Sheridan v. Michels , 362 F.3d 96 ( 2004 )


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  •           United States Court of Appeals
                            For the First Circuit
    
    No. 02-9007                                         Volume II of II
    
                          IN RE WILLIAM C. SHERIDAN,
    
    
    
                             WILLIAM C. SHERIDAN,
    
                            Defendant, Appellant,
    
                                      v.
    
                                NANCY MICHELS,
    
                             Plaintiff, Appellee.
    
    
    
                  APPEAL FROM THE BANKRUPTCY APPELLATE PANEL
    
                             OF THE FIRST CIRCUIT
    
    
    
    
                                    Before
    
                            Selya, Circuit Judge,
    
                          Cyr, Senior Circuit Judge,
    
                          and Lynch, Circuit Judge.
    
    
    
         William C. Sheridan, pro se.
         Nancy H. Michels, with whom the Law Offices of Michels &
    Michels and Carole A. Mansur were on the brief for appellee.
    
    
    
                                March 29, 2004
                   LYNCH,    Circuit   Judge   (dissenting).           With    regret,   I
    
    dissent.          The majority decides this case on an argument that
    
    Sheridan never raised in the bankruptcy court, in the BAP, or on
    
    appeal, and that Sheridan expressly refused to adopt when this
    
    court raised it sua sponte and asked for his view.                    The majority
    
    then decides that issue the wrong way.              The result is to relegate
    
    Sheridan to a new round of litigation in the courts below, more
    
    than two years after the bankruptcy court suspended him from
    
    practice.      For Sheridan, this is a pyrrhic victory, and one that he
    
    asked us not to give him.19
    
                   The principal opinion by Judge Cyr and the opinion by
    
    Judge Selya concurring in the judgment agree on two points that I
    
    believe are not only mistaken but also certain to have consequences
    
    beyond the narrow realm of attorney discipline in bankruptcy cases:
    
    (1)     that      this   is   an   appropriate      case     for     invoking     the
    
    LaGuardia/Weinstein doctrine to justify this court in addressing an
    
    issue      that    Sheridan   elected   not    to   raise;   and     (2)   that   the
    
    disciplinary         proceeding    against     Sheridan      was    not     a   "core
    
    proceeding" under § 157.             I also dissent from the principal
    
    opinion's conclusion that Sheridan neither consented nor waived his
    
    objections to entry of a final order in the bankruptcy court.
    
    
    
          19
           It is true that, after the court's decision, the order
    suspending Sheridan will no longer be final.  But the district
    court may simply reinstate the remedy chosen by the bankruptcy
    court.
    
                                            -35-
                                          I.
    
                 The   principal   opinion     reaches   the      "core    proceeding"
    
    question in this case only by holding that while Sheridan perhaps
    
    forfeited the issue, he never consented to the entry of a final
    
    judgment or otherwise waived the requirements of § 157.                     I cannot
    
    join that conclusion: (i) it requires a restrictive interpretation
    
    of § 157(c) that conflicts with the views of at least five circuits
    
    and   the    leading   commentator   on     bankruptcy     law;       and   (ii)   it
    
    undermines this court's jurisprudence of waiver and consent to say,
    
    on this record, that Sheridan ever disputed the finality of the
    
    bankruptcy court's order.
    
    A.    Section 157 and Finality
    
                 A bankruptcy judge's power to enter final orders is not
    
    limited to core proceedings.         Rather, a bankruptcy court has the
    
    authority     to   enter   a   dispositive     order     in    any     proceeding,
    
    irrespective of core/non-core status, if the parties consent.                      See
    
    § 157(c)(2); see also In re S. Indus. Banking Corp., 
    809 F.2d 329
    ,
    
    331 (6th Cir. 1987) ("A related proceeding with the consent of all
    
    parties functionally has the same effect as a core proceeding .                     .
    
    . .").      This court held unequivocally in In re G.S.F. Corp., 
    938 F.2d 1467
     (1st Cir. 1991), that such consent can be implied from a
    
    party's litigation conduct.        See id. at 1477 ("[I]mplied consent
    
    will suffice.").       We upheld appellate jurisdiction in that case
    
    because the parties had, by their conduct before the bankruptcy
    
    
                                         -36-
    court, "acquiesce[d]" in the treatment of the proceeding as core.
    
    Id.   If, by his conduct, Sheridan likewise indicated his knowing
    
    acquiescence in the bankruptcy court's treatment of his case as
    
    core, then the sanctions order was final, the BAP had appellate
    
    jurisdiction, and the core/non-core status of the disciplinary
    
    hearing is irrelevant.20
    
               The principal opinion seems to interpret In re G.S.F. to
    
    require some "affirmative" expression of consent before a party
    
    will be held to have waived the procedures required by § 157(c).
    
    Op. at 8-10.   That decision does not announce such a restrictive
    
    and formalistic rule; it did not require any particular conduct,
    
    but merely examined the record for "indication[s] of acquiescence."
    
    938 F.2d at 1477.    Further, in concluding that "implied consent
    
    
          20
          In a non-bankruptcy case, this issue would normally be
    characterized as "waiver." In bankruptcy cases, the more common
    rubric is that of "implied consent." The difference in terminology
    is not important; notions of waiver and consent are closely
    intertwined in the context of a litigant's asserted right to an
    Article III tribunal, as the Supreme Court has made clear. See,
    e.g., Commodity Futures Trading Comm'n v. Schor, 
    478 U.S. 833
    , 849
    (1986) ("[T]he relevance of concepts of waiver to Article III
    challenges is demonstrated by our decision in Northern Pipeline, in
    which the absence of consent to an initial adjudication before a
    non-Article III tribunal was relied on as a significant factor in
    determining that Article III forbade such adjudication."). Indeed,
    several courts of appeals have used both terms to describe the
    inquiry under § 157(c)(2). See, e.g., In re Johnson, 
    960 F.2d 396
    ,
    403-04 (4th Cir. 1992); Home Ins. Co. v. Cooper & Cooper, Ltd., 
    889 F.2d 746
    , 749 (7th Cir. 1989); see also In re Nell, 
    71 B.R. 305
    ,
    310 n.4 (D. Utah 1987). The terms are used interchangeably in this
    opinion, as the substantive standard is the same: because Sheridan
    knew of his right to seek de novo review in the district court and
    chose not to do so, the sanctions order should have been deemed
    final and the entire core/non-core problem avoided.
    
                                   -37-
    will suffice" under § 157(c)(2), this court cited cases like In re
    
    Daniels-Head & Assocs., 
    819 F.2d 914
     (9th Cir. 1987), In re S.
    
    Indus. Banking Corp., supra, and In re Hatfield, 
    117 B.R. 387
    
    (Bankr. C.D. Ill. 1990), each of which held that the absence of a
    
    timely objection to the bankruptcy court's jurisdiction is enough
    
    to establish consent.     See 819 F.2d at 919; 809 F.2d at 331; 117
    
    B.R. at 389 n.1.
    
               The principal opinion contends that such cases must have
    
    been wrongly decided in light of the 1987 advisory committee notes
    
    to Fed. R. Bankr. P. 7008, which emphasize "express" consent.          See
    
    Op. at 8 n.2.    That argument, however, is undercut by the Supreme
    
    Court's recent decision in Roell v. Withrow, 
    123 S. Ct. 1696
    
    (2003), in which the Court held that consent to proceedings before
    
    a federal magistrate judge can be implied from a party's litigation
    
    conduct.   Id. at 1703.    In Roell, as in this case, a federal rule
    
    interpreting    the   underlying    statute   required   advance,   written
    
    consent from both parties.         Id. at 1701.   As in this case, that
    
    rule was not satisfied.      Nevertheless, the Roell Court held that
    
    under the terms of the statute itself, implied consent was all that
    
    was required.   Id. at 1703.   The same logic applies under § 157(c),
    
    which requires only "consent," not "express consent."           Moreover,
    
    Congress knew how to require express consent when it wanted that
    
    result -- it did so in § 157 only a few paragraphs later.           See 28
    
    U.S.C. § 157(e) ("express consent" is required from all parties
    
    
                                        -38-
    before the bankruptcy court may hold a jury trial).                      In light of
    
    Roell and Congress's calculated choice of words in § 157, the
    
    principal     opinion's      restrictive     interpretation         of   the   consent
    
    requirement in § 157(c) is unjustified.
    
                  Under the view adopted by the principal opinion today, a
    
    party's   complete      failure    to   object      to    core    treatment     is    not
    
    sufficient to show consent.             That position, if adopted by this
    
    court, would place this circuit directly in conflict with the views
    
    of at least five of our sister circuits.                       See In re Tex. Gen.
    
