorney to

services rendered in contemplation of or to be rendered in connection with a case under the Bankruptcy Code. Such a

provision would be superfluous if 330(a) is construed as

the deletion in section debtor's counsel for

excepting

compensation under section 330. What's your response to that again? You've

partly responded, but I want to be sure you cover it all. MS. BLATT: This is the reference to attorney,

the reference to attorney in (a)(1)(A). QUESTION: MS. BLATT: answer it's -- it's Yes. Your Honor, it's -- the -- the short in the wrong place. The critical who can to

operative list

that provides the

type of people

receive compensation is

in (a)(1),

and the reference

attorney just describes the type of compensable

services,

which also includes paralegals, para-professionals. QUESTION: No. They -- they rely on section

329, which talks about -MS. BLATT: QUESTION: Oh, I'm -- 329. -that that's -- they say section

329 permits all this, and they say that provision would be

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superfluous if your reading of 330(a) is correct. MS. BLATT: Collier is just wrong. The

provision is -(Laughter.) MS. BLATT: operates -- on this point -is that it

independently and whether or

requires a disclosure

of all and the

fee agreements

not there's compensation, it is is whether or not

maybe another way of putting

Court rewrites the code, 329 is going to apply as -- as it always has and require a disclosure of fees. QUESTION: attributed to What was the -11 the fees that were -- of pre-petition

the chapter

phase, when

approval was was

sought, wasn't that under 329 the --

when -- there -- there

the lump sum $6,000, and something over $1,000 was pre-petition chapter 11 time. Wasn't

attributed to the

the approval of that under this section 329? MS. BLATT: bankruptcy court and Yes, Justice Ginsburg, by the district court both the

because they found by the

proceeded on

the erroneous

assumption, as

Fourth Circuit, that this lawyer instead this was

was money that belonged And if

to the

of the estate.

it had been -- and 7 large 11

an 11 case.

You don't

see in chapter

pre-petition retainers like

this because

the chapter

usually contemplates ongoing work after bankruptcy.

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But in this case, they did what most lawyers do, the -money in it wasn't the trust earned account, and it wasn't the

by the

lawyer

until

services were performed.

But the bankruptcy court and the

trial court proceeded on the assumption the money belonged to the lawyer, and so if the -- if the pre-petition money

is money of the lawyers, then it's reviewed under 329. But then the Fourth Circuit said, well, no, this is actually money of estate funds. and there's the estate and it has to be -- it's

Those are held for the benefit of creditors

no statutory authority to use estate funds to

pay the chapter 7 debtor's attorney. If there are no questions, we'd ask the Court to affirm the Fourth Circuit's -QUESTION: Very well, Ms. Blatt.

Mr. Goldstein, you have 3 minutes remaining. REBUTTAL ARGUMENT OF THOMAS C. GOLDSTEIN ON BEHALF OF THE PETITIONER MR. GOLDSTEIN: Mr. Chief Justice, the reason

that the U.S. Trustees are not finding that this ambiguity creates a problem is that there has been a shift in

practice in those courts like the Fourth Circuit that hold that you can't be compensated as a chapter 7 debtor's

attorney under 330, and that is people in bigger cases are getting bigger and bigger retainers. What's happening is

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the scenario that Justice Stevens people are saying

described, and that is, on an ongoing That can't the U.S.

I'm not going to be paid

basis, so I've got to get more money up front. be a result that Congress

contemplated under

Trustees' vision of what Congress was up to -QUESTION: But can't that be checked by the

court under 329 and say that's too much? MR. GOLDSTEIN: Precisely, precisely. But

that's my point.

What results is the 329 fees are subject They just have to be reasonable. 330. So

to a Lessing standard.

They aren't subjected to all the laundry list of the result of this change, if there was a

change, would Retainers

only have been to decrease

judicial oversight.

are subject to less judicial scrutiny. The second come away point I should make that this -is that don't

from the argument

believing that to

this case is limited to chapter 7. chapter and 13 11 debtor out of cases

It applies equally

possession cases and chapter 12 that are beneficial to the

for services

estate, but not the debtor. pitched this as somehow a that's not accurate. Circuit, for

The U.S. Trustee has

always but

case limited to chapter 7,

And the Pro-Snax case from the Fifth a chapter 11 debtor out of

example, is

possession case. Third, Justice Souter, I still don't understand

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what the answer is to your reading of the statute. Justice Breyer, Justice Souter said, okay, there are a list of three people examiner, who can get the check: person. the Fine.

trustee, the But we

the professional

also know, as Justice

Stevens has said,

that the

statute's reference to the attorney has always been to the attorney, the same reference to reference to can the attorney. the attorney in 331 is a

321 says a chapter 7 attorney Souter has said isn't the literal

get a retainer.

Justice

literal language,

if we're

going to

follow the

language, that the money can go to the trustee, to which I said, and that's Lamie to do owes the -- you know, the trustee directed Mr.

these things, and therefore the to the

trustee just That

money back

debtor's attorney.

rationalizes all of the text. The important thing then in deciding whether to to support?

follow the literal text is, is there anything Is there a whit -- a whit of the

-- of indication in the history

statute that Congress intended to do what the U.S. hypothesized? Is there a word that from 1898 this choice to eliminate Those are

Trustee has

to 1994 Congress decided to make fees that are both

necessary and beneficial?

the only fees we're talking creditors. there any Did

about, those that benefit the eliminate them? answer to Is that

Congress intend to that?

indication of

And the

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question is no. And that's important because the U.S. Trustee is not correct to say that when a chapter 7 is initiated or

if the case is converted, that the debtor and the debtor's attorney leaves the field. There are ongoing duties. the creditors.

There's the 341

hearing, the meeting with

There is the duty of the debtor's attorney to transfer the materials to the Here, there trustee, to cooperate with adversary proceeding. the trustee. The trustee and somebody real any

was an

wasn't substituted as had to tell the

counsel for 8 months, about that. not talking

trustee

There are about, in

responsibilities.

And we're

particular case, a ton of money, but it is important. CHIEF Goldstein. The case is submitted. (Whereupon, at 10:54 a.m., the case in the JUSTICE REHNQUIST: Thank you, Mr.

above-entitled matter was submitted.)

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