NewsFlash:  Howard Stearn has higher morals than bankruptcy professionals.  The Department Of Justice will not hold Official Trustees to as high a standard as radio talk show hosts.

Department of Justice
Executive Office for United States Trustees

FINAL AGENCY ACTION
CASE NO. 05-0004
(Corrected Decision, November 1, 2005)
Redacted

 C.        Trustee’s Failure to Display Proper Temperament

          The Handbook requires that a “trustee’s demeanor toward all parties should be appropriate and professional.” Further, a trustee must “display proper temperament in dealing with judges, clerks, attorneys, creditors, debtors, the United States Trustee and the general public.” 28 C.F.R. § 58.6(a)(6). The United States Trustee concluded that the trustee’s comments and questions during § 341 meetings demonstrated “a seriously unprofessional” demeanor. The Notice provided a series of improper remarks made during § 341 meetings conducted in February, March, and April of 2005 which the United States Trustee concluded supported four negative inferences concerning the trustee’s character, as well as additional remarks that involved improper language.

            The various categories of improper remarks and examples provided by the United States Trustee are as follows:

            1.         Conduct Suggesting Trustee’s Alleged Willingness to Misuse His Position

[Debtor testifies that she works at the [name of] Inn.] “That’s a nice little inn. Can I get a discount down there if I treat you nice?”

[Debtor testifies that she has a 1986 Chrysler New Yorker car.] “It’s okay. I am not going to take it.” [Debtor responds that the trustee wouldn’t want it if he saw it.] “You never know. Some people are so mean to me, I take them anyway.”

“You know if you’re not nice to me, I can be really bad . . . Really bad. Really, really, really bad.”

“. . . I’m not always that nice to everybody, so be careful

                        [female debtor].”

[Debtor testifies she packs shoes for a living.] “Did you bring any sneakers here? . . . [Debtor: “I didn’t know your shoe size.”] “Didn’t your attorney tell you you’re supposed to.”

[Debtor testifies that she works at a café.] “If I come down to you, you won’t give me a hotdog?” [Debtor: “I would . . . All right.”]

[To a lobsterman.] “Did you bring a box of lobsters in for us today?” [Debtor: “No, but I wish I would have.”]

[To a man working in a Chinese restaurant.] “Did you bring any wings in for us to eat? . . . [Debtor says it’s too early in the day.] “No seafood lo mein [sic] or anything like that?”

[Debtor testifies she has 800 copies of a CD.] “You going to send me one?” [Debtor: “I guess.”]

Notice of Suspension at 6 - 7.

            The foregoing comments are open to an interpretation that the trustee might be willing to use his position of authority to provide favorable treatment to debtors who, in turn, are willing to offer favors to him. Some comments suggest the trustee will be “nicer” to those who favor him and “meaner” to those who do not. In others, the trustee appears to be requesting that debtors present him with gifts, such as various types of free food and CDs. The trustee’s prior response to the United States Trustee was that such comments are nothing more than harmless banter, designed to put the debtors at ease in an otherwise stressful situation. Trustee’s Response at

5 - 6. The trustee further states that the United States Trustee has taken things out of context and that he never meant to suggest he would take a bribe. Id.

             While these statements, without more, do not support a finding that the trustee intended to solicit a bribe, or any other type of favor, nonetheless, such comments are inappropriate and have no place in a quasi-judicial proceeding. As the United States Trustee stated in [the] Notice of Suspension, “[a]lthough you may have been ‘kidding’ . . . Members of the public know that § 341 examinations are serious occasions - they hear each debtor being put under oath.” Notice at 8. Indeed, for many debtors, this meeting may be their only contact with the bankruptcy process. Such comments could be taken seriously by a debtor, regardless of the trustee’s intent. Such comments have no place at § 341 meetings any more than they would at a court hearing.

            2.         Alleged Unprofessional Conduct in Dealing with Female Debtors

“No sugar daddies on the side buying you any nice things?”

“You think you can suck up to me regularly with a smile?”

 “Where’s your [husband]?” [Debtor: “He’s in the parking lot.”] “Afraid to come in here, ha, ha. You’re on your own.”

“Really cute. The blood had rushed up to her face now, and she’s going - - the blood pressure’s going right through her (inaudible). Attorney’s scrambling. I love this. I live for these moments.”

[To male companion of a female debtor.] "Sometimes when I get nasty with the women, they like to hang onto their husbands a little bit."

“This the guy who left you? . . . So he’s bailing you out?” [Debtor says no, she’s bailing herself out.] “Oh, yeah. I’m an independent woman, right? I am, hear me now.”

“Why are you smiling? Are you sucking up to me here?”

“You separated? . . . So how late does this Wendy’s stay open? [Debtor: “Um, I think 12 at night.”] You don’t work that late? . . . Don’t forget next time I come in.”

