may please the court in our appeal we've advanced three separate arguments on behalf of appellate rights russ breaks the first argument is that the record does not support the contempt finding that was issued by the bankruptcy court because there is no evidence that riggs failed to comply with a turnover order by the court and he did not make any misleading statements the second argument we have made is a constitutional argument that the bankruptcy court as an article one court did not have the authority to enter a final judgment imposing sanctions on brakes because the matter before the bankruptcy court had no bearing on the claims allowance process or the restructuring of debtor creditor relations and therefore constituted a private right not a public right the third argument we have made is that the bankruptcy court failed to follow the district court rules for attorney discipline by not giving mr briggs an evidentiary hearing thus denying brigs due process because the sanction order was based on disputed facts which occurred outside the presence of the court i would like to first address the constitutional argument whether the bankruptcy court had the authority to enter a final judgment imposing sanctions on mr br and the reason is that the underlying perceiving that brought briggs into this matter was a contempt action by the court against a third party james robinson in an attorney ethics investigation that proceeding implicate private rights not public rights encompassed in the claims allowance process and now you're quickly do your constitutional claim aren't you i'm sorry did you quickly do your constitutional claim i'm not sure i understand w recognizes that the bankruptcy court has the authority to impose impose discipline however i think that that discipline must be imposed by constitutional standards in steward the appe never raised a stern argument the appellate never challenged whether the bankruptcy court had the authority and this court found in steward that right is waive a bill so what happened we believe the critical distinction between stewart and this case is that in steward there was never an assertion by the by the attorney with respect to the authority of the bankruptcy court to issue a final order mr briggs by contrast has argued from day that his rights under stern mean that the bankruptcy court cannot enter a final order we believe that is a critical distinction wasn't the bankruptcy judge here though administering the estate in the sense that he was trying to trace piece that would have been part of the state and this whole turnover order and whether briggs complied with it was part and parcel of that the other that's it that's a very good question what happened is that the question about the fe of the bankruptcy court raised was at best an effort to augment the bankruptcy estate to basically say there are some fees that should be part of the estate but it is our position that augmentation of the bankruptcy of state does not convert a private right into a public right in the stern case in the stern versus marshall case there were millions perhaps tens of millions of dollars that were at stake that could have augmented the estate but the supreme court said that was implicated in that case it did not convert a private right into a public right that it in indeed that stern would continue to apply so our position is the fact that judge revel in was seeking to administer or or was concerned about so the as i said the reason that the underlying proceeding the reason we believe this is a private right is the underlying proceeding was a contempt action against robinson in this ethics investigation and that proceeding implicated only private rights not public rights the ethics investigation did not involve a public right and if it did not involve a public right judge rowland did not have the authority to issue a final judgment and say that again you see the contempt robinson did as i read the stewart opinion there were a number of incidents that occurred in which the bankruptcy court had given robinson direct orders that he did not comply with  so that that is in and those related as i understand it this related to the handling of the fees by robinson and when he was not satisfied when the judge was not satisfied with the responses that's when it became a contempt for city he took  return the fees to the debtors and i think in think this is where i was in that part of administering the bankruptcy case as opposed to a contempt action well i think there are several reasons one is that that the my understanding is that when the debtors received the fees they had disclosed those fees they amended their petition to list those cs fees as assets of their estate claimed those assets as exempt and there was no objection by the bankrupt by the bankruptcy trustee they therefore were part of the bankruptcy estate of those debtors so there was really nothing to administer and i get back to the argument that the only the only point of ordering the refund of the fees or to the trustees in the trustees expressed no interest in the fees that the record will contain that mr briggs who agreed to take over those bankruptcy cases at no charge that mr briggs wrote to the trustees and said the money has been refunded what do you want to do with the money only one of the trustees responded and he said we have no interest the other trustees had so little interest in those bankruptcy fees that they did not even respond to mr briggs's letter but again we get to the point that the only purpose of that for that that would possibly convert a private right to a public right is that this would augment the bankruptcy estate and augmentation the bankruptcy estate does not convert a private right into a public right and does not give the bankruptcy court additional powers over mr briggs and i would know that that while so it seems that the banker's court was doing one of two things and one of the one of the one of the