PACHULSKI STANG ZIEHL & JONES LLP ATTORNEYS AT LAW SAN FRANCISCO, CALIFORNIA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35685-001\DOCS_SF:63955.1 1 APPLICATION TO EMPLOY HOWARD RICE John D. Fiero (CA Bar No. 136557) Kenneth H. Brown (CA Bar No. 100396) Miriam P. Khatiblou (CA Bar No. 178584) Teddy M. Kapur (CA Bar No. 242486) PACHULSKI STANG ZIEHL & JONES LLP 150 California Street, 15th Floor San Francisco, California 94111-4500 Telephone: 415/263-7000 Facsimile: 415/263-7010 E-mail: [email protected][email protected][email protected][email protected]Attorneys for Heller Ehrman LLP, Debtor and Debtor in Possession UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION In re: Heller Ehrman LLP, Debtor Case No.: 08-32514 Chapter 11 DEBTOR'S APPLICATION TO EMPLOY HOWARD RICE AS SPECIAL COUNSEL [NO HEARING REQUIRED] Heller Ehrman LLP, debtor and debtor in possession in the above-referenced case (the “Debtor”), hereby submits this application (the “Application”) to employ Howard Rice Nemerovski Canady Falk & Rabkin (the “Firm”), whose business office is located at Three Embarcadero Center, San Francisco, California, as special counsel. The Debtor seeks to employ the Firm nunc pro tunc to December 28, 2008 (the “Petition Date”). This Application is brought pursuant to section 327(e) of title 11 of the United States Code (the “Bankruptcy Code”), Rule 2014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and the Guidelines of the Office of the United States Trustee, Region 17. In support of the Application, the Debtor respectfully represents as follows: Case: 08-32514 Doc #: 137 Filed: 02/17/2009 Page 1 of 6
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35685-001\DOCS_SF:63955.1 1 APPLICATION TO EMPLOY HOWARD RICE
John D. Fiero (CA Bar No. 136557) Kenneth H. Brown (CA Bar No. 100396) Miriam P. Khatiblou (CA Bar No. 178584) Teddy M. Kapur (CA Bar No. 242486) PACHULSKI STANG ZIEHL & JONES LLP 150 California Street, 15th Floor San Francisco, California 94111-4500 Telephone: 415/263-7000 Facsimile: 415/263-7010
35685-001\DOCS_SF:63955.1 3 APPLICATION TO EMPLOY HOWARD RICE
approximately $10 million in accounts payable, $4 million in taxes, pension and deferred
compensation claims and claims by former employees for accrued vacation time.
C. The Debtor’s Pre-Petition Retention of The Firm.
The Firm represented the Debtor on a number of matters over the years, all but three of
which were concluded prior to the bankruptcy filing. Prior to the bankruptcy filing on December 28,
2008, the Debtor employed the Firm as its counsel to provide legal services relating to (a) the
malpractice action filed against the Debtor and others by Oliver and Hanna Hilsenrath which action
is currently pending in the San Francisco Superior Court, Case No. CGC-07-467742) (the
“Hilsenrath Matter”); (b) certain claims asserted by the chapter 7 trustee in the Brobeck bankruptcy
case currently pending before the Honorable Dennis Montali in the United States Bankruptcy Court
for the Northern District of California, San Francisco Division (the “Brobeck Matter”); and (c) a
dispute between the Debtor and its former client Emine Technology Co., Ltd. (the “Emine Matter”)
regarding the Debtor’s bill for legal services and claims asserted by the former client.2 Pursuant to
two separate retention agreements, in November 2007 the Firm began rendering legal services to the
Debtor in connection with the Hilsenrath Matter and later began rendering services in connection
with the Brobeck Matter in or about February 2008. In connection with these two matters, the Firm
has unpaid fees in the total amount of $48,381, for services rendered between September 2008 and
the Petition Date. The Firm also has incurred the amount of $3,566.80 in fees and costs since of the
Petition Date in connection with the Hilsenrath Matter.
II.
THE COURT SHOULD AUTHORIZE THE DEBTOR TO RETAIN THE FIRM AS
SPECIAL COUNSEL
Pursuant to section 327(e) of the Bankruptcy Code, the Debtor seeks Court authority to retain
the Firm as special counsel to perform limited legal services in the Hilsenrath, Brobeck and Emine
Matters, as set forth below and as more fully set forth in the engagement letter attached hereto as
Exhibit A. No retainer has been paid to the Firm in connection with either proposed engagement. 2 The trustee in the Brobeck matter and the Debtor had entered into a tolling agreement during the pre-petition period, which precluded the trustee from filing any action against the Debtor without first withdrawing from the tolling agreement. The trustee recently withdrew from the tolling agreement and the tolling agreement no longer prevents the trustee from filing the action against the Debtor.
Peter Benvenutti, Esq., Chair, Heller Ehnnan Dissolution Committee555 California Street26th FloorSan Francisco, CA 94104
Re: Representation Agreement
Dear Mr. Benvenutti:
A. Scope of Our Engagement.
Heller Elliman is engaging Howard Rice to handle three matters. The first is to representHeller in connection with a potential claim by the Trustee for the bankruptcy estate of Brobeck,Phleger & Harrison LLP (the "Brobeck Matter"). The second is the Oliver Hilsenrath, et al. v.Michael Shepard, Heller, Ehrman, LLP matter (San Francisco Superior Court Action No. CGC-07-467742) (the "Hilsenrath Matter"), in which Heller Ehrman would be a joint client with itsformer partner, Michael Shepard. The third is to represent Heller in connection with a disputebetween Heller and its former client Emine Technology Co., Ltd. (the "Emine Matter").