    Petroleum Corp., 
    52 F.3d 1330
    , 1337 (5th Cir. 1995) ("A party who
    
    fails    to   object    to   a   bankruptcy      court's       assumption      of    core
    
    jurisdiction consents to that court's entry of final judgment.");
    
    Abramowitz v. Palmer, 
    999 F.2d 1274
    , 1280 (8th Cir. 1993) (finding
    
    implied consent where "[n]either party object[ed] to the bankruptcy
    
    court's entering a final judgment"); In re Johnson, 
    960 F.2d 396
    ,
    
    403-04 (4th Cir. 1992) (finding implied consent because the parties
    
    "failed to object to the bankruptcy court's determination" of the
    
    matters in dispute);         In re Daniels-Head, 819 F.2d at 919 (failure
    
    to raise a timely objection to core treatment constitutes implied
    
    consent); In re Men's Sportswear, Inc., 
    834 F.2d 1134
    , 1137-38 (2d
    
    Cir.    1987)   (party's     failure    to     object     to     bankruptcy    court's
    
    exercise of core jurisdiction despite multiple opportunities to
    
    lodge    such   an     objection   "can      only    be    construed     as    implied
    
    
    
    
                                            -39-
    consent").21   The leading treatise on bankruptcy law likewise
    
    concludes that the failure to object to core treatment should be
    
    enough to show consent.   See 1 Collier on Bankruptcy § 3.02[6][b]
    
    (rev. 15th ed. 2003) ("It is unstated, but probably implied in
    
    section 157(b)(3), and it has been held, that failure to make
    
    timely objection to the characterization of the proceeding as a
    
    core proceeding will be deemed a consent to the jurisdiction of the
    
    bankruptcy court to enter dispositive orders and judgments in like
    
    manner as section 157(c)(2)."); id. § 3.03[4] ("The effect of
    
    failure to interpose an objection [to core treatment] at the
    
    pleading stage should be consent to the final order being entered
    
    by the bankruptcy judge.").
    
    B.   Waiver in the Bankruptcy Court
    
              If the principal opinion's restrictive view of consent
    
    under § 157(c)(2) is wrong, it collapses.    That is because under
    
    the test adopted by other circuits and (in my view) endorsed by
    
    this court itself in In re G.S.F., Sheridan waived any right he may
    
    have had to de novo review in the district court.
    
              Sheridan utterly failed even to identify the core/non-
    
    core issue in the bankruptcy court, let alone raise a coherent
    
    objection to the core status of the proceeding, despite multiple
    
    opportunities to do so. Neither in his responsive pleadings nor in
    
    
    
         21
          But see Home Ins. Co., 889 F.2d at 749-50 (express consent
    required).
    
                                   -40-
    his various motions to the bankruptcy court did Sheridan -- an
    
    experienced bankruptcy attorney22 –- argue that the proceedings were
    
    non-core,   that   the   bankruptcy   court   could   not   enter   a   final
    
    judgment against him, that he was entitled to de novo review of the
    
    facts and the law in the district court, or anything else that
    
    could be interpreted as a reference to § 157(c).
    
                Nor did Sheridan identify this issue at the bench trial.
    
    The bankruptcy court entered a pretrial scheduling order on January
    
    16, 2001 that required the parties to identify all disputed issues
    
    of law and applicable defenses.          Sheridan, in response, raised
    
    various legal objections, not one of which addressed the core/non-
    
    core status of the proceeding or the bankruptcy court's power to
    
    
         22
          The bankruptcy court expressly found that Sheridan "is an
    experienced attorney who has practiced [bankruptcy law] for a
    significant period of time." 
    2001 WL 1757058
    , at *24. The court
    further found that in light of that extensive experience, Sheridan
    "was aware" of the applicable rules and practices in bankruptcy
    court. Id.
         Nevertheless, the principal opinion says that Sheridan's
    extensive experience as a bankruptcy attorney does not support the
    inference that he knowingly acquiesced in core treatment because
    "these disciplinary proceedings arose, at least in part, from
    Sheridan's numerous physical ailments and mental impairments." Op.
    at 15 n.7. That is a non-sequitur: whether Sheridan's misconduct
    was related to his alleged disabilities has nothing to do with
    whether Sheridan knew, based on his years of practicing bankruptcy
    law, that he was obliged to alert the bankruptcy judge if he
    objected to the treatment of his disciplinary proceeding as core.
    The principal opinion does not suggest that a disability actually
    prevented Sheridan from objecting to core treatment.
         In any event, the principal opinion's willingness to attribute
    Sheridan's professional misconduct to his disabilities is puzzling,
    given that (1) the bankruptcy court made no finding of any
    disability, and (2) the BAP held that Sheridan utterly failed to
    support his claim of disability. See 282 B.R. at 92 & n.15.
    
                                      -41-
    enter a final judgment against him.23         Even during the bench trial,
    
    Sheridan made no argument that the court was obliged to enter its
    
    findings as "proposed findings of fact" under § 157(c)(1).                      On
    
    October 12, 2001, the bankruptcy court entered a final opinion and
    
    order suspending Sheridan from practice.          Michels v. Sheridan, No.
    
    00-1140-JMD, 
    2001 WL 1757058
     (Bankr. D.N.H. Oct. 12, 2001).
    
                 The principal opinion explains all of this by saying that
    
    Sheridan could not have raised the core/non-core issue prior to
    
    judgment because he had no idea that the bankruptcy court intended
    
    to enter a binding sanctions order.          Op. at 13.    That is simply not
    
    so.    Sheridan has never claimed, and could not claim, that he was
    
    unaware     that   the   bankruptcy   court    intended     to     sanction    him
    
    directly.      The   bankruptcy   court's     January     16,    2001    pretrial
    
    scheduling order stated that the complaint against Sheridan had
    
    been    commenced    under   Administrative     Order     2090-2    of   the   New
    
    Hampshire bankruptcy courts.           That order expressly allows the
    
    bankruptcy court to issue binding orders sanctioning and disbarring
    
    attorneys by deeming attorneys who practice before the bankruptcy
    
    court to have consented to disciplinary jurisdiction.24                  Sheridan
    
    
           23
          Sheridan's reply stated only that the complaint failed to
    allege violations of the applicable rules of ethics and that, in
    the alternative, his conduct should be excused because of his
    disabilities.
           24
          AO 2090-2 provides, in relevant part, that "[a]ny attorney
    admitted or permitted to practice before [the bankruptcy] court
    shall be deemed to have conferred disciplinary jurisdiction upon
    th[e] court for any alleged attorney misconduct arising during the
    
                                          -42-
    was clearly on notice that the bankruptcy court intended to hold
    
    such a proceeding, yet he did not dispute that it was a core
    
    proceeding or that any resulting order would be final.25
    
                Even in his multiple motions for reconsideration after
    
    the bench trial, Sheridan failed to raise the core/non-core issue.
    
    In   his   October   22,   2001   motion,    Sheridan     responded    to    the
    
    bankruptcy   judge's   statement    that     bankruptcy    courts     have   the
    
    substantive power to discipline attorneys under the "inherent
    
    power" doctrine of Ex parte Burr, 
    22 U.S. 529
     (1824).                        See
    
    Sheridan, 
    2001 WL 1757058
    , at *1.           Because the principal opinion
    
    relies heavily on Sheridan's response to conclude that he raised
    
    and pressed the core/non-core argument, I quote it here:
    
                First, Ex parte Burr, supra (U.S. 1824) concerns
          broad powers inherent in the exercise of the judicial
          power    under  Article   III  of   the   United   States
          Constitution.     However, although the United States
          Bankruptcy Court is a "unit of the [Federal] district
          court," it is well established that the powers of
          Bankruptcy judges are limited to those "conferred under"
          the United States Bankruptcy Code. 28 U.S.C. Section 151.
                As such the Bankruptcy court does not share all of
          the powers of the district court.      Thus, in Northern
          Pipeline Co. vs. Marathon Pipeline Co., 
    458 U.S. 50
          (1982) the United States Supreme Court held that it was
    
    
    course of a case pending before th[e] court in which that attorney
    has participated in any way."
          25
          Sheridan argued in his opening brief that AO 2090-2 was not
    promulgated until February 2001, after the disciplinary complaint
    against him was filed. That is not true: the administrative order
    was adopted in October 2000, and Sheridan is fairly charged with
    knowledge of its contents. An amended version of AO 2090-2 became
    effective in February 2001, but the amendments did not affect any
    portion of the order relevant to Sheridan's case.
    