matters was there was an investigation involving whether or not robinson's conduct vied violated the missouri rules of professional responsibility under stern that as a private right the other thing was that the bankruptcy court was explore it was it was investigating whether it should use its own powers to there's there's no question that the judge did not have the authority to issue a final order that his authority is limited to making recommendations to the district court and if the bankers court had done that mr briggs would have been tied to an evidentiary hearing at the district court and it would have been made to novo review instead what happened is mr briggs only received an appellate review by the district court looking for abuse of discretion as opposed to a demand for review so the  by the bankruptcy judge were that that he alleges briggs had done two things one he failed to comply with the turnover order and number two he admits misled the court we challenged the government to tell us what is it within this extraordinary two hundred fifty page opinion by judge redland that tells us what where these where these errors were and they were not able all they could point to were conclusions of law by judge remedy the fact is with respect to the turnover order judge rowland has acknowledged briggs didn't we didn't represent these debtors at the time he didn't he didn't have the documents his clients did not have the documents riggs had no stilts he brought in fact when he met with mr phillips after after the meeting with the judge and the judge said you need to do something he met with miss deals within hours and his deal to them in fact retained counsel that counsel entered his appearance so mr briggs brought ms dilts before the court and what was the proof because the judge finds he did nothing he says he failed that litany i just told you about your new jury or you know the paragraph yes so what what is in the record what evidence is there he did something when he doesn't have the records in his clients don't have the records and he goes to the person who he thinks is most likely to have the records and that person then enters their appearance before the enters his appearance before the court these are which record that he's trying to get these trying to get as i understand it what robinson did with the money so did it did he have it in an office in trust account or didn't briggs also send a letter i believe that he did yes i believe he also sent a letter so he made a good faith effort to find information that he didn't have and again the judge said he wasn't he wasn't obligated to do to engage in discovery i don't know what more he can do than contact the person who may have the information and get them before the court where the court can now address the issue directly rather than through a third party who has did not represent never had the money didn't have the records i don't know what more the judge would have expected briggs to do i don't suppose he could have found a motion requesting that the court tell the people from there to respond to the  the court he basically the judge would issue an order and say i'm thinking about doing something but briggs never got an opportunity to testify under oath he was asked questions for example by the judge when he says he misled the court who owns critique and that's a bend you know that part of the of this he said he wants critique and breaks it i don't know i'm not an officer i'm not an order the judge pressed him he said it may be deals it may be robinson and it turns out that he was right on both is correct that is that is in the record isn't this one of the bases for the sanction that he misled the court in that particular colloquy that it's exactly right your honor and we that's why we are saying that there is no there is no factual basis for that he aspirates these questions briggs answer the questions and and he was right i don't know how that could mislead the court i see that i'm running out of time i'd like to very briefly i'd like to reserve whatever time i have left if i may very well the first thing i think needs to be pointed out is your absolutely right judgment and stewart does control the store decision didn't address the constitutionality counsel however steward did address the authority question mr briggs has argued that both the to control admission to its bar i will also note that the steward for to me the the stern decision had been ruled upon when this court issued its opinion steward and that nothing prohibited this well i don't know what that means i mean the courts aware of lots of things but if an issue isn't raised and it isn't decided that it isn't precedent typically however when i mean by it was aware of it you mean the court could have raised it to a spontaneity and ye that i would submit that subject matter jurisdiction which the nominee is attempting to argue is always before the court even if not raised by the parties below regardless your honor stern is not a political to this case in stern which involve anna nicole smith and her brother in law miss north attempted to file a lawsuit in bankruptcy court arguing that her brother in law interfered with a will that was a right created by state law the supreme court held that as an article one court the bankruptcy court could not rule on that state private right here these are public rights with a bankruptcy court issue to turn over order pursuant to section five forty of the bankruptcy code the issues of the said distinction hold in the water because the bankruptcy court all the time rules on state law issues it out in the state did you understand what i'm saying all the time that state law gives all property right happened here was that the trustees assigned to these six cases saw it's an accounting of what happened to the money that was paid by these six debtors the trustees sent a letter to mr briggs on december third two thousand and fourteen asking what happened