B. Disclosures of Various Matters and Potential Conflicts.
Howard Rice previously disclosed each of the following potential conflicts to HellerEhnnan and Heller Ehrman consented to Howard Rice's representation of it notwithstandingthose disclosures.
1. University Circle Investors, LLC.
Howard Rice previously represented one of Brobeck's landlords, University CircleInvestors, LLC ("UCI"), in connection with claims that the landlord might have relating toBrobeck's lease of its offices in East Palo Alto, California, including advice on issues related toBrobeck's bankruptcy and potential claims that UCI might have against Brobeck and its partnersand issues that might be pertinent to the Brobeck Matter. Once the Chapter 7 Trustee waselected, Howard Rice's representation ended, and another law firm stepped in and protectedUCI's interests in the bankruptcy case.
UCI has consented to our representation of Heller Ehrman in the Brobeck Matter,provided that we put an ethical wall around the attorneys and paralegals at our firm who workedon the prior UCI representation. That wall prevents them from discussing with, or disclosing to,
anyone who works on the Brobeck Matter any information about the firm's prior representationof UCI, and of course, the reverse is true as well. Files relating to the prior representation of UCIare also walled off from the team representing Heller Ehrman, and vice versa as well. Thus, dueto Howard Rice's duty of confidentiality and this agreement with UCI, we cannot learn or useany information gained in this firm's prior representation of UCI for the benefit of HellerEhrman.
We also sought and obtained UCI's consent to our representation of Orrick, Herrington &Sutcliffe, LLP and O'Melveny & Myers, LLP, with respect to the Brobeck Trustee's claims,subject to the same conditions described above.
2. Orrick, Herrington & Sutcliffe LLP.
Heller Ehrman engaged Howard Rice to represent it in the Brobeck Matter in February2008. Prior to the time that Howard Rice began to represent Heller Ehrman in that matter,Howard Rice was already representing the law firm of Orrick, Herrington & Sutcliffe, LLP andfour individuals who had been partners of Brobeck before they joined Orrick, namely, JamesBaker, Frederick Holden, Grady Bolding and Jeffery Hermann (collectively, "Orrick") in thatmatter and continues to do so. In the course of agreeing to represent Heller in the BrobeckMatter, Howard Rice disclosed its ongoing representation of Orrick and obtained HellerEhrman's informed written consent to waive any conflicts of interest that might arise out of thefact that Howard Rice would concurrently be representing two different law firms in the samematter. At that time, both Heller Ehrman and Orrick agreed that their interests were aligned indefending against the Brobeck Trustee's claims, and both firms continue to hold that belief atthis time. In particular, on behalf of both clients, Howard Rice has taken the position that theBrobeck partners' agreement to modify their duties to account to each other and the firm forprofits on post-dissolution services is enforceable. In retaining Howard Rice, Heller Ehrmanalso agreed that should any conflict arise between Orrick and Heller Ehrman that would create aproblem with Howard Rice's continued concurrent representation of those two firms, HowardRice could withdraw from representing Heller Ehrman and could continue to represent Orrick,since Howard Rice's representation of Orrick in the Brobeck Matter had pre-dated HowardRice's representation of Heller Ehrman in that matter and the case against Orrick had been and isproceeding, while no case had been filed against Heller, with the result that Orrick would beunduly prejudiced if Howard Rice were required to cease representing Orrick in that matter.
Before agreeing to seek the Bankruptcy Court's permission to continue to representHeller Elliman in the Brobeck Matter, Howard Rice has (a) once again reviewed with Heller'sDissolution Committee the possible conflicts issues described above, (b) discussed HowardRice's current representation of Orrick regarding issues arising from Orrick's hiring of lawyerswho departed Heller Ehrman, and (c) explored the possibility that Heller Ehrman and Orrickmight become adverse to each other in Heller Ehrman's own bankruptcy proceeding. We alsosent to Heller Ehrman's Dissolution Committee a letter dated February 4, 2009, making certaindisclosures regarding our relationship with Orrick, and seeking the Dissolution Committee'sconsent to the representation and waiver of conflicts discussed in the February 4, 2009, letter,
subject to the consent of the Unsecured Creditors' Committee and the approval of theBankruptcy Court. Paul Sugarman signed the consent and waiver on behalf of the DissolutionCommittee. A copy of that letter is attached hereto as Exhibit 1.
3. Joint Defense Group.
The law firms targeted by the Brobeck Trustee (Orrick, Heller Ehrman, O'Melveny, PaulHastings, Dorsey & Whitney, and Dewey LeBouef) have formed a joint defense group. Whilesome of the firms may have slightly different defenses available to them due to different facts,they are generally aligned in their desire to defeat the Trustee's legal theories and claims. Thus,Heller Elliman and we agree that there is no conflict in our participation in the joint defensegroup on behalf of both Orrick and Heller Ehrman. Should any issues arise in which HellerEhrman's and Orrick's interests diverge, we will notify Heller Ehrman and Orrick of that factand each will have an opportunity to consult with independent counsel about the issue or to ceaseusing Howard Rice's services.
