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December 1, 2009

Oral Argument at the Supreme Court, Milavetz and Espinosa

This morning was oral argument on Milavetz and Espinosa.  It sure is a fun experience.  Without a doubt, the guy having the most fun up there is Breyer.  He asked bunches of questions with a big smile on his face - proud of himself - and then he would visit with Sonia Sotomayor next to him and Clarence Thomas on the other side.  John Roberts had a lot of questions and when he speaks, everyone listens.  You can really see the deference the other judges give him.  Stevens was pretty quiet; Thomas said not a word.  Alito always seems annoyed.

On the merits of Milavetz, I was prepared to concede that attys (me) are debt relief agencies especially when the judges were grilling the atty arguing that the statute is unconstitutional.  Breyer pointed out that the statute says anyone who is going to appear in court or anyone who undertakes legal representation of an assisted person is a debt relief agency.  That makes it clear Congress intended to include attorneys.  But when the government got up, Alito said "people don't want a debt relief agency to do their bankruptcy, they want a lawyer."  Breyer said, "What if a big firm represents someone's brother-in-law in a chapter 7, is the big firm forever after a debt relief agency?"  The answer was yes which is ridiculous.  A few of them said that the speech issue was nothing - all it means is don't tell the client something bad.  But Roberts pointed out - forcefully - that Congress is trying to accomplish something - keep people from ripping off credit card companies - by telling attorneys what not to tell their clients.  No matter how attorneys answer some of the client's questions including not answering them, could be a signal to the client which could put the atty in jeopardy.

On Espinosa,  it seems pretty clear they are going to affirm the Kozinski ruling.  They kept saying the bankruptcy judge made a mistake but that doesn't make the judgment void.  I felt bad for the lady arguing the side to reverse Kozinski.  They were kind of mocking her.  The debtor's counsel who spoke later wasn't much good either.  He suggested that no matter what the plan said, if there was no objection, it could not be attacked later except through Rule 60(b). 

The Milavetz transcript is hereThe Espinosa transcript is here.  Let me know what you think. 

   

December 1, 2009 in Supreme Court | Permalink

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