Filed May 30, 2014

In re Jerold Wayne Barringer
Attorney-Respondent

Commission No. 2012PR00055

Synopsis of Hearing Board Report and Recommendation
(May 2014)

This matter arises out of the Administrator's four-count Amended Complaint, filed on April 10, 2013. Count I charged that Respondent made frivolous arguments in an appellant's brief he filed in the U.S. Court of Appeals for the 7th Circuit. Count II charged that Respondent made frivolous arguments in two appellant's briefs and in a motion for stay he filed in the U.S. Court of Appeals for the 10th Circuit. Count III charged that Respondent made a frivolous argument in a motion to dismiss he filed in the U.S. District Court for the Southern District of Illinois. Count IV charged that Respondent knowingly made a false statement during his sworn statement to the ARDC.

The Hearing Board found that the misconduct charged in Counts I, II, and III was proved, but that the misconduct charged in Count IV was not proved.

The Hearing Board recommended that the Respondent be suspended from the practice of law for a period of six (6) months.

BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

JEROLD WAYNE BARRINGER,

Attorney-Respondent,

Commission No. 2012PR00055

Commission No. 2012PR00055

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on November 20, 2013, at the Springfield offices of the Attorney Registration and Disciplinary Commission, before a Panel of the Hearing Board consisting of Richard W. Zuckerman, Chair, Ronald S. Motil, and Ted L. Eilerman. Denise Church appeared on behalf of the Administrator. The Respondent appeared pro se.

PLEADINGS

Complaint

On June 4, 2012, the Administrator filed a two-count Complaint against the Respondent. A four-count Amended Complaint was filed on April 10, 2013.

Count I of the Amended Complaint alleges that Denny R. Patridge was found guilty of tax evasion, money laundering, and wire fraud in the United States District Court for the Central District of Illinois (U.S. v. Patridge, No. 04 CR 20031). Respondent represented Denny Patridge on appeal and, in January 2007, Respondent filed the Appellant's Opening Brief with the United States Court of Appeals for the Seventh Circuit. Respondent argued 19 issues, including: (a) Patridge could only be penalized if he knew which section of the Internal Revenue Code made

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his tax evasion unlawful; and (b) the Paperwork Reduction Act, 44 U.S.C. sec. 3501, et seq., foreclosed Patridge's conviction because IRS Form 1040 lacked a valid control number from the Office of Budget and Management. The Amended Complaint charges that foregoing two arguments are frivolous.

On November 14, 2007, the Court of Appeals issued an opinion, finding that the 19 issues raised by Respondent were "all frivolous." In December 2007, the Court fined the Respondent the amount of $10,000 for making the frivolous arguments.

Count II of the Amended Complaint alleges that in May 2008, the United States filed a civil action against Lindsey K. Springer in the United States District Court for the Northern District of Oklahoma, seeking to reduce tax assessments to judgment and to foreclose on IRS liens. (U.S v. Springer, No. 08 CV 278). After judgment was entered against Springer, he filed a pro se appeal to the United States Court of Appeals for the Tenth Circuit (Case No. 10-5037). Respondent entered his appearance in the appeal and, on July 21, 2010, filed an Appellant's Brief. In the Brief, Respondent argued that the Secretary of Treasury "has no authority to enforce the internal revenue laws outside of the seat of government" and that 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." In the same appeal, Respondent filed a Motion for Stay on December 14, 2010. In the Motion, Respondent argued: (a) "Appellees cannot justifiably dispute the ?IRS' no longer exists;" (b) "the Secretary [of the Treasury] is prohibited by Title 4, sec. 72 from exercising his office outside the District of Columbia;" and (c) "it should be clear by now that there is no lawfully established Internal Revenue Service with jurisdiction outside the District of Columbia or among the several States." The Amended

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Complaint charges that the foregoing arguments made by Respondent in the Appellant's Brief and in the Motion for Stay are frivolous.

On December 15, 2010, the Tenth Circuit Court of Appeals entered an Order in Case No. 10-5037, and found that Respondent made "blatantly frivolous statements" in the Motion for Stay. On June 23, 2011, the Tenth Circuit Court of Appeals issued an Order and Judgment in Case No. 10-5037, and found that the arguments made by Respondent in the Brief were "patently frivolous."

