Paul Handeen v. Gregory A. Lemaire Henry Lemaire Patricia Lemaire, Orlins & Brainerd Law Firm Richard K. Brainerd Peter I. Orlins

Paul Handeen appeals the district court’s order granting summary judgment in favor of the Orlins & Brainerd Law Firm and its principals (collectively the “Firm”) on his claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (1994 & Supp. I 1995), and various other provisions of federal and *1343 Minnesota state law. 1 Given the procedural posture of this case, we find ourselves constrained to reverse the district court’s dismissal of Handeen’s RICO and state law causes of action, but we otherwise affirm.

I. BACKGROUND

The appeal before us traces its genesis to a series of unfortunate events that has already been the subject of extensive litigation in this Court, see Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346, 1347-48 (8th Cir. 1990)(en banc)(“LeMaire 77”)(deseribing underlying factual foundation), rev’g 883 F.2d 1373, 1375-76 (8th Cir.l989)(containing further elaboration), and we see no present need to retell that sorry tale. Suffice it to say that Gregory Lemaire (individually referred to as “Gregory” or “Lemaire”) set out to execute Handeen on July 9, 1978, and he very nearly succeeded. 2 As a result of this intentional deed, Lemaire pleaded guilty to a charge of aggravated assault and spent twenty-seven months in a Minnesota prison. Following his release, Lemaire resumed his graduate studies at the University of Minnesota and in January 1986 received a doctoral degree in, of all things, experimental behavioral pharmacology.

Handeen filed a civil suit against Lemaire and obtained a consent judgment in excess of $50,000. Lemaire used funds received from his father to pay an initial lump sum of $3,000 due under the judgment, but he failed to remit any agreed-upon monthly installments. This prompted Handeen to commence garnishment proceedings to collect the balance due him. Lemaire, who was represented by the Firm, filed a Chapter 13 bankruptcy petition shortly thereafter, and the bankruptcy court, over Handeen’s objections, approved Lemaire’s repayment plan. The district court and a divided panel of this Court affirmed the bankruptcy judge’s decision, see Handeen v. LeMaire (In re LeMaire), 883 F.2d 1373 (8th Cir.1989)(“Le-Maire I” ), rev’d en banc, 898 F.2d 1346 (8th Cir.1990), but upon rehearing en banc we determined that Lemaire had not proposed the Chapter 13 plan in good faith, see LeMaire II, 898 F.2d at 1352-53. Accordingly, we reversed the order confirming the plan and remanded the case for further proceedings. Id. at 1353. On July 19, 1990, the bankruptcy judge vacated the plan and dismissed the petition.

Handeen initiated this suit against the Firm and the Lemaires on October 16, 1992. The Complaint paints a sordid portrait of an intricate scheme through which Lemaire sought to fraudulently obtain a discharge of Handeen’s judgment by manipulating the *1344 bankruptcy system. 3 As part of this plot, the Firm and the Lemaires contrived to minimize whatever reduced recovery Handeen might achieve via the bankruptcy process. To this end, the Firm instructed Gregory to inflate . the amount of his debts by agreeing to pay ' his parents rent and by executing a false promissory note payable to the elder Lemaires. 4 Gregory listed his parents as creditors on schedules he filed with the bankruptcy court, 5 and the Firm relied on the parents’ claims when preparing proposed repayment plans. Of course, to the extent the bankruptcy court recognized this “indebtedness,” it would reduce Handeen’s pro rata share of any Chapter 13 distributions. Indeed, the cabal enjoyed success in this venture, for the bankruptcy court in substantial measure approved the parents’ petitions against the estate. 6 As such, Gregory’s parents received a portion of the sums he paid under the approved plan, and they compounded the fraud by transferring much of this money back to Gregory.

