The following is a profile of the Honorable Robert N. Kwan, the thirteenth in a series of profiles of Ninth Circuit Bankruptcy and Magistrate Judges. Judge Kwan and members of the Insolvency Law Committee and Business Law Section Executive Committee met and discussed his personal and professional background, observations from the bench, and issues of interest.
Judge Kwan is a 5th generation Californian and 2nd generation attorney, an avid writer, roasts his own coffee, and considers himself a “talent scout” with a good record for locating and nurturing talent within the local bankruptcy community in Southern California. Judge Kwan lives out his personal motto of “always keep learning” on a daily basis, both on and off the bench.
Judge Kwan’s roots are “ Longtime Californ’ ” (according to the book of the same name). His great-great-grandfather was a laborer, working on the Transcontinental Railroad before its completion in 1869, but that side of his family only established roots in the 1920s when his grandfather, an accountant/bookkeeper, brought his family over from China via Cuba when he was posted to work at the Bank of Canton office in Los Angeles. On his mother’s side, his grandfather worked for a tong (a sort of a gang, though they would say “benevolent association”) in Sacramento and was supposed to meet a woman who was trafficked from China at the dock in San Francisco and bring her back to the tong. Instead, he fell in love with her at first sight and took her, Judge Kwan’s grandmother, to the Presbyterian Mission in San Francisco Chinatown, a shelter for Asian women like her who were victims of sex trafficking. His grandparents eventually married and lived in Chinatown, but after surviving the Great 1906 Earthquake, they promptly moved to Los Angeles and started an American Chinese restaurant called the Golden Gate Café on the 300 block of North Main Street in Downtown Los Angeles. The café was frequented by many lawyers, judges and politicians, as it was one block away from the Old Hall of Justice and Los Angeles City Hall (not unlike Frank Fat’s in Sacramento). Judge Kwan’s grandfather lost the café during the Great Depression, but started a family grocery store in Compton. His grandparents raised 13 children, including Judge Kwan’s mother. From his chambers in the Roybal Federal Building, Judge Kwan can see the spot where his grandfather’s restaurant stood, which is across the street from the Spring Street federal courthouse where he practiced for many years, constant reminders of his family legacy and history.
Judge Kwan’s father and uncles were part of the “Greatest Generation,” and went to war, serving in the military in World War II. His uncle Hiram was a navigator on a bomber crew in the Army Air Corps flying combat missions in the Pacific Theater. His uncle Wellington was an Army intelligence officer in the China Theater. His father David served underage in the Merchant Marine and later in the Army in postwar, occupied Japan. After being discharged from the service, the Kwan brothers went to college and law school with tuition assistance from the GI Bill, telling each other that they could get into a good profession—the law—without having to study science and math (unlike many of their classmates who became doctors, dentists, pharmacists and engineers). After World War II, racial restrictions on housing, education, and jobs were in decline as the laws permitting discrimination were being struck down in the courts, and opportunities opened up for Judge Kwan’s parents and their generation. The Kwan brothers were among the first Chinese Americans to become lawyers in Southern California, and Judge Kwan considers them to be real pioneers and feels he is just following in their footsteps. Hiram was probably the first Asian American Assistant United States Attorney in the continental United States, and afterwards, went into private practice emphasizing immigration law, having successfully argued before the U.S. Supreme Court a notable immigration case for a resident alien who, because he was gay, was being excluded from re-entry after a brief visit to Mexico in Rosenberg v. Fleuti, 374 U.S. 449 (1963). Between the two of them, his uncles Hiram and Wellington helped tens of thousands of immigrants obtain their green cards during their long careers. Judge Kwan draws inspiration from Hiram, who is 96 years old, still going into the office and practicing law. Other members of his family were also successful lawyers; his father, David, was a long-time criminal defense sole practitioner, and his younger sister, Susan, was as a Deputy State Public Defender in the Bay Area and known as a tireless advocate for repeal of the death penalty in California.
In 1958, Judge Kwan’s family moved out to Canoga Park in the San Fernando Valley, where he was the valedictorian of his high school, which he says he is still trying to live down 50 years later. His love of writing began when he was asked by his high school journalism teacher to write an op-ed column for the school newspaper, but his writing career almost ended quickly thereafter as a result of being called into the vice principal’s office for writing an op-ed piece criticizing the school administration’s confiscation of a parody edition of the school newspaper which made fun of the vice principal. He believes that writing has been “critical” to his progress in his career, and he continues his tireless efforts to improve his skills. For Judge Kwan, writing is important to convey the court’s reasoning, and the process itself helps him reach the right decision. Among other things, he regularly posts his written decisions explaining his rulings in cases, because he takes a broad view of the 2002 E-Government Act that requires judges to post their written decisions to make them more accessible to the public on court websites.
