I Quit. (Well, I thought about it.)
May. 6th, 2021 06:48 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
captainsblogToday marks an anniversary I think I've mentioned on this date previously, but I didn't last year and I'm not schlepping through the archives any further back than that.
I wrote this not quite a month ago, after another thrilling round of Whack-a-Notice by the court I have devoted the majority of my career to. It was therapeutic to write it, to share it with one trusted fellow practitioner who I respect, and to then make the conscious choice not to send it. It was addressed to the chief judge of the Bankruptcy Court- a title sounding a bit more presumptuous than it (or he) actually is. He's a really nice guy- and he's "chief" much in the way that the guy in the middle of this clip is the "squad leader"-
For we only have three bankruptcy judges in the Western District of New York, likely to be cut to two when the senior of them, one Michael J. Kaplan, completely retires (he's cut back his caseload already), and there's not THAT much that being chief entails. Mainly administrative shit, acting as spokesperson for the court on general matters, a LOT of it a few years ago when the Buffalo court moved buildings for the third time in 30 years. But also listening to grumbling lawyers about how It's Not Like Things Used To Be Around Here.
Because they're not.
(Ethical note: thou shalt not write a letter to a judge on a pending case without copying the other side. But here, his Chief-ness is important, because you CAN write about general administrative matters. So I did.)
Dear Chief Judge Bucki:
In a little over three weeks, I will mark the 36th anniversary of my admission to practice before this Court in Rochester. My admission was moved by my original employer and mentor Lloyd H. Relin, granted by the Honorable Edward D. Hayes, and certified by Clerk of the Court Michael J. Kaplan. Just over a year later, when Mr. Relin passed away unexpectedly, I accelerated my experience and in particular became a regular practitioner in both Divisions of the Court at a time when few attorneys and even fewer debtor attorneys were doing so. We moved to Buffalo in 1994 and I have always maintained practices in both courthouses. I have tried to maintain levels of professionalism, creativity and on occasion humor to what are often frightening or complex proceedings for even the practitioners.
For most of that run, coming to this court was a bastion of kindness from the personnel behind the counters and in the courtrooms. Both Clerk’s offices deservedly earned commendations from the Second Circuit for their professionalism and courtesy. I knew the clerk personnel were proud of that recognition and they showed it. Their responses to non-legal advice questions and provision of materials were exemplary. In contrast, many other courts and agencies were far more evocative of a bad trip to the DMV.
I was in active practice in both locations when the US trustee became a part of daily court life. I transitioned through the two moves of the Buffalo courthouse, the many internal moves within the Keating building, and the retirement of the first four Bankruptcy Judges with whom I learned my craft. When electronic filing became the new development, I went all-in in learning and helping others on my side of the bar, in getting the events right, filing the right forms in the right places and complying with the applicable rules.
But somewhere after BACPA, something changed. It was nothing of substance, although the 2005 amendments provided plenty of traps for the unwary. Rather, it was the rise of the “deficiency notice” as a near-inevitable consequence of every filing that was far more noticeable. Cynics might think that these were the result of the substantial decrease in filings (generally and particularly in courtroom intensive adversary and reorganization proceedings locally), where the clerks reviewing filings were “looking for something wrong” in every filing. I have no basis for alleging or even suspecting that, but I am sure there is some reason for it.
The things that generate these notices often border on the ridiculous. I have received case opening deficiencies on non-individual no-asset Chapter 7 filings because the schedules did not include Schedules I and J. By definition, these entities are not allowed to HAVE any such income or expenses following a filing. I have seen motions rejected for including language from previous court-approved forms in addition to the current mandatory court-approved forms. Motions have been returned for renoticing to specific courthouse venues where, by administrative order, those courtrooms are empty of all but the sitting judge and judicial personnel (and in the case of the remaining Buffalo division remote locations, completely empty). And today, a motion was removed from the calendar, after being placed on it a day earlier, because the “negative notice” language copied directly from the applicable administrative order was not prefaced by two separate lines referencing the date of the administrative order in question.
Many of these notices have to go to all creditors, imposing additional overhead costs on counsel. Some turn into games of “gotcha” where one deficiency is reviewed and responded to and then another is found, producing an additional notice or more. Making this procedure even worse for the practitioner is that the clients, and every other party receiving notices in the case, get copies of these notices. Whatever my undocumentable theories might be for the notices being created, I can state a second hypothesis with near certainty: clients read these. Every client. Every notice. I can virtually guarantee a call from the debtor within two days of the notice showing up on the docket. It makes us look incompetent in their eyes. And yes, if we were perfect, we would get every one of them right the first time. We’re not.
