Tax Court Disbarment Affirmed By Federal Circuit Court

The United States Court of Appeals for the District of Columbia Circuit affirmed a United States Tax Court disbarment order.

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 uphold its order, clarifying in the process the basis for our jurisdiction in this case and the proper standard of review.

As to jurisdiction

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. App’x 614 (D.C. Cir. 2010); Krouner v. U.S. Tax Court, 202 Fed. App’x 470 (D.C. Cir. 2006), we have not expressly held that we have jurisdiction to do so. Today we confirm that we do.

Standard of review

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.

He had previously been reprimanded.

Only three years would pass, however, before the Tax Court again ordered Aka to show cause why he should not be disciplined, this time for misconduct in seven other cases. Again the Tax Court accused him of missing hearings, ignoring opposing counsel’s requests for documents and conferences, and disregarding court orders, all in violation of its practice rules and the ABA Model Rules of Professional Conduct. Again the court gave him an opportunity to make his case. The court first extended by more than three months the time period allowed for Aka to respond to its show-cause order, a period in which Aka submitted three written documents. The court also held a disciplinary hearing at which Aka appeared with counsel and provided testimony. These written and oral submissions were discussed in detail by the Tax Court in its memorandum suborder, but again the court found that Aka disputed no material facts but only blamed his clients. The court also noted that even if Aka was right that his clients had hampered his work on their behalf, he was still at fault for shirking his duties to opposing counsel and the court itself. As it also observed, “[t]he fact that Mr. Aka’s failures are chronic and extend over the entire period that he has been admitted to this Bar, continuing even after his most recent disciplinary hearing, compel us to conclude that they are done knowingly.” Supp’l App. at 27. The Tax Court thus disbarred Aka for violating its orders and rules, this time willfully, and a month later denied his motion to vacate or modify its disbarment order.

Merits

In Aka’s telling, the Tax Court’s failure to propose a plan for his reinstatement robbed him of due process in violation of the Fifth Amendment; and that court’s decision to disbar him deprived him of substantive due process. Neither claim succeeds.

First, Aka offers no legal authority for his contention that the Tax Court violated his due-process rights. Due process requires a court pursuing disbarment to give attorneys fair notice and a chance to be heard, and to follow its published rules for disbarment proceedings. Ruffalo, 390 U.S. at 550; In re Bird, 353 F.3d 636, 638 (8th Cir. 2003). The Tax Court did so here; Aka does not deny that. He claims instead that the court deprived him of due process by failing to lay out steps for his reinstatement. Due process does not require such guidance, however, and Aka cites no authority to show that it does.

Second, Aka contends that the Tax Court denied him substantive due process by, for example, disbarring him absent evidence that he had committed any crime…It is impossible to wrench from these cases a substantive due  process right to bar membership or against unduly harsh disbarment. Indeed, Aka’s substantive due process claims are so “completely devoid of merit” that they do not trigger our jurisdiction to consider claims made under federal law. 

Judge Rogers concurred

In sum, this court’s published opinions reflect a fulsome scope of review of the factual record and the disciplinary procedures afforded to the attorney. Although acknowledging that due deference is to be accorded to the discretionary choice of discipline by the imposing court, see Ex parte Burr, 22 U.S. 529, 530 (1824), this court all the while renders an ultimate assessment of what is appropriate in view of the facts found and the process afforded during the disciplinary proceeding, see, e.g., In re Snyder, 472 U.S. 634, 647 (1985); Sacher v. Ass’n of the Bar of City of New York, 347 U.S. 388, 389 (1954); see also In re Jacobs, 44 F.3d at 88 (interpreting Burr). Succinctly put, this is an abuse of discretion standard of review, which encompasses examination of “whether the reasons given reasonably support the conclusion.” Kickapoo Tribe, 43 F.3d at 1497 (quoting Johnson v. United States, 398 A.2d 354, 365 (D.C. 1979)).

Today, the court, much as in our unpublished opinions declining to choose between abuse of discretion and de novo review, purports to avoid making the choice again, going only so far as to adopt a clearly erroneous standard of review for factual findings and a de novo standard of review of constitutional Due Process challenges. Op. 4. But our precedent indicates this court will decide for itself the appropriateness of a sanction in cases that present serious concern about the extent of discipline imposed. Whatever discomfort there might be to extending an abuse of discretion review to the disciplinary actions of an Article I court, see Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 891 (1991), this court is bound by Section 7482(a)(1) and our interpretation of it. See LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996).

Judge Griffith concurred in his own opinion

Our panel opinion notes that we have jurisdiction to hear Aka’s procedural challenge to the Tax Court’s disbarment order, that this challenge fails, and that the Tax Court has not come close to depriving Aka of substantive due process.

I do not believe, however, that due process claims are the only ones that Aka has raised before us. He has also argued that the Tax Court’s decision to disbar him—the result, and not simply the process—was too severe a penalty for his particular misconduct. As Aka raises it, this objection is not a constitutional one, rooted in due process or otherwise. It is simply an argument that in imposing such a grave and lasting penalty, the Tax Court abused its discretion.

I take no position here on whether we have jurisdiction to hear such non-constitutional challenges to disbarment orders…

This court need not “respond specifically to every argument made by every appellant.” Troy Corp. v. Browner, 129 F.3d 1290 (D.C. Cir. 1997). But disbarment orders are serious business. In reviewing them, we owe attorneys a thorough treatment of their arguments, however unpromising. I have written separately with that in mind.

(Mike Frisch)