                                        -43-
         unconstitutional for the Bankruptcy Courts to exercise
         the "essential attributes of judicial power of the
         Article III district court," and that the bankruptcy
         court's power was limited to "core proceedings" of the
         administration of the bankruptcy estate under the
         bankruptcy code. 28 U.S.C. section 157(b)(1).
              It is axiomatic that since the bankruptcy court does
         not share in the "essential" powers of Article III
         judges, it follows that the bankruptcy court does not
         share in the "inherent authority" derived from the
         exercise of Article III judicial power.26
    
    
    This was Sheridan's sole reference to "core proceedings" or § 157
    
    in the bankruptcy court.
    
                 As the context makes clear, Sheridan was not objecting in
    
    these paragraphs to the finality of the bankruptcy court's order
    
    against him.       Nor did the bankruptcy court understand him to be
    
    making such an argument. Rather, Sheridan was contending only that
    
    bankruptcy courts do not enjoy the "inherent power" described in Ex
    
    parte Burr to discipline attorneys.         This is simply an attack on
    
    one of the bankruptcy court's asserted sources of disciplinary
    
    authority.     It is distinct from the contention that the principal
    
    opinion attributes to Sheridan: namely, that the bankruptcy court,
    
    while     empowered   to   conduct   disciplinary   proceedings,   was   not
    
    permitted     to   enter    a   final   order   against   Sheridan   under
    
    § 157(c)(1). Sheridan, an experienced bankruptcy lawyer, knows the
    
    difference.     Indeed, the principal opinion itself recognizes that
    
    the question whether a bankruptcy court has the power to discipline
    
    
         26
          This passage is quoted exactly from Sheridan's October 22
    motion; any mistakes or grammatical errors are his.
    
                                         -44-
    attorneys is a question independent of whether it has the power to
    
    enter a final order.27   Yet the principal opinion contends that by
    
    raising the former argument, Sheridan somehow also raised the
    
    latter.28   This is unfair to bankruptcy judges, who should not be
    
    asked to read tea leaves to discern a litigant's argument.
    
    
         27
          For example, the principal opinion concedes that bankruptcy
    courts have substantive disciplinary authority, but it holds that
    the exercise of that power in this particular case was not a "core
    proceeding." See Op. at 28-29. Sheridan essentially argued the
    opposite: he challenged the substantive power of bankruptcy courts
    to discipline attorneys, but did not contest that the invocation of
    that power, if valid, would be a core proceeding.
         28
          The principal opinion emphasizes Sheridan's citation to
    Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 
    458 U.S. 50
     (1982), which it describes as "the seminal case regarding the
    constitutional limitations which undergird the pivotal core/non-
    core distinction." Op. at 16 (emphasis in original). There is no
    doubt that the "core proceeding" concept reflects some of the
    Article III issues discussed in the plurality opinion in Northern
    Pipeline. But it is more than a stretch to say that Sheridan's
    reference to that case amounts to an argument that the proceeding
    below was non-core under § 157.      Congress did not create the
    core/non-core distinction until after Northern Pipeline, so the
    citation alone hardly suffices to raise the issue.
         More fundamentally, Northern Pipeline discussed at least five
    ways in which the Bankruptcy Act of 1978 unconstitutionally vested
    the "essential attributes" of judicial power in Article I
    bankruptcy judges, only one of which was the fact that bankruptcy
    judges were empowered to issue final orders that were binding and
    enforceable. See 458 U.S. at 85-86. Significantly, another of the
    "essential attributes" cited by the Northern Pipeline Court was the
    power of bankruptcy judges to exercise "all ordinary powers of
    district courts," including issuing extraordinary writs and orders.
    Id. at 85. This -- and not the core/non-core distinction -- was
    the proposition for which Sheridan cited Northern Pipeline.
    Sheridan has consistently argued that under Northern Pipeline,
    bankruptcy courts lack the "inherent power" that district courts
    enjoy to discipline attorneys in the absence of statutory
    authorization. As noted above, this is logically distinct from the
    argument that bankruptcy courts can discipline attorneys but cannot
    enter final orders.
    
                                    -45-
               All of this, in my view, requires the conclusion that the
    
    bankruptcy court's order was final and appealable.         Sheridan was
    
    plainly aware of the core/non-core distinction.       He simply elected
    
    not to assert the issue, perhaps for strategic reasons. Perhaps he
    
    gambled that the bankruptcy judge's factual findings would be
    
    favorable to him, hoping to benefit from a more favorable standard
    
    of review on appeal.    Perhaps he preferred to retain the option of
    
    appealing to the Bankruptcy Appellate Panel, as he ultimately did.
    
    Whatever his reasons, Sheridan abandoned any right he may have had
    
    to de novo review in the district court by choosing not to object
    
    to core treatment.     See In re G.S.F., 938 F.2d at 1477; accord In
    
    re Tex. Gen. Petroleum Corp., 52 F.3d at 1337; Abramowitz, 999 F.2d
    
    at 1280; In re Johnson, 960 F.2d at 403-04; In re Daniels-Head, 819
    
    F.2d at 919; In re Men's Sportswear, 834 F.2d at 1137-38.              By
    
    refusing to infer consent from Sheridan's conduct, the majority
    
    simply encourages future bankruptcy litigants to game the system by
    
    waiting   until   an   adverse   judgment   before   objecting   to   core
    
    treatment.   "Inferring consent in these circumstances . . . checks
    
    the risk of gamesmanship by depriving parties of the luxury of
    
    waiting for the outcome before denying the [bankruptcy judge's]
    
    authority. Judicial efficiency is served; the Article III right is
    
    substantially honored."     Roell, 123 S. Ct. at 1703.
    
    C.   Waiver on Appeal
    
               Sheridan's conduct on appeal, both in the BAP and before
    
    
                                      -46-
    this court, provides further assurance that he consented to core
    
    treatment.    First, Sheridan elected to bring his appeal in the
    
    Bankruptcy Appellate Panel rather than in the district court,
    
    despite the fact that the BAP has no authority to review proposed
    
    findings of fact or conclusions of law under § 157(c)(1).                The
    
    principal opinion dismisses this point, stating that Sheridan's
    
    appeal was proper because the bankruptcy judge ostensibly entered
    
    a final order.       Op. at 16 n.8.       That is true, but it does not
    
    negate the inference of consent: although Sheridan had an absolute
    
    statutory    right   to   bring   his    appeal   in   the   district   court
    
    irrespective of the core/non-core issue, see 28 U.S.C. § 158(c)(1),
    
    and although the BAP notified Sheridan of that right in writing,
    
    Sheridan nevertheless pursued his appeal in the BAP.             If, as the
    
    principal opinion contends, Sheridan had believed he was entitled
    
    to de novo review in the district court, the obvious choice would
    
    have been to invoke his right to appeal to the district court and
    
    then to demand de novo review.          His decision to appeal to the BAP
    
    instead is strong evidence of his consent to core treatment.             Cf.
    
    Commodity Futures Trading Comm'n v. Schor, 
    478 U.S. 833
    , 849-50
    
    (1986) (plaintiff's election to forgo review in federal court and
    
    seek relief instead in an Article I proceeding "constituted an
    
    effective waiver" of Article III objections because the party had
    
    the option of Article III adjudication but "chose to avail himself
    
    of the quicker and less expensive procedure Congress had provided
    
    
                                       -47-
    him").
    
                 Sheridan never argued to the BAP that the proceeding in
    
    the bankruptcy court was non-core. He merely repeated his argument
    
    about "inherent power" under Ex parte Burr.       The BAP opinion makes
    
    clear that the finality of the bankruptcy court's order was never
    
    in dispute.     See, e.g., In re Disciplinary Proceedings, 
    282 B.R. 79
    , 85 (B.A.P. 1st Cir. 2002) (referring to "final bankruptcy court
    
    orders" and indicating that the bankruptcy court's factual findings
    
    would be reviewed for clear error).
    
                 The final and most telling indication of Sheridan's
    
    consent to core treatment came before this court.          Invited by the
    
    court to file a supplemental brief on the core/non-core question,
    
    Sheridan expressly declined to argue that the disciplinary hearing
    
    was non-core.     His supplemental brief acknowledged the core/non-
    
    core issue and even cited § 157(c)(1), the provision barring
    
    bankruptcy     judges   from   entering   final   orders    in   non-core
    
    proceedings absent the consent of the parties.             Nevertheless,
    
    Sheridan refused to assert that the disciplinary proceeding was
    
    non-core –- he stated simply that he "takes no position" on whether
    
    the bankruptcy court order was final, and he urged this court to
    
    provide prompt and clear guidance on the merits of his appeal
    
    because his case had already been pending too long.29
    
    
         29
          The principal opinion emphasizes that before Sheridan stated
    he "takes no position" on the core/non-core issue, he successfully
    briefed the argument that the proceeding below was non-core. Op.
    