Increasingly, this procedure results in the notice being ticked in the box for “This motion WILL NOT be considered by the Court.” They are so denominated even in the overwhelming majority of cases where these papers are not read by any recipient, much less opposed by any. It takes nothing into account of the scheduling that went into the matter. And in all of this electronic dissemination of disapproval, I question whether the Clerk’s Office is perhaps not “noticing” two provisions of applicable federal rules:
The last sentence of FRBP 5001(a)(1):
The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices.
And FRCP 61, made applicable to all cases here by FRBP 9005:
At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.
If good fortune holds, I will retire within the decade and will no longer be subject to these causes of anxiety and hypertension. This District has never been what is derisively (and sexistly) known as an “old boy court,” where clerks, judges and practitioners use obscure layers upon layers of rules, from bashing a newcomer with a hidden section of the Code to the range of unresearchable points of practice known (by at least this “old boy”) as “legend and folklore.” That said, these procedures can create the appearance of that attitude for the newer and further entrants into our courtrooms, be they physical or virtual. Many regular practitioners have spoken with me and among themselves about these issues; they (and until today, likely I) held tongues out of fear of retaliation or the innate desire to “keep the peace.”
Yours, et cetera.
The fellow practitioner I shared it with, a decade more experienced than I, has also done substantial work on the semi-inside of the sausage factory as an appointed trustee. I knew he has had similar experiences with the court. When he beta-read my diatribe, he was reeling from a similar deficiency notice issued to him the same day. He also said that, when he raised this issue with his boss on the trustee food chain, the response was, Don't go there. They'll make things worse.
And so I didn't. Today, by chance, brought that actual 36th anniversary, and the ultimate hearing of that motion where I gave the proper notice but didn't reference the date of the order requiring it. It got scheduled after I served it all over again with the magic words. The judge completely agreed with me! Yay! But also spent another 10 minutes telling me it would be a Pyrrhic victory unless I did ten other things within ten days. Not so yay:P
Earlier this week, I filed another set of papers with them that had to be sent to over 20 parties. This time, I deliberately waited to send those copies until the Gringott goblins had pored over the actual filing for any other mistakes. Sure enough, even though I told them in the filing that SERVICE ON ALL CREDITORS WILL BE MADE AFTER MOTION IS CALENDARED, they were not amused and issued a deficiency notice anyway, despite it serving my purpose by confirming I'd done nothing else wrong:
You have noted that proof of service will be filed after hearing set. Please be reminded that the Certificate of Service must now be filed. Once filed, the Certificate of Service will be reviewed for deficiencies.
Und you vill LIKE IT!
So that's my anniversary. Back to being the squad:P
I wrote this not quite a month ago, after another thrilling round of Whack-a-Notice by the court I have devoted the majority of my career to. It was therapeutic to write it, to share it with one trusted fellow practitioner who I respect, and to then make the conscious choice not to send it. It was addressed to the chief judge of the Bankruptcy Court- a title sounding a bit more presumptuous than it (or he) actually is. He's a really nice guy- and he's "chief" much in the way that the guy in the middle of this clip is the "squad leader"-
For we only have three bankruptcy judges in the Western District of New York, likely to be cut to two when the senior of them, one Michael J. Kaplan, completely retires (he's cut back his caseload already), and there's not THAT much that being chief entails. Mainly administrative shit, acting as spokesperson for the court on general matters, a LOT of it a few years ago when the Buffalo court moved buildings for the third time in 30 years. But also listening to grumbling lawyers about how It's Not Like Things Used To Be Around Here.
Because they're not.
(Ethical note: thou shalt not write a letter to a judge on a pending case without copying the other side. But here, his Chief-ness is important, because you CAN write about general administrative matters. So I did.)
Dear Chief Judge Bucki:
In a little over three weeks, I will mark the 36th anniversary of my admission to practice before this Court in Rochester. My admission was moved by my original employer and mentor Lloyd H. Relin, granted by the Honorable Edward D. Hayes, and certified by Clerk of the Court Michael J. Kaplan. Just over a year later, when Mr. Relin passed away unexpectedly, I accelerated my experience and in particular became a regular practitioner in both Divisions of the Court at a time when few attorneys and even fewer debtor attorneys were doing so. We moved to Buffalo in 1994 and I have always maintained practices in both courthouses. I have tried to maintain levels of professionalism, creativity and on occasion humor to what are often frightening or complex proceedings for even the practitioners.
For most of that run, coming to this court was a bastion of kindness from the personnel behind the counters and in the courtrooms. Both Clerk’s offices deservedly earned commendations from the Second Circuit for their professionalism and courtesy. I knew the clerk personnel were proud of that recognition and they showed it. Their responses to non-legal advice questions and provision of materials were exemplary. In contrast, many other courts and agencies were far more evocative of a bad trip to the DMV.