4. O'Melveny & Myers LLP.
I was a partner at the law firm of Rogers Joseph O'Donnell & Phillips up until October2006. While there, I briefly represented the law firm of O'Melveny & Myers in connection withthe same Brobeck Matter as is described above. That representation ended when I left my priorfirm. We have sought and obtained a conflict waiver from UCI to represent O'Melveny on thesame conditions as described above, and we may agree to represent O'Melveny if we can clearconflicts vis-à-vis O'Melveny relating to some other work we are doing and if Heller Ehrmanand Orrick have no objection to our representing O'Melveny. In this letter, we ask for HellerEhrman's consent to that representation.
5. Neil Bason.
In 2008, our firm hired Neil Bason as an attorney to work in our bankruptcy practice.Mr. Bason previously had been a law clerk to the Hon. Dennis Montali, Judge of the UnitedStates Bankruptcy Court in the Northern District of California. Judge Montali presides over theBrobeck bankruptcy. We have walled Mr. Bason off from having any participation in ourrepresentation of our clients in the Brobeck Matter. That wall prevents Mr. Bason fromdiscussing the Brobeck Matter with anyone at Howard Rice, and of course, the reverse is true aswell. Files relating to our representation of our clients in the Brobeck Matter are marked in aspecial manner and kept in a matter that prevents Mr. Bason from having access to them. Thus,due to Mr. Bason's duty of confidentiality, we cannot learn or use any information gained in hiswork for the Bankruptcy Court for the benefit of Heller Ehrman or any other clients we representin the Brobeck Matter.
6. MPC Ins. Ltd. and Michael Shepard.
In the Hilsenrath Matter, Howard Rice will continue to represent Heller Ehrman jointlywith its former partner, Michael Shepard pursuant to the joint representation agreement among
Howard Rice, Mr. Shepard and Heller Elliman. The within agreement between Heller Ehrmanand Howard Rice is not intended to modify the terms of the existing agreement between HowardRice and Mr. Shepard.
Our representation of Heller Ehrman and Mr. Shepard will be a true "joint representation."Joint representation provides certain strategic and other advantages, including savings of feesand costs that otherwise would be incurred were each party to retain separate counsel. But it alsohas a number of other implications. Whenever an attorney represents a group of clients on thesame matter, it is possible that the interests of the group could take precedence over the unique orpersonal interests of the members of the group. Since your interests are aligned, we don't thinkthat would happen here, but if we were to observe this risk occurring, we would bring it to yourattention. By signing this letter, you agree to bring it to our attention if you perceive ithappening.
Being part of a jointly represented group affects the confidentiality of yourcommunications with us. While our communications with each of you about the Thelen matterclaim will remain privileged vis-a-vis third parties, we are free to tell each of you what the otherjoint clients tells us about the Thelen matter and none of you can tell us something about theThelen matter and ask us to keep it confidential from the other joint clients on this matter. Ifyou each had your own separate counsel representing you on the Thelen matter, you could haveprivileged and confidential communications with your lawyer which the other joint clients wouldnot have access to without your permission. Having said this, we don't automatically pass alongeverything that each joint client tells us, as it often is not important to do so. We will, however,keep all of you informed about the progress of this matter with periodic status reports.
There is a special provision in the California Evidence Code which states that if partiesshare an attorney on a particular matter, and one of the joint clients then sues another in anymatter related to the joint representation, then no joint client can invoke the privilege as to anyinformation they disclosed to their joint attorney about the subject matter of the jointrepresentation. See Evid. Code § 962. If you had your own lawyer on the Thelen matter, thisrule would not apply.
As Steve Schon has discussed with representatives of Heller Ehrman, Steve is the Chair ofthe Claims Committee of MPC Ins. Ltd. ("MPC"). At the time he undertook this role, Steve alsobecame an officer of MPC and a member of its Executive Committee. MPC providesprofessional liability insurance to Heller Ehrman. As you know, Heller Ehrman has tendered aclaim to MPC in connection with certain proceedings that Oliver Hilsenrath and his wife havefiled against Heller and Mr. Shepard (Heller Ehrman's co-defendant in the action filed by Mr.and Mrs. Hilsenrath), including an action pending in the San Francisco Superior Court which hasbeen ordered to arbitration. Howard Rice has acted as counsel to Mr. Shepard and HellerEhrman in that lawsuit. From time to time, Howard Rice performs legal services for MPC andmay do so on unrelated matters in the future.
Steve discussed these facts with representatives of Heller Eluman prior to Heller Ehrmanengaging us to handle the Hilsenrath Matter. As he advised Heller Ehrman, (1) he has recused
himself from any role at MPC in connection with the Hilsem-ath Matter (other than reporting tothe Committee in his capacity as your counsel); (2) MPC has screened Steve fromcommunications regarding coverage issues involving the Hilsenrath matter; and (3) MPC hasconsented to Steve's continuing to act, along with others at Howard Rice, as counsel to HellerEhrman and Michael Shepard in connection with the Hilsenrath Matter with the knowledge thatwe may acquire information relevant to coverage issues but will be unable to communicate thatinformation due to our professional responsibilities. We further advise you that, assuming youprovide the consent sought by this letter, Howard Rice cannot provide any advice to HellerEhrman or Mr. Shepard in connection with insurance issues vis-à-vis MPC, and you should seekthe advice of independent counsel if such insurance issues arise. (To date, Howard Rice has notprovided any such advice to Heller Ehtman).