because the as is this court as well where trustees are bound to do an accounting of you stay all the property in a state including on earned fees paid by debtors the mr briggs responded on december eighth twenty fourteen refusing to protect produce the information to the trustees they in turn filed a motion for turn over under five forty two and three forty nine of the bankruptcy code the court found after hearing in which mr brooks appeared and argued that the trustees were entitled to this information because it was addressed to the property of the state and that they had to have that information in order to do an accounting of the property of the state and i will note that mr briggs at the fifteen to produce six pieces of information which were critical to the trustees in order to do their accounting of the property and the rez of the bankruptcy estate he failed to comply that is what was the basis of the primary appeared before the bankruptcy court in january of twenty fifteen out of here he made argument on his behalf at no time during that hearing did he request an evidence you're here he didn't ask to call a witness he didn't ask to cross examine anybody he didn't ask to introduce any evidence and into the record then mr briggs appeared on february fourth two thousand and fifteen before the bankruptcy court again at our hearing on the record both of those transcripts are by the way in this record at this at the feb twenty fifteen hearing mr briggs did not request to call a witness he did not request to cross examine a witness and he did not request to introduce any evidence when the the bankruptcy court issued it orders not one but two orders are notices excuse me it gave mr briggs the opportunity to respond he did not respond by asking for aventura hearing he is only now complaining about everything sure hearing after having almost a year and a half between the time the bankruptcy court issued its turnover order to the time that the bankruptcy court issued its april twentieth order sanctions and twenty sixteen to request to have an injury hearing he never did so what he did do w file several pleadings as well as several different lawsuits to try to block the judge from issuing sanctions all of which failed your honor is the the constitutional question is clear everything the bankruptcy court did was pursuant to the bankruptcy code because written by congress is a public right well within the jurisdiction of the article three which in article one court to decide dobson's factual basis question i think what's being lost is the standard of review mr dotson just stood before you and said i challenge the government to produce information the standard or view is clear there has t clear and convincing evidence right why would i would disagree that this was a consent finding this was a sanction against an attorney for failing to comply with an order the turnover order gave mr briggs until january thirtieth two thousand and fifteen to comply by april yes that's abuse of discretion leave what do you think about that i would say many are cases each time i talk to you go ahead i'm sorry i'm quoting our cases each time i talk to you absolutely you are so if you're saying it's sanctions that's abuse of discretion review right that's correct and i would submit that the factual findings are for clear error the sanctions themselves are nice of discretion the factual findings are for clear and that's the the reynolds case which is cited in our brief but it's also for twenty five thirty fifty five is it a factual finally that he did think i do believe that the judge's findings in the april twentieth border are accurate and i certainly don't think the iraqis is to the level of clearly erroneous well isn't really true that briggs did nothing the record is clear that  the trustees sent letters to mr breaks asking for the information he responded by saying i said i don't have them in my possession at the february fourth hearing he said my clients don't want me to comply with the order of the record is clear that he you know he he made submissions to the court saying i don't have this information what the with the record is it does show is that he didn't make a good faith effort to get that information as was his obligation as coun circumstances of these cases which is the facts that the bankruptcy court used for its basis to sanction mr briggs mr robinson and pretty services that court that that part of the order alone spans from pages one twenty one one hundred seventy four includes all of the facts in craig detail about what happened that led the courts to make the decision to sanction mr briggs among court says briggs is in contempt of the order compelling turn over he used the term contempt i think more than once but that is his bottom line you know that what happened was that the bankruptcy court decided to sanction him for failing comply whether mr briggs made an argument which it is abandoned now but he made an argument below that this was akin to criminal contempt and that he was afforded more dupe due process protections he's abandoned that standard of review depending on whether it's contempt or sanctions i think if i read are two lines of cases you're i i'm not aware of which cases you might be referring however we have several say content must be bad clear and convincing evidence we have one a per curiam as recently as twenty fifteen members of this panel on that opinion go ahead i would submit that whatever standard the bankruptcy or that should be this court's decides to apply its been that  the bank or the record below shows that mr briggs was given multiple opportunities he was given notices twice he was ordered to produce information no later than january thirtieth twenty fifteen and that he witnessed at the crazy balls and wraps and linda boulevard specifically if you look at pages two ninety three and two ninety four the record trustee conwell went to launch after the hearing she just happens