But Still Obliging

Even so obliging a jurist as Judge David Gustafson has limits to his patience when ignored. Today he has a warning to counsel who thus trespass upon his well-known indulgence.

Here’s Lawrence R. Osiwala & Lorraine Osiwala, Docket No. 12194-16, filed 10/23/17, but Larry and Lori are silent throughout. The protagonist is their attorney, whom I’ll hereinafter designate as “Scotty.”

Judge Gustafson opens with a dismissal for want of prosecution, tossing Larry and Lori and entering decision against them for about $18K. A Tax Court “decision” is a State court “judgment” where I come from.

Now Scotty didn’t do any pre-trial prep, although he had fifteen (count ‘em, fifteen) months to do so. All y’all who stayed awake during those win-your-case-on-the-pleadings CLEs know the mantra: “On the day you file the petition (complaint), be prepared to go to trial.” Of course, that’s for an ideal world, but in an imperfect world you’ll know what discovery you’ll need and how to get it (or win a spoliation motion or get a missing witness inference).

In any case, Scotty didn’t.

Now Judge Gustafson manifests his obliging nature.

“…the IRS filed a motion to dismiss this case for failure to properly prosecute, alleging that Mr. [Scotty] has been unresponsive and uncooperative in pretrial preparation. The Court immediately attempted to schedule a pretrial telephone conference with the parties, but Mr. [Scotty] did not respond to voice-mail messages.

“… the Court ordered Mr. [Scotty} to immediately telephone the Chambers of the undersigned  judge (at 202-521-0850) for the purpose of scheduling a prompt telephone conference. Our… order also directed the Osiwalas to file with the Court and serve on the IRS a response to the IRS’s motion to dismiss, no later than [X}. The…order were [sic] served on Mr. [Scotty] and the Osiwalas. Mr. [Scotty] and the Osiwalas have filed no response.” Order, at p. 1.

Silence isn’t necessarily golden, especially when an obliging Tax Court judge orders you to bukh.

So Judge Gustafson hits Scotty with an OSC why he shouldn’t get a Section 6672(a)(2) chop for his non-trouble, and tells Larry and Lori to show up in The Motor City on the day if they wish to try the case.

As befell poor Father McKenzie at Eleanor Rigby’s obsequies, nobody came.

So Judge Gustafson, ignored three (count ‘em, three) times by Scotty, Larry and Lori, tosses Larry and Lori as hereinabove set forth (as my high-priced colleagues say), but saves the rest for Scotty.

“The Court has an obligation to conduct its proceedings in a manner that secures the ‘just, speedy, inexpensive determination of every case.’ Rule 1(d). A practitioner before this Court is required to carry out his or her practice in accordance with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association. Rule 201(a), Tax Court Rules of Practice and Procedure. Tax Court Rule 202(a)(3) specifically identifies as a ground for discipline any conduct that violates the letter and spirit of the Model Rules. For example, Model Rule 1.1 requires a lawyer to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Model Rule 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client. Model Rule 3.4(c) prohibits a lawyer from knowingly disobeying court rules and orders.

Mr. [Scotty]’s failure to return the Court’s phone calls, noncompliance with the Court’s orders and rules, and his failure to appear when this case was called from the calendar at the trial session… are inconsistent with the obligations imposed upon him pursuant to the Court’s Rules of Practice and Procedure and the Model Rules of Professional Conduct of the American Bar association. We shall discharge so much of our order to show cause with respect sanctions under section 6672(a)(2) and make absolute so much of our order to show cause with respect to referring Mr. [Scotty] to the Court’s Committee on Admissions, Ethics, and Discipline.” Order, at p. 2.

Note that Judge Gustafson, obliging as always, drops the Section 6672(a)(2) chops wherewith he was going to slug Scotty.

That said and notwithstanding. memo to counsel: Don’t try this at home, or anywhere else.