BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

JEROLD WAYNE BARRINGER,

Attorney-Respondent,

No. 6185092.

Commission No.  2012PR00055

AMENDED COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Denise Church, pursuant to Supreme Court Rule 753(b), complains of Respondent, Jerold Wayne Barringer, who was licensed to practice law in Illinois on November 9, 1993, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, and which subjects Respondent to discipline pursuant to Supreme Court Rule 770: 

COUNT I
(Filing Frivolous Arguments - Denny R. Patridge)

1. On September 1, 2004, Denny R. Patridge ("Patridge") was indicted in the Central District of Illinois on charges of tax evasion (26 U.S.C. §7201), money laundering (18 USC §1343), and wire fraud (18 USC §1956(a)(1)(B)(1)). The criminal case was docketed as USA v. Denny R. Patridge, case number 04 CR 20031.

2. On September 28, 2004, Respondent entered his appearance on behalf of Patridge in case number 04 CR 20031.

3. On June 30, 2005, following a jury trial in case number 04 CR 20031, Patridge was found guilty of two counts of tax evasion, two counts of wire fraud, and two counts of money laundering.

4. On September 21, 2005, which was after Patridge was convicted, but before he was sentenced, Respondent filed a lawsuit against the Internal Revenue Service on behalf of Patridge and his wife, Judy Patridge, seeking to dispute Patridge's liability on the tax owed at issue in the criminal case. The case was docketed as Denny Patridge, et al. v. United States Internal Revenue Service et al, case number 05 CV 3249. The district court dismissed the case for lack of jurisdiction on December 23, 2005. Respondent filed an appeal on Patridge's behalf, docketed by the clerk of the United States Court of Appeals for the Seventh Circuit (Seventh Circuit) as case number 06-1155, and on November 13, 2006, the Seventh Circuit affirmed the dismissal.

5. On September 26, 2006, the District Court sentenced Patridge in case number 04 CR 20031 to 60 months imprisonment, and ordered him to pay a fine of $100,000, and to pay back taxes and accumulated penalties.

6. On October 2, 2006, Respondent filed an appeal on Patridge's behalf. The case was docketed by the clerk of the United States Court of Appeals for the Seventh Circuit (Seventh Circuit) as case number 06-3635.

7. On January 30, 2007, Respondent filed the appellant's brief in case number 06-3635. Respondent argued 19 issues on appeal, including that:

  1. Patridge could only be penalized if he knew which section of the Internal Revenue Code made his tax evasion unlawful; and

  2. The federal Paperwork Reduction Act, 44 U.S.C. §§ 3501 et seq. foreclosed Patridge's conviction because IRS Form 1040 lacked a valid control number from the Office of Budget and Management and the forms were thus "outlaw and bootleg."

8. Respondent's arguments, above, were frivolous. A defendant does not need to the section of the Tax Code he is violating before he can be prosecuted, he only need know the Code requires him to pay. A defendant's tax evasion conviction cannot be overturned on the basis that basis relevant IRS regulations and instruction books did not display Office of Management and Budget (OMB) control numbers as allegedly required by the Paperwork Reduction Act, as a defendant is convicted of violating a statute, not a regulation or instruction book.

9. On November 14, 2007, the Seventh Circuit Court of Appeals issued an opinion holding that all 19 issues raised by Respondent on appeal were frivolous, affirming Patridge's conviction, and ordering Respondent to show cause why he should not be fined $10,000 for his frivolous arguments and his noncompliance with the rules of appellate procedure.

10. On December 10, 2007, after considering Respondent's response to the show cause order, the Seventh Circuit entered an order fining Respondent in the amount of $10,000 for filing the frivolous appeal. Respondent paid the fine.

11. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. bringing a proceeding, or asserting or controverting an issue therein, when there is no basis for doing so that is not frivolous, and without a good-faith argument for an extension, modification or reversal of existing law, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (1990);

  2. engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a) (5) of the Illinois Rules of Professional Conduct (1990); and

  3. engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT II
(Filing Frivolous Arguments - Lindsey K. Springer)

12. On May 9, 2008, the United States filed a civil action in the Northern District of Oklahoma against Lindsey K. Springer ("Springer") to reduce several federal tax assessments to judgment, and to foreclose on IRS liens on properties owned by Springer. The case was docketed as USA v. Lindsey K. Springer, et al, case number 08 CV 278. After judgment was entered against him, on February 7, 2010, Springer filed a pro se notice of appeal in case number 08 CV 278. The appellate case was docketed by the clerk of the United States Court of Appeals for the Tenth Circuit (Tenth Circuit) as case number 10-5037.