In April 2010, Springer was convicted in the United States District Court (N.D. Okla.) on charges that included conspiracy to defraud the United States Government and tax evasion. (Springer, No. 09 CR 43). Springer filed a pro se appeal to the United States Court of Appeals for the Tenth Circuit. (Case No. 10-5055). Respondent entered his appearance in the criminal appeal and, on January 3, 2011, filed the Appellant's Brief. In the Brief, Respondent argued that his client "challenges the [Treasury] Secretary's jurisdiction and authority to enforce offenses concerning the Internal Revenue Laws." The Amended Complaint charges that foregoing argument made by Respondent in the Appellant's Brief is frivolous.

On August 2, 2011, the Tenth Circuit Court of Appeals ordered a disciplinary proceeding to be initiated against Respondent. (In re Barringer, Case No. 11-816). In an Order entered on September 2, 2011, the Court of Appeals suspended Respondent from practicing before it based upon the frivolous arguments he made in the Brief he filed in Springer, No. 10-5037.

Count III alleges that the United States Attorney's Office filed a Petition to Enforce Internal Revenue Summons against Frankie Sanders in the United States District Court for the Southern District of Illinois on February 1, 2012. (U. S. v. Sanders, No. 12 CV 96). On March 30, 2012, Respondent filed a Motion to Dismiss on behalf of Sanders. In the Motion, Respondent

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argued that "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 United States cannot 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." The Respondent's Motion to Dismiss was denied. The Amended Complaint charges that the foregoing argument made by Respondent in the Motion to Dismiss is frivolous.

On October 22, 2012, the Motion to Dismiss was denied. On December 12, 2012, the court entered an order terminating Respondent's representation of Sanders. The termination of representation order was attached to an order in In re Barringer (S.D. Ill. No. 12 MC 78), imposing reciprocal discipline based on Respondent having been suspended by the United States Court of Appeals for the Tenth Circuit.

Count IV alleges that on February 1, 2012, Respondent gave a sworn statement at the office of the Administrator. 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 cases 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, things of that nature. In terms of case law, I haven't had a new case in two years." The Amended Complaint alleged that foregoing statements by Respondents were false, and he knew they were false. The Amended Complaint pointed out that, at the time he gave the sworn statement, Respondent had appearances on file in three tax cases in the United States District Court for the Southern District of Illinois: U.S. v. Frankie Sanders, No. 10 CV 358; U.S. v. Frankie Sanders, No. 11 CV 912; and U.S. v. Sharon Sanders, No. 09 CV 430,

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Answer

The Respondent filed an Answer and Affirmative Defenses, in which he admitted some of the factual allegations, denied others, and denied all of the charges of misconduct.

ALLEGED MISCONDUCT

The Administrator alleged that Respondent engaged in the following misconduct: 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 (Count I, II, III); engaging in conduct which is prejudicial to the administration of justice (Counts I, II, III, IV); in connection with a disciplinary matter, knowingly making a false statement of material fact (Count IV); engaging in conduct involving dishonesty, fraud, deceit or misrepresentation (Count IV); in violation of Rules 3.1 and 8.4(a)(5) of the Illinois Rules of Professional Conduct (1990), and Rules 3.1, 8.1(a), 1.3, 8.4(c) and 8.4(d) of the Illinois Rules of Professional Conduct (2010).

EVIDENCE

The Administrator presented the testimony of David Reid and the Respondent as an adverse witness. Administrator's Exhibits 1 through 35 and 37 through 50 were received into evidence. (Tr. 15, 17-19, 21-23, 41, 49, 60, 65, 109-10, 173). Respondent testified on his own behalf and Respondent's Exhibits 1through 16 and 18 through 31 were received into evidence. (Tr. 164).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. See Supreme Court Rule 753(c)(6); In re Thomas, 2012 IL 113035, par. 56. This standard of proof requires a high level of certainty, which

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is greater than a preponderance of the evidence (i.e., more probably true than not true) but not as great as proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); In re Kakac 07 SH 86, M.R. 23785 (May 18, 2010) (Review Bd. at 9). In determining whether the burden of proof has been satisfied, the Hearing Panel is to assess the credibility and believability of the witnesses, weigh conflicting testimony, draw reasonable inferences from the evidence, and make factual findings based upon all of the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126 (1999); In re Timpone, 208 Ill. 2d 371, 380, 804 N.E.2d 560 (2004).