                                      -48-
                                      II.
    
              The second reason I cannot join the judgment is the
    
    majority's extension of the LaGuardia/Weinstein exception to our
    
    rules of waiver and forfeiture.     See Op. at 17-19.   The LaGuardia
    
    exception is inapplicable on these facts, and by invoking it here,
    
    the majority approves a novel and extremely unwise expansion of
    
    that doctrine.
    
              Under LaGuardia and its progeny, the court of appeals may
    
    review de novo an argument that is raised for the first time on
    
    appeal only if:   (1) the argument involves a purely legal question
    
    of constitutional import that can be resolved with certitude on the
    
    existing record; (2) addressing the argument will promote judicial
    
    economy because the same issue will arise in nearly identical terms
    
    in other cases; and (3) the argument, if meritorious, would almost
    
    certainly entitle the appellant to prevail, so that failing to
    
    address it would result in a miscarriage of justice.      See United
    
    States v. LaGuardia, 
    902 F.2d 1010
    , 1013 (1st Cir. 1990); see also
    
    Castillo v. Matesanz, 
    348 F.3d 1
    , 12 (1st Cir. 2003); In re
    
    Weinstein, 
    164 F.3d 677
    , 685 (1st Cir. 1999); Sammartano v. Palmas
    
    del Mar Props., Inc., 
    161 F.3d 96
    , 98-99 (1st Cir. 1998).      Until
    
    
    
    at 16 n.8. Of course he did –- the whole point of the supplemental
    briefing was to address that argument, and Sheridan duly traced its
    contours. Yet despite demonstrating that he knew how to make the
    argument if he were so inclined, Sheridan expressly stated that he
    "takes no position" on the matter.          The principal opinion
    attributes the argument to him anyway.
    
                                    -49-
    today, LaGuardia provided a narrow exception to the raise-or-waive
    
    rule, which this court ordinarily applies "with a near-religious
    
    fervor."   Nat'l Ass'n of Soc. Workers v. Harwood, 
    69 F.3d 622
    , 627
    
    (1st Cir. 1995). Cases qualifying for the exception, we have said,
    
    are "few and far between."   Id.
    
               The majority's resort to LaGuardia on facts like these is
    
    unprecedented in multiple respects.    First, this court has never
    
    invoked the LaGuardia exception when the party on whose behalf the
    
    court would intervene has not actually raised the issue on appeal.
    
    Here, not only did Sheridan fail to raise the core/non-core issue
    
    on appeal, but he also explicitly declined to advocate the position
    
    when asked.
    
               In addition, the usual predicate conditions for invoking
    
    LaGuardia are absent here.   The core/non-core distinction is not a
    
    matter of constitutional law or import, no more than any other
    
    question of statutory interpretation under the Bankruptcy Code.30
    
    
         30
          The principal opinion insists that the core/non-core question
    is a question of "constitutional import," presumably because
    Congress created the core/non-core distinction in response to a
    Supreme Court case predicated on Article III. Op. at 19 & n.10.
    That argument is misplaced for two reasons. First, the fact that
    a statutory scheme reflects considerations of constitutional law
    does not elevate the statute itself to constitutional stature. We
    do not say, for example, that service of process under Fed. R. Civ.
    P. 4 is a question of constitutional dimensions, even though that
    Rule was plainly written to comport with constitutional due process
    concerns.    Indeed, if the core/non-core issue is a matter of
    constitutional law, so too is the rest of the Bankruptcy Code
    insofar as it reflects Congress's judgment about how best to
    implement its powers under the Bankruptcy Clause, U.S. Const. Art.
    I, § 8, cl. 4.
    
                                    -50-
    Nor is the core/non-core determination "strictly a question of
    
    law."    LaGuardia, 902 F.2d at 1013.        The principal opinion itself
    
    recognizes that the core/non-core question in this case is not a
    
    purely   legal   one   --   the   court    does   not   hold   that   attorney
    
    disciplinary proceedings are always non-core, but rather that the
    
    proceeding was non-core "[i]n the particular circumstances of the
    
    instant case."     Op. at 5.       And the core/non-core status of an
    
    omnibus attorney disciplinary proceeding initiated by a bankruptcy
    
    court is hardly a question that is "almost certain to be presented
    
    in identical terms in other cases."          LaGuardia, 902 F.2d at 1013.
    
                Similarly, the merits of the core/non-core issue in this
    
    case are neither "highly persuasive," Harwood, 69 F.3d at 628, nor
    
    "so compelling as virtually to insure [the appellant's] success,"
    
    
    
         Second, the core/non-core distinction is nothing like the
    problems of constitutional law or import that have previously
    served as a predicate for this court's resort to LaGuardia. See,
    e.g., Castillo v. Matesanz, 
    348 F.3d 1
    , 11-16 (1st Cir. 2003)
    (ineffective assistance of counsel under the Sixth Amendment); In
    re Weinstein, 
    164 F.3d 677
    , 684-85 (1st Cir. 1999) (takings claim
    under the Fifth Amendment); Nat'l Ass'n of Soc. Workers v. Harwood,
    
    69 F.3d 622
    , 629 (1st Cir. 1995) (immunity of state legislature
    from First Amendment claim under federal common law, by analogy to
    the Speech and Debate Clause); United States v. Mercedes-Amparo,
    
    980 F.3d 17
    , 19 (1st Cir. 1992) (due process concerns in
    prosecutorial breach of plea bargain agreement). In the few cases
    in which this court has invoked LaGuardia in the absence of a claim
    based directly in constitutional law, we have done so to vindicate
    a strong governmental interest of a kind not present here. See,
    e.g., Chestnut v. City of Lowell, 
    305 F.3d 18
    , 21 (1st Cir. 2002)
    (per curiam) (en banc) (relieving a city of punitive damages award
    under City of Newport); In re 604 Columbus Ave Realty Trust, 
    968 F.3d 1332
    , 1343-44 (1st Cir. 1992) (permitting the FDIC to raise
    special governmental defenses based on federal common law).
    
                                        -51-
    Sammartano, 161 F.3d at 98-99; United States v. Slade, 
    980 F.2d 27
    ,
    
    31 (1st Cir. 1992).          Sheridan has not advanced the core/non-core
    
    argument at all, let alone advanced it in a "highly persuasive"
    
    manner,     and    the     principal     opinion's    reasoning     is    not     "so
    
    compelling" that the outcome is essentially predetermined.                        See
    
    Correa v. Hosp. San Francisco, 
    69 F.3d 1184
    , 1196 (1st Cir. 1995)
    
    (declining to invoke LaGuardia where the forfeited argument merely
    
    advanced one of two possible constructions of a statute).
    
                 Lastly, this case does not meet the final criterion for
    
    invoking LaGuardia: that if the issue were meritorious, failing to
    
    reach it would constitute a "miscarriage of justice."                   902 F.2d at
    
    1013.     It could hardly be a miscarriage of justice to reach the
    
    merits of Sheridan's appeal given that both parties have urged us
    
    to do so.    If there is any miscarriage of justice in this case, it
    
    is the disservice done to both sides in remanding this case for
    
    another round of litigation below.
    
                 If LaGuardia can apply here, it can apply in any case in
    
    which an appellate judge wishes to raise and decide an issue sua
    
    sponte,    no     matter   how   compelling     the   evidence     of    waiver    or
    
    forfeiture      and   regardless    of    whether     a   party   advocates     that
    
    position.       I will not be surprised if this aspect of the court's
    
    decision today is regretted by this court and the bar for years to
    
    come.
    
    
    
    
                                             -52-
                                         III.
    
               Finally, I disagree with the majority's conclusion that
    
    the proceeding against Sheridan was non-core. In my view, the only
    
    interpretation of § 157 that is consistent with the purposes of the
    
    federal   bankruptcy    laws   and     Congress's   intent   in    the   1984
    
    bankruptcy amendments is that the disciplinary proceeding against
    
    Sheridan, which arose out of misconduct occurring in indisputably
    
    core proceedings, constituted a core proceeding.
    
    A.   Interpretation of 28 U.S.C. § 157
    
         1.   Plain text of § 157
    
              Whether the disciplinary proceeding against Sheridan was
    
    a "core proceeding" under 28 U.S.C. § 157 is a matter of statutory
    
    construction.    The plain text of § 157 makes no explicit reference
    
    to attorney discipline, sanctions, contempt, or anything similar,
    
    just as it fails to describe other proceedings that courts have
    
    recognized as core.31    Nor is the statutory term "core proceeding"
    
    self-defining.
    
