In what I hope will turn into an ongoing Bankruptcy Judges series, bring Plan Proponent out of an unintentional COVID hiatus, and highlight the blog’s “new look” on the LexBlog platform, this is the kickoff post for a weekly series on Georgia’s very own Hon. W. Homer Drake, Jr., likely the longest or second longest serving bankruptcy judge after 1960, if not in all of U.S. history. As we are prone to focus on, the series will emphasize Judge Drake’s opinions. But first an introduction.
On January 31, 2021, Judge Drake retired after over 53 years on the bench, first as a “referee in bankruptcy” (read: a judge) starting in 1964 and then continuing as a bankruptcy judge starting in 1979. In honor of Judge Drake’s retirement, U.S. District Court Judge Timothy Batten described Judge Drake as “one of the all-time preeminent bankruptcy judges in the United States”—high praise from the “upstairs judge” who often quipped that everyday people in Newnan, Georgia would see them at lunch and assume that Judge Batten was Judge Drake’s law clerk.
Beyond that, though, where do you start? Judge Drake’s resume is unapproachable in its breadth, especially for this Macon lawyer who practiced in front of him for just the last fifth of his tenure. While I’ll do my very best, I’m hoping that our Georgia readers, in particular, will not be bashful about setting me straight or pointing out what I may have missed.
From the back of the baseball card:
- A “Double Bear” graduate of Mercer University (A.B. 1954; L.L.B. 1956)
- 1st Lieutenant, Judge Advocate General’s Corps (1956-59)
- Law Clerk to U.S. District Court Judge Lewis R. Morgan (1961-64)
- Partner at Swift, Currie, McGhee & Heirs in Atlanta (1976-79)
- N.D. Ga. Bankruptcy Judge (1964-1976; 1979-2021)
As for just some of Judge Drake’s extrajudicial endeavors and honors:
- President of the National Conference of Bankruptcy Judges (1972-73)
- Founder of the Southeastern Bankruptcy Law Institute (SBLI) (1973)
- First Chair of the Georgia State Bar Association’s Bankruptcy Law Section (1976-77)
- Author or Co-Author of at least 3 bankruptcy treatises
- Judicial Conference of the U.S. (Bankruptcy Administration Committee) (1989-95)
- Fellow of the American College of Bankruptcy (1992)
- Walter Homer Drake Professor of Bankruptcy Law (Endowed Chair at Mercer Law) (1996)
- Outstanding Mercer Law Alumnus Award (2003)
- Distinguished Service Award for Lifetime Achievement from the Emory Bankruptcy Developments Journal (2007)
- Lifetime Member of Mercer University Board of Trustees (2013)
- Namesake of the W. Homer Drake, Jr. Georgia Bankruptcy American Inn of Court (2014)
- American Inns of Court Bankruptcy Inn Alliance Distinguished Service Award (2017)
- The W. Homer Drake, Jr. Scholarship Fund (Mercer University) (2021)
Mercer’s Field House Named for Homer and Ruth Drake
Additionally, and it’s just barely an exaggeration, Judge Drake singlehandedly brought football back to Mercer University—the “resumption of football,” as Judge Drake insisted, which started, as he often reminded, with his Mercer Bears playing my Georgia Bulldogs on January 30, 1892 in our state’s very first inter-collegiate football game. [Editor’s Note: Georgia won that game 50-0].
Many lawyers, including this one, will recall Judge Drake concluding a hearing with an imperial “Mr. or Ms. So-and-So, I need to see you in Chambers,” only to learn later that he just wanted to use his recently-autographed team poster as an excuse to talk about the Bankruptcy Bar, Mercer, and family.
Fittingly, Mercer dedicated its new Field House to Homer and Ruth Drake in 2012.
Letting Judge Drake Speak for Himself
I could also attempt something of a short biography of Judge Drake but it would surely prove inadequate for this Colquitt-born, Newnan-raised judge who is now almost 90 years old. Your better option is to look-up 21 J.S. Legal Hist. 1 (and its surrounding articles through page 63) and 24 Emory Bankr. Dev. J. 1 on Westlaw/Lexis. As those articles illustrate, Judge Drake can speak for himself.