13. On March 10, 2009, Springer was indicted in the Northern District of Oklahoma on charges that included conspiracy to defraud the United States Government, (18 U.S.C. §371) and tax evasion (26 USC §7201). The case was docketed as USA v. Lindsey K. Springer, case number 09 CR 43. On April 28, 2010, a judgment of conviction was entered in case number 09 CR 43. Springer was sentenced to 180 months in federal prison and ordered to pay restitution. Springer filed a pro se notice of appeal, and the appellate case was docketed as Tenth Circuit Court of Appeals case number 10-5055.

14. On March 26, 2010, Respondent entered his appearance in case number 10-5037 on Springer's behalf. On May 4, 2010, Respondent entered his appearance in case number 10-5055 on Springer's behalf.

15. On July 21, 2010, Respondent filed an appellant's brief in case number 10-5-37. In his brief, Respondent made arguments, including that the Secretary of the Treasury "has no authority to enforce the internal revenue laws outside of the seat of government" and "The Court was without jurisdiction to hear the case because no properly delegated authority existed to enforce the internal revenue laws outside of the District of Columbia." (Brief, page 8).

16. On December 14, 2010, Respondent filed a "Motion For Stay Of District Court Orders And Motion For Stay Of Confirmation Of Sale Of Appellant's Real Estate" ("Motion To Stay") in the civil appeal, case number 10-5037, seeking a stay of orders in District Court case number 08 CV 278, pending appeal. In the Motion For Stay, Respondent stated:

  1. "Appellees cannot justifiably dispute the ‘IRS' no longer legally exists."

  2. "The Secretary [of the Treasury] is prohibited by Title 4, Sec. 72 from exercising his office outside the District of Columbia." and

  3. "It should be clear by now there is no lawfully established Internal Revenue Service with jurisdiction outside the District of Columbia or among the several States."

17. Respondent's arguments, above, were frivolous. The IRS does not lack authority to engage in collection activity against taxpayers outside the District of Columbia.

18. On December 15, 2010, the Tenth Circuit entered an order denying Respondent's Motion To Stay, noting that the statements listed in Paragraph 15, above, were "blatantly frivolous" and admonishing Respondent that if his conduct in making such arguments persisted, he would be referred to the Tenth Circuit Disciplinary Committee.

19. On January 3, 2011, Respondent filed a brief on Springer's behalf in the related criminal case, 10-1055, stating his client "challenges the [Treasury] Secretary's jurisdiction and authority to enforce offenses concerning the Internal Revenue Laws."

20. On June 23, 2011, the Tenth Circuit entered an order in case number 10-5037, noting Respondent's January 3, 2011 brief described in Paragraph 18 above, in the appeal in the criminal case, and also noting Respondent made arguments regarding the IRS' authority to collect taxes outside the District of Columbia in two other cases on Springer's behalf, namely, Springer v. Commissioner, 10-9001, Appellant's Reply Brief, at p. 9 filed November 15, 2010, and In re Springer, 09-9165 (Petitioner for Mandamus Relief) filed November 30, 2009. In the June 23, 2011 Order, the Court ordered Respondent to show cause, within 20 days, why he should not be referred to the Disciplinary committee.

21. On July 13, 2011, Respondent filed a response as ordered. In his response, Respondent again argued that without the Internal Revenue districts, the Secretary of the Treasury could not delegate his authority outside of the District of Columbia. Respondent further stated that nothing he had said in his pleadings was frivolous.

22. On August 2, 2011, the Tenth Circuit ordered that a disciplinary proceeding be initiated with regard to Respondent. The disciplinary case was docketed as In re Barringer, Tenth Circuit Court of Appeals case number 11-816. On August 2, 2011, the court entered an order directing Respondent to show cause why he should not be disciplined.

23. On August 22, 2011, Respondent filed his response to the rule to show case in case number 11-816.

24. On September 2, 2011, the Tenth Circuit entered an order suspending Respondent from practicing before it, but allowing Respondent to petition for reinstatement after one year.

