I recently welcomed Judge Buch to the Tax Court bench (see my blogpost “An Open Buch”, 1/16/13), and His Honor comes out swinging with this designated hitter, a tale of attorney negligence in Adelfa E. Govea, Docket No. 806-12S, a designated hitter on 3/5/13.

Poor Adelfa is nowhere to be found, but her attorney, Kim T. Phipps, a graduate of Harvard University and the University of Virginia Law School, is a moving target. Kim changes addresses and firm affiliations three times, but never files the Form 10 to let Tax Court know her whereabouts. Maybe her old firm (which still lists her as a partner on their website) now represents Adelfa, but they never file a substitution of attorney (Form 8). Kim did update her address on eAccess, but that’s not sufficient (lawyers, please copy).

Now Kim moves to be relieved with trial scheduled for April 29, 2013, but of course Kim mailed her motion to Adelfa the same day she mailed it to the Court, and gave no evidence of any prior communication with Adelfa to warn her that she was bailing.

“Through this tale of changing addresses and law firms, the one person that seems to be lost is the petitioner, who has a trial set for just over one month from now. It is the attorney, not the law firm, who enters an appearance in a case. It is the obligation of the attorney to keep her contact information with the Court current. And through all of this, it is the client whose interests the attorney should be protecting.” Order, p. 2 (emphasis mine, although it should be unnecessary.)

Judge Buch cites the ABA Model Rules of Professional Conduct, Rules 1.3 and 1.4. It is the Model Rules that govern in Tax Court, not one’s local rules; see Tax Court Rule 201(a).

Adelfa could have her case tossed for want of prosecution if Kim didn’t let the Court know where she was, or arrange for an appropriate substitution of counsel.

Judge Buch: “It should further be noted that, had Ms. Phipps and her former firm timely sought a substitution of counsel, it would have been granted as a matter of right. However, now that the case is calendared for trial, it may only be granted by motion.

“To be clear, it is possible to withdraw as counsel in a case even after calendared for trial. Clients may become incommunicative, uncooperative, or insist upon following a course of action that the attorney cannot countenance. But, there are no such allegations here.

“Allowing Ms. Phipps to withdraw without a substitution of counsel could have a material adverse effect on petitioner and leave her without an advocate less than two months before trial. Ms. Phipps remains counsel of record for petitioner until such time as leave is granted to substitute counsel.” Order, p. 4 (Footnote omitted, but read it.)

So Judge Buch orders copies of his decision to be mailed to all and sundry.

Now, read and heed, all you automatic admittees to Tax Court, lest you get the Buch tossed at you.