Thursday, October 8, 2020

Baseless Attacks On Client Influence Sanction

The District of Columbia Board on Professional Responsibility proposes a 60-day suspension with fitness for misconduct in a tax matter

Respondent is, by all accounts, an experienced tax practitioner. He is not, however, an experienced New York state tax practitioner, despite the fact that he lived in New York.  New York’s law and procedures are different from those in the jurisdictions where Respondent has previously practiced. Respondent was hired to help a client – Ali Bahri – with a New York sales tax issue. Respondent did not realize until much too late that his prior experience did not apply to Mr. Bahri’s matter given the New York-specific tax laws and regulations. When that became clear, Respondent ignored Mr. Bahri, misled him, and refused to return a flat fee for work that provided no benefit to Mr. Bahri.

The client had operated a business in New York and returned to France with an outstanding tax liability. He retained the attorney for a $4,000 flat fee.

After nearly three years

Finally, on January 9, 2019, Mr. Bahri demanded his $4,000 back. FF 35; DX 5 at 100. Respondent never returned the money. FF 35, 42. This disciplinary case followed. At the time of the hearing in this disciplinary matter, Mr. Bahri’s tax liability had increased to more than $100,000. See FF 36.

As to competence

Respondent conceded at oral argument that New York handles tax matters differently than in the jurisdictions where he regularly practices and that he simply did not learn what New York law or procedure was before agreeing to handle Mr. Bahri’s case. Respondent’s admission is accurate. Throughout the course of his representation of Mr. Bahri, he did not seem to understand the basic practice or law in New York. See, e.g., FF 40. It appears that there was a procedure for Mr. Bahri to request an abatement of the penalties and interests that had accrued while he was in France. See FF 12-14, 40. He wanted Respondent to make that request. Instead, Respondent filed an Offer in Compromise, despite lacking requisite financial information, which he then failed to supply when the DTF asked for the information. FF 25, 30-31. Even accepting Respondent’s argument that he did so intentionally because it was his strategy to resolve Mr. Bahri’s case, he pursued an avenue of relief that was not available in New York and did not explore any other options after learning that his original offer would not be considered.

The BPR found a number of other violations.

The sanction

Respondent acknowledges that he did not understand New York law or research it sufficiently, yet somehow still maintains that he did not violate Rule 1.1. He insists that this disciplinary case is all about interpreting his engagement agreement with his client, rather than his broader ethical responsibilities. R. Br. to Board at 1-7. He implies that he was entitled to set Mr. Bahri’s case aside because he was a new client and existing client matters required his attention. R. Br. to Board at 24. Worse, he tries to shift the blame for his own misconduct by attacking his client – at one point during oral argument claiming that his client’s tax liability was because his client committed a crime. See also R. Br. to Board at 36. Not only is there no evidence for that, but it is separately deeply troubling to see a lawyer attack his own client baselessly merely to save his license. And, of course, even a client who has committed a crime ought to have his phone calls returned. Thus, his refusal to take responsibility also reflects poorly on his present character and qualifications and ability to behave ethically in the future. See Lattimer, 223 A.3d at 456 (“His blaming and shaming of his clients is ‘subversive to the public interest’ and leads us to be skeptical of his willingness to remedy past wrongs as well as his present character.” (quoting Cater, 887 A.2d at 22)).

Notably, the oral argument was held on September 10, 2020.

A BPR report in less than 30 days after argument is unprecedented speed. 

The Hearing Report, complaint and answer can be found here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/10/the-district-of-columbia-board-on-professional-responsibility-respondent-is-by-all-accounts-an-experienced-tax-practitione.html

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