               Nevertheless, the principal opinion purports to find
    
    support in the text of § 157.        It discusses the various categories
    
    of core proceedings in § 157(b)(2), emphasizing that "each of the
    
    enumerated   matters    relates   to    a   function   essential    to   the
    
    
    
         31
          See generally 1 Collier on Bankruptcy § 3.02[3] (rev. 15th
    ed. 2003) (listing examples of proceedings recognized as "core"
    even though they do not fall within the express terms of § 157(b)).
    
    
                                         -53-
    administration of the bankruptcy case." Op. at 21. The proceeding
    
    against Sheridan, the principal opinion contends, was different:
    
    it did not arise in any single bankruptcy case, so there was no
    
    relevant "case" to administer. Accordingly, it must have been non-
    
    core.     This is an expressio unius rationale: Congress provided a
    
    list of core proceeding categories in § 157(b); that list does not
    
    include     omnibus    attorney       disciplinary         hearings       or    similar
    
    proceedings spanning multiple bankruptcy cases; therefore Congress
    
    meant to exclude such proceedings from "core" treatment.
    
                This is flawed logic.             As the Supreme Court reiterated
    
    last    Term,   the   expressio       unius      canon   applies     only      when   the
    
    statutory list in question "justif[ies] the inference that items
    
    not mentioned were excluded by deliberate choice."                        Barnhart v.
    
    Peabody Coal Co., 
    537 U.S. 149
    , 168 (2003).                 No such inference is
    
    possible    here.      It     is   true    that    Congress,    in    drafting        the
    
    categories of core proceedings in § 157(b)(2), referred to "the
    
    estate" (i.e., in the singular), but that choice of words merely
    
    reflects    the     reality    that    the       vast    majority    of     bankruptcy
    
    proceedings pertain to a single debtor.                   Nothing in the statute
    
    says a proceeding is non-core if it involves more than one estate,
    
    and Congress knew how to exclude matters from § 157(b) when it
    
    wished to do so.        See, e.g., § 157(b)(2)(O) (excluding personal
    
    injury and      wrongful    death     claims      from   core   treatment).           The
    
    clincher is that Congress specifically provided that the list of
    
    
                                              -54-
    examples    in    §   157(b)(2)    is    not    exhaustive.    See     28    U.S.C.
    
    § 157(b)(2) (core proceedings "are not limited to" the listed
    
    categories); see also 1 Collier on Bankruptcy, supra, § 3.02[3]
    
    ("It should be emphasized at the outset that section 157(b)(2) is
    
    not limiting . . . .").
    
                This brings us back to where we started.            The underlying
    
    question    on    the   merits    of    the    core/non-core   issue    is       this:
    
    whether, in light of the structure and purpose of the core/non-core
    
    distinction and the Bankruptcy Code as a whole, § 157(b)(2) should
    
    be interpreted to embrace disciplinary proceedings like Sheridan's.
    
    See In re Hart, 
    328 F.3d 45
    , 48 (1st Cir. 2003).                 The principal
    
    opinion undertakes no such analysis.
    
         2.    Background to the 1984 Bankruptcy Amendments
    
                In fact, there is every reason to believe that Congress
    
    wanted and expected bankruptcy judges to enforce the professional
    
    responsibilities of bankruptcy attorneys through final and binding
    
    orders    where   the   misconduct       in    question   occurred     in    a    core
    
    bankruptcy proceeding or proceedings.32               In 1984, when Congress
    
    
         32
          Long before Northern Pipeline and Congress's 1984 enactment
    of § 157, the Supreme Court recognized that a court's power to
    regulate the conduct of the bar, including the power to suspend and
    disbar attorneys, is essential to the administration of justice and
    the protection of the public. See, e.g., Roadway Express, Inc. v.
    Piper, 
    447 U.S. 752
    , 764-67 (1980); Theard v. United States, 
    354 U.S. 278
    , 281 (1957); Ex parte Bradley, 
    74 U.S. 364
    , 374 (1868); Ex
    parte Garland, 71 U.S. (4 Wall.) 333, 378-79 (1867); Ex parte Burr,
    22 U.S. (9 Wheat.) 529, 531 (1824); see also In re Snyder, 
    472 U.S. 634
    , 643-45 (1985) ("Courts have long recognized an inherent
    authority to suspend or disbar lawyers.").
    
                                            -55-
    amended   the       Bankruptcy     Code    to    create      the   core/non-core
    
    distinction, the case law available to Congress provided no reason
    
    to think that bankruptcy courts' status as Article I tribunals
    
    would bar them from entering final disciplinary orders.                   In 1926,
    
    the Supreme Court itself held in Goldsmith v. U.S. Bd. of Tax
    
    Appeals, 
    270 U.S. 117
     (1926), that the U.S. Board of Tax Appeals,
    
    an   Article    I   tribunal,     possessed     the   authority    not    only   to
    
    promulgate ethical rules for admitting attorneys to practice, but
    
    also to disbar attorneys who failed to meet those standards.                     See
    
    id. at 121-22 (emphasizing, in holding that the Board possessed
    
    this power, "the character of the work to be done by the board, the
    
    quasi judicial nature of its duties, [and] the magnitude of the
    
    interests to be affected by its decisions").              The Court explicitly
    
    rejected the contention that such a tribunal cannot disbar or
    
    discipline lawyers absent express statutory authority, observing
    
    that the power of the Board to do so is "so necessary . . . and so
    
    usual" that the statute creating it would be interpreted to include
    
    that power.     Id. at 122.
    
               Furthermore, Congress knew that federal courts before
    
    1984 had upheld the power of other Article I tribunals to issue
    
    binding disciplinary orders against counsel appearing before them.
    
    See, e.g., Kivitz v. SEC, 
    475 F.2d 956
    , 962 (D.C. Cir. 1973) (power
    
    of SEC to disbar attorney for ethical misconduct);                       Herman v.
    
    Dulles,   
    205 F.2d 715
    ,   715-16      (D.C.   Cir.     1953)     (similar,
    
    
                                          -56-
    International Claims Commission); Francis v. Virgin Islands, 
    11 F.2d 860
    , 864 (3d Cir. 1926) (upholding the contempt powers of the
    
    U.S. District Court for the Virgin Islands); Fleming v. United
    
    States, 
    279 F. 613
    , 616 (9th Cir. 1922) (similar, United States
    
    Court for China).      Consistent with this line of cases, some courts
    
    had by 1984 already upheld the authority of bankruptcy courts to
    
    discipline attorneys for unethical conduct in bankruptcy cases. As
    
    early as     1979,    for   example,    the     Second     Circuit   described    as
    
    "nothing novel" the proposition that a debtor's counsel could be
    
    sanctioned    for    breaching    his    ethical      responsibilities     to    the
    
    bankruptcy court.       See In re Arlan's Dep't Stores, Inc., 
    615 F.2d 925
    , 943-44 (2d Cir. 1979).
    
                Congress enacted the 1984 bankruptcy amendments against
    
    this background.        Nothing in the 1984 Act or its legislative
    
    history suggests that Congress intended to deny bankruptcy judges
    
    the authority to regulate the bankruptcy bar.                     On the contrary,
    
    this court has held that Congress's purpose in the 1984 amendments
    
    was to press the jurisdiction of the bankruptcy courts "to its
    
    constitutional bounds" in the wake of Northern Pipeline. See In re
    
    Arnold Print Works, Inc., 
    815 F.2d 165
    , 168 (1st Cir. 1987)
    
    (Breyer, J.).       The congressional sponsors of the 1984 amendments
    
    described non-core proceedings as "Marathon-type" cases, referring
    
    to   the   Northern    Pipeline   decision,          and   they   understood    that
    
    category to be "very limited."                 Id.     Accordingly, this court
    
    
                                            -57-
    concluded that "Congress intended that 'core proceedings' would be
    
    interpreted broadly, close to or congruent with constitutional
    
    limits."    Id.
    
