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Bar News - July 15, 2011

Federal Practice - Bankruptcy: Looking Back: An Interview with Judge Mark W. Vaughn


Although he never aspired to be a judge, Judge Mark W. Vaughn was honored to have been selected by the Merit Panel of the Circuit Court to be Judge of the U.S. Bankruptcy Court for the District of New Hampshire in 1993. Retired since October, 2010, Judge Vaughn says he misses seeing his clerks, the staff, lawyers and other judges.

After graduating from Franklin and Marshall College in Pennsylvania, Judge Vaughn spent three and one half years as a navigator in the U.S. Navy (1963-1967). Hen then attended Boston College Law School, receiving his J.D. in 1970, and started his law career at Devine, Millimet, McDonough, Stahl and Branch (now Devine, Millimet & Branch) where he practiced until his appointment as U.S. Bankruptcy Court Judge.

As an attorney, Judge Vaughn practiced in the areas of corporate reorganizations for debtors, commercial work for banks and real estate law. Partners Norm Stahl and Joe Millimet served as his role models. Memorable among his cases as an attorney, are the Chapter 11 reorganization of Public Service of New Hampshire – at the time, the nation’s largest bankruptcy-- in which he represented the State of New Hampshire, and the Blondheim Chapter 11 case, in which he represented the trustee, J. Michael Deasy, who later joined him on the bench in bankruptcy court.

US Circuit Court Judge Norman Stahl, with whom he practiced before Stahl’s appointment to the federal appellate bench, and his predecessors, Judge Joseph Betley and Judge James Yacos, served as judicial role models for Judge Vaughn. He considers himself fortunate to have practiced before Judge Betley and Judge Yacos, and says he always tried to emulate Judge Yacos by ruling on cases and issues from the bench. From practicing bankruptcy first before Judge Betley and then Judge Yacos, to sitting as bankruptcy judge himself, Judge Vaughn has seen significant changes in bankruptcy practice and the Bankruptcy Code.

The bankruptcy court over time has become more formal, Judge Vaughn observed. Judge Betley’s courtroom was an office on the second floor of a building on Elm Street in Manchester, the probate court rooms of the Hillsborough and Rockingham County Courthouses, and a room in the Cleveland Building in Concord. He had a secretary and he continued to practice law part-time. He hired the first clerk and staff of the Bankruptcy Court. There were no transcripts of court proceedings; if lawyers wanted a transcript, they had to bring their own stenographer; because there was no record, there were fewer appeals; no one took depositions, the bankruptcy judge was termed a referee and there was no Office of the US Trustee.

Under Judge Yacos, the staff of the bankruptcy court increased and a bankruptcy courtroom was established in the Norris Cotton Federal Building. Now, the Bankruptcy Court occupies two floors, one for the Clerks’ office and one for the two bankruptcy courtrooms.

Judge Vaughn laughs as he recounts his “first day in court as a judge sitting on the other side of the bench,” as one of his memorable moments. Others include his sitting on the Bankruptcy Appellate Panel (BAP) monthly; his sitting one month each year in the bankruptcy court in Puerto Rico; the appointment of Judge Michael Deasy to the bankruptcy court since he had been the only bankruptcy judge for 18 months following the retirement of Judge Yacos, and with a chuckle, he adds: “Seeing my law clerks land good jobs at law firms.”

The substantive law of bankruptcy has changed too. Notably, the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, which made consumer bankruptcies more difficult and led to a decline in the number of bankruptcy practitioners, electronic filing, attorneys appearing in court by telephone, and the increase of pro se litigants, sometimes on both sides of a case. Judge Vaughn has seen the Bankruptcy Court become a major commercial court where all business and large cases are filed to take advantage of the Bankruptcy Code’s ability to terminate leases and contracts, issue automatic stays and deal with labor issues. With the change in the Bankruptcy Code, judges are now doing more administrative work, too.

As the economy has changed, so has the nature of bankruptcy cases. When Judge Vaughn began practicing in the early 1960s, textile and shoe manufacturers’ cases predominated. Today, there are more real estate cases and cases with unfortunate outcomes because the debtor cannot negotiate a deal with the bank or secured lenders. More of the Chapter 13 and Chapter 11 cases are real estate-related.

Although Judge Vaughn continues to attend the National Conference of Bankruptcy Judges and the American Bankruptcy Institute Northeast Conference and maintains his friendship with Judge Deasy and other bankruptcy judges, he does not miss writing opinions.

Judge Vaughn is enjoying retirement, spending time with his daughter Kathryn, an attorney at McLane, his son Mark, Jr. and Agi, his wife of 46 years. He says he “is playing more golf but not getting much better.

”Judge Vaughn has enjoyed practicing bankruptcy law in the Bankruptcy Court and also presiding over bankruptcy cases as a judge. His parting advice for attorneys is concise: “Be prepared,” and he cautions that excuses aren’t helpful “Don’t tell the Court that you don’t practice bankruptcy law” and “don’t tell the Court it’s not your case,” he advises. Most important, he adds:” Be civil to other attorneys.”

Eleanor Wm. Dahar

Eleanor Wm. Dahar, of the Dahar Law Firm in Manchester, is a past president of the NH Bar Association and regularly practices bankruptcy law.

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