7. Possible Consequences of Potential Conflicts
The California Rules of Professional Conduct require us to advise Heller Elliman of thepotential conflicts described above because they could interfere with our ability to adequatelyrepresent Heller Elliman on the matters in which Heller Ehrman chooses to engage us. Forexample, Steve's pre-existing relationship with MPC might impair our objectivity, loyalty orindependent judgment on behalf of Heller Elliman. The same negative consequences couldarise from our ongoing relationship with Orrick, particularly because we will be representingOrrick in the Brobeck Matter at the same time as we represent Heller Ehrman in that matter.Also, as noted above, Heller. Elliman might lose our services if Heller Ehrman and Orrickbecome adverse to each other on any matter and, as a result of same, Heller Ehrman decides toterminate our representation of it.
We can assure you that, at all times, those of us who represent Heller Eluman on thematters described above will devote our utmost loyalty to Heller Ehrtnan on the matters in whichit engages us, and we are confident that the other facts described above will not, in fact, impair orinterfere with our ability adequately to represent Heller Ehrman. Nonetheless, it is important thatyou carefully consider the facts described above, and Heller Ehrman should, of course, seek theadvice of its independent bankruptcy counsel on these issues, and we encourage it to do so.
If, after consideration of the facts set forth herein, Heller Ehrman still wishes to engageHoward Rice on the terms and conditions described in this letter, please execute a copy of thisletter in the space provided below. By doing so, Heller Ehrman will be waiving any actual orpotential conflicts arising out of the circumstances described herein and, further, will beconsenting to Howard Rice continuing to represent its other clients in the matters describedabove, both now and in the future. Heller Ehrman understands that Howard Rice and its otherclients are going to rely on Heller Ehrman's conflict waiver in this letter and that Howard Ricewould not be in a position to represent Heller Ehrrnan if it did not provide the conflict waiverswe request. Thus, although Heller Ehrman always remains free to change its mind with respectto any of the conflicts described above, and to decide that it does not wish to waive otherconflicts that might arise in the future, Heller Ehrman agrees that should it do so, its sole remedywill be to terminate our representation of Heller Ehrman and to seek other counsel to take our
place. Should it do so, Heller Ehrman further agrees not to seek to disqualify Howard Rice fromrepresenting the other clients in any of the matters described above, notwithstanding anyadversity that can arise between those other clients and Heller Ehrman.
C. Specific Terms Regarding Billing, Payment and Other Issues
Please see the attached document entitled "Additional Terms," which are part of theengagement agreement.
To indicate your acceptance of the foregoing terms and conditions, as well as those statedin the attached statement of Additional Terms, please sign a copy of this letter and return it tome. Of course, even if you sign this agreement, you are free to terminate our representation ofHeller Ehrman any time you choose. We likewise reserve the right to terminate ourrepresentation of Heller Ehrman at any time and for any reason, including for the reasons and onthe terms stated above.
If you have any questions or concerns, please feel free to call me. In addition, please feelfree to consult independent counsel or any other advisor you wish about the information set forthabove, including waiver of conflicts of interest sought in this letter and the financial and otherobligations that Heller Ehrman is undertaking in this agreement (such as the liens on funds heldin trust and on recoveries you are granting us).
We look forward to working with you.
la Phillipsi forHI ARD RKJE NEMEROV SKI CANADY
ALK & R4LBKINA Professional Corporation
AGREEMENT AND CONSENT
I have read the foregoing and hereby consent to having Howard Rice Nemerovski CanadyFalk & Rabkin, A Professional Corporation, represent Heller Ehrman on the terms set out aboveand in the attached Additional Terms, and I specifically waive any conflict of interest, actual orpotential, arising out of the facts and circumstances described above and on the terms and
conditions stated above, including the limitation on Heller's remedies should it later change itsmind about said conflict waivers.
February , 2009 Heller Elliman, LLP
ByPeter BenvenUtti, Esq.
Chairman of the Heller Ehrman DissolutionCommittee
ADDITIONAL TERMS
II. Staffing. Currently, our hourly rates for attorneys range from $215 for the most juniorattorneys to $750 for the most senior. My hourly rate for these matters is $655, SteveSchon's rate is $655, Jon Hughes's rate is $585. Legal assistants' rates range from $80 to$230 per hour. We realize that our hourly rates and bills are subject to approval by theBankruptcy Court and will work with that as our guideline in these matters.
III. No Guarantee as to Ultimate Cost or Result. We cannot guarantee any particular result,nor we cannot guarantee in advance the cost of the matters you have asked us to handle.Even the most carefully prepared estimates may turn out to be inaccurate. Thus, HellerEhrrnan's payment of our fees is not contingent on the outcome of the matters we handlefor you. If at any time you have questions about the fees and costs that have been or willbe accruing, the form or content of any billing statement, or any other aspect of ourrepresentation whatsoever, please do not hesitate to raise them with us.
