Carl Smith brought to my attention the case of Aka v. United States Tax Court in the D.C. Circuit which is coming up for oral argument on November 18 based on Mr. Aka’s claim that he was denied due process because the order disbarring him does not explain what he can do to be reinstated. The Tax Court revoked the license of Mr. Aka to practice before it. The linked document contains 35 pages of painful details chronicling his actions that led to disbarment. He also argues in his brief that remedy was unsuited to his actions because this sanction was too harsh in addition to the fact that the Court failed to explain what he could do to ever get back into the bar of the Tax Court. In his brief, he spends a large segment comparing his sanction with that of another lawyer who only received a suspension. Because I worked on the earlier case, in an aspect prior to the sanction proceeding, the citation to the earlier case caught my eye.
The difference in sanctions between the license revocation Mr. Aka received and the suspension received in the earlier case he cites reminded me of advice my trial tactics teacher provided to me 40 years ago. My teacher was Judge Robert R. Merhige, Jr. a Federal District Court judge in Richmond, Virginia and one of the most famous and certainly most colorful graduates of my law school. He practiced as a trial lawyer in Richmond for many years before being appointed to the bench by President Johnson. Judge Merhige issued many important rulings on civil rights and other issues during his long period of service on the bench. Judge Merhige talked about the importance of telling the truth in his courtroom even if the person coming before him had done reprehensible things before arriving in his court. His advice to the class relates to Mr. Aka’s situation not because Mr. Aka lied to the Tax Court but because his behavior occurred in the Tax Court and directly impacts the function of the Court. In contrast, the actions of the person receiving a suspension of his ability to practice before the Tax Court involved issues on his individual return and did not relate to issues involving his practice before the Tax Court.
That distinction is an important distinction in understanding what motivates a court to sanction an attorney appearing before it and the severity of the sanction. A quick examination of the two cases will illustrate the issue that Mr. Aka has yet to grasp.
Mr. Aka proved himself a poor representative in Tax Court cases because he did not show up for Tax Court hearings and he did not respond to requests for responses in his cases. His failures in this regard did not just happen in one or two cases, but in seven. It is easy to understand why the Tax Court would want to police its bar for these types of failures just as the IRS wants to police those who prepare returns sent to it. A practitioner like Mr. Aka can wreak havoc with a case because the Court does not want to unduly punish a taxpayer for the failings of counsel. More important to the understanding of the decision of the Tax Court to revoke his ability to practice before it, is what it says to the court when you do not show up for your case. It says loud and clear that you do not respect the court. If you make such a statement to the court seven times, you should expect the maximum penalty because you have shown the maximum amount of disrespect both to the judge handling the case and to the court as an institution.
Mr. Aka complains that his punishment demonstrates the Tax Court’s failure to appropriately respond to poor behavior because he should have received a lesser punishment than another tax lawyer, Robert Grossman. Mr. Aka spends a good portion of his brief explaining what Mr. Grossman did and how Mr. Grossman’s actions only resulted in a suspension from practice. Because Mr. Aka believes that Mr. Grossman’s actions far exceeded those of Mr. Aka in their severity, Mr. Aka argues that the Tax Court inappropriately determined that suspension rather than revocation provides the correct response to his failures.
Mr. Grossman’s Tax Court case leading to his suspension was handled by the Richmond District Counsel’s office when I served as the District Counsel. The notice of deficiency in his case asserted the fraud penalty with respect to his personal income tax returns. I attended the trial as the supervisor of John McDougal who tried the case for the office. I will write a tribute to John later this year as he retires from Chief Counsel’s office and I will say here only that he is the best trial lawyer I encountered during my 30+ years working in Chief Counsel’s office. One of the most unusual aspects of Mr. Grossman’s case involved the amount of time it took the Tax Court to decide the case. It took almost five years before an opinion came out. The amount of time it took the Court to decide this case by far exceeded the time for any other case with which I was involved and I thought it unfortunate that this case took so long because I expected that if the Tax Court found fraud, some sanction would follow. It seemed odd to delay for so long in deciding a case where the practitioner continued to represent clients during the interim.
When the opinion came out, the Tax Court did find fraud. Mr. Grossman appealed the case to the 4th Circuit but the fraud penalty stood up to that challenge and the Tax Court eventually did sanction Mr. Grossman by suspending his license to practice before it. Mr. Aka picked this case out of the cases in which the Tax Court has sanctioned attorneys practicing before it and argues that his failure to appear in court does not equate to filing a fraudulent return. Since failing to appear for seven hearings is not as bad as filing a fraudulent return, the sanction imposed against him should be reduced.
I think Mr. Aka misses the point of how his actions occurred in the Tax Court and demonstrated disrespect to the Tax Court. His actions did not result in civil or criminal penalties outside of the Tax Court. Mr. Grossman received a fraud penalty assessment because of his actions and the Tax Court sanction came as a collateral consequence. Mr. Grossman did nothing that I know of to disrespect the judges at the Tax Court or the Tax Court itself but he did something outside the court that impacted his ability to represent others. In contrast, Mr. Aka presented a direct affront to the Court and to the petitioners of the Court he represented. While I think you could make a valid argument in the abstract that a tax practitioner filing fraudulent returns may have committed a more morally reprehensible act than the practitioner who repeatedly fails to appear in court when he should, the weighing of the two acts on a moral scale of which act is worse is not the task put to the Tax Court when it hands out sanctions. The Tax Court seems perfectly justified in handing out sanctions based on the actions before it just as Judge Merhige gave greater punishment to those who chose to come into his court and lie.
The rules governing practice will always relate to respect for the institution before whom you are practicing. Certainly, things you do outside the court can bring disrespect to the institution and can result in sanctions, but it will always be the things you do before the court that have the most impact. When Mr. Aka sees that, he will be on the road to reinstatement. But it may be a long road.