Luis A. Torrens v. John William Hood, Jr. ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15925
________________________
D.C. Docket No. 0:12-cv-61612-KMW,
Bkcy No. 12-14092-BKC-JKO
In Re: JOHN WILLIAM HOOD, JR.,
Debtor.
______________________________
LUIS A. TORRENS,
ADRIAN REYES,
THE TORRENS LAW FIRM, LLC,
Plaintiffs - Appellants,
versus
JOHN WILLIAM HOOD, JR.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 29, 2013)
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Before TJOFLAT and WILSON, Circuit Judges, and COOGLER,* District Judge.
WILSON, Circuit Judge:
Luis A. Torrens, Adrian Reyes and the Torrens Law Firm, LLC (the firm)
(collectively “Appellants”), appeal the United States District Court for the
Southern District of Florida’s affirmance of the United States Bankruptcy Court for
the Southern District of Florida’s order in favor of John Hood, Jr. The bankruptcy
court held that Appellants violated 11 U.S.C. §§ 527 and 528(a)(1), Florida Rules
of Professional Conduct 4-3.3(a)(1) and 4-8.4(c), and possibly 18 U.S.C. § 157(3)
by helping Hood file an “ostensibly pro se [Voluntary Chapter 13] bankruptcy
petition in bad faith to stall a foreclosure sale.” 1 After an evidentiary hearing, the
bankruptcy court held that Appellants prepared the Chapter 13 petition as
ghostwriters and consequently made false or fraudulent representations to the
court.
Appellants now contend that they did not perpetrate fraud on the court by
assisting Hood in the preparation of his pro se Chapter 13 petition, and that the
assistance Appellants provided cannot be classified as ghostwriting. After review
*
Honorable L. Scott Coogler, United States District Court for the Northern District of
Alabama, sitting by designation.
1
Chapter 13 bankruptcies are designed for individuals with a regular income who are
seeking to re-structure their finances to establish a long-term repayment plan of their debts with
creditors, see 11 U.S.C. § 1325, and generally impose an automatic stay against “any act to
obtain possession of property of the estate or of property from the estate or to exercise control
over property of the estate,” id. § 362(a)(3).
2
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of the briefs and the record, and with the benefit of oral argument, we reverse and
remand.
I.
On January 24, 2012, Hood met with Adrian Reyes, a member of the
Torrens Law Firm, to discuss foreclosure defense services provided by the firm.
At this time, Hood allegedly considered hiring the firm to attempt to extend the
February 22, 2012 sale date for the state-court foreclosure proceedings concerning
his Hollywood, Florida business. Reyes also discussed bankruptcy with Hood, the
impact it would have on the foreclosure process, and the firm’s fees for both
foreclosure defense work and bankruptcy representation. On February 21, 2012,
Hood, apparently unable to afford representation for both his bankruptcy and
foreclosure needs, paid a $1,000 retainer to the firm to provide foreclosure defense
work. On that same date, a courier filed a pro se Chapter 13 petition via a power
of attorney on Hood’s behalf in the bankruptcy court for the Southern District of
Florida. The circumstances behind the petition’s preparation and filing are highly
disputed.
Before the bankruptcy court, Hood contended that he had no knowledge that
he had filed for bankruptcy. The bankruptcy court found Hood’s contention to be
untruthful, yet still held that Appellants fraudulently prepared and filed a pro se
petition on behalf of Hood. Appellants maintain that the firm’s secretary acted as a
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scrivener when she prepared the petition at Hood’s request. Appellants also argue
that, at Hood’s request, the secretary wrote his oral responses into the
corresponding blanks on the petition. A courier then filed the petition on behalf of
Hood via a power of attorney notarized by Luis Torrens, a partner at the firm.
On February 28, 2012, one of Hood’s largest business clients contacted him
regarding his involvement in the bankruptcy proceeding and expressed concern
over Hood’s continued ability to perform work for them. Hood, seemingly leery of
losing business, informed the client that he had no knowledge of the bankruptcy
proceeding. On April 3, 2012, with what the bankruptcy court characterized as
“buyer’s remorse,” Hood, represented by counsel, filed a motion for order to show
cause against Appellants.
The bankruptcy court granted Hood’s motion and held an evidentiary
hearing on April 16, 2012. The court noted that despite Hood’s remorse, he
“signed several documents containing the word bankruptcy in multiple places.”
Regardless, on June 7, 2012, the bankruptcy court held that Appellants violated 11
U.S.C. §§ 527 and 528(a)(1), Florida Rules of Professional Conduct 4-3.3(a)(1) 2
and 4-8.4(c), 3 and “appear[ed] to have violated 18 U.S.C. § 157(3).” 4 The
2
Florida Rule of Professional Conduct 4-3.3(a)(1) states that “[a] lawyer shall not . . .
make a false statement of fact or law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer.”
3
Florida Rule of Professional Conduct 4-8.4(c) explains that “[a] lawyer shall not . . .
engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
4
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bankruptcy court found that Appellants acted as ghostwriters by failing to sign the
Chapter 13 petition, and thus perpetrated fraud on the court.