IV. The file. If you request that all or any portion of our file for Heller Ehrman be sent to youat any time, we may retain a copy of it made at Heller Ehnnan's expense. In the eventthat all or any portion of your file becomes the subject of a subpoena, discovery request orother disclosure obligation ("Process") while in our possession, including after all servicespertaining to that file have been completed, Heller Ehrman will pay our then-prevailinghourly rates and our costs for our response to that Process.
If we continue to hold all or any portion of our file for Heller Ehrman after ourrepresentation of you in this matter is completed, we may notify you at any time of our intent todispose of the file. We will send this notice to you by mail and email at the last mail and emailaddresses you provided to us. You will have.60 days from the transmission of this notice torequest that (subject to any court order, nondisclosure agreement or other legal obligation) wedeliver the file as you direct, at your expense. If you fail to provide us such notice within that 60-day period, you agree that we may destroy all or any part of the file without further notice to you.
Insurance. Unless otherwise expressly agreed by us in writing, we will not provide adviceto Ffeller Ehrman about insurance coverage issues, including the availability of insurancecoverage in a particular situation. On occasion, we may remind you to investigate thepossibility of insurance coverage, and of the possible need to report an incident or claim toavoid forfeiting the firm's insurance coverage. However, Heller Ehrman agrees we haveno obligation to provide such advice unless we are expressly engaged in writing to do so.In the event Heller Ehrman determines that an insurance policy covers all or part ofHoward Rice's fees and costs on this matter, we will send our invoices directly to HellerEhrman, and be entitled to prompt payment directly from Heller Ehrman, regardless ofwhether Heller Ehrman's insurer reimburses it.
VI. Costs. Should we incur expenses on Heller Ehrman's behalf, such as travel, lodging,meals, long-distance telephone calls, messengers, and extraordinary clerical and otherexpenses, these items will generally billed at our actual cost, and separately itemized onour statements as "costs advanced." We also charge for photocopying and printing,outgoing faxes, computerized research and word processing on longer documents at ratescalculated to approximate our burdened cost of providing these services to Heller Ehrman.Should we retain the services of third parties, such as expert witnesses or consultants,document processing, or database preparation and management, we may arrange to havethose third parties bill Heller Ehrman directly, and Heller Ehrman will be solelyresponsible for their charges.
VII. Funds Held in Trust. California law provides that funds to be held in trust for a client'saccount that are nominal in amount, or are to be held for a short period of time, are to beplaced in an unsegregated trust account. The interest on that account is paid by thedepository institution to a State Bar fund to provide legal services for indigent persons. Ifinterest on funds held for your account may be more substantial, we can arrange asegregated interest-bearing trust account if you direct us to do so in writing and provide uswith your federal tax identification number so that the depository institution can report theinterest to taxing authorities as required by law.
VIII. Termination. Heller Ehrman and we each have the right to terminate this representation atany time for any reason.
ment Committee nd is a member of the firm’s Professional Responsibility Practice Group.
ts or
ncluding the discovery of electronically stored formation and the use of technology in trial.
District Court, Northern District of California.
e of the Law (Member, Hastings Law Journal;
California, Davis (cum laude, Political Science), 1993
• State Bar of California
415.765.4652
Fax 415.217.5910
EXPERIENCE Jonathan Hughes is a director with the firm and serves on the firm’s Managea Mr. Hughes represents law firms and lawyers in complex litigation, legal ethics, law firm dissolution and law firm departure matters. He also has substantial experience representing clients in litigation involving other partnerships and private companies, including hedge funds, venture capital funds, and private technology companies, and has litigated more than a dozen significant real property disputes. Mr. Hughes has obtained successful verdicts and judgmenfor clients in bench trials and jury trials in both state and federal court, including cases fOrrick, Herrington & Sutcliffe, LLP, The Oakland Raiders and Ariba, Inc. Mr. Hughes has lectured on a variety of digital litigation topics, iin Prior to joining the firm, he served as law clerk to the Honorable Melvin Brunetti of the UnitedStates Court of Appeals for the Ninth Circuit. During law school, Mr. Hughes was an extern to the Honorable Fern M. Smith of the United States
EDUCATION • J.D., University of California Hastings Colleg
Order of the Coif; Thurston Society), 1996 • A.B., University of
AWARDS & HONORS Mr. Hughes was recognized as a Northern California Super Lawyer in 2007 by Law & Politics and is an AV-rated attorney, a peer-awarded honor given by Martindale-Hubbell. He was also honored by the Law Foundation of Silicon Valley with the Honorable Robert F. Peckman Award for his outstanding public interest litigation work.
