LORRAINE WEIL, Bankruptcy Judge
Lorraine Murphy Weil, Chief United States Bankruptcy Judge
I. BACKGROUND
WHEREAS, much of the relevant background is set forth in Katz v. Kucej (In re Biebel), No. 08-3115, 2009 WL 1451637 (Bankr. D. Conn. May 20, 2009) (the "2009 Decision"). Familiarity with the 2009 Decision is assumed and the 2009 Decision is deemed incorporated herein as if fully set forth. Capitalized terms used but not defined herein have the same meanings ascribed to the same in the 2009 Decision; WHEREAS, on September 3, 2010, the above-referenced defendant ("Attorney Kucej") filed a motion for the undersigned to recuse herself from the Adversary Proceeding. On September 13, 2010, the court issued an order (ECF No. 219) requiring Attorney Kucej to file a supplement to the original recusal motion (because such original motion lacked specificity). On November 19, 2010, Attorney Kucej filed a supplement (ECF No. 249) to his original motion; WHEREAS, the Recusal Motion came on for an evidentiary hearing (the "Hearing") on November 29, 2010. Attorney Kucej did not personally appear at the Hearing, but a somewhat confused Attorney Voytek purported to appear for Attorney Kucej and requested a continuance and a waiver of transcript fees. (See Oral Record of 11/29/2010 Hearing at 2:12:20 et seq.; cf. ECF No. 250 ("Order Denying Motions To Continue and Scheduling Supplement to Motion To Recuse for a Hearing on November 29, 2010 at 2:00 P.M.").) At the Hearing, the court denied the oral motion to continue and oral motion for waiver of transcript fees but took the Recusal Motion "on the papers" and "under advisement." (See Oral Record of 11/29/2010 Hearing at 2:15:00 et seq.);
There are other developments with respect to the Adversary Proceeding (including both appellate developments in the District Court and developments in Connecticut Superior Court) that are not discussed herein because the court deems them to be irrelevant to the Recusal Motion (as hereafter defined).
References herein to the docket of the Adversary Proceeding appear in the following form: "ECF No. ___." References herein to the docket of the above-referenced Chapter 7 case appear in the following form "Case ECF No. ___."
ECF No. 249 incorporates ECF No. 248 by reference. ECF No. 213, as supplemented by ECF No. 249, hereafter is referred to as the "Recusal Motion."
Various matters in the Adversary Proceeding have been continued without date pending a decision on the Recusal Motion. Similarly continued are Case ECF Nos. 98, 99, 104 and 105.
II. OTHER FACTS
WHEREAS, on August 5, 2003, the court issued that certain Revised Order To Show Cause Why Attorney's Fees Should Not Be Disgorged in the Biebels' Case (Case ECF No. 39, the "OTSC") which provided in relevant part as follows:
Pursuant to this court's power under
11 U.S.C. § 329 to examine a debtor's transactions with his attorneys, it is hereby
ORDERED that the above-referenced debtors' (the "Debtors") attorney of record, John C. Kucej, Esq. appear at a hearing . . . on August 20, 2003 at 3:00 p.m. at the United States Bankruptcy Court, Connecticut Financial Center, 157 Church Street, 17
th Floor, New Haven, Connecticut, to show cause why he should not be required to disgorge any fees paid (or agreed to be paid) by the Debtors to him with respect to this case. . . .
(ECF No. 39.); WHEREAS, the OTSC ultimately came on for a hearing on October 8, 2003. At that hearing, the undersigned said:
Similar orders also were issued in Case No. 02-33194 (the case in respect of Enterprise, the "Enterprise Case") and in Case No. 02-33195 (William's Case).
I will tell you that I am terribly troubled by these cases which is why you saw the . . . [OTSC] in the . . . [Biebels' Case]. . . .
And I have some questions as to what kind of a representation the Debtors got, and under section 329 of the Bankruptcy Code I certainly have the authority to look into whether fees paid in this case were reasonable and to order refund of the fees if appropriate.
(Case ECF No. 74 at 4:25 — 5:15.) In addressing the Biebels, the undersigned further said:
Why . . . did you turn down an offer [from Attorney Kucej] to be defended free of charge [in the objection to discharge proceeding] when . . . at least facially, it appears that
perhaps the initial representation was not all that it should be and may have resulted . . ., to some extent, in the denial of discharge problems you're involved in now?
(Id. at 10:13-21.) At that hearing the undersigned also critiqued the schedules and statement of affairs filed by Attorney Kucej in the Enterprise Case.