GETTING TO THE BENCH
Judge Kwan received a Bachelor of Arts Degree in History from Yale College in 1975. He took the year between his junior and senior class years off to teach English at a college in Taiwan and, during that time, met his wife, Grace. They are still together 44 years later and are the proud parents of three daughters. He earned his Juris Doctor degree from U.C. Hastings College of Law in 1979. After law school, Judge Kwan was a Trial Attorney for the U.S. Department of Justice in Washington D.C. though its honors law graduate program (only 5% of applicants were selected). From 1979 to 1983, Judge Kwan worked in the Civil Rights Division at Justice, and was assigned to the Voting Rights Section and worked on cases throughout the South relating to enforcement of the Voting Rights Act. Judge Kwan thinks he got the job because the interviewer from D.C. asked if he knew about the bilingual voting rights lawsuit in San Francisco that had just been filed, and Judge Kwan said he did because as an extern in the U.S. Attorney’s Office, he drafted the complaint and TRO application in the case for the Justice Department. This taught him that if people like your work, they seek you out when they need help, and this leads to better opportunities. One highly controversial assignment that Judge Kwan had as a voting rights attorney was reviewing the legislative redistricting plans of the State of Louisiana after the 1980 Census under the preclearance provisions of Section 5 of the Voting Rights Act. Describing himself as a “punky” 29-year-old neophyte attorney just four years out of law school, Judge Kwan found himself interviewing the leaders of the Louisiana Legislature, including the Speaker of the House and Senate President, about whether their redistricting plans were racially discriminatory in purpose or effect. Judge Kwan’s memorandum recommending that Louisiana’s congressional redistricting plan not be precleared—because it diluted the vote of the
Black community in New Orleans—was overruled by a superior official who had been presumably persuaded by private discussions with the Governor of Louisiana (not “standard” procedure for someone in that position). Nonetheless, Judge Kwan’s predecisional memorandum became a cause célèbre through an apparent leak by a sympathetic member of the superior official’s staff. Eventually, the memorandum became a trial exhibit in a Voting Rights Act lawsuit challenging the redistricting plan before a three-judge district court in Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983), where the plan was struck down as racially discriminatory, as Judge Kwan had recommended. These events are described in Ari Berman’s 2016 book, Give Us the Ballot: The Modern Struggle for Voting Rights in America. As a young attorney, Judge Kwan did not understand the significance of his memorandum and analysis at the time as he felt he was just doing his job. Looking back, Judge Kwan views this experience as highly formative in his career as it was his first real exposure to writing something as detailed and neutral as a quasi-judicial administrative decision as opposed to written legal advocacy for one side over the other. Judge Kwan is still passionate about civil rights, and having regularly travelled in the South in his civil rights work, he says he greatly admires the courage of people he met who put their own livelihoods, and lives, at risk in speaking up for their rights.
While Judge Kwan found his voting rights work interesting and fulfilling, due to a change in administration, the Civil Rights Division was not actively litigating as much as it had in prior administrations, and feeling disheartened from the Louisiana redistricting review experience, he wanted more professional development focused on practical litigation skills, as he dreamed of becoming a good trial lawyer. He took evening classes at Georgetown University Law Center and obtained an LLM in Taxation in 1985. Judge Kwan transferred to the Tax Division at Justice where he quickly discovered that tax litigation was not just about tax determination, but also tax collection since taxes once determined still had to be collected, and about 30-40% of his assigned docket of over 500 civil tax cases in the Eastern District of California were bankruptcy cases. There was a lot of bankruptcy tax work at the time because the IRS had less constraints in executing tax levies and seizures on businesses and individuals to collect for tax delinquencies before the 1998 IRS Restructuring and Reform Act. Although he did not take bankruptcy in law school and learned bankruptcy law by working on his caseload at Justice, he found that he especially enjoyed bankruptcy work because it was (and is) intellectually stimulating and fast-paced, but practical. Homesick for Southern California, in 1987, he joined his uncle Wellington in his general and immigration practice, with the idea of taking it over because his uncle was thinking of retiring. In 1989, he decided that general practice was not for him, feeling that spending lots of time at the county law library learning new subjects all the time was very tiring. Judge Kwan then shifted his career focus, becoming an Assistant United States Attorney and later, Deputy Chief of the Tax Division in the U.S. Attorney’s Office in Los Angeles, where he handled civil and bankruptcy cases and prosecuting criminal tax cases.
On February 5, 2007, Judge Kwan was appointed as a United States Bankruptcy Judge for the Central District of California, filling the vacancy of the retiring Hon. John Ryan, taking over his docket in Santa Ana. While there, Judge Kwan presided over the runup of bankruptcy cases during the Great Recession of 2008-2011, including the highly publicized Crystal Cathedral liquidating Chapter 11 case. Judge Kwan transferred to the Los Angeles Division in 2012 and officially retired on February 4, 2021. As a recalled bankruptcy judge, he will continue to preside over his outstanding cases for the foreseeable future.
OBSERVATIONS FROM THE BENCH
One of Judge Kwan’s joys of being on the bench is the camaraderie among the judges. A strong esprit de corps exists among the Central District judges, and he believes that the judges consider each other as good friends. He feels that he and his colleagues all like the work because of the problem solving and truth-seeking aspects of being a judge.
