Attorney-at-Law

ASSIGNED COUNSEL? – PART DEUX

In Uncategorized on 01/28/2016 at 00:02

You’ll no doubt remember my recent discussion about assigned counsel in Tax Court, which Judge Kerrigan assured us does not exist, but which assurance Judge Julian I Jacobs seemed to contradict. See my blogpost “Assigned Counsel?” 1/6/16.

To resolve this apparent contradiction, I attempted to reach Olena Ruth, Esq., who seemed to stand in as assigned counsel in the blogpost aforesaid, and who incidentally seems to be a follower of this my blog. I have to date received no reply, so my perplexity continues.

Confusion worse confounded, Ch J Michael B (“Iron Mike”) Thornton seems prepared to appoint IRS counsel to give legal advice to the petitioner in Sacha E. Higham, Docket No. 22071-15L, filed 1/27/16, as Tax Court comes in from the snow, three hours late according to its website.

Apparently Sach wants to have the petition dismissed in this review of a NOD from a CDP. We know Sach can do that. And IRS says OK.

But something about the case gave Ch J Iron Mike pause, so he orders the parties to talk it over.

All right, so what is the problem?

This: “Respondent shall undertake to discuss fully with petitioner the consequences to petitioner if the Court were to dismiss this case.” Order, at p. 1.

How any attorney can discuss a legal conclusion (which in this case must include an element of legal advice) with an unrepresented adversary, or even communicate with such a one, otherwise than to tell them immediately to retain counsel, eludes me. Rule 4.3 of the Rules of Professional Conduct seems clear enough to me. “The lawyer shall not give legal advice to an unrepresented person other than the advice to secure counsel if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.”

So again I ask: does Tax Court provide assigned counsel?

 

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