         3.    Article III and attorney discipline
    
                Congress had no reason to think that Article III is
    
    offended when a bankruptcy court enters a binding order against a
    
    bankruptcy    attorney   for   professional    misconduct   in    a     core
    
    bankruptcy proceeding.     Even the principal opinion does not so
    
    contend.    Indeed, less than a year after its decision in Northern
    
    Pipeline, the Supreme Court emphasized the limits of its holding:
    
    "The Court's holding in that case establishes only that Congress
    
    may not vest in a non-Article III court the power to adjudicate,
    
    render final judgment, and issue binding orders in a traditional
    
    contract action arising under state law, without consent of the
    
    litigants, and subject only to ordinary appellate review."            Thomas
    
    v. Union Carbide Agric. Prods. Co., 
    473 U.S. 568
    , 584 (1985)
    
    (emphasis added).33
    
                The   proceeding   at    issue    in   Sheridan's    case     is
    
    fundamentally different from a traditional common-law cause of
    
    
    
         33
          The Supreme Court endorsed this narrow reading of Northern
    Pipeline again the following year, repeatedly citing that case for
    the proposition that Congress's power to assign matters to non-
    Article III tribunals is constrained "where private, common law
    rights are at stake." Schor, 478 U.S. at 854; see also id. (noting
    that "private, common law rights were historically the types of
    matters subject to resolution by Article III courts," citing
    Northern Pipeline).
    
                                        -58-
    action.    The privilege to practice law, including the privilege to
    
    practice before a federal tribunal, is a matter of public license.
    
    See In re Snyder, 
    472 U.S. 634
    , 644 (1985).                   It is well-settled
    
    that courts     have    the   authority      to     revoke   that    license   where
    
    necessary to protect the public.             See id.; In re Ruffalo, 
    390 U.S. 544
    , 550 (1968); Theard v. United States, 
    354 U.S. 278
    , 281 (1957);
    
    Ex   parte   Wall,     
    107 U.S. 265
    ,       288-89   (1882).      Further,    a
    
    disciplinary proceeding is a matter between the court and the
    
    attorney only; no right to a jury trial attaches.                     See Ex parte
    
    Wall, 107 U.S. at 288.        It is akin to the enforcement of a "public
    
    right," and as then-Judge Breyer noted for this court in Arnold
    
    Print Works, the Supreme Court in Northern Pipeline found nothing
    
    unconstitutional in a bankruptcy judge issuing dispositive orders
    
    in such cases.    See 815 F.2d at 170.
    
          4.   Purposes of the Bankruptcy Code
    
                 Nor is there any reason to infer from the overarching
    
    purposes of the Bankruptcy Code that Congress wanted to limit
    
    bankruptcy    judges'    power       to    issue    final    and    binding    orders
    
    disbarring, suspending, or otherwise disciplining attorneys who act
    
    unethically in core proceedings.                 On the contrary, the need to
    
    maintain attorney discipline and enforce the rules of professional
    
    responsibility is, if anything, stronger in the bankruptcy context,
    
    where considerations of speed and cost-effectiveness are paramount:
    
         A sine qua non in restructuring the debtor-creditor
         relationship is the court's ability to police the
    
                                              -59-
         fiduciaries . . . who are responsible for managing the
         debtor's estate in the best interest of creditors. The
         bankruptcy court must be able to assure itself and the
         creditors who rely on the process that court-approved
         managers of the debtor's estate are performing their
         work, conscientiously and cost-effectively.
    
    
    In re Southmark Corp., 
    163 F.3d 925
    , 931 (5th Cir. 1999) (holding
    
    that a professional malpractice claim by a Chapter 11 debtor
    
    against   a   court-appointed   accountant      was    a   core   proceeding).
    
    Bankruptcy    courts   are   charged     with    the       rehabilitation   of
    
    financially     distressed   debtors     and     the       reorganization   or
    
    liquidation of their assets, often under the press of time because
    
    of the threat of financial loss.       In re McLean Indus., 
    68 B.R. 690
    ,
    
    695 (Bankr. S.D.N.Y. 1986); see also United States v. Mourad, 
    289 F.3d 174
    , 179 (1st Cir. 2002) (observing that the power to regulate
    
    attorney behavior is necessary "if the bankruptcy courts are to
    
    carry out efficiently and effectively the duties assigned to them
    
    by Congress" (quoting In re Volpert, 
    110 F.3d 494
    , 500 (7th Cir.
    
    1997))). Involving the district court in such disciplinary matters
    
    would "unduly burden the already complex and congested calendars of
    
    the district courts, and undermine the reasons for the district
    
    court's reference of Code cases to the bankruptcy courts."               In re
    
    McLean Indus., 68 B.R. at 696; see also In re Mem'l Estates, Inc.,
    
    
    116 B.R. 108
    , 112 (N.D. Ill. 1990) (imposition of sanctions must be
    
    a core proceeding because "any other interpretation would seriously
    
    hamper the bankruptcy court in its administration of the estate and
    
    
                                      -60-
    would provide additional methods of multiplying litigation for
    
    those seeking to hinder and delay the proceedings in the bankruptcy
    
    court").
    
                 Congress, moreover, must have been aware that problems of
    
    attorney     discipline     are    particularly      acute   in    the    consumer
    
    bankruptcy area, see In re Bruzzese, 
    214 B.R. 444
    , 450-51 (Bankr.
    
    E.D.N.Y. 1997),      such    as    the    Chapter   13   proceedings      in   which
    
    Sheridan specialized.       Consumer debtors, like those whom Sheridan
    
    represented, rarely have the resources or sophistication to bring
    
    tort claims for legal malpractice.              Indeed, because of the high
    
    volume of consumer bankruptcy filings and the speed at which
    
    bankruptcy    courts   must       process    such   petitions,     many    consumer
    
    debtors    "never    discover      that     their   attorneys     have    committed
    
    malpractice."       Id. at 450.       Direct discipline by the bankruptcy
    
    court may be the only feasible means in many cases of protecting
    
    debtors and ensuring the ethical conduct of the consumer bankruptcy
    
    bar in core proceedings. For this reason, "[b]ankruptcy judges are
    
    expected by Congress, the public, the appointing courts of appeals,
    
    and the leadership of the bar to maintain high standards of
    
    performance by all lawyers appearing before them. This is 'part of
    
    the job description.'"        Id. at 450-51.
    
         5.    "Core comes from core"
    
                 I do not contend that Congress intended all attorney
    
    disciplinary proceedings in the bankruptcy courts to be core
    
    
                                             -61-
    proceedings, regardless of how they arise. There are situations in
    
    which the justifications for permitting bankruptcy judges to issue
    
    binding disciplinary orders are less compelling –- for example,
    
    when an attorney acts unethically in a non-core proceeding in which
    
    the parties have refused to consent to the entry of a final order
    
    on the merits.    In such cases, the bankruptcy court must recommend
    
    findings of fact and conclusions of law to the district court in
    
    any event; there is little reason to treat the disciplinary issues
    
    alone as within the bankruptcy court's core powers.
    
               As to unethical conduct in core proceedings, however,
    
    Congress's purposes in the Bankruptcy Code are much better served
    
    by a rule that permits bankruptcy judges to issue final and binding
    
    disciplinary orders directly, without resort to the district court
    
    but with normal rights to appeal.        In fact, there is a widely
    
    accepted rule in attorney discipline cases that "core comes from
    
    core" --   that   is,   disciplinary   hearings   arising   out   of   core
    
    proceedings are themselves core proceedings.        See, e.g., Memorial
    
    Estates, 950 F.2d at 1370; In re O'Connor, 
    2001 WL 1335883
    , at *1
    
    (N.D. Tex. 2001); In re French Bourekas, Inc., 
    183 B.R. 695
    , 696
    
    (Bankr. S.D.N.Y. 1995) ("[T]he power to sanction parties for
    
    conduct in a core matter is itself core."), aff'd, 
    195 B.R. 19
    
    (S.D.N.Y. 1996); In re VIII S. Mich. Assocs., No. 94C 5593, 
    1994 WL 698489
    , at *5 (N.D. Ill. 1994); Fed. Sav. & Loan Ins. Corp. v.
    
    Sutherlin, 
    109 B.R. 700
    , 703 (E.D. La. 1989); In re Usoskin, 61
    
    
                                     -62-
    B.R. 869, 872 (Bankr. E.D.N.Y. 1986); In re Emergency Beacon Corp.,
    
    
    52 B.R. 979
    , 987 (Bankr. S.D.N.Y. 1985), aff'd, 
    790 F.2d 285
     (2d
    
    Cir. 1986); see also In re Monarch Capital Corp., 
    173 B.R. 31
    , 35-
    
    39 (D. Mass. 1994) (contempt proceeding against debtor's attorneys
    
    was core because the contempt occurred in a core proceeding).
    
                The "core comes from core" rule also makes practical
    
    sense.    One chief functional difference between a core proceeding
    
    and   a   non-core   proceeding    is   the    deference     accorded   to   the
    
    bankruptcy court's findings of fact.            Compare Fed. R. Bankr. P.
    