Judge Kwan is a self-professed “stickler” when it comes to evidence in the courtroom. He believes that the rules of evidence are essential to the “integrity of the system” because the exercise of the power of the state affecting the rights of individuals in judicial decisions must be justified by evidence. He says that his decisions are not motivated by his personal feelings about the facts of a case or the litigants because decisions must made on the evidence and the law. He notes that judges often have to make decisions that they do not like, but acknowledges that he “can’t avoid the reality that someone may be hurt by the decision I’m making.”
Judge Kwan expects lawyers and unrepresented parties to speak up when they believe he gets it wrong. From his experience as a lawyer and a bench officer, judges want to “get it right,” and he asks the parties hard questions because it helps get to the truth and he wants to get it right the first time. He believes, as he heard in the heat of a trial from a senior district judge, Hon. Irving Hill, “a trial is a dignified search for the truth.” He respects zealous advocacy, but does not appreciate or permit disrespectful behavior in the courtroom, such as smirking, making faces or other impolite behavior, because it is unprofessional and counterproductive, and only harms the credibility of the offending attorney. Judge Kwan believes that it is a privilege to practice in the Central District of California, and expects that attorneys will act professionally.
Judge Kwan believes that being a bankruptcy judge is one of the best jobs there is and he especially enjoys the problem-solving aspects of the job. He says when he first gets a case, he does not know how it will turn out and is just as anxious and curious as the litigants to see how it unfolds. However, the “job” has never been his sole identity. To Judge Kwan, meaningful work, a loving family, and giving back to the community are equally important to a satisfying life. He has always been an active parent for his three daughters and is a self-described band/orchestra/swim team parent. He regularly sold hot dogs and snacks at the band concession stand at high school football games, chaperoned band competition trips and attended swim meets, band and orchestra recitals, and back to school nights and graduations. He regularly attends Bar and insolvency events and was also an active member of his community and the Bar, including serving on the planning, historic preservation and library commissions in his hometown and on various Bar committees and boards, and help organize the Southern California Bankruptcy Inn of Court and the National Asian Pacific American Bar Association.
Judge Kwan has also (and always) been an active mentor for his numerous judicial law clerks and externs, many of whom have become successful bankruptcy attorneys in the Los Angeles/Orange County area. He feels that their successes are primarily due to their innate talents and hard work, but feels in no small way that he helped discover and foster those talents. He always encouraged all of his law clerks and externs to become involved in professional and civic organizations early in their careers. He feels like a Chinese uncle to his law clerks, always telling them to keep learning. Although he notes that it may be intimidating for young lawyers to go to attend local networking events and Bar programs/functions, especially where they may know no one in the room, he advises his mentees that once they become active and accepted into the practice community, being part of the community is one of the most important and rewarding parts of practicing law. Judge Kwan believes that being involved in the Bar is one way that lawyers (especially new lawyers) can keep up with their legal knowledge, and find and be accepted by a “tribe” (whatever your tribe may be).
Just like his predecessor Judge Ryan, Judge Kwan believes his most lasting legacy will be his law clerks, and feels that his job description also includes the public service aspects of being a talent scout for the Bar and training new lawyers by having term law clerks working side-by-side with a judge for a year on the full breadth of cases on a bankruptcy court docket. Judge Kwan also always hired as many externs as he had room for in his chambers because he believed that is important to offer the experience to as many as he could reasonably train. One summer he even hired and trained as externs four graduating seniors from Arcadia High School who were the district level winners in the Ninth Circuit Civics Contest.
In retirement, Judge Kwan is looking forward to spending more time with his wife Grace, gardening, visiting farmers’ markets and cooking healthier, listening to Hawaiian slack key guitar music (which he highly recommends to relieve stress), and expanding his horizons by taking guitar and piano lessons. He also wants to improve on his hobby of roasting coffee, which he learned about from a law clerk whose husband roasts his own coffee. He says roasting coffee is actually easy with a dedicated coffee roaster, and tastes as just good as any fancy coffee house (and much cheaper), and helps support small family coffee farmers. He says roasting coffee is like traveling around the world because the best coffee comes from exotic places like Sumatra, Guatemala, Kenya, and Yemen. He is also looking forward to traveling to spend more time with his adult children and perhaps to learn from tai chi masters in China when he fully retires from the bench.
This article was written by Jessica Bagdanov (firstname.lastname@example.org), a partner at Brutzkus Gubner Rozansky Seror Weber LLP and member of the Insolvency Law Committee (ILC), Michael W. Davis (email@example.com), an attorney at DTO Law and Co-Chair of the ILC, and Corey R. Weber (firstname.lastname@example.org), a partner at Brutzkus Gubner Rozansky Seror Weber LLP, immediate past Chair of the California Lawyers Association Business Law Section and a past Chair of the ILC.