Douglas W. Harris applied for attorney fees and costs in the amount of $9,628.07 for his representation of the debtor and former debtor-in-possession in this busted chapter 11 case. The case was filed on January 30, 1990, and converted to chapter 7 on July 16, 1991. Mr. Harris's application states that "a general retainer of $5,000.00 was approved, which retainer was posted by debtor prior to filing of the chapter 11 petition herein". The fee application filed on November 19, 1991 (Docket No. 162) attaches billings for only $4,628.07 for a period beginning on September 29, 1990 (about the eighth month of the case), through September of     2 ABR 260  1991. There is no documentation in the application about the first eight months of the case.

     Presumably, Mr. Harris is contending that the $5,000.00 he received pre-petition was an "earned retainer," about which he need not submit documentation. To the contrary, in this court, Mr. Harris has to apply for all his fees, and the court is obligated to rule on the reasonableness of the fees in total. In an appropriate situation, disgorgement of fees can be ordered. Cf. In re Neidig Corp., 113 B.R. 696 (D.Colo. 1990) (disgorgement ordered due to conflict of interest). As Bankruptcy Judge Cordova said in In re NBI, Inc., 129 B.R. 212, 222 (Bankr. D. Colo. 1991):

An "earned retainer", whatever its amount, is inherently unreasonable in the context of Section 328(a). The concept of an "earned retainer" is simply an anomaly in a Chapter 11 case. This fact has been implicitly recognized in each of those bankruptcy court decisions to date which decline to elevate the form of a contract over the substantive provisions of the Code or to ignore those provision in favor of expediency. The this Court's view, In re C & P Auto Transport, supra [94 B.R. 682 (Bankr.E.D.Cal. 1988)] and In re Hathaway Ranch Partnership, supra [116 B.R. 208 (Bankr.C.D.Cal. 1990)], reflect an assessment of the issues pertinent here which is consistent with both the spirit and the letter of applicable law.

     Mr. Harris's application for the period from September 29, 1990, appears to be appropriate, and the court will approve the allowance of $4,628.07 in costs and fees, but will treat this as an offset against the $5,000.00 retainer. The court will require Mr. Harris to file an amended application (without having to notice other creditors), setting out the detail of the first eight months of his representation. Therefore,

     IT IS ORDERED that Douglas Harris is ALLOWED costs and attorney fees pursuant to his application of November 19, 1991, in the amount of $4,628.07, but this shall be treated as an offset against the $5,000.00 retainer he received pre-petition. He may file an ex parte application, serving only the U.S. Trustee and the trustee's attorney, to justify the balance of fees he is requesting, i.e., $5,000.00. The ex parte application should be submitted with a proposed order so that the court can review the application, and, if justified, sign the order allowing the additional $5,000.00 in costs and fees.