to see mr briggs and mrs beverly home stilts discussing these debtors at the hearing that morning mr briggs had represented a court that his affiliation with critique had ceased back in two thousand and twelve and that when asked to identify the owner of critique involved with one of these entities and he knew or and he had lunch with there but the specifics of i thought the specific claim of misleading the court was that he didn't answer who own i mean if this is kind of the two hundred page order makes this kind of a shaky operation why would it be so surprising that the ownership would be murky i don't think the you get information from critique a entity in which he had a prior business relationship he tried to distance himself from critique by saying that he had no affiliation with critique any further the way you're not relying on the answers he gave about who owns critique i think their court was concerned about his answers given his con wells affidavit i think if you read the twenty are able to order you see that the court was more concerned with him  making the representation that he had no ability to get the information because he has no affiliation with the take and then an hour later he's having lunch with the owner operator of critique talking about these these particular cases you mean that shows that he could get it from her that shows that his relationship with critique was a lot stronger than he made the court aware of or at least told the court an hour earlier at that generate thirteen to twenty fifteen hearing do you agree he asked politely for the documents other information the other side says that he asked politely i'd i submit that the record shows that he told the bankruptcy court that he did it whether he did anything i don't know the record is is absent or doesn't refer to anything i thought there was a low letter he sent maybe i'm misremembering what he sent a letter on december eighth to the trustees in response to their december third letter in which he said because i'm no longer failure with critique i don't have the documents and therefore i'm not  not going produce anything to you but denise in another letter asking for information he may have i don't thought he sent such a letter and the judge said well that was kind of a pro forma request satisfactory especially given his obligation to represents these these debtors and bankruptcy and do a financial investigation of the finances of the debtors that he voluntarily took on representation of i think the bankruptcy court if you read pages one twenty one one seventy four makes very clear that he did not meet the burden or you know did not meet the minimum standard of conduct for a bankruptcy attorney who is representing chapter seven debtors and that is why the bankruptcy court made its decision as i see that my time is up i thank you for your time and i ask that this court affirm mr briggs did send a letter to mr robinson in which he asked mr robinson to comply with the court's order he did that after the january meeting and we we have the i don't have that the citation for you but i'd be happy to supply that to the court please  certainly will and as i mentioned he also had the letter to which judge dredd lynn referred though when he said he basically said that's you know minimal effort you could have done a lot of other things if you really want to try to represent your clients you go ahead to read this long and i said what's the backstory here doesn't mr big understand the english language most lawyers that i know i would least make some good faith effort to try to comply with your i submit i haven't the bankruptcy court respond to that they the bankruptcy court did not respond at all other than to accuse mr briggs of engaging in misconduct by meeting with miss dilts he understood the gravity of the situation that is why he met with  that he appeared before the court and and he told her this is serious ms dilts hired a lawyer and the lawyer came in he wrote a letter to robinson and said please comply i don't know what more he could have done his clients he can't contact his clients his clients didn't know appearance and bringing her before the court that is certainly helpful to the court i don't know what more they could have done he certainly asked mr robinson he has no authority over robinson he asked robinson to comply the contempt finding that there there is not clear and convincing evidence of contempt in the click contempt finding of course is the basis for sanctions with regard to the bridge requesting a hearing he didn't know he needed an evidence your hearing when the sanctions order was entered he promptly requested the due record to give them an eviden y hearing so did request a hearing last thing i'd say is we asked the court to reverse the findings and if the court finds there is no evidence that to dismiss the vacate the order and to dismiss the matter against mr briggs but we do ask if contact the missouri jeff attorney general's office well how else do you deal with the david briggs's of the world when you're a bankruptcy judge and trying to get to the heart of the matter well have to temporize with people like mr riggs here on earth the very least mr briggs is entitle to notice that the bankruptcy court is going outside of record and obtaining information and then obtaining information in which bridge was not a party in which the court was not a it when the court had no supervisory had nothing to do with the matter that was before the attorney general's office and i think that the very least mr brown thing to do with briggs is failure to comply with the court's order well it's a nice side story but it's clear that judge revel in put little faith in the dilts and for him now to rely upon her testimony and tell mr briggs that if he's going to be responsible for responding to that in a matter in which he was not a party and did not have an opportunity to participate  submitted we will take into consideration