I was in active practice in both locations when the US trustee became a part of daily court life. I transitioned through the two moves of the Buffalo courthouse, the many internal moves within the Keating building, and the retirement of the first four Bankruptcy Judges with whom I learned my craft. When electronic filing became the new development, I went all-in in learning and helping others on my side of the bar, in getting the events right, filing the right forms in the right places and complying with the applicable rules.
But somewhere after BACPA, something changed. It was nothing of substance, although the 2005 amendments provided plenty of traps for the unwary. Rather, it was the rise of the “deficiency notice” as a near-inevitable consequence of every filing that was far more noticeable. Cynics might think that these were the result of the substantial decrease in filings (generally and particularly in courtroom intensive adversary and reorganization proceedings locally), where the clerks reviewing filings were “looking for something wrong” in every filing. I have no basis for alleging or even suspecting that, but I am sure there is some reason for it.
The things that generate these notices often border on the ridiculous. I have received case opening deficiencies on non-individual no-asset Chapter 7 filings because the schedules did not include Schedules I and J. By definition, these entities are not allowed to HAVE any such income or expenses following a filing. I have seen motions rejected for including language from previous court-approved forms in addition to the current mandatory court-approved forms. Motions have been returned for renoticing to specific courthouse venues where, by administrative order, those courtrooms are empty of all but the sitting judge and judicial personnel (and in the case of the remaining Buffalo division remote locations, completely empty). And today, a motion was removed from the calendar, after being placed on it a day earlier, because the “negative notice” language copied directly from the applicable administrative order was not prefaced by two separate lines referencing the date of the administrative order in question.
Many of these notices have to go to all creditors, imposing additional overhead costs on counsel. Some turn into games of “gotcha” where one deficiency is reviewed and responded to and then another is found, producing an additional notice or more. Making this procedure even worse for the practitioner is that the clients, and every other party receiving notices in the case, get copies of these notices. Whatever my undocumentable theories might be for the notices being created, I can state a second hypothesis with near certainty: clients read these. Every client. Every notice. I can virtually guarantee a call from the debtor within two days of the notice showing up on the docket. It makes us look incompetent in their eyes. And yes, if we were perfect, we would get every one of them right the first time. We’re not.
Increasingly, this procedure results in the notice being ticked in the box for “This motion WILL NOT be considered by the Court.” They are so denominated even in the overwhelming majority of cases where these papers are not read by any recipient, much less opposed by any. It takes nothing into account of the scheduling that went into the matter. And in all of this electronic dissemination of disapproval, I question whether the Clerk’s Office is perhaps not “noticing” two provisions of applicable federal rules:
The last sentence of FRBP 5001(a)(1):
The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices.
And FRCP 61, made applicable to all cases here by FRBP 9005:
At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.
If good fortune holds, I will retire within the decade and will no longer be subject to these causes of anxiety and hypertension. This District has never been what is derisively (and sexistly) known as an “old boy court,” where clerks, judges and practitioners use obscure layers upon layers of rules, from bashing a newcomer with a hidden section of the Code to the range of unresearchable points of practice known (by at least this “old boy”) as “legend and folklore.” That said, these procedures can create the appearance of that attitude for the newer and further entrants into our courtrooms, be they physical or virtual. Many regular practitioners have spoken with me and among themselves about these issues; they (and until today, likely I) held tongues out of fear of retaliation or the innate desire to “keep the peace.”
Yours, et cetera.
The fellow practitioner I shared it with, a decade more experienced than I, has also done substantial work on the semi-inside of the sausage factory as an appointed trustee. I knew he has had similar experiences with the court. When he beta-read my diatribe, he was reeling from a similar deficiency notice issued to him the same day. He also said that, when he raised this issue with his boss on the trustee food chain, the response was, Don't go there. They'll make things worse.
And so I didn't. Today, by chance, brought that actual 36th anniversary, and the ultimate hearing of that motion where I gave the proper notice but didn't reference the date of the order requiring it. It got scheduled after I served it all over again with the magic words. The judge completely agreed with me! Yay! But also spent another 10 minutes telling me it would be a Pyrrhic victory unless I did ten other things within ten days. Not so yay:P
Earlier this week, I filed another set of papers with them that had to be sent to over 20 parties. This time, I deliberately waited to send those copies until the Gringott goblins had pored over the actual filing for any other mistakes. Sure enough, even though I told them in the filing that SERVICE ON ALL CREDITORS WILL BE MADE AFTER MOTION IS CALENDARED, they were not amused and issued a deficiency notice anyway, despite it serving my purpose by confirming I'd done nothing else wrong:
You have noted that proof of service will be filed after hearing set. Please be reminded that the Certificate of Service must now be filed. Once filed, the Certificate of Service will be reviewed for deficiencies.
Und you vill LIKE IT!
So that's my anniversary. Back to being the squad:P