[To joint debtors.] “Do you always answer for her? That could be - - that could be dangerous. . . .Women have a tendency. . . .We gave them the right to vote, and drive a car, and went to hell. Honest to God, you can’t answer to anything.”

“Mistake. . . Never marry like that. You know, they’re too mouthy those American women.”

“You look like a wine drinker.”

“What bar do you hang out in now?” [Debtor: “Pardon me?”] “What bar do you hang out in now?”

[To joint debtors, question addressed to husband.] “What do they call those, wife beater t-shirts?

Notice of Suspension at 8 - 9.

            As with the comments set forth in the prior section, the trustee’s intent is irrelevant. The comments are inappropriate and suggest an ulterior, personal motivation. They demean the bankruptcy process and specifically the importance of the meeting of creditors. To paraphrase the United States Trustee, for example, these comments could be construed as demonstrating:

. . . your willingness to misuse your position as trustee to ask wholly personal questions (“What bar do you hang out at?”) or to make personal and unprofessional observations (“Really cute”; “You look like a wine drinker”) [or] imply that female debtors should “suck up” to you, or that [you may be suggesting that] they may be trading sexual favors for “nice things” (the “sugar daddy” comment). Some comments [could be construed as the] taunting of female debtors (“. . . ha ha. You’re on your own”; “Oh, yeah. I’m an independent woman, right? I am, hear me now”) or, in some sense, celebrating your power over them (“. . . the blood pressure is going right through her”; “I love this”; “I live for these moments”) during § 341 meetings. You [could be understood] to acknowledge that being “nasty with the women” is characteristic of your performance as a chapter 7 trustee.

Notice of Suspension at 10.

            3.         Insulting Behavior Toward, or Hectoring of Debtors

                        [Trustee]:       No, I don’t need it. I just want to see a picture of you.

                        Rhonda:          Okay. Because it’s not (inaudible).

                        [Trustee]:        Says who you are. Should you have some numbers underneath your chin here, or something like that? Wanted numbers, or...

                        Mark:              In the past.

                        [Trustee]:        What do they call those? Wife beater t-shirts, is that what they call them?

                        Rhonda:          Wife beaters, what’s that?

                        Mark:              That was in the summer.

                        Rhonda:          Oh, summer.

                        [Trustee]:        Those tank t-shirts. Don’t they call those wife beater t-shirts?

                        Mark:              I don’t know.

                        [Trustee]:        He’s not a wife beater.

            __________________________________________________________________

                        [Trustee]:        Where do you work?

                        A:                    (inaudible) Psychiatric Center.

                        [Trustee]:        Are you, like, one of the - - everyone else that doesn’t like that place?

                         A:                    No, sir. I didn’t say that.

                        [Trustee]:        I know you didn’t say that. I asked you.

                        A:                    No.

                        [Trustee]:        Your job’s not in jeopardy... for saying that you don’t like the place - - (inaudible) places they don’t like.

            ___________________________________________________________________

                        [Trustee]:        What do you do?

                        A:                    I am staying with my parents right now. I just started a new job.

                        [Trustee]:        How old are you?

                        A:                    24.

                        [Trustee]:        Do you think you are going to sever that umbilical cord here, soon?

                        A:                    Yeah.

                        [Trustee]:        Are you going to continue to mooch off of them?

                        A:                    No.

            ________________________________________________________________

                        [Trustee]:        18 year old cat. Things [sic] not going to live another day. Martha [name of the cat].

                        A:                    She’s valuable.

                        [Trustee]:        It says no resale value here. She’s valued at $2. Claimed here as a $200 exemption. . . .

                        A:                    I don’t want to lose Martha. She might only have a year left, but I want her.

Notice of Suspension at 10 - 12.

            Many of the above-quoted colloquies are very troubling. The first unnecessarily raises the topic of wife-beating to the point where the debtor identified as Rhonda feels compelled to defend Mark by stating he is not a wife beater. The second pushes the debtor to answer a question about her opinion of the psychiatric facility at which she is employed, a question that is irrelevant and one she apparently does not wish to answer. The third accuses the debtor of being a burden to his parents. The fourth challenges the value of a beloved pet. Such personal conversations are patently inappropriate at a § 341 meeting.

            4.         Alleged Improper Questions or Comments About Nationality

            In the § 341s reviewed, the trustee questioned debtors on issues of nationality or made comments about their country of origin:

[To a Chinese man.] “. . . How come your house is in your wife’s name? . . .  Is your wife Chinese?”

[To a Filipino woman.] “What’s your nationality?”

[To a Filipino woman.] “This isn’t over there, you know. This is here.”

[To a Filipino woman.] “And you won’t lose your kids. . . . We’re not talking over in the Philippines.”