The intrigue, however, does not end there. In 1989, while Handeen was appealing the bankruptcy court’s confirmation of the Chapter 13 plan, Gregory found a new job which required him to relocate from Minneapolis to Houston, Texas. This employment significantly enhanced Lemaire’s income. Nonetheless, presumably because a person who takes refuge in Chapter 13 must ordinarily devote to the repayment plan “all of the debtor’s projected disposable income,” 11 U.S.C. § 1325(b)(1)(B) (1994), 7 Lemaire did not wish to reveal his increased wages to the bankruptcy trustee. Consequently, Lemaire, his parents, and the Firm formulated an artifice to avoid rousing the trustee’s attention. Specifically, the ruse called for Lemaire to mail his father a parcel every month. Within that package would be an envelope addressed to the bankruptcy trustee and containing a check representing Lemaire’s monthly payment under the plan. Lemaire’s father would, in turn, place the enclosed envelope in the mails, and the trustee would thus receive a letter postmarked from Minneapolis rather than Houston. The object, it is clear, was to fool the trustee into believing that the status quo ante existed, and this exploitation of the postal service remained a monthly ritual until the court dismissed Lemaire’s plan in July of 1990.

In his Complaint, Handeen charges that the Firm and the Lemaires, through their duplicitous association with Gregory’s bankruptcy estate, violated 18 U.S.C. § 1962(e) by conducting a RICO enterprise (the estate) through a pattern of racketeering activity. Handeen also alleges that the group conspired to violate RICO in violation of 18 U.S.C. § 1962(d). On summary judgment, the district court dismissed these claims against the Firm based on its determination that Handeen had failed to demonstrate “the existence of a pattern of racketeering separaté and apart from the bankruptcy estate.” At the same time, the district court rejected Handeen’s attempt to obtain an augmented recovery under two provisions of Minnesota state law that subject unscrupulous attorneys to severe monetary penalties. See Minn. Stat. Ann. §§ 481.07-071 (West 1990). The court decided that the statutes in question *1345 merely authorize treble damages in certain civil suits and do not create independent causes of action. Thus, because the district court believed that Handeen did not attempt to ground his state law action upon a separate tort, but instead merely invoked the two damages provisions, the court found summary judgment appropriate.

Handeen now appeals the district court’s dismissal of his RICO and state law causes of action. 8 We reverse the court’s grant of summary judgment on these claims.

II. DISCUSSION

A. Procedural Considerations

Before taking up the merits of Handeen’s appeal, we must first focus on a procedural question of significant import in the context of this case. At oral argument, counsel for the Firm mentioned that Handeen’s response to the motion for summary judgment, along with all accompanying submissions, failed to establish the existence of a “factual record warranting trial.” Based upon our review of these materials, we wholeheartedly agree with this suggestion. The response makes no effort to demonstrate, through citation to affidavits, depositions, answers to interrogatories, or admissions on file, any “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). It is true that Handeen supplemented his response with certain affidavits and other papers extraneous to the pleadings. Still, these documents are largely irrelevant to the essential elements Handeen will be required to prove in order to prevail, and he appears to have included most of them to provide support for tangential matters not currently in issue. Accordingly, were this a typical summary judgment case, we would have no difficulty with affirming the district court’s judgment in toto. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)(“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”).

This is not, however, a typical summary judgment case. We have also had occasion to inspect the Firm’s summary judgment motion, and we are convinced that, for present purposes, it would be entirely unfair to hold Handeen accountable for a factual showing that would, under normal circumstances, be inadequate. This is because the Firm’s motion shares, and probably engendered, the exact flaw contained in Handeen’s response: It is almost entirely bereft of any citations to relevant portions of the record. 9 In fact, the Firm went so far as to introduce its argument section with an express affirmation that

[resolution of th[e] motion does not depend upon the outcome of any disputed question of fact. Instead, it requires only the application of established principles of law to the allegations contained in [Handeen’s] Complaint. Such application demonstrates that [Handeen] has failed to state a claim against [the Firm] upon which relief can be granted----

*1346 The Firm’s Summ. J. Mot. at 6. This evolved into the dominant theme underlying the Firm’s motion, as it is readily apparent that, for whatever reason, the Firm chose to eschew reliance on the recently alleged absence of a “factual record warranting trial,” and instead emphasized what were perceived to be “an array of patently untenable legal theories.” Id. at 1. This is a common refrain throughout the Firm’s motion; the document repeatedly accepts as true contentions within the Complaint and endeavors to show why those undisputed facts cannot support a recovery. See, e.g., id. at 16 (assuming as accurate the “ ‘enterprise’ alleged by plaintiff’ and maintaining that Handeen cannot prevail “[e]ven if the [Firm] had engaged in the acts described in [his] Complaint.”).