    8013 (review of core proceedings), with Fed. R. Bankr. P. 9033(d)
    
    (review    of   non-core   proceedings);      see    generally   In   re   Delta
    
    Petroleum (P.R.), Ltd., 
    193 B.R. 99
    , 106 (D.P.R. 1996).               In a core
    
    proceeding, the bankruptcy judge is empowered to make factual
    
    findings on the merits and to have those findings reviewed only for
    
    clear error. No useful purpose is served by denying the bankruptcy
    
    court the power to make equally authoritative findings of fact
    
    about the conduct of the very attorneys who appear before it.                "If
    
    the bankruptcy courts are to administer 'the restructuring of
    
    debtor-creditor relations, which is at the core of the federal
    
    bankruptcy power,' they must also have the power to sanction
    
    parties that interfere with such administration."             In re Emergency
    
    Beacon Corp., 52 B.R. at 987.
    
                Under    the   "core   comes      from   core"    principle,     the
    
    proceeding against Sheridan was plainly a core proceeding.                   The
    
    
                                        -63-
    overwhelming majority of the ethical violations of which Sheridan
    
    was accused occurred in core proceedings.           The bankruptcy court
    
    found that Sheridan committed at least 83 ethical violations over
    
    33 separate bankruptcy cases.34     It is clear from the record that
    
    at least 80 of those 83 violations, accounting for fully 31 of the
    
    33 cases, occurred in core proceedings (specifically, proceedings
    
    to propose, file, modify, and confirm Chapter 13 plans).35 Further,
    
    there has been no showing that the remaining three instances of
    
    misconduct occurred in non-core proceedings; rather, it is simply
    
    impossible to tell from the record whether those proceedings were
    
    also core.   As a result, the only impediment to applying the "core
    
    comes from core" rule in this case is a set of 3 ethical violations
    
    in   proceedings   whose   core/non-core   status    is   unknown.   Even
    
    assuming that those violations (which accounted for less than
    
    1/20th of the charges against Sheridan) occurred in non-core
    
    proceedings, there is no reason to think that they materially
    
    
    
          34
          In addition, the court determined that Sheridan committed
    five violations in the disciplinary proceeding itself, bringing the
    total to 88 violations in 34 cases.
          35
          The vast majority of Sheridan's infractions involved failing
    to file certificates of service for his clients' Chapter 13 plans
    (17 times in 16 cases); failing to file documents or motions
    related to his clients' Chapter 13 petitions in a timely manner (39
    times in 28 cases); and failing to appear or appearing late at
    court hearings (8 occasions) and § 341 meetings (3 occasions)
    related to Chapter 13 petitions.          Matters concerning the
    confirmation of a debtor's plan for reorganization, including
    Chapter 13 plans, are core proceedings.            See 28 U.S.C.
    § 157(b)(2)(L).
    
                                      -64-
    affected the bankruptcy court's choice of sanction.      Cf. Sheridan,
    
    
    2001 WL 1757058
    , at *23 (declaring that the evidence at trial
    
    "clearly    establishes"   that   Sheridan   is   not   professionally
    
    competent).
    
         6.    Summary
    
               The court's constrained reading of § 157 contradicts
    
    Congress's intent in the 1984 amendments, which was not to shrink
    
    the powers of the bankruptcy courts but to extend them to their
    
    jurisdictional limits in the wake of Northern Pipeline.      In light
    
    of the open-ended statutory text of § 157; the clear congressional
    
    intent that courts should interpret the term "core proceeding"
    
    broadly; the binding precedent in our own circuit commanding that
    
    we do so; the absence of relevant constitutional constraints; the
    
    legitimate functional need for bankruptcy courts to have "core"
    
    jurisdiction over attorney misconduct arising in core proceedings;
    
    and the broadly accepted rule that "core comes from core," I think
    
    we would be obliged to hold, were the issue properly presented,
    
    that the disciplinary proceeding against Sheridan was a "core
    
    proceeding" under § 157.
    
    B.   The Principal Opinion's Four Distinguishing Factors
    
               The principal opinion reserves the question of whether
    
    attorney disciplinary proceedings may ever enjoy core status,
    
    holding instead that Sheridan's case is distinguishable on four
    
    grounds:   (1) the disciplinary proceeding against Sheridan did not
    
    
                                      -65-
    take place in the context of an ongoing bankruptcy case, but rather
    
    was an "omnibus" proceeding spanning multiple cases; (2) the rule
    
    of decision in Sheridan's disciplinary proceeding came from state-
    
    law ethics rules, rather than federal law; (3) any potential effect
    
    on a closed bankruptcy case is remote and speculative; and (4) the
    
    bankruptcy court's disciplinary order was "extreme" relative to
    
    Sheridan's misconduct.     See Op. at 31-32.      Not one of these grounds
    
    is valid basis for distinguishing this case.
    
         1.   Omnibus vs. individual disciplinary proceedings
    
               The principal opinion first argues that Sheridan's case
    
    merits different treatment because it was an "omnibus" disciplinary
    
    investigation -- that is, because the bankruptcy court consolidated
    
    the ethical issues arising in multiple, independent bankruptcy
    
    cases into a single disciplinary hearing.
    
               This objection is without merit.              Nothing in § 157
    
    restricts core proceedings to proceedings that concern a single
    
    bankruptcy case, and the principal opinion cites no authority for
    
    its suggestion that § 157(b) should be interpreted so narrowly.
    
    Compare   Arnold   Print   Works,   815    F.2d   at   168.   There   is   no
    
    functional reason to discourage bankruptcy courts from combining
    
    disciplinary issues spanning multiple bankruptcy cases into a
    
    single proceeding for expeditious administration.             Normally this
    
    court encourages and respects the efforts of lower courts to manage
    
    their dockets efficiently.      In re Atlantic Pipe Corp., 304 F.3d
    
    
                                        -66-
    135, 143-45 (1st Cir. 2002); A.M. Capen's Co., Inc. v. Am. Trading
    
    & Prod. Corp., 
    202 F.3d 469
    , 472 n.4 (1st Cir. 2000); Rosario-Diaz
    
    v. Gonzalez, 
    140 F.3d 312
    , 315 (1st Cir. 1998). Moreover, attorney
    
    discipline in the federal courts outside of the bankruptcy context
    
    is frequently imposed in "omnibus" proceedings.       See, e.g., United
    
    States v. Johnson, 
    327 F.3d 554
    , 558, 561-62 (7th Cir. 2003); In re
    
    Smith, 
    76 F.3d 335
    , 336 (10th Cir. 1996) (per curiam).           Surely
    
    Congress would not have wanted the bankruptcy judge to hold 30
    
    separate disciplinary hearings before entering a binding sanctions
    
    order against Sheridan.
    
               The   case   law   confirms   that   "omnibus"   disciplinary
    
    hearings in the bankruptcy courts are generally treated as core
    
    proceedings.     For example, the Fifth Circuit in 1999 affirmed a
    
    four-year suspension imposed by a bankruptcy court in a proceeding
    
    that involved evidence of misconduct in three separate bankruptcy
    
    cases.    See In re Dragoo, 
    219 B.R. 460
    , 465-68 (Bankr. N.D. Tex.
    
    1998), aff'd, 
    186 F.3d 614
     (5th Cir. 1999).       The court of appeals
    
    did not take issue with the bankruptcy court's express entry of a
    
    final order under Fed. R. Bankr. P. 7052.36        See 219 B.R. at 468
    
    n.2. See also In re Melendez, 
    235 B.R. 173
    , 181-82, 201-04 (Bankr.
    
    D. Mass. 1999) (imposing sanctions in an omnibus disciplinary
    
    
         36
          Bankruptcy Rule 7052 makes Fed. R. Civ. P. 52 applicable to
    bankruptcy proceedings.   An order entered under Rule 7052 is a
    final judgment. See Fed. R. Civ. P. 52(a); see also In re Werthen,
    
    329 F.3d 269
    , 272 (1st Cir. 2003) (findings of fact under
    Bankruptcy Rule 7052 are reviewed for clear error).
    
                                      -67-
    hearing initiated sua sponte by the bankruptcy court against
    
    several debtors' attorneys for inadequate representation of their
    
    respective clients, and expressly entering its findings under
    
    Bankruptcy Rule 7052); In re Nesom, 
    76 B.R. 101
    , 102 & n.1 (Bankr.
    
    N.D. Tex. 1987) (suspending an attorney for misconduct in two
    
    bankruptcy cases after a sua sponte disciplinary hearing by the
    
    court, and expressly terming the proceeding core).
    
