Opinion
10410-19
06-16-2021
Alex B. Kabor & Kathy E. Kabor, Petitioners v. Commissioner of Internal Revenue, Respondent
ORDER TO SHOW CAUSE
DAVID GUSTAFSON, JUDGE
This case is before the Court on the Court's Order to Show (Doc. 15) cause served April 15, 2021. We ordered a telephone conference with petitioners, their counsel of record, and counsel for the Commissioner, but petitioners' counsel did not appear for the ordered conference call. However, the issue before the Court is petitioners' counsel's failure to comply with the Court's orders and rules. We will order petitioner's counsel to show cause why he should not be withdrawn as counsel of record for petitioners in this case.
Background
Petitioners Alex B. Kabor and Kathy E. Kabor commenced this case more than a year ago. Their petition was filed with this Court on June 19, 2019 (Doc. 1), and was signed by petitioners' counsel, John Eugene Cicero, II. This case was scheduled to be tried at the Court's session in Seattle, Washington, beginning May 18, 2020, pursuant to our notice of setting case for trial (Doc. 4) and standing pretrial order (Doc. 5) that was served January 14, 2020, and that sets forth the steps required of the parties in the preparation for trial and other resolution.
However, by our order dated April 6, 2020 (Doc. 6), that trial session was canceled due to concerns relating to the coronavirus (COVID19) pandemic, and this case was assigned to the undersigned judge. In that order, the Court advised the parties that it expected the parties to continue to work together to exchange information and work towards a resolution of the issues in this case, and the order directed the parties to file a joint status report on or before June 5, 2020.
In response to the Commissioner's status report (Doc. 7) filed June 3, 2020, the Court held a telephone conference with counsel for both parties on July 7, 2020, during which counsel for the Commissioner described difficulty obtaining documents and information that had been previously requested from petitioners. During that call counsel for petitioners assured the Court that he intends to produce the relevant documents and information sought by counsel for the Commissioner. By its order (Doc. 8) dated July 10, 2020, the Court
ORDERED that (1) petitioners shall transmit to counsel for the Commissioner all of the relevant documents and information responsive to the Commissioner's request, no later than Tuesday, July 14, 2020; (2) no later than Monday, July 20, 2020, petitioners shall file a status report with the Court reporting whether this deadline has been met; and (3) petitioner's counsel shall be appropriately responsive to counsel for the Commissioner as the case moves forward.
By order (Doc. 10) dated July 17, 2020, the Court ordered the parties to file periodic status reports. Petitioners filed a status report on September 16, 2020. The Court has received the Commissioner's status reports (Docs. 12-14) filed November 13, 2020, January 11, 2021, and March 12, 2021, reporting that petitioners' counsel has been unresponsive to counsel for the Commissioner's attempts to reach him on the status of the case and respondent's proposed settlement.
By its order (Doc. 15) of March 26, 2021, the Court
ORDERED that, immediately upon receipt of this order, and in any event, no later than Monday, March 29, 2021, counsel for petitioners shall telephone the Chambers Administrator of the undersigned judge (at 202-521-0850) for the purpose of scheduling a prompt telephone conference among the Court and parties. It is further
ORDERED that, in addition to regular service of this order on the parties, the Clerk of the Court shall serve it on petitioners Alex B. Kabor and Kathy E. Kabor at the address of record appearing for them in paragraph 1 of their petition commencing this case on June 19, 2019.
Mr. Cicero has never complied with the order of March 26, 2021, and the Court has continued to be impeded in its ability to reach petitioner's counsel and to make progress in this case. When petitioners' counsel did not comply with this instruction, the Court issued sua sponte, on April 15, 2021, an Order to Show Cause (Doc. 16) that--
ORDERED that on or before April 30, 2021, petitioners shall show cause in writing (i.e., shall explain in writing, in a document filed with the Court and served on the other party) why the petition in this case should not be dismissed pursuant to Rule 123, for petitioner's failure to properly prosecute this case.
ORDERED that, immediately upon receipt of this order to show cause, but no later than April 30, 2021, counsel for petitioners shall telephone the Chambers Administrator of the undersigned judge (at 202-521-0850) for the purpose of scheduling a prompt telephone conference among the Court and parties.
Petitioners' counsel made no filing, and the Commissioner filed his status report on May 11, 2021, reporting that Mr. Cicero continues to be unresponsive. The Court issued its order (Doc. 18) served May 27, 2021, setting this case for a telephone conference call with the parties on Wednesday, June 2, 2021, at 11:00 a.m. ET. The order of May 27, 2021, also "ORDERED that, petitioners Alex B. Kabor and Kathy E. Kabor, and their counsel, Mr. Cicero, and Counsel for the Commissioner, shall participate in the above-referenced conference call…."
Mr. Cicero did not participate during the telephone conference. Petitioners Alex B. Kabor and Kathy E. Kabor, and counsel for the Commissioner participated during the telephone conference with the Court, and described their difficulty in reaching Mr. Cicero, and they stated their positions to facilitate orderly progress in this case.
Discussion
A practitioner before this Court is required to carry out his or her practice in accordance with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association. Rule 201(a), Tax Court Rules of Practice and Procedure. Tax Court Rule 202(a)(3) specifically identifies as a ground for discipline any conduct that violates the letter and spirit of the Model Rules. For example, Model Rule 1.1 requires a lawyer to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Model Rule 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client. Model Rule 3.4(c) prohibits a lawyer from knowingly disobeying court rules and orders. It would seem that Mr. Cicero's failure to participate in this case and failure to comply with Court orders is inconsistent with the obligations imposed upon him pursuant to the Court's Rules of Practice and Procedure and the Model Rules of Professional Conduct of the American Bar Association.
Throughout the pendency of this case, we have given Mr. Cicero ample time to comply with the Court's orders and rules, and he has repeatedly failed to do so. His inaction and noncompliance prompt the question of whether he should be allowed to continue representing the Kabors in this case.
In view of the foregoing, it is
ORDERED that, no later than June 28, 2021, John Eugene Cicero, II, shall show cause in writing why he should not be withdrawn as petitioners' counsel in this case on account of his failure to adhere to the standards of practice imposed upon him by Rule 201, Tax Court Rules of Practice and Procedure. If Mr. Cicero does not comply with this order, the Court may remove him from this case. It is further
ORDERED that, in addition to regular service of this order, the Clerk of the Court shall serve a copy of it on Mr. Cicero at his mailing address appearing for him in the Court's record and on petitioners Alex B. Kabor and Kathy E. Kabor at their address of record appearing for them in paragraph 1 of their petition. It is further
ORDERED that, after service of this order, the Chambers Administrator of the undersigned judge shall send a copy of it to Mr. Cicero at his email address of record in this case.