It is evident, then, that the Firm failed to meet the prefatory burden contemplated by Rule 56. The Supreme Court has explained that one who moves for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record as specified in Rule 56(e) ] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2553 (quotation omitted). The standard is far from stringent, for it is sufficient if the movant points out “that the record does not contain [a genuine issue of material fact] and ... identifies] that part of the record which bears out his assertion.” City of Mt. Pleasant, Iowa v. Associated Elec. Coop., Inc., 838 F.2d 268, 273 (8th Cir.1988). This is an obligation regularly discharged with ease by parties who desire summary judgment, but it is one that went unsatisfied in this case. 10 By founding the summary judgment motion on a theory which accepted for purposes of argument the veracity of allegations within Handeen’s Complaint, and by posing no alternative grounds for the requested action, the Firm neglected to pinpoint those portions of the record that might have revealed the absence of a genuine factual issue. 11

Due to the Firm’s failure to meet its initial burden, the onus never passed to Handeen to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Only after the moving party fulfills its duty is the nonmoving party obliged to “proffer evidence that contradicts the moving party’s showing and that proves the existence of a genuine issue of material fact.” McKinney v. Dole, 765 F.2d 1129, 1135 (D.C.Cir.1985). “[E]ven when the non-movant bears the burden of proof at trial, simply filing a summary judgment motion does not immediately compel the party opposing the motion to come forward with evidence demonstrating material issues of fact as to every element of its case.” Ashe v. Corley, 992 F.2d 540, 543 (5th Cir.1993)(quotation and alteration omitted); see also New Burnham, Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1477 (7th Cir.1990)(recognizing that the nonmovant must show the existence of an issue warranting trial only after the movant has met its burden). Any con *1347 trary rule would be fundamentally unfair and would permit a defendant, with very little effort on its own part, to place upon a plaintiff an unwarranted responsibility to substantiate each element of its case or face summary dismissal. Unwilling to countenance such a practice, we must reject the Firm’s belated assertion that affirmance is appropriate in light of asserted inadequacies in Handeen’s factual showing.

Ready to turn our attention to the substance of this appeal, we are left to ponder what legal standard should guide us in our task. There is authority for the proposition that a summary judgment motion should be denied whenever its proponent does not meet his initial burden, see McKinney, 765 F.2d at 1135, but we are reluctant to adopt this approach. Whatever the wisdom in submitting a motion that assumes the accuracy of a plaintiffs portrayal of the episode and does no more than question the sufficiency of the complaint, we see no reason to prevent a district court from granting summary judgment if the unchallenged facts cannot, as it turns out, sustain a viable cause of action. In these situations, we agree with our counterparts on the Fifth Circuit that the submission should be evaluated similarly to a 12(b)(6) motion to dismiss. See Ashe, 992 F.2d at 544. “Where a motion for summary judgment is based solely on the pleadings and makes no [meaningful] reference to affidavits, depositions, or interrogatories, it makes no difference whether the motion is evaluated under Rule 56 or Rule 12(b)(6) because both standards reduce to the same question.” Id. (quotation omitted). Therefore, a court should grant the motion and dismiss the action “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); see also WMX Techs., Inc. v. Gasconade County, Missouri, 105 F.3d 1195, 1198 (8th Cir.1997)(“In considering a motion to dismiss, the court must construe the complaint liberally and assume all factual allegations to be true.”). Our review of the district court’s decision is plenary. See WMX, 105 F.3d at 1198 (reviewing de novo district court’s 12(b)(6) dismissal); Nangle v. Lauer (In re Lauer), 98 F.3d 378, 382 (8th Cir.1996)(reviewing de novo district court’s disposition of summary judgment motion).

