Henry Jacobowitz v. Double Seven Corporation

This is an appeal from an order of the district court affirming, with some modifications, an order of a referee in bankruptcy fixing fees for the trustee’s attorney. The attorney requested an allowance of $11,410.00, but the referee allowed, and the district court approved, a fee of $7,500.00. The appellant here contends that the fee allowed was so low, under the circumstances, as to amount to an abuse of discretion.

After two hearings before the referee, during which considerable expert testimony was taken, the referee made the following findings of fact, conclusions of law, and order:

Upon review the district court affirmed the referee’s order, with the following modifications:

Paragraph II of the conclusions of law was modified to read as follows:

The first sentence of Paragraph III was deleted entirely.

*408 After reading the referee’s findings, which almost completely favor the appellant, it is difficult to conclude otherwise than that the requested fees were reasonable and should have been allowed. Since they were reduced, the district court must have been strongly persuaded by either one or both of two considerations, neither of which we believe to be valid.

In the…

(dissenting) :

I dissent.

It is abundantly clear that the referee and the District Court have given full consideration to all relevant factors in fixing the fee in question. The majority simply disagrees as to the manner in which those factors have been balanced against each other.

It is upon such issues that reviewing courts, even while disagreeing with the court below, traditionally choose to defer to the lower court’s judgment in its exercise of discretion. I would say that with reference to the weight to be given to the economical spirit of the Bankruptcy Act there are particularly impelling reasons for such deference. A balance must be struck between two competing interests: that the cost of bankruptcy should not itself consume the very res the proceedings are designed to protect; and that fees allowed be such as not to discourage competent counsel from active and effective participation. The local referee and judge are certainly best able to fix upon a fair balancing of these interests, and to ascertain the degree to which reduced fees may affect the ability to secure the services of competent counsel under the circumstances existing in the community.

Further, while the…

378 F.2d 405 Henry JACOBOWITZ, Appellant, v. DOUBLE SEVEN CORPORATION, Appellee. No. 21372. United States Court of Appeals Ninth Circuit. June 5, 1967. 1 Daniel T. Bergin, Fennemore, Craig, Allen & McClennen, Phoenix, Ariz., for appellant. 2 Tom Roof, Randolph, Warner & Angle, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Jennings, Strouss, Salmon & Trask, Phoenix, Ariz., for appellee. 3 Before MERRILL and KOELSCH, Circuit Judges, and CURTIS, District Judge. CURTIS, District Judge: 4 This is an appeal from an order of the district court affirming, with some modifications, an order of a referee in bankruptcy fixing fees for the trustee's attorney. The attorney requested an allowance of $11,410.00, but the referee allowed, and the district court approved, a fee of $7,500.00. The appellant here contends that the fee allowed was so low, under the circumstances, as to amount to an abuse of discretion. 5 After two hearings before the referee, during which considerable expert testimony was taken, the referee made the following findings of fact, conclusions of law, and order: 6 "FINDINGS OF FACT 7 "1. That all the allegations of the petitioner, Henry…