The bankruptcy court suspended Torrens from practice before the United
States Bankruptcy Court for the Southern District of Florida for six months, barred
Reyes from applying for admission to practice before the United States Bankruptcy
Court for the Southern District of Florida before December 31, 2012, prohibited
both Torrens and Reyes from filing any papers in bankruptcy court during their
period of suspension, and held that all employees, associates and business affiliates
of the firm were enjoined from acting as bankruptcy petition preparers under 11
U.S.C. § 110 or as a “debt relief agency” as defined by 11 U.S.C. § 101(12A). The
court also referred the matter to the office of the United States Attorney for
possible criminal prosecution and to the Florida Bar for further disciplinary
proceedings. The district court affirmed the bankruptcy court’s decision,
concluding that the surrounding circumstances revealed at the evidentiary hearing
supported the bankruptcy court’s findings. Appellants only appeal the holding that
4
18 U.S.C. Section 157(3) provides that
A person who, having devised or intending to devise a scheme or artifice to
defraud and for the purpose of executing or concealing such a scheme or artifice or
attempting to do so . . . makes a false or fraudulent representation, claim, or
promise concerning or in relation to a proceeding under title 11, at any time before or
after the filing of the petition, or in relation to a proceeding falsely asserted to be
pending under such title, shall be fined under this title, imprisoned not more than 5
years, or both.
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they perpetrated fraud on the court by ghostwriting Hood’s Chapter 13 petition in
violation of Florida Rules of Professional Conduct 4-3.3(a)(1) and 4-8.4(c), and 18
U.S.C. § 157(3).
II.
“In the bankruptcy context, this court sits as a second court of review and
thus examines independently the factual and legal determinations of the
bankruptcy court and employs the same standards of review as the district court.”
In re Optical Techs., Inc., 425 F.3d 1294, 1299–1300 (11th Cir. 2005) (internal
quotation marks omitted). We review the bankruptcy court’s findings of fact for
clear error and its conclusions of law de novo. In re Englander, 95 F.3d 1028,
1030 (11th Cir. 1996) (per curiam). “Neither the district court nor this court may
make independent factual findings.” Id. A bankruptcy court’s imposition of
sanctions is reviewed for an abuse of discretion. In re Mroz, 65 F.3d 1567, 1571
(11th Cir. 1995).
Bankruptcy fraud is a criminal matter in which federal district courts have
original jurisdiction. 18 U.S.C. § 3231; see In re Hipp, 895 F.2d 1503, 1518 (5th
Cir. 1990). In the event that a bankruptcy judge has “reasonable grounds” for
believing that a party committed bankruptcy fraud in violation of 18 U.S.C.
§ 157(3), the judge “shall report [the case] to the appropriate United States
attorney.” 18 U.S.C. § 3057(a). Attorneys who practice before Florida courts are
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governed by the Florida Rules of Professional Conduct. R. Regulating Fla. Bar 1-
10.1, 3-4.1. The Florida Rules provide that “[a] lawyer shall not . . . make a false
statement of fact or law to a tribunal,” id. at 4-3.3(a)(1), and “shall not . . . engage
in conduct involving dishonesty, fraud, deceit, or misrepresentation,” id. at 4-
8.4(c). The Rules explain, however, that “a lawyer and client may agree to limit
the objectives or scope of the representation if the limitation is reasonable under
the circumstances and the client gives informed consent in writing.” Id. at 4-
1.2(c). In practice then, “[i]f the lawyer assists a pro se litigant by drafting any
document to be submitted to a court, the lawyer is not obligated to sign the
document.” Id. at 4-1.2(c) cmt. But “the lawyer must indicate ‘Prepared with the
assistance of counsel’ on the document to avoid misleading the court, which
otherwise might be under the impression that the person, who appears to be
proceeding pro se, has received no assistance from a lawyer.” Id. Rule 4-1.2(c)
reflects the Florida Bar’s stance on the issue of attorney ghostwriting, or more
simply put, the undisclosed assistance of counsel in the drafting of a pro se
document filed with the court.
Here, the bankruptcy court held that Appellants violated Florida Rules of
Professional Conduct 4-3.3(a)(1) and 4-8.4(c) by perpetrating fraud on the court
through a ghostwritten pro se Chapter 13 petition. Yet, the bankruptcy court failed
to cite Rule 4-1.2(c), the specific Florida Rule of Professional Conduct regulating
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the practice of ghostwriting. In addressing Rule 4-1.2(c), “[w]e begin where courts
interpreting statutory and rule provisions should, with the language of the
provisions.” Hunter v. United States, 101 F.3d 1565, 1574 (11th Cir. 1996) (en
banc). We first note that while this court has not addressed the propriety of
ghostwriting,5 we do so today only as ghostwriting applies to the factual
circumstances of the present case.
Rule 4-1.2(c) explains that when an attorney assists “by drafting” a pro se
document to be submitted to the court, the attorney must identify the document as
“[p]repared with the assistance of counsel.” R. Regulating Fla. Bar 4-1.2(c) cmt.