B. 18 U.S.C. § 1962(c)

A plaintiff who brings suit under 18 U.S.C. § 1962(c) must prove that the defendant engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); cf. United States v. Darden, 70 F.3d 1507, 1518 (8th Cir.1995)(deseribing the elements in an alternative, but essentially equivalent, manner), cert. denied, — U.S.-, 116 S.Ct. 1449, 134 L.Ed.2d 569, and cert. denied, — U.S. -, 116 S.Ct. 2567, 135 L.Ed.2d 1084 (1996). “In addition, the plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Sedima, 473 U.S. at 496, 105 S.Ct. at 3285. To determine whether Handeen has stated a substantive RICO violation, we must apply each of these elements to the assertions within his Complaint. Having done so, we are convinced that the district court committed error when it entered summary judgment for the Firm.

1. Conduct

Liability under § 1962(c) extends only to those persons associated with or employed by an enterprise who “conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). In Reves v. Ernst & Young, 507 U.S. 170, 185, 113 S.Ct. 1163, 1173, 122 L.Ed.2d 525 (1993), the Supreme Court confirmed that this Circuit has correctly interpreted the “conduct” requirement to authorize recovery only against individuals who “participate in the operation or management of the enterprise itself.” See Bennett v. Berg, 710 F.2d 1361, 1364 (8th Cir.)(en banc)(announeing the “operation or management” test), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). The Supreme Court clarified the scope of the operation or management test, observing:

*1348 An enterprise is “operated” not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management. An enterprise also might be “operated” or “managed” by others “associated with” the enterprise who exert control over it as, for example, by bribery.

* * * * * *

[Section] 1962(c) cannot be interpreted to reach complete “outsiders” because liability depends on showing that the defendants conducted or participated in the conduct of the “enterprise’s affairs,” not just their own affairs. Of course, “outsiders” may be liable under § 1962(e) if they are “associated with” an enterprise and participate in the conduct of its affairs — that is, participate in the operation or management of the enterprise itself____

Reves, 507 U.S. at 184-85, 113 S.Ct. at 1173 (emphasis in original)(footnote omitted). Consonant with the dictate of Reves, it is not necessary that a RICO defendant have wielded control over the enterprise, but the plaintiff “must prove some part in the direction ... of the enterprise’s affairs.” Darden, 70 F.3d at 1543 (emphasis in original). But cf. Department of Econ. Dev. v. Arthur Andersen & Co., 924 F.Supp. 449, 466-67 (S.D.N.Y.1996)(suggesting that requirement of control is the hallmark of Reves).

The Supreme Court’s approval and refinement of our operation or management test has had far-reaching implications, particularly in the area of professional liability under RICO. This is not especially surprising, given that Reves itself involved an attempt to impute liability to an accounting firm. There, the accounting firm certified that a co-op’s records adequately reflected its financial status, and the firm relied upon those existing records, in combination with a review of past co-op transactions, to prepare audits for the organization. Reves, 507 U.S. at 173-75, 113 S.Ct. at 1167-68. In completing these assignments, and without informing the co-op’s board, the firm utilized questionable measures to verily the co-op’s solvency. Id. at 174-75, 113 S.Ct. at 1167-68. The Supreme Court affirmed our decision finding that the accounting firm’s activity did not constitute conduct of a RICO enterprise. Id. at 186, 113 S.Ct. at 1173-74.