For example, I’ll never forget when Dennis Connolly and I were in chambers in 2017 recording Judge Drake’s acceptance remarks for his Inn of Court Distinguished Service Award and our videographer’s cellphone rang midway through the recording. Dennis and I, scrambling to make sure that our own phones were muted, looked at each other with wide eyes as a mortified videographer apologized profusely. However, Judge Drake was calm and collected, not showing the least bit of disturbance—well, maybe just a tad. Not missing a beat, though, he took it from the top, with barely a look at his notes.
Thus, I’ll simply cue Mercer’s excellent Conversation With video from our Inn’s YouTube page and let you hear Judge Drake speak about his childhood, beloved Ruth, and family (as well as his humble but very detailed account of his and his peers’ role in the 1978 Act and getting bankruptcy judges recognized as, well, bankruptcy judges).
And if you need more, then Penn Law’s Oral Histories are just plain excellent, with Georgia’s Ret. Judge Joyce Bihary and Judge Paul Bonapfel having interviewed Judge Drake (among others) in 2014 for the National Bankruptcy Archives project. (Note: While the links, including the link below to Jerry Kaplan’s interview, are to the transcripts, the YouTube audio is available, too.)
(Emmet Bondurant at the 2015 Inn of Court Dedication)
Here are some of the things I enjoyed hearing Judge Drake talk about above:
- His highest grade in law school was in Bankruptcy Law (taught by Prof. Charles Nadler, kin to my firm’s Jerry Kaplan, who took over editing Prof. Nadler’s corporations treatise and bankruptcy treatise after Prof. Nadler died)
- In 1959, former Georgia Governor Arnall, himself, asked Judge Drake to join what is now Arnall Golden Gregory (AGG) (back when it was a firm of just six attorneys)
- Judge Drake practiced law in Macon at Hasty & Drake—great name—for about 6 months, but, similar to his AGG experience, was not all that interested in the transactional side of things after getting such a taste for trial work as a JAG officer
- As Judge Morgan’s law clerk in the early 60’s, Judge Drake was front and center as young Atlanta partners (who are now AmLaw logos) tried cases, including Curtis Publishing Co., Inc. v. Butts. In that case, the University of Georgia’s Wally Butts sued the Saturday Evening Post for libel after it ran an article accusing him of rigging a football game against Bear Bryant’s Alabama. The Supreme Court later affirmed Judge Morgan’s libel judgment. For an excellent summary, click here. (Emmet Bondurant, a young Kilpatrick associate in 1964 and now an icon of the Georgia Bar, paid tribute to Judge Drake upon the naming of the Drake Georgia Bankruptcy Inn of Court.)
- In exchange for staying on as a law clerk for another year, Judge Morgan appointed Judge Drake as a bankruptcy referee
- As a 31 year old referee, he boldly and unilaterally donned a black robe (long before that was acceptable)
- As NCBJ President in 1973, he and his colleagues on the Executive Committee, from his office in Atlanta, changed the organization’s name from the “National Association of Referees in Bankruptcy” to the “National Conference of Bankruptcy Judges”
- He has at least 20 of his favorite solid orange Mercer ties
- He was on a first name basis with other bankruptcy icons, including, to name a few, Prof. Frank Kennedy, Prof. Vern Countryman, Prof. Lawrence King, Judge William Norton (the colleague he helped recruit), and Harvey Miller
At the 1981 SLBI conference in Atlanta, Judge Norton, Harvard’s Prof. Countryman, and Michigan’s Prof. Kennedy spoke. At the 1980 SBLI, which is as far back as my firm’s SBLI program binders go, attendees got to hear from the following:
(scan from the 1980 SBLI materials)
Judge Drake’s Long Tenure on the Bench
While somewhat skeptical, I knew that my firm’s hardbound books would eventually come in handy. Specifically, with the start of West’s Bankruptcy Reporter Vol. 1 in 1979, there were 40 bankruptcy judges in the Fifth Circuit before the 1981 split into the Eleventh Circuit. In 1979, Judge David Kahn, Judge William Norton, Jr., and Judge Hugh Robinson, Jr. were Judge Drake’s fellow Northern District colleagues.