EXPERIENCE Pamela Phillips, a director with the firm’s Litigation Department, serves on the Management Committee and is co-chair of the Professional Responsibility Practice Group. Specializing in representing lawyers and law firms, Ms. Phillips focuses her practice on attorney liability, legal ethics, legal malpractice, law firm risk management and complex business litigation. A former prosecutor, Ms. Phillips is an experienced trial lawyer with both civil and criminal trial experience, as well as extensive experience in complex litigation and alternative dispute resolution. Ms. Phillips has been a member of the board of directors of the Bar Association of San Francisco, a member of the Bar Association's study group on the ABA's Ethics/2000 Project and co-chair of the Civil Justice Reform Act Advisory Group for the federal district court. She serves as a mediator, arbitrator and early neutral evaluator for the United States District Court for the Northern District of California. Ms. Phillips lectures frequently on ethics, malpractice issues and law firm risk management at professional seminars and at law firms. Ms. Phillips taught a course on professional responsibility for two years at the University of California, Berkeley, School of Law and has taught numerous other courses on trial skills.
EDUCATION • J.D., Villanova University School of Law (cum laude; Order of the Coif; Editor, Law
Review), 1976 • A.B., Clark University (magna cum laude), 1973
ADMITTED • California • U.S. Court of Appeals, Ninth Circuit • Northern, Central and Eastern Districts of California
MEMBERSHIPS • State Bar of California • Computer Law Association, Ethics Committee, chair, 2001-2004 • Bar Association of San Francisco, member of Board of Directors from 2000-2001;
member of Litigation Section and former co-chair from 1998-present • Civil Justice Reform Act Advisory Committee, co-chair • American Bar Association Attorney Liability Subcommittee, former co-chair; Ethics
Advisory Council, former member, 2000 • San Francisco Women Lawyers Alliance • California Women Lawyers • Association of Business Trial Lawyers
SELECTED PRESENTATIONS • “Issues in Ethics Rule,” Law Seminars International, Commercial Real Estate Leases,
Beverly Hills (November 2008) • “The Straight Scoop on Conflicts for Corporate Lawyers,” Corporations Committee of
The State Bar of California, Tele-Web (June 2008) • "Ethics," 16th Annual California Water Law Conference: The Latest Regulatory and
Litigation Developments, San Francisco (May 2008) • "Case Studies Addressing Ethics and Malpractice in Corporate Transactions," 28th Annual
Ray Garrett Jr. Corporate and Securities Law Institute, Chicago (May 2008) • “Ethics Issues Part 2: Ethics Compliance in Law Firm Management,” 23rd Annual
Intellectual Property Law Conference, Arlington (April 2008) • “Ethics Issues Part 1: Latest Developments in IP Litigation Ethics,” 23rd Annual
Intellectual Property Law Conference, Arlington (April 2008) • "Ethical Issues in the Transactional Setting: The 'anti-contact' rule; truthfulness in
negotiations; addressing conflicts of interest," Law Seminars International Second Annual West Coast Forum on Technology M&A, San Francisco (September 2007)
• “The Latest Issues in Legal Ethics: Substance Abuse and Elimination of Bias in the Profession,” California MCLE Marathon, Practising Law Institute, San Francisco (December 2006)
AWARDS & HONORS Ms. Phillips was recognized in California Lawyer as one of the premier defense lawyers in the field of legal malpractice, and was also recognized as a Northern California Super Lawyer in 2007 and 2008 by Law & Politics. She is an AV-rated attorney, a peer-awarded honor given by Martindale-Hubbell.
chon's extensive experience includes counseling and tigating matters in the area of professional responsibility and liability, as well as
iation
r. Schon has served as counsel in a variety of complex litigation matters including d a
. l
bstantial experience in litigation and
solution of disputes relating to law firm dissolutions, mergers and separations of ting
e has been a panelist on a number of legal panels, including the Bar Association of San
Legal Malpractice.
415.39
415.217.5910
Email:
EXPERIENCE Steve Schon is a director with the firm who practices civil litigation with an emphasis on complex commercial disputes. Mr. Slisecurities, antitrust and real estate litigation. He also has a growing practice in medand alternative dispute resolution. Minsurance litigation, antitrust and unfair competition litigation, partnership disputes annumber of substantial real property disputes. In his role as a professional liability litigator, Mr. Schon has been chosen to represent numerous law firms, including several of the largest law firms in San Francisco, as well as other national and regional firms around the country and their offices around the worldSubstantial representations include defending lawyers against various claims of legamalpractice, securities fraud, RICO violations, conflict of interest, breach of fiduciary dutyand malicious prosecution. Mr. Schon also has sureattorneys from their former firms. Mr. Schon is also frequently engaged in issues relato professional ethics and conflicts of interest. Mr. Schon joined Howard Rice in 1977, after serving as law clerk to Judge J. Edward Lumbard, United States Court of Appeals for the Second Circuit. HFrancisco/The Rutter Group's presentations on "Civil Procedure Before Trial," and CEB and ABTL panels on Avoiding
EDUCATION iversity of Michigan Law School (magna cum laude; Order of the Coif; Articles
higan Law Review), 1976 • A.B., University of Michigan (with high distinction), 1972
rial Lawyers
ONS
r. Schon has been listed as a Northern California Super Lawyer by the Northern California Super Lawyers Magazine (a publication in conjunction with Law and Politics and San Francisco Magazine). He is also an AV-rated attorney, a peer-awarded honor given by Martindale-Hubbell.
Mr. Schon has also authored publications on issues relating to civil litigation, including pre-trial and trial practice.
