Wednesday, June 29, 2011

Busman's Holiday

A single justice of the Massachusetts Supreme Judicial Court has ordered a public reprimand of an attorney based on a 48 month suspension from practice before the Internal Revenue Service. The misconduct involved failure to file income tax returns.

The issue of reciprocal discipline for a suspension from practice before the IRS was raised by the attorney. The court held that the IRS is a "federal administrative body or agency" and thus any suspension implicates the Massachusetts rule governing reciprocal discipline.

Bar Counsel had sought a four-month suspension.

The court noted that the attorney had not been charged or convicted of any criminal offense, which weighed heavily in his favor. On the aggravation side, the attorney's conduct was willful. Further, he had 15 years experience as a tax lawyer.

As a matter of advanced disciplinary procedure, I would note that courts tend to have a less inclusive definition of a "disciplining court" for purposes of reciprocal discipline than the Massachusetts version relied upon by the court here. 

For instance, in the District of Columbia, reciprocal discipline can only be imposed based on the order of a tribunal as defined below

 As used in this section,
(1) “state” shall mean any state, territory, or possession of the United States.
(2) “disciplining court” shall mean (a) any court of the United States as defined in Title 28, Section 451 of the United States Code; (b) the highest court of any state; and (c) any other agency, commission, or tribunal, however denominated, that is authorized to impose discipline effective throughout a state.

D.C. App. R. XI, section 11(a).

Under such a rule, I believe that reciprocal (i.e. summary) discipline could not be imposed as a result of an IRS suspension. (Mike Frisch)

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