Rather painstakingly, I also used Volume 1 and Google to review all bankruptcy judges who were serving in 1979 to determine that, through January 2021, Judge Drake was the second longest serving bankruptcy judge in the post-’78 era, with Judge Barry Russell (C.D. Cal.) being the only bankruptcy judge in the United States who was a bankruptcy judge in 1979 and still an active bankruptcy judge a day after Judge Drake’s retirement.
It gets more interesting, but also more complicated, if, as you certainly should, you count Judge Drake’s tenure as a bankruptcy referee. It appears that Judge Drake and Judge Joe Lee (E.D. Ky.), who Judge Drake speaks so fondly of and who is in the above 1980 SBLI speakers list, come down to a difference of maybe three months in their respective tenures. In days, I calculated that Judge Lee served 19,620 days compared to Judge Drake’s 19,510 days. I assumed that Judge Drake’s private practice time began on September 1, 1976 and ended on August 31, 1979, in line with appointment dates. If someone has better info for breaking the tie, then by all means. Otherwise, I’ll leave it at that because it’s a remarkable achievement for Judge Drake and Judge Lee, as well as others who are or were right up there (like Judge Russell and Judge Alexander Paskay).
[Note: Unless I’m missing it, we need way better and easy to access information about bankruptcy judges, appointments, tenure, etc.]
Introduction to Judge Drake’s Opinions
Finally, the main attraction: Judge Drake’s bankruptcy opinions.
At least according to Westlaw, Judge Drake issued 555 opinions during the post-’78 era, with 336 of them being reported decisions. However, if you tinker with the search terms, you can uncover a handful of his pre-1978 “opinions” where the reviewing District Court would uphold Judge Drake’s findings and conclusions as a referee. The oldest Judge Drake reference that I found on Westlaw was in In re Atlanta Times, Inc., 259 F. Supp. 820 (N.D. Ga. 1966). In that case, Chief Judge Morgan, Judge Drake’s former boss, upheld and, in the process, reprinted in their entirety Judge Drake’s May 24, 1966 findings and conclusions regarding an Article 9 security agreement dispute.
If anyone has any earlier opinions, then please let us know.
Continuing with the stats, our hardbound Reporter Vol. 1 and a Westlaw search appear to confirm that, starting with Volume 1, Judge Drake issued the very first and second reported bankruptcy opinions, not only for Georgia, but also for the Fifth Circuit as a whole, those cases being Couch v. Kanfer (In re Kanfer), 1 B.R. 91 (Bankr. N.D. Ga. Oct. 10, 1979) and Wood v. Mobley (In re EJM, Inc.), 1 B.R. 119 (Bankr. N.D. Ga. Oct. 19, 1979). The former involved a service of process issue in a dischargeability action. The latter resolved an Article 9 security agreement dispute.
Fast forwarding about 40 years, Judge Drake issued 8 opinions during his last two years on the bench. I was surprised to learn that 3 of his last 4 opinions involved my firm. While I suffered a stinging but hopefully illuminating loss in Orchard Hills on a hard-fought stay waiver case (for, of all possible debtors, a church in Newnan), I’m dutybound to admit that, in Judge Drake’s very last opinion on September 14, 2020, my colleague Matt Cathey enjoyed a nice win (albeit for a creditor) in Knight (a discharge/dischargeability action).
Those opinions provide the bookends for a career in bankruptcy that spanned over 56 years. And over the next weeks, we’ll focus on many, but nowhere near all, of Judge Drake’s opinions that came in between. Stay tuned!