               The     principal   opinion's    objection    to    consolidated
    
    disciplinary proceedings also makes little sense in light of the
    
    rules of evidence.        By the principal opinion's reasoning, the
    
    bankruptcy court in Sheridan's case could simply have framed its
    
    hearing as an investigation into Sheridan's misconduct in a single
    
    bankruptcy case, then admitted evidence of Sheridan's misconduct in
    
    other cases under Fed. R. Evid. 404(b) and entered a final order on
    
    that basis.      See In re Ludwick, 
    185 B.R. 238
    , 242-47 (Bankr. W.D.
    
    Mich. 1995) (en banc) (following this approach in suspending a
    
    bankruptcy attorney from practice for two years); see also id. at
    
    239 (determining that the hearing was a core proceeding).               It
    
    elevates   form    over   substance   to   hold   that   the   functionally
    
    equivalent approach selected by the bankruptcy court in this case
    
    rendered the proceeding non-core.37
    
    
    
         37
          For similar reasons, there is no justification for the
    principal opinion's suggestion that the power of a bankruptcy judge
    to enter binding disciplinary orders should depend on whether the
    bankruptcy judge personally witnesses the attorney's misconduct.
    
                                       -68-
          2.   Source of law
    
               The principal opinion next argues that the proceeding
    
    against Sheridan should be characterized as non-core because the
    
    underlying substantive ethics rules "derive . . . from state law."
    
    Op. at 24-25.    That is flatly wrong.       The rules of attorney conduct
    
    in federal court are federal law, not state law.         The Supreme Court
    
    so held in In re Snyder, in which the court of appeals had asserted
    
    that an attorney's ethical obligations in federal court are defined
    
    by state law.     The Supreme Court disagreed:         "The state code of
    
    professional responsibility does not by its own terms apply to
    
    sanctions in the federal courts.        Federal courts admit and suspend
    
    attorneys as an exercise of their inherent power; the standards
    
    imposed are a matter of federal law."               472 U.S. at 645 n.6
    
    (emphasis added); see also In re Larry's Apartment, L.L.C., 
    249 F.3d 832
    , 837-38 (9th Cir. 2001) (federal law, not state law,
    
    governs the imposition of sanctions in federal bankruptcy cases).
    
    This case did not involve a "state law claim that could exist
    
    outside of bankruptcy."       In re ACI-HDT Supply Co., 
    205 B.R. 231
    ,
    
    236   (B.A.P.   9th   Cir.   1997).     Rather,   it   involved   a   federal
    
    bankruptcy judge's enforcement of federal standards of conduct
    
    against an attorney who practiced in the federal bankruptcy courts.
    
                In any event, the focus on the source of the applicable
    
    law is beside the point.      As this court held in Arnold Print Works,
    
    "[i]t is the nature of the proceeding –- its relation to the basic
    
    
                                          -69-
    function of the bankruptcy court –- not the state or federal basis
    
    for the claim, that makes the difference here."                  815 F.2d at 169
    
    (emphasis added).
    
         3.     Closed cases
    
                 The principal opinion also attempts to distinguish the
    
    proceeding against Sheridan on the grounds that much of the charged
    
    misconduct occurred in now-closed bankruptcy cases,38 so that any
    
    remedy ordered by the bankruptcy court is unlikely to concern the
    
    administration of those clients' estates. Therefore, the principal
    
    opinion argues, the proceeding cannot be core because it neither
    
    "concern[s] the administration of [an] estate," § 157(b)(2)(A), nor
    
    "affect[s]     the   liquidation    of       the   assets   of    [an]    estate,"
    
    § 157(b)(2)(O).
    
                 This, too, is unpersuasive.             The bankruptcy court's
    
    imposition of sanctions on Sheridan did in fact "concern[] the
    
    administration of the estate" in each of the underlying bankruptcy
    
    cases     within   the   meaning   of    §    157(b)(2)(A).        That    section
    
    conspicuously does not require that the proceeding in question
    
    contemporaneously affect the ongoing administration of the estate;
    
    
         38
          Neither the principal opinion nor the concurring opinion
    acknowledges that several of the underlying bankruptcy cases were
    still pending at the time the disciplinary proceeding against
    Sheridan was instituted in October 2000. Indeed, several of the
    instances of misconduct proven during the bench trial occurred as
    late as November 2000, after the disciplinary proceedings had
    begun. At least in these cases, the disciplinary action against
    Sheridan was literally a "matter[] concerning the administration of
    the estate." § 157(b)(2)(A).
    
                                        -70-
    the matter must simply "concern[]" the administration of the
    
    estate.     Compare § 157(b)(2)(O) (core proceedings include "other
    
    proceedings affecting . . . the debtor-creditor . . . relationship"
    
    (emphasis added)).      And the imposition of sanctions against the
    
    debtor's attorney necessarily "concern[s]" the administration of
    
    the debtor's estate because, in a Chapter 13 case, the debtor's
    
    attorney is paid with funds from the estate in an amount "based on
    
    a consideration of the benefit . . . of [the attorney's] services
    
    to   the   debtor."        11    U.S.C.    §   330(a)(4)(B);       see   also       id.
    
    § 503(b)(2) (authorizing payments to attorneys under § 330(a) as
    
    "administrative expenses" of the estate); cf. Delta Petroleum, 193
    
    B.R. at 106 (disputes over the appointment and compensation of
    
    attorneys     are   core        proceedings     because     they    concern         the
    
    administration of the estate).
    
                The majority's rule would require a bankruptcy court even
    
    in a single core proceeding to interrupt its adjudication of the
    
    debtor's    petition    to       decide,   then    and    there,    an    attorney
    
    disciplinary matter.        It would preclude the court, on penalty of
    
    converting the proceeding from core to non-core, from waiting to
    
    deal with the attorney until after it had dealt with debtor's and
    
    creditors' arguments.           That priority is backwards.
    
                Moreover,     even     in   the    majority's    terms,      the    order
    
    sanctioning    Sheridan      "concern[ed]"       the   administration          of   the
    
    underlying estates because it provided a clear basis for re-opening
    
    
                                            -71-
    those cases, which the bankruptcy court may do whenever it finds
    
    "cause."     See 11 U.S.C. § 350(b) ("A case may be reopened . . . to
    
    administer assets, to accord relief to the debtor, or for other
    
    cause.").     The principal opinion characterizes the possibility of
    
    reopening the underlying cases as "remote and overly speculative."
    
    Op. at 31.     But at least one bankruptcy court has reopened a case
    
    "for cause" due to evidence of ineffective representation by the
    
    debtor's counsel.       See Bruzzese, 214 B.R. at 449-50.            Moreover,
    
    there is no warrant in § 157(b)(2) for insisting on proof that a
    
    proceeding will alter the administration of the estate; the statute
    
    requires only that the proceeding "concern[]" its administration.
    
    The narrower reading is contrary to this court's conclusion in
    
    Arnold     Print    Works   that   Congress    intended    the    term   "core
    
    proceeding" to be interpreted expansively.
    
                 Lastly, there is no independent problem with imposing
    
    sanctions on an attorney for misconduct that occurred in a since-
    
    closed case.        Disciplinary proceedings against attorneys do not
    
    depend on the continued pendency of the underlying action and can
    
    be imposed long after a judgment on the merits.                See Chambers v.
    
    NASCO, Inc., 
    501 U.S. 32
    , 56 (1991); Cooter & Gell v. Hartmarx
    
    Corp., 
    496 U.S. 384
    , 396 (1990).               This has been the rule in
    
    bankruptcy cases as well.          See In re Hasan, 
    287 B.R. 308
    , 311-12
    
    (Bankr. D. Conn. 2002) (collecting cases); see also In re Rambo,
    
    
    209 B.R. 527
    ,    528-29   (B.A.P.   10th    Cir.   1997)    (dismissal   of
    
    
                                         -72-
    underlying Chapter 13 case did not affect BAP's jurisdiction to
    
    decide appeal of sanctions order); In re Balboa Improvements, Ltd.,
    
    
    99 B.R. 966
     (B.A.P. 9th Cir. 1989) (similar).
    
         4.     "Extreme" nature of the sanction
    
                Finally, the principal opinion cites the "extreme" nature
    
    of the sanction imposed on Sheridan as a justification for holding
    
    that the proceeding against him was not core.            Op. at 31-32.      This
    
    conflates the core/non-core question with the merits of Sheridan's
    
    appeal.      Whether   the    bankruptcy      court's   chosen   sanction   was
    
    "extreme" has nothing to do with whether it had the statutory
    
    authority    to   enter   a   binding    order   embodying   that   sanction.
    
    Suspensions and disbarments are severe sanctions that merit close
    
    review.   But that review should have been done here.
    
                                            IV.
    
                For the foregoing reasons, I respectfully dissent.
    
    
    
    
                                        -73-