                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0567n.06

                                           No. 09-3060
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                           Aug 14, 2009
                               FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk




In re: RANDALL J. HAKE; MARY ANN )
HAKE,                            )                   ON APPEAL FROM THE UNITED
                                 )                   STATES BANKRUPTCY COURT FOR
       Debtors.                  )                   THE NORTHERN DISTRICT OF OHIO



       Before: GILMAN, COOK, FARRIS,* Circuit Judges.


       PER CURIAM. Following a Discharge Adversary Proceeding (“DAP”), the bankruptcy court

ordered Buckeye Retirement Co. (“Buckeye”) to show cause why the court should not revoke the

pro hac vice admission of its lead counsel, F. Dean Armstrong. In response, Buckeye stipulated that

Armstrong would withdraw as counsel, and moved to withdraw the order as moot. Alternatively,

Buckeye moved for Bankruptcy Judge Woods to recuse herself. The court denied both motions and

revoked Armstrong’s admission. The Sixth Circuit Bankruptcy Appellate Panel (“BAP”) affirmed

the decision, and we do likewise.


                                                I.


       This dispute stems from Randall and Mary Ann Hake’s petition for relief under the

Bankruptcy Code. Buckeye, initiating the DAP, objected to the Hakes’ discharge and moved the

       *
       The Honorable Jerome Farris, Circuit Judge of the United States Court of Appeals for the
Ninth Circuit, sitting by designation.
No. 09-3060
In re Hake


court to admit Armstrong pro hac vice as its lead counsel. The court granted the motion and entered

an order admitting Armstrong (the “Admission Order”). The newly admitted Armstrong then

repeatedly clashed with Judge Woods over the course of the proceedings. In the court’s own words,

Armstrong:


       [S]howed a great deal of contempt as well as disrespect for this Court. You would
       point your finger at me. You would roll your eyes. You’d make expressions. You’d
       accuse me of things and you’d argue with me in ways that were totally inappropriate
       and disrespectful.


The BAP, reviewing the trial record, described Armstrong as “argumentative, disrespectful, and

antagonistic toward the Court, including rolling his eyes and making faces while the Court was

speaking and raising his voice.” In re Hake, 387 B.R. 490, 500 (Bankr. N.D. Ohio 2008).


       While it is difficult to assess some of the bankruptcy court’s findings without a video of the

proceedings, we will not find an abuse of discretion where the record supports the judge’s reasoning

for revoking an attorney’s admission. Here, the record suffices to affirm.


       One incident in particular illustrates Armstrong’s disrespect for the court. On the third day

of trial, after repeated conflicts with Judge Woods, the court warned Armstrong that further

arguments would require removing him from court. Undeterred, on the fourth day, Armstrong

commenced yet another argument after the court asked about the production of a document:




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No. 09-3060
In re Hake


       THE COURT: It is very clear to this Court that Mr. Hake did not produce this
       document. I don’t think there’s any question about that. Is that correct, Mr.
       Armstrong?
       MR. ARMSTRONG: It is very clear to the Court Mr. Hake did not produce this
       document. It should be equally clear to the Court that for –
       THE COURT: Mr. Armstrong –
       MR. ARMSTRONG: – it should be –
       THE COURT: – Mr. Armstrong, I told you yesterday if you started arguing with me,
       you’re going to be removed from the Court. Sit down. You’re not going to be
       allowed to talk anymore. One of your other co-counsel can continue. I asked you a
       question just to establish something on the record. It required a yes or no answer.
       Sit down. You may participate in this trial as an observer only from here on out.
       ....
       THE COURT: But I want the record to be very clear Mr. Armstrong has argued with
       me on Monday, on Tuesday and Wednesday. Yesterday afternoon, I told him in no
       uncertain terms that if he did it again he would be removed from the courtroom. I
       asked a question just to clarify about production, and instead of answering the
       question, he started arguing and asking me questions which is not permitted and he
       knows it. So the record is very clear . . . .
       MR. ARMSTRONG: Your Honor, may I please be heard for a second?
       THE COURT: No.
       MR. ARMSTRONG: I’d like to apologize to the Court. Could the Court please hear
       me?


Only minutes later, despite this exchange, Armstrong rose from his seat to whisper directions to his

co-counsel at the lectern, violating the court’s express instructions:


       THE COURT: Wait. Just a – just a minute. Mr. Armstrong, you were told you
       could continue to participate as a spectator only. I would not permit a spectator to
       come to the – to the lectern and talk to any of the attorneys who are speaking. You
       must remain seated.



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No. 09-3060
In re Hake


       Beyond the issue of disrespectful conduct, Armstrong argues that the district court also erred

by grounding its decision to revoke his admission on its finding that he intentionally violated an

order barring Buckeye from subpoenaing Mrs. Hake. Armstrong contends that Buckeye requested

the subpoena before the court issued its order, and that he attempted to stop the request. We do not

reach this issue, finding that Armstrong’s disrespectful behavior justified the decision to revoke his

admission.


                                                 II.


       Armstrong presses two other arguments. First, he contends that the court erred in denying

the motion to withdraw the Show Cause Order as moot. Second, he asserts that the court should

have granted the motion to recuse Judge Woods from deciding “the contempt and pro hac vice

issues” due to criticisms she leveled at Mr. Armstrong.


       We address mootness first. Armstrong maintains that Buckeye, by stipulating that Armstrong

would withdraw as its counsel, mooted the admission issue by rendering uncontested “[t]he only

remedy sought by the Bankruptcy Court—the vacation of Armstrong’s pro hac vice admission.” But

Armstrong’s admission remained a live issue so long as the Admission Order existed. As the

bankruptcy court observed, the court alone could revoke the Admission Order; a party cannot

stipulate away a court order.




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No. 09-3060
In re Hake


        As for the recusal motion, Buckeye pointed the court to Taylor v. Hayes, 418 U.S. 488

(1974), which concerned a criminal-contempt proceeding. During the Show Cause Hearing, Judge

Woods distinguished that case from a proceeding regarding an attorney’s pro hac vice admission.

And regardless, Judge Woods’s criticism of Armstrong did not require recusal because generally,

“judicial remarks during the course of a trial that are critical or disapproving of . . . counsel . . . do

not support a bias or partiality challenge.” Liteky v. United States, 510 U.S. 540, 555 (1994). Such

remarks warrant recusal only “if they reveal such a high degree of favoritism or antagonism as to

make fair judgment impossible.” Id. Armstrong offers no support for the proposition that bias

impaired Judge Woods’s judgment—indeed, the court ruled in favor of Armstrong’s client on the

merits of its claim against the Hakes.


        Neither of Armstrong’s arguments undermine the validity of the decision to revoke his pro

hac vice admission. The record supports the bankruptcy court’s findings.


                                                   III.


        We affirm.




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