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In re Parker

United States District Court, E.D. Virginia, Richmond Division

September 26, 2014

IN RE: DARRYL A. PARKER

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the court on pro se appellant Darryl Parker's appeal from an order of the United States Bankruptcy Court for the Eastern District of Virginia (Phillips and Huennekens, B.J.)., pursuant to 28 U.S.C. ยง 158(a)(1). For the reasons set forth below, the decision of the Bankruptcy Court is affirmed.

PROCEDURAL AND FACTUAL BACKGROUND

This is an appeal from a January 15, 2014 joint order in which the Bankruptcy Court suspended Parker from practicing in the Bankruptcy Court of the Eastern District of Virginia, ordered that Parker undergo legal education regarding bankruptcy law and ethics, and allowed Parker to apply for reinstatement to the Eastern District of Virginia's Bankruptcy Courts upon showing that he had completed his suspension and additional legal training and that he had satisfied previously-entered make-whole orders that required him to remit fees to certain clients. Bankr. Rec. 5-6.

A. The Individual Case Orders

Throughout 2013, Parker, acting as counsel to various debtors, filed several bankruptcy cases in the Richmond Division of the United States Bankruptcy Court for the Eastern District of Virginia (collectively called the "Five Cases").[1] Upon motion of the United States Trustee, the Bankruptcy Judges to whom the cases were assigned[2] issued orders to Parker to show cause why he should not receive both monetary sanctions and a suspension for his actions and failures to act in the Five Cases. The judges held hearings in their respective cases on December 10, 2013. See Dkt. Nos. 2, 3, and 4.

Judge Phillips issued an opinion in Smith on January 14, 2014 (Dkt. No. 1-17), while Judge Huennekens issued a combined opinion in Vaughan, Tucker, Chavis, and Staten on January 15, 2014 (Dkt. No. 1-11). These opinions held, among other things, that Parker had failed to timely file documents; had falsely blamed debtors for late filings; had failed to advise clients regarding the status of their case and various personal obligations (including the obligation to attend counseling and make monthly payments); had failed to attend several meetings with his clients; had filed false compensation disclosures; and had filed several documents containing false statements. Several additional legal findings were made, including that: Parker had violated Fed.R.Bankr.P. 9011 by filing a false document with the court; that Parker had "failed to adequately advise, communicate with, keep informed, and maintain the proper demeanor with his clients", and had violated the Virginia Rule of Professional Conduct; and that Parker's "unprofessional services were of no value to - and in some cases, actually detrimental to - his clients, subjecting them to peril." Dkt. Nos. 1-17, 1-11.

The orders issued in conjunction with the January 15, 2014 opinion in Vaughan, Tucker, Chavis, and Staten also recite that the Bankruptcy Court had found "Darryl A. Parker to be in contempt for violation of various Rules of the Federal Rules of Bankruptcy Procedure, for violations of various Local Rules of this Bankruptcy Court, and for failure to adhere to the minimum standards of professional conduct required of attorneys practicing before this Court." Dkt. Nos. 1-16, 1-15, 1-12, 1-14. The Bankruptcy Court then proceeded to impose a $1, 000 sanction payable to the Chapter 13 Trustee in each case and required disgorgement of all fees in each case. Id . The order issued on January 14, 2014 in conjunction with the January 15, 2014 Smith opinion does not make an explicit finding of contempt. Dkt. No. 1-13. However, it does grant the United States Trustee's Motion to Examine Fees Paid and orders disgorgement for fees paid in Smith in addition to another payment. Id.

B. The Miscellaneous Proceeding - In re Darryl A. Parker

In addition to the individual proceedings in each of the Five Cases, Judges Phillips and Huennekens together issued a separate order in a miscellaneous proceeding directly addressing the Trustee's request that Parker "be suspended from practicing before this Court and that he be required to participate in continuing legal education focusing on bankruptcy law and ethics." That order was issued on January 15, 2014. Bankr. Rec. at 5 and granted the Trustee's request and suspended Parker from practicing in the Eastern District of Virginia for four months[3] and ordered Parker to complete eight hours of legal education on bankruptcy law and four hours of legal education on legal ethics in bankruptcy law. Id. at 6. The order also provided that Parker was permitted to apply for reinstatement to practice before the Bankruptcy Court after his suspension period ended provided that he had made the payments ordered in the above-mentioned individual cases and had completed his legal training. Id.

Parker filed a notice of appeal of the miscellaneous order.[4] The notice states that it was sent by certified mail on January 28, 2014. However, it was received and entered by the clerk of the Bankruptcy Court on January 30, 2014. Id . Parker filed his brief with this Court on May 15, 2014. Dkt. No. 8. The Trustee filed his response brief with this Court on June 13, 2014. Dkt. No. 9. Parker has not filed his reply to the Trustee's response.

DISCUSSION

A. Jurisdiction of the Court

1. Time for Appeal

As a threshold matter, the Trustee argues that this Court is without jurisdiction to consider the appeal because Parker failed to timely file his notice of appeal with the Bankruptcy Court. Appellee Brief, Dkt. No. 9, at 13. The Federal Rules of Bankruptcy Procedure require that an appellant file a "notice of appeal... with the clerk [of the Bankruptcy Court] within 14 days of the date of the entry of the judgment, order, or decree appealed from." Fed. R. Bankr. Pro. 8002(a). "It is well settled that, if a prospective appellant fails to timely file his notice of appeal, the District Court is stripped of its jurisdiction to hear the appeal." Chien v. Commonwealth Biotechnologies, Inc. , 484 B.R. 659 (E.D. Va. 2012) (citing Smith v. Dairymen, Inc. , 790 F.2d 1107, 1111 (4th Cir. 1986) ("[O]nly a party who files a notice of appeal properly invokes the appellate jurisdiction of the district court."))

In this case, the Bankruptcy Court order from which the appeal was taken was entered on January 15, 2014. Accordingly, under the Rules, Parker had until January 29, 2014 to file his Notice of Appeal with the Clerk of the Bankruptcy Court. The Notice of Appeal was stamped by the Clerk on January 30, 2014. Bankr. Record at 9. Thus, the Trustee maintains that Parker filed his ...


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