“In determining the ordinary meaning of statutory terms, we often find guidance in
dictionary definitions.” In re James, 406 F.3d 1340, 1343 (11th Cir. 2005). To
“draft” is defined as “[t]o write or compose.” Black’s Law Dictionary (9th ed.
2009). It is apparent to us that under the plain language of the rule, Appellants did
not “draft” a document for Hood. See R. Regulating Fla. Bar 4-1.2(c) cmt. They
did not “write or compose” the pre-formatted Chapter 13 petition. See Black’s
5
Circuits differ on the acceptance of attorney ghostwriting, with the First and Tenth
Circuits requiring attorney disclosure, and the Second Circuit permitting nondisclosure in limited
circumstances. Compare Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001) (per curiam)
(stating that “any ghostwriting of an otherwise pro se brief must be acknowledged by the
signature of the attorney involved”), and Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)
(requiring that “[i]f a brief is prepared in any substantial part by a member of the bar, it must be
signed by him”), with In re Liu, 664 F.3d 367, 373, 381 n.5 (2d Cir. 2011) (per curiam)
(concluding that ghostwriting “largely non-substantive” petitions for administrative cases “did
not constitute misconduct and therefore [did] not warrant the imposition of discipline.”).
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Law Dictionary (9th ed. 2009). To the contrary, Appellants recorded answers on a
standard fill-in-the-blank Chapter 13 petition based on Hood’s verbal responses.
Moreover, Hood personally signed the petition. That Hood attempted to attain the
best of both worlds by claiming that he had no knowledge of the petition only after
the bankruptcy proceeding effectively stalled the foreclosure on his property is
patent. Regardless, a Chapter 13 petition stands in stark contrast to a ghostwritten
pro se brief, such as the brief drafted by the undisclosed attorney in Duran, 238
F.3d at 1273, and noted by the court in Ellis, 448 F.2d at 1328. A legal brief is a
substantive pleading that requires extensive preparation; much more than is
necessary for the completion of a basic, fill-in-the-blank bankruptcy petition.
To that end, the Chapter 13 petition at issue is comparable to the documents
filed by undisclosed counsel in Liu, where the Second Circuit held that “[t]he
[undisclosed pro se] petitions for review . . . were fairly simple and unlikely to
have caused any confusion or prejudice.” 664 F.3d at 372–73. There, the Second
Circuit concluded that Liu’s allegedly ghostwritten pro se petitions filed with the
court did not violate the local rules of ethics pertaining to fraud and “did not
constitute sanctionable misconduct.” Id. at 369. Additionally, as in Liu, “there is
no indication that [Appellants] sought, or w[ere] aware that [they] might obtain,
any unfair advantage through” the undisclosed pro se petition. Id. at 373.
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Similar to Liu, we see no fraudulent intent in this record by Appellants.
Rather, they were attempting to assist Hood with the completion of a
straightforward pro se Chapter 13 petition for which there was no unfair advantage
to be gained. Who, within the firm, filled out the petition is a distinction without a
difference. A Chapter 13 petition is a publicly available form that is designed in a
manner that lends itself to a pro se litigant. Hood could have personally completed
the petition at issue in the exact same manner and likely obtained the same result.
See Hargis v. Access Capital Funding, LLC, 674 F.3d 783, 788 (8th Cir. 2012)
(distinguishing between “nonstandard [and standard] . . . documents,” finding that
“fill[ing] in the blanks in standardized . . . document forms” did not constitute the
practice of law where the non-lawyer did not create the forms and “filling in the
blanks . . . was ancillary to the non-lawyer’s main business.” (alteration and
internal quotation marks omitted)). Furthermore, there was no finding of fact by
the bankruptcy court that any information placed on the Chapter 13 petition was
false. Appellants’ conduct was not fraudulent. See R. Regulating Fla. Bar 4-
3.3(a)(1), 4-8.4(c).
The bankruptcy court thus erred in its conclusion that Appellants committed
fraud when they “contracted with [Hood] to provide foreclosure defense services[,]
. . . took [Hood’s] money, had [Hood] sign documents, and then filed an ostensibly
‘pro se,’ bad faith bankruptcy petition on [Hood’s] behalf.” At bottom, we
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conclude that Appellants did not “draft” a document within the scope of Rule 4-
1.2(c) and did not commit fraud in violation of the Florida Rules of Professional
Conduct or 18 U.S.C. § 157(3).
Therefore, we find that the bankruptcy court abused its discretion when it
suspended Torrens from practice before the United States Bankruptcy Court for the
Southern District of Florida for six months, barred Reyes from applying for
admission to practice before the United States Bankruptcy Court for the Southern
District of Florida before December 31, 2012, prohibited both Torrens and Reyes
from filing any papers in bankruptcy court during their period of suspension, and
held that all employees, associates and business affiliates of the firm were enjoined
from acting as bankruptcy petition preparers. We reverse the judgment of the
district court affirming the bankruptcy court’s order, hold that Appellants are not
subject to the imposition of discipline, and remand to the district court for
proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
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