In re Ayo H. Akatugba

Background

Andrew J. Christensen, attorney for debtor Ayo H. Akatugba, appealed a bankruptcy court order dated April 19, 2023. That order referred Christensen to the Standing Committee on Professional Conduct. The bankruptcy court identified two grounds for the referral: a written brief that, in its view, seriously misstated legal authority and lacked candor, and a later hearing at which Christensen did not show an understanding of the importance of that lack of candor.

Christensen first sought a stay pending appeal from the bankruptcy court, but that request was denied. He then asked the district court for a stay. A stay pending appeal is an order temporarily preventing enforcement of a lower court’s ruling while an appeal proceeds.

Analysis

The district court explained that a stay generally depends on four considerations: the applicant’s likelihood of success, the possibility of irreparable harm without a stay, potential injury to other interested parties, and the public interest. At a minimum, the applicant must show a substantial case for relief on the merits.

Christensen argued that the referral was a sanction imposed without due process. The district court was not persuaded that the referral was a sanction that could support the court’s jurisdiction over the appeal. Under the applicable local rule, a referral sends suspected unprofessional conduct to an independent committee for investigation and a recommendation. If the committee recommends formal discipline and the attorney does not consent, a formal disciplinary proceeding may follow before a district judge.

The court noted that the Ninth Circuit had not decided whether a referral to a disciplinary body, standing alone, is an appealable sanction. The court also distinguished an appealable sanction from criticism that merely explains why a referral or other action was taken. The bankruptcy court did not identify a specific ethical rule that Christensen violated, did not expressly call its comments a reprimand, and described the conduct as the basis for the referral. The district court therefore concluded that neither the referral nor the comments appeared to be an appealable sanction.

Because the district court likely lacked jurisdiction over the appeal, it found that Christensen had not shown a substantial case for relief on the merits. The court stated that when this threshold showing is absent, it need not consider the remaining stay factors.

Disposition

Judge Jon S. Tigar denied Christensen’s motion for a stay pending appeal. The opinion did not state that the appeal itself was dismissed or finally resolve the question of jurisdiction; it stated that the court likely lacked jurisdiction and denied the requested stay.