In our view, the Reves decision represents a fairly uncomplicated application of the operation or management test. This test, like Reves itself, is built upon a recognition that Congress did not mean for § 1962(c) to penalize all who are employed by or associated with a RICO enterprise, but only those who, by virtue of their association or employment, play a part in directing the enterprise’s affairs. Furnishing a client with ordinary professional assistance, even when the client happens to be a RICO enterprise, will not normally rise to the level of participation sufficient to satisfy the Supreme Court’s pronouncements in Reves. In acknowledgment of this certainty, a growing number of courts, including our own, have held that an attorney or other professional does not conduct an enterprise’s affairs through run-of-the-mill provision of professional services. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 521 (2d Cir.1994)(finding no RICO liability where defendant had “acted as no more than [an] attorney”); Baumer v. Pachl, 8 F.3d 1341, 1344 (9th Cir.1993)(affirming dismissal of case against attorney whose “role was limited to providing legal services”); University of Maryland v. Peat, Marwick, Main & Co., 996 F.2d 1534, 1538-40 (3d Cir.1993)(holding that accounting firm could not be liable for performing generic financial services for an insurance company); Nolte v. Pearson, 994 F.2d 1311, 1317 (8th Cir.1993)(deeming directed verdict appropriate where plaintiff’s evidence did not indicate attorneys participated in the operation or management of the enterprise); Menuskin v. Williams, 940 F.Supp. 1199, 1210 (E.D.Tenn.)(granting summary judgment for attorney who performed “standard, routine” services for construction company), appeal dismissed, 98 F.3d 1342 (6th Cir.1996). By the same token, RICO is not a surrogate for professional malpractice actions. See University of Maryland, 996 F.2d at 1539-40 (explaining that an accounting firm does not become liable under RICO by providing “materially deficient financial services”); Baumer, 8 F.3d at 1344 (“Whether [the attorney] rendered his services well or poorly, properly *1349 or improperly, is irrelevant to the Reves test.”).

Appreciation for the unremarkable notion that the operation or management test does not reach persons who perform routine services for an enterprise should not, however, be mistaken for an absolute edict that an attorney who associates with an enterprise can never be liable under RICO. An attorney’s license is not an invitation to engage in racketeering, and a lawyer no less than anyone else is bound by generally applicable legislative enactments. Neither Reves nor RICO itself exempts professionals, as a class, from the law’s proscriptions, and the fact that a defendant has the good fortune to possess the title “attorney at law” is, standing alone, completely irrelevant to the analysis dictated by the Supreme Court. 12 It is a good thing, we are sure, that we find it extremely difficult to fathom any scenario in which an attorney might expose himself to RICO liability by offering conventional advice to a client or performing ordinary legal tasks (that is, by acting like an attorney). This result, however, is not compelled by the fact that the person happens to be a lawyer, but for the reason that these actions do not entail the operation or management of an enterprise. Behavior prohibited by § 1962(e) will violate RICO regardless of the person to whom it may be attributed, and we will not shrink from finding an attorney liable when he crosses the line between traditional rendition of legal services and active participation in directing the enterprise. The polestar is the activity in question, not the defendant’s status. Cf. In re American Honda Motor Co. Dealerships Relations Litig., 941 F.Supp. 528, 560 (D.Md.1996)(“Th[e] cases reveal an underlying distinction between acting in an advisory professional capacity (even if in a knowingly fraudulent way) and acting as a direct participant in [an enterprise’s] affairs.”).

Bearing these principles in mind, we are confident that Handeen’s Complaint could support a verdict against the Firm. At the outset, we think it worthwhile to reflect upon the nature of a Chapter 13 bankruptcy estate. Chapter 13 affords to a debtor with a regular source of income or earnings, and with a relatively small debt load, an opportunity to obtain a discharge of debts after devoting to creditors disposable income received over a period not to exceed five years. See In re Aberegg, 961 F.2d 1307, 1308 (7th Cir.1992). Because creditors are paid from future earnings instead of assets, Chapter 13 permits a debtor who meets specified requirements to shield his property from seizure or liquidation. See McRoberts v. S.I.V.I. (In re Bequette), 184 B.R. 327, 333 (Bankr.S.D.Ill.1995). Understandably, then, unless the repayment plan or bankruptcy court provides otherwise, the debtor retains custody of his possessions, see 11 U.S.C. § 1306(b) (1994), and “confirmation of a plan vests all of the property of the estate in the debtor,” id. § 1327(b). Furthermore, the decision to seek Chapter 13 relief is wholly voluntary, and the debtor may, subject to exceptions not presently relevant, dismiss his ease at any time. See id. § 1307(b). Finally, it is the debtor’s exclusive prerogative to file a proposed repayment plan, see id. § 1321, and he enjoys many of the powers normally reserved to a bankruptcy trustee, see id. § 1303.