(See Case ECF No. 74 at 6:1 — 8:9.) At the conclusion of that hearing, the court deferred decision on the OTSC until the discharge objection proceedings against the Biebels (A.P. No. 03-3034) had been adjudicated.
(See id. at 11:13-19.);
WHEREAS, on February 10, 2006, the court issued that certain Further Revised Order To Show Cause Why Attorney's Fees Should Not Be Disgorged (Case ECF No. 49) which restored the OTSC to the court's hearing calendar;
WHEREAS, the OTSC came on for a further hearing on March 22, 2006. Attorney Kucej did not appear at that hearing. However, at the hearing the Trustee advised the court: "I received a call from Attorney Schancupp on this matter indicating that Attorney Kucej was willing to disgorge his fees in all of the cases." (Case ECF No. 110 at 3:23 — 4:1.) Based upon the foregoing and without making any findings, the court issued that certain Order Compelling Disgorgement of Fees (Case ECF No. 54) requiring Attorney Kucej to disgorge his fees to the Biebels with respect to the Biebels' Case. Similar orders entered in the Enterprise Case and in William's Case. Attorney Kucej complied with those three orders by disgorging his fees for each of the three cases. (See, e.g., Case ECF No. 56.);
As noted in the 2009 Decision, the Biebels' waiver of their respective chapter 7 discharges had been approved by order dated February 13, 2006. (See Case ECF No. 51.)
Jennifer L. Schancupp, Esq. filed a notice of appearance for Attorney Kucej in the Biebels' Case on March 22, 2006. (See Case ECF No. 53.)
III. LAW
WHEREAS, the relevant statute is 28 U.S.C. § 455(a) which states as follows: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," 28 U.S.C.A. § 455(a) (West 2010);
WHEREAS, "[w]hether a bankruptcy judge's impartiality might reasonably be questioned depends on whether an objective observer fully informed of the relevant facts would entertain a reasonable doubt regarding the judge's impartiality . . .," 9 Am. Jur. 2d Bankruptcy § 419 (2010) (footnotes omitted);
IV. APPLICATION OF LAW TO FACTS
WHEREAS, the court concludes that an impartial observer fully informed of the foregoing facts and circumstances would entertain a reasonable doubt concerning whether the undersigned had prejudged against Attorney Kucej with respect to at least part of the merits (the "Merits") of his claim against the Trustee that she had "manufactured" the alleged malpractice claim against him. The Adversary Proceeding concerns a determination of the proper venue for Attorney Kucej's claim against the Trustee (i.e., either this court or the Connecticut Superior Court). Accordingly, and given the above-stated reasonable doubt as to the undersigned's impartiality with respect to the Merits, the undersigned deems it inappropriate for her to participate any further in the Adversary Proceeding or in the Biebels' Case;
As noted above, pending matters in the Biebels' Case now are: Case ECF No. 98 (Trustee's application for compensation for her special counsel in respect of the two state court malpractice suits against Attorney Kucej); Case ECF No. 99 (Trustee's own fee application and final report); Case ECF No. 104 (Attorney Kucej's objection to each of the foregoing); and Case ECF No. 105 (Attorney Kucej's second objection to Case ECF Nos. 98 and 99). Attorney Kucej's objection to Case ECF Nos. 98 and 99 relies in substantial part on the Merits. Accordingly, it is appropriate for the undersigned to recuse herself from the Biebels' Case as well.
V. CONCLUSION
NOW, THEREFORE, for the reasons stated above, it hereby is ORDERED that the Recusal Motion is granted to the extent set forth hereinbelow; and it is further
ORDERED that the undersigned hereby recuses herself from both the Adversary Proceeding and the Biebels' Case; and it is further
ORDERED that the Clerk of Court (in consultation with Hon. Alan H.W. Shiff and Hon. Albert S. Dabrowski, the two other bankruptcy judges for this district) shall reassign the Adversary Proceeding and the Biebels' Case as may be appropriate. The undersigned shall take no part in that decision; and it is further
ORDERED that the Clerk's Office shall serve this memorandum and order on the Trustee, counsel for the Trustee, Attorney Kucej, Attorney Voytek and the United States Trustee by this court's CM/ECF system (if applicable, otherwise by first-class mail). A separate order of recusal (consistent with the foregoing) shall issue and be served by the Clerk's Office upon all creditors and parties in interest in the Biebels' Case by this court's CM/ECF system (if applicable, otherwise by first-class mail).
Dated: January 4, 2011