• J.D., UnEditor, Mic
ADMITTED • California
MEMBERSHIPS • State Bar of California • Association of Business T
SELECTED PUBLICATI• "Motions in Limine," chapter 7 of the CEB treatise, California Trial Practice, Civil
John D. Fiero (CA Bar No. 136557)Kenneth H. Brown (CA Bar No. 100396)Miriam Khatiblou (CA Bar No. 178584)PACHULSKI STANG ZIEHL & JONES LLP150 California Street, 15th FloorSan Francisco, California 94111-4500Telephone: 415/263-7000Facsimile- 415/263-7010
4. The Firm is experienced in a number of areas of law, including professional
responsibility, bankruptcy and civil litigation.
5. The Firm has represented Heller Eluman LLP (the "Debtor") on a number of matters
over the years, all but three of which were concluded prior to the bankruptcy filing. Prior to the
bankruptcy filing on December 28, 2008, the Debtor employed the Firm as its counsel to provide
legal services relating to (a) the malpractice action filed against the Debtor and others by Oliver and
Hanna Hilsenrath which action is currently pending in the San Francisco Superior Court, Case No.
CGC-07-467742) (the "Hilsenrath Matter"); (b) certain claims asserted by the chapter 7 trustee in th
Brobeck bankruptcy case currently pending before the Honorable Dennis Montali in the United
States Bankruptcy Court for the Northern District of California, San Francisco Division (the
"Brobeck Matter"); and (c) a dispute between the Debtor and its former client Emine Technology
Co., Ltd. (the "Ernine Matter") regarding the Debtor's bill for legal services and claims asserted by
the former client.' Pursuant to two separate retention agreements, in November 2007 the Firm beg
rendering legal services to the Debtor in connection with the Hilsenrath Matter and later began
rendering services in connection with the Brobeck Matter in or about February 2008. In connection
with these two matters, the Firm has unpaid fees in the total amount of $48,381, for services
rendered between September 2008 and the Petition Date. The Firm also has incurred the amount of
$3,566.80 in fees and costs since of the Petition Date in connection with the Hilsenrath Matter.
6. Pamela Phillips was the attorney primarily responsible for handling the Brobeck
Matter and the Emine Matter during the pre-petition period. Steve Schon was the attorney primarily
responsible for handling the Hilsenrath Matter during the pre-petition period.
7. Subject to further order of this Court, and without being exhaustive, the Firm
proposes to render the following types of legal services to the Debtor:
1 The trustee in the Brobeck matter and the Debtor had entered into a tolling agreement during the pre-petition period,which precluded the trustee from filing any action against the Debtor without first withdrawing from the tollingagreement. The trustee recently withdrew from the tolling agreement and the tolling agreement no longer prevents thetrustee from filing the action against the Debtor.
John D. Fiero (CA Bar No. 136557) Kenneth H. Brown (CA Bar No. 100396) Miriam P. Khatiblou (CA Bar No. 178584) Teddy M. Kapur (CA Bar No. 242486) PACHULSKI STANG ZIEHL & JONES LLP 150 California Street, 15th Floor San Francisco, California 94111-4500 Telephone: 415/263-7000 Facsimile: 415/263-7010
I, Kati L. Suk, am employed in the city and county of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is 150 California Street, 15th Floor, San Francisco, California 94111-4500.
On February 17, 2009, I caused to be served the
DEBTOR’S APPLICATION TO EMPLOY HOWARD RICE AS SPECIAL COUNSEL
DECLARATION OF JONATHAN W. HUGHES IN SUPPORT OF DEBTOR’S APPLICATION TO EMPLOY HOWARD RICE AS SPECIAL COUNSEL
in this action by email unless otherwise indicated on the attached service list:
Please see attached Service List
(BY MAIL) I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at San Francisco, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.
(BY EMAIL) I caused to be served the above-described document by email to the parties indicated on the attached service list at the indicated email address.
I declare under penalty of perjury, under the laws of the State of California and the United States of America that the foregoing is true and correct.
Executed on February 17, 2009, at San Francisco, California.