These examples illustrate, in pointed fashion, that the debtor exercises significant control over his Chapter 13 estate. 13 Of current *1350 paramountcy is how much of that control the debtor, in this case Lemaire, may have relinquished to others. If the Complaint is to be believed, as it must, the Firm might have been the beneficiary of considerable abdication. In keeping with the contentions in that pleading, Handeen’s proof could show that the Firm and the Lemaires joined in a collaborative undertaking with the objective of releasing Gregory from the financial encumbrance visited upon him by Handeen’s judgment. To realize that goal, Lemaire sought the assistance of the Firm. The attorneys, in turn, may have suggested that Chapter 13 bankruptcy, which presented a real opportunity for Lemaire to obtain a discharge of the debt arising from infliction of “willful and malicious injury by the debtor to another entity,” 11 U.S.C. § 523(a)(6) (1994), offered the most propitious opportunity to reach the desired result. While Lemaire, obviously, was the party on whose behalf the Chapter 13 petition was filed, the Complaint could support a showing that the Firm navigated the estate through the bankruptcy system. Under this postulation, the Firm directed Gregory and his parents to enter into a false promissory note and create other sham debts to dilute the estate, the Firm represented the elder Lemaires and defended their fraudulent claims against objections, the Firm prepared Lemaire’s filings and schedules containing erroneous information, the Firm formulated and promoted fraudulent repayment plans, and the Firm participated in devising a scheme to conceal Gregory’s new job from the bankruptcy trustee. In short, Handeen might prove that Lemaire, who was, after all, ultimately interested solely in ridding himself of the oppressive judgment, controlled his estate in name only and relied upon the Firm, with its legal acuity, to take the lead in making important decisions concerning the operation of the enterprise.

We underscore that we have no basis for speculating whether Handeen will, in the end, be able to substantiate this narrative. We merely include the above hypothetical to show that relief is available “under a[ ] set of facts that could be proved consistent with the allegations.” Hishon, 467 U.S. at 73, 104 S.Ct. at 2232. If Handeen’s evidence is up to this challenge, we are comfortable that he will have succeeded in proving that the attorneys conducted the bankruptcy estate. In that event, this would not be a case where a lawyer merely extended advice on possible ways to manage an enterprise’s affairs. Cf. Azrielli, 21 F.3d at 521 (foreclosing liability where defendant only acted as attorney in illicit transactions). Nor would this be a situation where counsel issued an opinion based on facts provided by a client. See Reves, 507 U.S. at 185-86, 113 S.Ct. at 1173-74 (concluding that accounting firm did not violate RICO when it prepared audits in reliance upon a client’s existing records); Nolte, 994 F.2d at 1316-17 (refusing to impose RICO liability where attorney had generated documents based on facts provided by client). Instead, if the Firm truly did associate with the enterprise to the degree encompassed by the Complaint, we would not hesitate to hold that the attorneys “participated in the core activities that constituted the affairs of the [estate],” Napoli v. United States, 32 F.3d 31, 36 (2d. Cir.1994), cert. denied, 513 U.S. 1110, 115 S.Ct. 900, 130 L.Ed.2d 784, and reh’g granted, factual inaccuracies corrected, and original determination confirmed, 45 F.3d 680 (2d. Cir.), cert. denied, 514 U.S. 1084, 115 S.Ct. 1796, 131 L.Ed.2d 724, and cert. denied, — U.S. ---, 115 S.Ct. 2015-16, 131 L.Ed.2d 1014 (1995), namely, the manipulation of the bankruptcy process to obtain a discharge for Lemaire. In that instance, the Firm would have played some “role in the conception, creation, or execution,” Azrielli, 21 F.3d at 521, of the illegal scheme, and we could safely say that the lawyers participated in the operation or management of the estate by assuming at least “some part in directing *1351 the enterprise’s affairs.” Reves, 507 U.S. at 179, 113 S.Ct. at 1170 (emphasis in original). Therefore, we conclude that the Complaint could justify a finding that the Firm participated in the conduct of the alleged RICO enterprise.

2. Enterprise

The Supreme Court has remarked that “[t]he ‘enterprise’ is not the ‘pattern of racketeering activity1; it is an entity separate and apart from the pattern of activity in which it engages.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2529, 69 L.Ed.2d 246 (1981). Consequently, “[t]he existence of an ent