An admission in a pleading is a formal judicial admission that is binding on the party making it, may not be contradicted, has the effect of withdrawing the fact admitted from issue, and dispenses with the need for any proof of that fact. Thus, when a respondent in a disciplinary matter admits in his or her answer some or all of the facts alleged in a complaint, it is unnecessary for the Administrator to present evidence to prove the facts so admitted. See In re Bulger, 02 CH 40, M.R. 19550 (Sept. 27, 2004) (Review Bd. at 6-11); In re Nadenbush, 2011PR00077, M.R. 25622 (Jan. 18, 2013) (Hearing Bd. at 17).

Background Evidence

The Respondent was admitted to the practice of law in Illinois in 1983. He and his wife have two sons, and they live on small farm near Nokomis. He is admitted to practice in the United States Court of Appeals for the Sixth, Seventh, Eighth, and Twelfth Circuits; in the United States District Court for the Central District of Illinois, Eastern District of Oklahoma, Eastern and Western Districts of Arkansas, the Eastern and Western Districts of Michigan, the Western District of Pennsylvania, and Northern District of Florida; and in the United States Tax Court. (Tr. 113-14).

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Respondent is currently suspended in the United States Court of Appeals for the Tenth Circuit and in the United States District Court for the Southern District of Illinois. He is disbarred in the United States District Court for Western District of Oklahoma. (Tr. 103-104, 114).

COUNT I

I.    Respondent is charged in Count I with 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).

A. Evidence Considered

We considered the testimony of David Reid and the Respondent. We also considered Administrator's Exhibits 3 through 8, and Respondent's Exhibits 1 through 14, and 18 through 31. In addition we considered the Respondent's admissions in his Answer to the Complaint.

Respondent represented Denny Patridge on appeal before the United States Court of Appeals for the Seventh Circuit, after Patridge was convicted of tax evasion, money laundering and wire fraud. On January 30, 2007, Respondent filed an Appellant's Opening Brief on behalf of Patridge. (Adm. Ex. 3). In the Brief, Respondent made the following arguments: first, the Government was required to allege in the indictment and prove at trial that Patridge "was aware of the specific provision of the tax code he is accused of violating," and that the Government failed to do so (Adm. Ex. 3 at 22-30); and second, the Government was prohibited from subjecting Patridge to penalties, that is conviction and sentence, because the IRS Tax Form 1040 for the years 1996 through 1999 failed to display a valid OMB number as required by the Paperwork Reduction Act of 1995 (Adm. Ex. 3 at 48-53).

On November 14, 2007, the Court of Appeals issued an opinion in Patridge's appeal, (Adm. Ex. 4; U.S. v. Patridge, 507 F.3d 1092). In the opinion, the Court found that the issues

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raised by Respondent in the Brief, including the two set out above, were "all frivolous." (Adm. Ex. 4 at 2; Patridge, 507 F. 3d at 1093-95). In December 2007, the Court of Appeals fined the Respondent the amount of $10,000 for making the frivolous arguments. (Adm. Ex. 5).

The Court found Respondent's argument that a taxpayer may only be criminally convicted if the taxpayer knows the section of the tax code that makes the conduct unlawful to be frivolous. The Court stated the following:

a person may be convicted of tax offenses only if he knows that the Code requires him to pay. The jury was so instructed, and its verdict shows that it found, beyond a reasonable doubt that Patridge knew that he had to pay taxes on what he made from his business. It is scarcely possible to imagine otherwise: the system of offshore trusts and fictive ?loans,' show that Patridge was trying to hide income that he knew to be taxable. Why else all this folderol? Yet Patridge, in common with many other people who know what the law requires, could not say just which provisions of the Code make income taxable and prevent evasion. For that matter, many tax lawyers (and most judges) could not rattle off the citations without glancing at a book. This shortcoming of memory (perhaps, for Patridge a deliberate avoidance of knowledge) prevents criminal punishment, counsel insists.

But why would this be so? No statute says it; no opinion holds it. Cheek [v. U. S., 498 U. S. 192 (1991)] derived its knowledge-of-law requirement from the fact that [26 U.S.C.] sec. 7201 makes only ?willful' tax evasion criminal. An act is willful for the purpose of tax law, the Court concluded, when the taxpayer knows what the Code requires yet sets out to foil the system. Knowledge of the law's demand does not depend on knowing the citation any more than ability to watch a program on TV depends on knowing the frequency on which the signal is broadcast.

(Adm. Ex. 4 at 2; Patridge, 507 F. 3d at 1093-1094).