[To a Filipino woman.] “The [debtors] don’t sound like they’re very Filipino, either.”

[To a Samoan woman.] “I’ve always asked this question because a good friend of mine is from Hawaii. Do you learn to dance early in your life, to dance like they dance? [Debtor: “In Samoa, yes. I used to dance in Samoa.”] “How do you get your hips to move like that?”

Notice at 10 - 12.

            With respect to these comments, the United States Trustee stated as follows: “Nationality, ethnicity, and country of origin are never the proper subject of question or comment during a § 341 examination.” Notice at 13. While the mere mention of a person’s nationality is not inherently offensive, the trustee must be aware of remarks that may offend. Further, the trustee responded with several explanations. Trustee’s Response at 8.

            With respect to the question concerning whether the debtor’s wife is Chinese, the trustee explained that in his experience Chinese men tend to title their homes in the name of their American wives as a means of hiding assets. Id. This response provides no justification for the inquiry regarding the nationality of the debtor’s wife. The trustee next explained that the dialogue concerning the Filipino woman was in response to her expressed concerns that filing bankruptcy might cause her to lose custody of her children. A review of that hearing confirms this account. Finally, with respect to the Somoan woman, the trustee explained that he had a Somoan acquaintance and an interest in their dance. A review of that hearing indicates that the individual involved seemed willing to discuss this topic. However, in light of the trustee’s power and position, such personal and gratuitous statements have no place at a § 341 meeting.

            5.         Use of Inappropriate Language

                        “Guys wear hats [in here] all the time and it burns my ass.”

                        “How the hell would you know . . .”

                        “Dumb ass salesmen.”

                        “What the hell did you buy at BankOne for $31,000?”

                        “Did you get some crap from Home Depot today, coming here?”

                        “Not to get goddamned signed order.”

                         “Jesus Christ, you could have saved yourself a couple of grand.”

                        “I’m so goddamn sick of these people.”

                        “Look at me as the mean son of a bitch --“

                        “. . . I’m a mean son of a bitch.”

                        “Am I talking to you?” What the hell is wrong with this group?”

“96 Oldsmobile? US [sic] Trustee hears this tape, I’m going to get fired, sure as hell.”

Notice at 13 - 14.

            These comments are inappropriate, unprofessional, and offensive. The gratuitous language used by the trustee requires no discussion. It simply does not belong at a § 341 meeting, and the trustee should not have to be counseled as to that fact.  

            D.        Importance of a Trustee’s Judgment

            Chapter 7 trustees are supervised by the United States Trustee. 28 U.S.C. § 586(a)(1). The case trustees exercise substantial power over the chapter 7 estate, including the authority to collect and liquidate assets. 11 U.S.C. § 704(1). It is axiomatic that a trustee is a fiduciary. As fiduciaries, trustees are held to the highest standards of conduct. See generally Woods v. City National Bank & Trust Co., 312 U.S. 262, 278 (1941); Mosser v. Darrow, 341 U.S. 267 (1951). Equally importantly, they must be perceived to be capable of dealing with a wide range of individuals and be perceived to exhibit good judgment and be fair and balanced. Indeed, these attributes are so important that the Department of Justice has promulgated a formal rule conditioning a trustee's appointment upon the possession of those attributes. See 58 C.F.R. § 58.3(b)(3) (a trustee must "[b]e courteous and accessible to all parties") and 58 C.F.R. § 58.3(b)(4) (a trustee must "[b]e free of prejudices against any individual, entity, or group of individuals or entities which would interfere with unbiased performance of a trustee's duties"); see also 28 U.S.C. § 586(d) ("The Attorney General shall prescribe by rule . . . qualifications for appointment under subsection (b) of this section to serve as standing trustee").

            The United State Trustee noted that the trustee is an important participant in the federal bankruptcy system. [The United State Trustee] observed that the trustee’s “job is to assist the United States Department of Justice in protecting the integrity of the bankruptcy system.” Notice at 6. [The United States Trustee] further stated that it is critical for the trustee to interact appropriately with other participants in the process, particularly debtors. Id. The record demonstrates that the trustee’s demeanor has been inconsistent with his obligation to conduct himself in a professional manner that supports the integrity of the bankruptcy system. The trustee’s obligations in conducting § 341 meetings are set forth in the Handbook, and his demeanor at the § 341 meetings demonstrated bad judgment on his part. The questions and statements identified above simply have no place at § 341 meetings. Consequently, the trustee’s deficiencies concerning demeanor cannot be excused because they were not addressed previously. The record, however, does not support a finding that the trustee intentionally ignored the United States Trustee’s counseling on his deficiencies, and he demonstrated an ability and a desire to improve these deficiencies shortly after they were discussed with him.

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