In re: The Disciplinary Proceeding of Philip E. Koebel
CC-16-1149-FPaKi
9th Cir. BAPDec 2, 2016Background
- Attorney Philip E. Koebel represented debtor Ruben Cuevas in a 2007 Chapter 7 matter concerning occupancy of real property titled to the decedent’s living trust and subject to probate litigation and an eviction (unlawful detainer).
- Cuevas filed a Chapter 13 petition in December 2014 while the Chapter 7 case remained open; Koebel prepared/filed the Chapter 13 and asserted a large homestead exemption and a Chapter 13 plan premised on speculative distributions from the Chapter 7/probate matters.
- The bankruptcy court dismissed the Chapter 13 as filed in bad faith to delay eviction, barred Cuevas from refiling for two years, and issued an OSC to Koebel on sanctions and Rule 9011/ inherent‑powers grounds.
- The court awarded fee sanctions to the probate trustee and Chapter 7 trustee and referred Koebel to the Central District disciplinary panel, which recommended a 6‑month (recommended) suspension and probation; the local disciplinary panel instead imposed a 180‑day suspension from filing new cases in the Central District bankruptcy court plus 4.5 years’ probation and other conditions.
- Koebel appealed the disciplinary order to the BAP but filed a facially deficient opening brief that largely re‑litigated the Chapter 13 dismissal/sanctions issues already decided against him in related appeals and failed to present arguments attacking the disciplinary order itself.
- The BAP affirmed: it found Koebel’s brief noncompliant, declined to consider incorporated‑by‑reference materials, held the related dismissal/sanctions rulings were law of the case, and concluded no reversible error in the disciplinary order.
Issues
| Issue | Koebel’s Argument | Disciplinary Panel / Other Parties’ Argument | Held |
|---|---|---|---|
| Whether the disciplinary panel abused its discretion in suspending Koebel 180 days and imposing 4.5 years’ probation | Koebel argued he acted in good faith: Chapter 13 filing was legitimate, homestead claim and plan assumptions were proper, and positions were meritorious (no misconduct) | Panel relied on bankruptcy court findings that the Chapter 13 was filed in bad faith to delay eviction, that Koebel knowingly advanced frivolous/false positions, and sanctions were warranted | Affirmed: no abuse of discretion; disciplinary sanctions upheld |
| Whether the appeal preserved distinct errors with respect to the disciplinary order | Koebel relied on incorporated record and reargued prior issues (dismissal/sanctions) instead of addressing disciplinary order errors | BAP: brief failed to comply with Rule 8014 and did not distinctly argue errors; many issues already decided in related appeals (law of the case) | Affirmed: brief deficient; appellate review limited; arguments not distinctly raised forfeited |
| Whether related appeals preclude relitigation of the underlying dismissal/sanctions in the disciplinary appeal | Koebel re‑argued the Chapter 13 dismissal and bankruptcy sanctions | BAP invoked law of the case and noted it had affirmed dismissal and sanctions in Related Appeals | Held: Related Appeals decision binding; disciplinary appeal cannot relitigate those determinations |
| Whether the BAP should strike/dismiss for procedural defects of the opening brief | Koebel argued by incorporation and raised multiple documents but omitted required brief components | Respondents asked for enforcement of briefing rules; BAP cited precedent allowing summary affirmance or dismissal for deficient briefs | Held: BAP declined to strike/dismiss but admonished deficiencies and proceeded to affirm on the merits/for procedural default reasons |
Key Cases Cited
- Morrissey v. Stuteville, 349 F.3d 1187 (9th Cir. 2003) (affirmance or summary disposition appropriate where opening brief fails to present required elements)
- N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145 (9th Cir. 1997) (grounds for dismissing appeal for briefing defects)
- United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc) (standard for reviewing application of law to facts; abuse of discretion requires illogical or unsupported conclusions)
- In re Nguyen, 447 B.R. 268 (9th Cir. BAP 2011) (framework for reviewing attorney disciplinary sanctions: fairness, evidentiary support, and reasonableness of penalty)
- Leslie Salt Co. v. United States, 55 F.3d 1388 (9th Cir. 1995) (law of the case doctrine prohibits relitigation of issues decided in a prior appeal)