Gordon Zerbetz, the trustee, asks for authority to employ himself as auctioneer to sell several movable buildings in Juneau, Alaska. The buildings were scheduled by debtors at $11,000. If employed, Mr. Zerbetz would charge the estate 10% of the proceeds as his fee for conducting the auction, and would also recover his reasonable expenses.

      Mr. Zerbetz seeks to employ himself because there is no bonded auctioneer in Juneau. The alternative would be to fly a bonded auctioneer in from Anchorage or use an unbonded local auctioneer. Since Mr. Zerbetz serves as trustee in the Southeast, he can presumably effect a cost saving by handling the auction on one of his Southeast trips for §341 meetings, whereas to fly a bonded auctioneer from Anchorage would cost substantially more.

      The United States Trustee objected. The United States Trustee acknowledged that there is little authority concerning the propriety of trustee employing him or herself as a professional other than as an attorney or an accountant. She cites as authority for the prohibition against employment, other than as an attorney or accountant, the case of In re Continental Nut Company, 44 B.R. 48 (Bankr.E.D. Cal. 1984) and an unpublished opinion, Civil Action No. 3:88-1616, The Assistant United States Trustee v. Galt (Bankr. No. 87-30237, In re Galt), (S.D.W.Va. 1987).

      In In re Continental Nut the trustee sought a general authority to act as appraiser, real estate broker and CPA for the estate. The application was very general and did not show the specific need for appointment. As part of its reasoning for denying the appointment, the court said (id at 49):

    1 ABR 53  Section 327[d] of the Bankruptcy Code gives the Court discretion to authorize a trustee to act as attorney or accountant if it appears in the best interest of the estate. By inference, the trustee should not be appointed as a professional for other endeavors.

      The District Court in In re Galt reversed the bankruptcy court which had allowed the trustee to retain his own closely held corporation as engineer, appraiser, and management consultant to the estate. The trustee waived his trustee's fee in lieu of the appointment. The District Court held that the provision in 11 U.S.C. § 327(d) allowing the court to authorize a trustee to retain him or herself as attorney or accountant for the estate was, as a matter of statutory construction, intended to limit the field of professional employment to those two professions. The District Court held that the Bankruptcy Court erred when it chose to read the statute more liberally in interpreting the mention of attorney and accountant as non-exclusive examples.

      Zerbetz cites In re Wilkinson Distributing Co., Inc., 106 B.R. 658 (Bankr.D.Haw. 1989), in which a trustee sought compensation a real estate broker. The court held the Bankruptcy Code did not prohibit a trustee from serving in a professional capacity for the estate other than the capacity of an attorney or accountant listed in 11 U.S.C. § 327(d). The court held (id at 660):

    1 ABR 54  The Trustee may be awarded separate fees when he fulfills a professional role which extends beyond that of a trustee collecting assets, reducing the Estate's property to money and disbursing and turning over the money to the Estate. 11 U.S.C. §§ 326(a) and 704.

      In this case, the trustee is only asking to act as auctioneer to avoid the necessity of flying a bonded auctioneer from Anchorage to Juneau at great expense, possibly enough to eat up any profit from the sale. The Code is flexible enough allow the trustee to employ himself where a reasonable alternative is not available. Since the job of auctioneer is to sell assets, and the job of the trustee is to liquidate assets of the estate, there may be grounds for abuse if the court approved such employment on a rubber stamp basis. I am convinced that the motive of the trustee in this case is to deal with a unique situation, and not to abuse the system, and I will therefore approve Mr. Zerbetz's employment of himself as auctioneer.