The last week of February finds your bloggers mired in other writing projects and demands of work causing suspension of daily production this week.
The Tax Court issued notice of disbarment and suspension for five practitioners and one of the cases deserves note because we have written about it previously. All five of the cases involve reciprocal discipline meaning that the practitioner engaged in behavior that caused their home state to discipline them and the Tax Court’s action piggybacks on the state decision. All of the cases involve failure of the practitioner to alert the Tax Court that they were disciplined by their state bar.
The Tax Court rules require that practitioners alert the Tax Court of any disciplinary action by another court or bar. These cases suggest that notifying the Tax Court of disciplinary proceedings elsewhere is not at the top of the list for individuals subject to disciplinary proceedings. Three of the five cases involve no response from the practitioner to the Tax Court after notification by the Tax Court of concerns about the disciplinary proceedings against them. Here, is a typically line from these three orders:
The Court has received no response from Mr. Altman. Furthermore, Mr. Altman’s right to a hearing is deemed waived as he did not advise the Court in writing on or before November 9, 2020, of his intention to appear at a hearing concerning his proposed discipline.
In the case of Eric Bopp, he did not timely respond but did respond. He had been suspended by Louisiana. The Tax Court reprimanded him for failing to notify it but did not suspend him from practice or disbar him. His case provides a good argument for responding rather than ignoring the Tax Court. Perhaps the three who ignored no longer wished to practice before the Tax Court and did not find it worth their time to engage in correspondence with the Tax Court about the effect of their state bar discipline on practice before the Tax Court. Mr. Bopp’s result demonstrates the benefit of corresponding.
The case of most interest and the one with the longest analysis by the Tax Court is that of John Koresko. I wrote about his case previously here. Mr. Koresko was disciplined by Pennsylvania back in 2013. You can read about the reasons for this disbarment in the prior post if you are interested, but the disbarment related to actions he took as an attorney on cases. The Tax Court started corresponding with him about this in 2014. As per usual, he had not informed the Tax Court of his disciplinary problems. He also did not respond to an order issued by the Tax Court. After the issuance of the order by the Tax Court:
On July 22, 2016, the Court received a letter dated July 7, 2016, from Mr. Koresko asserting that he did not receive the May 10, 2016 Order as he had been incarcerated in solitary confinement since May 6, 2016, for contempt of court. By Order dated September 30, 2016, the Court stayed the proceedings in this case.
Eventually, Mr. Koresko took his Tax Court disbarment matter to the D.C. Circuit which vacated the Tax Court’s order of disbarment and remanded the case so that he could have the hearing promised in the May 10, 2016 order. The case came back to the Tax Court about the time it shut down because of the pandemic. The Memorandum Sur Order issued by the Court in this case recounts the various actions taking place during the pandemic in order to give him a hearing.
[on] December 21, 2021, the Court received a letter from Mr. Koresko in which he waived his right to a hearing and stated: “I respectfully request that you accept my proposal and agreement to accept discipline short of disbarment.” He expressed regret for his actions that led to his disbarment in Pennsylvania and admitted that he made a terrible mistake of judgment. His response explained that his “unduly aggressive behavior in the litigation was wrong” and “the charged offenses were worthy of discipline.”
The Tax Court accepted this letter as a waiver of his right to a hearing, his admission of misconduct and his agreement to discipline short of disbarment. It concluded that the appropriate remedy was suspension from practice before the Tax Court until further ordered.
I don’t know enough about Tax Court disciplinary proceedings to have a guess as to how difficult it will be for Mr. Koresko to have the suspension lifted. He placed enough value on his admission to Tax Court to appeal to the D.C. Circuit. So, he may come back to the Tax Court at some point and allow us the opportunity to see what it takes to have a suspension lifted. He has avoided disbarment from the Tax Court. The lessons to be drawn from these five cases are lessons that apply in almost any case before a court. Courts do not like to be ignored. Communicating with the court can bring a better outcome than ignoring it. Early communication is better but even communicating late is better than not communicating at all.