Wilfred Aka v. United States Tax Court

854 F.3d 30, 2017 WL 1364989, 119 A.F.T.R.2d (RIA) 1534, 2017 U.S. App. LEXIS 6405
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 14, 2017
Docket15-1401
StatusPublished
Cited by10 cases

This text of 854 F.3d 30 (Wilfred Aka v. United States Tax Court) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilfred Aka v. United States Tax Court, 854 F.3d 30, 2017 WL 1364989, 119 A.F.T.R.2d (RIA) 1534, 2017 U.S. App. LEXIS 6405 (D.C. Cir. 2017).

Opinions

Opinion concurring in part and concurring in the judgment filed by Circuit Judge ROGERS.

Concurring opinion filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Attorneys have duties not only to clients, but to opposing counsel and courts. Because our legal system depends on attorneys working with opponents and abiding by court orders, each court has the “inherent power” to control attorneys’ admission to its bar and their expulsion. In re Echeles, 430 F.2d 347, 349 (7th Cir. 1970).

The United States Tax Court has disbarred Wilfred I. Aka for repeated failures to discharge his duties to the court, clients, and opposing counsel alike. Today we up[32]*32hold its order, clarifying in the process the basis for our jurisdiction in this case and the proper standard of review.

I

First we must take up the question of whether we have jurisdiction to review the Tax Court’s disbarment orders. Section 7482(a)(1) of the Internal Revenue Code (IRC) gives the federal courts of appeals (aside from the Federal Circuit) jurisdiction to review “decisions” of the Tax Court “in the same manner and to the same extent as decisions of the district courts in civil [bench trials].” 26 U.S.C. § 7482(a)(1). But civil bench trials — in which courts resolve disputes between adverse parties— differ significantly from disbarment proceedings, in which a court exercises its inherent power to police its own bar. See Brooks v. Laws, 208 F.2d 18, 22 (D.C. Cir. 1953) (a district court’s application of its rules to deny someone admission to its bar “is not appealable”). This contrast raises the possibility that Tax Court disbarment orders' — -unlike Tax Court trial orders — fall outside our appellate jurisdiction under the’ IRC.

That concern is reinforced by the only other IRC provision providing hints on what counts as a Tax Court “decision[ ].” In the course of explaining how to determine the date of entry of a “decision of the Tax Court,” this second provision mentions only declaratory judgments and orders specifying how much a taxpayer still owes (i.e., notices of deficiency). 26 U.S.C. § 7459(c). That disbarment orders are neither might further suggest that they are not “decisions of the Tax Court” subject to our review. See Commissioner of Internal Revenue v. Smith Paper, Inc., 222 F.2d 126, 129 (1st Cir. 1955) (reading a precursor to section 7459(c) as enumerating the only Tax Court “decisions” subject to appellate review).

We have rejected that suggestion in an earlier case, however, seeing “no reason to believe that ... § 7459(c) ... in any way meant to limit appellate jurisdiction over ... decisions [of the Tax Court].” InverWorld, Ltd. v. Commissioner of Internal Revenue, 979 F.2d 868, 872 (D.C. Cir. 1992). Instead we have held that section 7482(a)(1) “is the controlling provision” for “appellate review.” Id. Under that section, “finality of the Tax Court’s order [is] the criterion.” Id. Thus, we have jurisdiction to review final Tax Court orders.

And disbarment orders are final. In re Fletcher, 107 F.2d 666, 668 (D.C. Cir. 1939) (labeling them “final orderfe] ... reviewable by appeal”). They are “unequivocal determinations” that take “immediate” effect, leaving no issues unresolved. InverWorld, 979 F.2d at 872. Thus, the Supreme Court has reviewed disbarment orders of circuit courts, see, e.g., In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), and we have reviewed those of our district court, see, e.g., Fletcher, 107 F.2d at 668. Disbarment orders of the Tax Court, whose decisions we review “in the same manner and to the same extent” as those of a district court judge, merit the same treatment. 26 U.S.C. § 7482(a)(1); see InverWorld, 979 F.2d at 872 (exercising jurisdiction over a Tax Court order when a “similar district court decision would be considered final ... because the court has completely disposed of the claim”).

Although we have reviewed Tax Court disbarment orders on previous occasions, see In re Thies, 662 F.2d 771 (D.C. Cir. 1980); Rodriguez v. U.S. Tax Court, 398 Fed.Appx. 614 (D.C. Cir. 2010); Krouner v. U.S. Tax Court, 202 Fed.Appx. 470 (D.C. Cir. 2006), we have not expressly held that we have jurisdiction to do so. Today we confirm that we do.

[33]*33Another preliminary matter: our court has not settled on a standard of review for such disbarment orders. See Rodriguez, 398 Fed.Appx. 614 (declining to choose between abuse of discretion and de novo review); Krouner, 202 Fed.Appx. at 471 (same).

But long ago, the Supreme Court gave us guidance on that issue, observing in an opinion by Chief Justice Marshall that each court must exercise “discretion” in disciplining members of its own bar because “no other tribunal can decide [such matters] with the same means of information.” Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530, 6 L.Ed. 152 (1824). A reviewing court may thus interfere “only in a plain case,” where the disbarring court’s “conduct was irregular or flagrantly improper.” Id. at 530. Thus, in this appeal from the Tax Court’s disbarment order, we will review the court’s factual findings for clear error. Nonetheless, we will consider de novo .appellant’s argument that the Tax Court violated the ’ Fifth Amendment’s Due Process Clause.

II

Aka challenges the Tax Court’s decision to disbar him and, alternatively, its failure to include in its disbarment order instructions for his reinstatement.

In 2009, Martin Kyere sought Aka’s help in challenging the amount the Internal Revenue Service (IRS) said he owed in unpaid taxes. Aka filed a petition on Kyere’s behalf for redetermination of the IRS’s notice of deficiency, and then failed to appear for a discovery conference, failed to give opposing counsel key documents, failed to show up for trial, and went missing again when the hearing was rescheduled.

When the Tax Court ordered Aka to show cause why he should not be disciplined, he turned down a hearing and offered only a written response. In that response, Aka acknowledged his repeated failures to participate in the litigation, but offered as an excuse his belief that he no longer. represented Kyere in the matter after his client failed to pay him on time. The Tax Court rejected that explanation, noting that even after the missed payment, Aka continued to hold himself out as Kyere’s attorney in conversations with opposing counsel.

Assessing Aka’s behavior against the ABA Model Rules of Professional Conduct and its own practice rules, the Tax Court reprimanded him for failing to provide competent representation (in violation of ABA Model Rule of Professional Conduct 1.1), failing to represent his client with diligence and promptness (against Model Rule 1.3), and failing to communicate with his client (against Model Rule 1.4).

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854 F.3d 30, 2017 WL 1364989, 119 A.F.T.R.2d (RIA) 1534, 2017 U.S. App. LEXIS 6405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilfred-aka-v-united-states-tax-court-cadc-2017.