In Uncategorized on 10/11/2018 at 21:44

But Not on the Court

Back in August, 2014, Judge James S (“Big Jim”) Halpern filed an opinion in Brown, 2014 T. C. Memo. 167, wherein the petitioners were mulcted for nearly everything IRS wanted, due in large part to the inadequacies of their attorney, whom I’ll call Wilf.

I’ve blogged the misadventures of more than one attorney whom I’ve called Wilf over the years, but this one is a new one on me. In any event, this Wilf is now out of the picture, as he was disbarred in August, 2015, and DC Cir affirmed same in 2017.

But now come Bassett H. Brown & Marcela M. Brown, Docket No. 28934-10, filed 10/11/18, seeking a Rule 162 vacation, based upon the fraud on the Court committed, allegedly, by Wilf.

It’s a wee bit late under ordinary rules, as 162s need to be made within 90 days after filing of decision. But fraud on the Court is special, because it undercuts the entire judicial process.

However, the hurdle is high, and Bassett (that’s Dr Bassett) cannot surmount same.

One must prove, by clear and convincing evidence, an unconscionable scheme or plan designed to influence the Court improperly, and that the Court was deceived thereby.

And not all fraud in a judicial proceeding is fraud on the Court. Because Dr Bassett (and maybe Marcela) were defrauded by Wilf’s negligence and incompetence doesn’t mean Judge Big Jim was taken in.

“… we concede that [Wilf] may have been untruthful with the Court in excusing his failures to obey our orders because he was out of the country, his computer crashed, or he had no ability to access the Court’s website. Nevertheless, even accepting that his excuses were untruthful, we believe that [Wilf] lied not to influence the outcome of the case one way or the other but to avoid reprimand by the Court and to excuse his failures to obey our orders. And while there maybe evidence that [Wilf] failed to introduce–though petitioners have failed to identify any–and certainly he failed effectively to argue their case (we struck petitioners’ brief as untimely), those factors did not work any corruption on our decision making. We were aware of [Wilf]’s inadequacies and warned petitioners of them. We decided this case on the evidence the parties, acting through their counsel, presented to us. We were not deceived, and certainly we were not improperly influenced or corrupted by [Wilf]’s thin excuses. Petitioners have failed to prove that [Wilf]’s untruths resulted in a fraud on the Court.” Order, at p. 7.

Wilf may have blown it, but Dr Barrett was there throughout. “Respondent points out that the Court, at the conclusion of the trial, recognizing [Wilf]’s shortcomings, advised petitioners to supplement their representation, yet they continued to rely on him, and, thus, they must bear the risk that his inadequate representation imposed.” Order, at p. 6.

Motion to vacate denied.



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