Federal Sanction Reduced
The Indiana Supreme Court has imposed substantially different reciprocal discipline in a matter involving a federal court two-year suspension
the Court does find, pursuant to Rule 23(20)(e)(4), that the misconduct established warrants substantially different discipline in this state.
Being duly advised, the Court orders Respondent suspended from the practice of law in this state for a period of 120 days, effective immediately.
Indiana Lawyer reported
An appeal of a federal court’s ruling in a dispute with the IRS has a Hoosier attorney facing sanctions after the 7th Circuit Court of Appeals found he “pressed frivolous arguments” and engaged in conduct contrary to professional standards.
Richard Witkemper and his wife, Ellen, were sued by the IRS for failing to withhold and remit FICA taxes from their employees’ paychecks. After Witkemper failed to comply with a settlement agreement then engaged in a series of property transfers, the matter was adjudicated in a one-day bench trial in favor of the government.
What happened next has drawn the ire of the 7th Circuit Court of Appeals and resulted in an order that the Witkemper’s attorney, Jason Smith, explain why he should not be booted from the appellate court.
The 7th Circuit handily affirmed the ruling from the U.S. District Court for the Southern District of Indiana in United States of America v. Richard E. Witkemper and Ellen R. Witkemper, 21-2029.
However, the appellate court stated it was concerned about how the Witkempers approached their appeal. Namely, they make two arguments – the government cannot prove it assessed penalties in February 2008 and the government had an issue with the timeliness in filing its lawsuit – that seem as if the bench trial never happened.
“What we have seen in this appeal has troubled us,” Judge Michael Scudder wrote for the 7th Circuit. “The Witkempers’ counsel, Jason Smith, has advanced arguments that have ignored the trial evidence and the deferential standard under which we must review the district court’s findings of fact. When the government pointed this out in its opposition brief, Smith never replied – despite seeking an extension of time within which to file a reply brief.
“And making matter worse,” Scudder continued, “in oral argument Smith seemed surprised at the Court’s questions about the trial evidence and standard governing our appellate review.”
Smith is a member of Smith Law Services in Seymour. According to the Indiana Roll of Attorneys, he has had two disciplinary complaints adjudicated against him and has a suspension pending.
On Friday, the Indiana Supreme suspended Smith for 30 days with automatic reinstatement for making false statements against Jackson County Superior Court Judge Bruce MacTavish.
The Seventh Circuit opinion in the underlying matter is linked here. (Mike Frisch)