25. By reason of the conduct outlined above that occurred on or before January 1, 2010, Respondent has engaged in the following misconduct:

  1. bringing a proceeding, or asserting or controverting an issue therein, when there is no basis for doing so that is not frivolous, and without a good-faith argument for an extension, modification or reversal of existing law, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (1990);

  2. engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (1990); and

  3. engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

26. By reason of the conduct outlined above on or after January 1, 2010, Respondent has engaged in the following misconduct:

  1. bringing a proceeding, or asserting or controverting an issue therein, when there is no basis for doing so that is not frivolous, and without a good-faith argument for an extension, modification or reversal of existing law, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010);

  2. engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and

  3. engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT III
(Filing Frivolous Arguments - Frankie Sanders)

27. On February 1, 2012, the United States Attorney's Office filed a Petition To Enforce Internal Revenue Summons against Frankie Sanders, in the Southern District Court of Illinois. The case was docketed as United States of America v. Frankie Sanders, case number 12-CV-96.

28. On March 30, 2012, Respondent filed a Motion To Dismiss on behalf of Sanders in case number 12-CV-96. In the motion, Respondent argued that since the previously existing districts were abolished, there is no longer a means lawfully to assess and to collect the internal revenue of the United States. Specifically, Respondent wrote: "all collection functions were delegated to the district director in his internal revenue district. Since neither exist, and no new delegated individual in a statutory or regulatory structure has been identified, the warnings from the Brafman and Reece case apply. The United States can not (sic) proceed until it complies with its own statutes and regulations. Respondent believes the United States is not properly entitled to pursue the petition in this case." (Page 18, Respondent's motion)

29. Respondent's argument that the abolition of the districts meant that the United States had no authority to collect taxes was frivolous, as the IRS was entitled to pursue collection of taxes against Sanders.

30. On October 22, 2012, Respondent's motion was denied.

On December 12, 2012, the court entered an order terminating Respondent's representation of Sanders. The order attached the order in the case of In Re Jerold W. Barringer, case number 12-MC-78 (S.D. Ill.), which imposed reciprocal discipline on Respondent, based on the Tenth Circuit Court of Appeals suspension, as described in Count II, above.

32. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. bringing a proceeding, or asserting or controverting an issue therein, when there is no basis for doing so that is not frivolous, and without a good-faith argument for an extension, modification or reversal of existing law, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010);

  2. engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and

  3. engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.

COUNT IV
(Dishonest statements in ARDC investigation relating to Frankie and Sharon Sanders)

33. On February 1, 2012, Respondent gave a sworn statement in the office of the Administrator regarding the cases involved in Counts I (Patridge) and II (Springer), in this Complaint.

34. The Administrator's counsel asked Respondent if he was doing any tax defense for clients. Respondent answered:

A couple of minor things on a civil level. I've got one criminal case that's been pending for a while waiting on the Sixth Circuit to issue an opinion. And other than that, it is administrative work with folks who are - have to get their tax returns done, have an audit coming up, things of that nature. In terms of case law, I haven't had a new case in two years.

35. Respondent's representations that, outside of the Sixth Circuit criminal case, he had "administrative work" and had no new cases in two years was false, in that Respondent had an appearance on file in the following cases in the Southern District of Illinois:

  1. United States of America v. Frankie Sanders 10 CV 358 (entry of appearance filed June 29, 2010, appearance terminated by court order on December 12, 2012)

  2. United States of America v. Frankie Sanders,et. al, 11-CV-912 (entry of appearance filed November 26, 2011, appearance terminated by court order on December 12, 2012)

  3. United States of America v. Sharon Sanders 09-cv-430 (entry of appearance filed November 10, 2009, appearance terminated by court order on December 12, 2012)

36. Respondent knew his statements that outside of the Sixth Circuit criminal case, he had "administrative work," and had no new cases in two years was false.

37. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. in connection with a disciplinary matter, knowingly making a false statement of material fact, in violation of Rule 8.1(a) of the Illinois Rules of Professional Conduct (2010);

  2. engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010);

  3. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and

  4. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

WHEREFORE, the Administrator respectfully requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held pursuant to Supreme Court Rule 753(b), and the Panel make findings of fact, conclusions of fact and law, and a recommendation of such discipline as is warranted.

Denise Church
Attorney Registration and
Disciplinary Commission
3161 West White Oaks Drive, #301
Springfield, Illinois 62704
Telephone: (217) 546-3523

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Denise Church
Counsel for the Administrator