Donna S. Tamanaha, Assistant U.S. Trustee 235 Pine Street, Suite 700 San Francisco, CA 94104 T E-Mail: [email protected]
Counsel to BofA David Minnick Leo Crowley Pillsbury Winthrop Shaw Pittman LLP 50 Fremont Street San Francisco, CA 94105-2228 TE-Mail: [email protected][email protected]
Counsel to Citibank Larry Peitzman, Esq. Peitzman, Weg & Kempinsky LLP 10100 Santa Monica Blvd., Suite 1450 Los Angeles, CA 90067 Email: [email protected]
RSN
Counsel to Committee of Unsecured Creditors Steven H. Felderstein, Esq. Thomas A. Willoughby, Esq. Felderstein Fitzgerald Willoughby & Pascuzzi, LLP 400 Capitol Mall, Suite 1450 Sacramento, CA 95814 E-mail: [email protected][email protected] RSN
COMMITTEE OF UNSECRED CREDITORS
Counsel for 333 Bush Associates Michael P. Brody, Esq. Darlene Haun, Esq. Ellman Burke Hoffman & Johnson 601 California Street, 19th Floor San Francisco, CA 94108
Counsel for AFCO Acceptance Corporation David I. Katzen, CSB # 79090 David A. Schuricht, CSB # 62690 KATZEN & SCHURICHT 1981 N. Broadway, Suite 340 Walnut Creek, CA 94596-8218 Email: [email protected][email protected]
Counsel for The Seaport Group LLC Scott Friedberg The Seaport Group, LLC 360 Madison Avenue, 22nd Floor New York, NY 10017 Email: [email protected]
Counsel for Columbia Center Property LLC and 333 South Hope Co., LLC Vincent M. Coscino, Esq. Michael S. Greger, Esq. Allen Matkins Leck Gamble Mallory & Natsis LLP 1990 Main Street, Fifth Floor Irvine, CA 92614-7321 E-mail: [email protected][email protected]
Counsel for Schiff Hardin LLP Jeffrey V. Commisso, Esq. Schiff Hardin LLP One Market, Spear Street Tower 32nd Floor San Francisco, CA 94105 E-mail: [email protected]
Counsel for Schiff Hardin LLP Jason M. Torf, Esq. Schiff Hardin LLP 6600 Sears Tower Chicago, IL 60606-6473 E-mail: [email protected]
Counsel for A2D, LP Michael S. Kogan, Esq. Ervin, Cohen & Jessup LLP 9401 Wilshire Boulevard, 9th Floor Beverly Hills, CA 90212 E-mail: [email protected]
VIA FIRST CLASS MAIL Counsel to State of Washington, Dept. of Revenue Zachary Mosner, Esq. Assistant Attorney General Bankruptcy & Collections Unit 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188
Counsel to 1620 K Street Associates Limited Partnership, A District of Columiba limited partnership Edward J. Tredinnick, Esq. Greene Radovsky Maloney Share & Hennigh LLP Fourt Embarcadero Center, Suite 4000 San Francisco, CA 94111-4106 E-mail: [email protected]
Counsel to Pension Benefit Guaranty Corporation Marc S. Pfeuffer, Esq. Office of the Chief Counsel Pension Benefit Guaranty Corporation 1200 K Street, N.W. Washington, DC 20005-4026 E-mail: [email protected][email protected]
Counsel to 4350 La Jolla Village LLC Dean P. Sperling, Esq. Law Offices of Dean P. Sperling 201 East Sandpointe, Suite 220 Santa Ana, CA 92707-57425 E-mail: [email protected]
Counsel for the Vested Reirees Michael St. James, Esq. St. James Law 155 Montgomvery Street, Suite 1004 San Francisco, CA 94104 E-mail: [email protected]
In-House Counsel fo CB Richard Ellis, Inc. Laurie Gomez, Esq. Senior Counsel – Litigation CB Richard Ellis, Inc. 200 Park Avenue New York, NY 10166 E-mail: [email protected]
Consel to Creditors Darryl L. Snider and John S. Skilton Maria K. Pum, Esq. Henderson, Caverly, Pum & Charney LLP P.O. Box 9144 16236 San Dieguito Rd., Suite 4-13 Rancho Santa Fe, CA 92067-9144 E-Mail: [email protected]
VIA FIRST CLASS MAIL Counsel for Adworks, Inc. Howard Ross, Esq. Shulman, Rogers, Gandal, Pordy & Ecker, P.A. 11921 Rockville Pike, Suite 300 Rockville, MD 20852
Counsel for Robert G. Badal and Nancy Sher Cohen David A. Gill, Esq. Richard K. Diamond, Esq. Danning, Gill, Diamond & Kollitz, LLP 2029 Century Park East, Third FloorLos Angeles, CA 90067 E-Mail: [email protected][email protected]
Robert G. Badal, Esq. WilmerHale, LLP 350 S. Grand Avenue, Suite 2100 Los Angeles, CA 90071 E-Mail: [email protected]
Nancy Sher Cohen, Esq. Proskauer Rose, LLP 2049 Century Park East, Suite 3200 Los Angeles, CA 90067 E-mail: [email protected]
Vicky Namken IBM Corporation 13800 Diplomat Dr. Dallas, TX 75234 E-mail: [email protected]
Counsel to Constellation NewEnergy, Inc. Bruce J. Ruzinsky, Esq. D. Elaine Conway, Esq. JACKSON WALKER L.L.P. 1401 McKinney Street, Suite 1900 Houston, Texas 77010 E-Mail: [email protected][email protected]
Counsel to Constellation NewEnergy, Inc. Heather M. Forrest, Esq. JACKSON WALKER L.L.P. 901 Main Street, Suite 6000 Dallas, TX 75202 E-Mail: [email protected]
Paul Sugarman 1200 Sunnyhillls Road Oakland, CA 94610 E-Mail: [email protected]
VIA FIRST CLASS MAIL Christine R. Etheridge IKON Financial Services Bankruptcy Administration 1738 Bass Road P.O. Box 13708 Macon, GA 31208-3708
Counsel to Hewlett-Packard Company Ms. Anne Marie Kennelly, Esq. Corporate Counsel 3000 Hanover St., M/S 1050 Palo Alto, CA 94304 E-mail: [email protected]
Mr. Ken Higman Sr. Default & Recovery Analyst Hewlett-Packard Company 2125 E. Katella Ave., Suite 400 Anaheim, CA 92806 E-mail: [email protected]