The Court of Appeals also found frivolous the Respondent's argument that Tax Form 1040 does not display valid OMB number and thereby forecloses Patridge's conviction. The Court pointed out that, pursuant to the Paperwork Reduction Act of 1980 as amended in 1995, an agency needs the approval of the Office of Management and Budget (OMB) to collect information and that "no person shall be subject to any penalty for failing to comply with the collection of information . . . unless the OMB's approval is evinced by a ?valid control number'

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on the agency's demand for information." The Court, however, questioned how the lack of a valid OMB number on a tax form could foreclose a conviction for tax evasion. The Court stated the following:

How any of this could block a conviction for tax evasion is a mystery. Patridge evaded taxes by shuffling his income among trusts in an attempt to conceal it from the IRS. That crime did not depend on the contents of any form. Evading one's taxes is illegal independent of the information one does or does not supply. Consider another example: the Clean Air Act requires businesses to curtail certain emissions using the best available technology, and to report those emissions to the EPA. An error in the EPA's forms might spare the business any penalties for bad information but would not license it to emit pollution without limit. The Paperwork Reduction Act does not change any substantive obligation.

(Adm. Ex. 4 at 3; Patridge, 507 F. 3d at 1094).

The Court went on to find that Form 1040 was in compliance with the Paperwork Reduction Act.

Finally, we have no doubt that the IRS has complied with the Paperwork Reduction Act. Form 1040 bears a control number from OMB, as do the other forms the IRS commonly distributes to taxpayers. That this number has been constant since 1981 does not imply that OMB has shirked its duty. Section 3507 [of the Act] requires periodic review, not a periodic change in control numbers. Patridge offers us no reason to think that the necessary review has not been conducted. The control number on Form 1040 appears on OMB's web site as a current, valid number; if this is wrong, it takes more than a lawyer's say-so to establish the proposition. That OMB didn't re-review Form 1040 between the 1995 and 1996 tax year is irrelevant; nothing in the 1995 amendments says that all existing approvals become invalid or that all forms must be resubmitted.

(Adm. Ex. 4 at 3; Patridge, 507 F. 3d at 1095).

Testimony of David R. Reid

David R. Reid testified as an expert witness, and his curriculum vitae was received into evidence. (Adm. Ex. 34). He described his background, including that he is a licensed attorney, he worked with the office of Chief Counsel for the Internal Revenue Service from 1983 to 1992, and he has been in private practice since then. (Tr. 24-28).

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Mr. Reid read the Appellant's Opening Brief filed by the Respondent in the case of U. S. v. Patridge (7th Cir. No. 06-3635). (Adm. Ex. 3). In the Brief, Respondent made the argument that the Grand Jury Indictment against Patridge was defective because it failed to allege, and the Government failed to prove, each of the two parts of the element of willfulness necessary in criminal tax cases, that is "[k]nowledge of the facts violated and knowledge of the law those facts violated. (Adm. Ex. 3 at 11, 17). In regard to that issue, Respondent asserted that the "government, thus, was required to allege and prove two different elements of willful. First they were required to allege and prove Denny Patridge was aware of the facts alleged in Counts One, Two and Three, were unlawful. Second, the Government was required to allege and prove Danny Patridge was aware of the specific provision of the tax code he is accused of violating in Counts One, Two, and Three." (Tr. 37; Adm. Ex. 3 at 28).

Mr. Reid voiced the opinion that the above argument is "frivolous" and that it has "no basis in law or fact." (Tr. 40-42; Adm. Ex. 6 at 3-5). He also said that Respondent did not accurately state the holdings in two cases cited to support his argument: Bryan v. U.S., 524 U.S. 182, 194 (1998) and Cheek v. U.S., 498 U.S. 192, 201(1991). (Tr. 38; Adm. Ex. 3 at 30). Mr. Reid pointed out that the Court of Appeals for the Seventh Circuit specifically held in the Patridge case that the Government was not required to prove that Patridge had knowledge of the specific section of the tax code that he was charged with violating.( Tr. 42-44; Adm. Ex. 4 at 2).

Respondent also argued in the Patridge Brief that the indictment against Patridge "should have been thrown out" because the IRS failed to bring Form 1040 for the years 1996 through 1999 "into strict compliance with" the Paperwork Reduction Act of 1995. (Tr. 45-46; Adm. Ex. 3 at 13). Mr. Reid said the Paperwork Reduction Act did not preclude the conviction of Patridge. He also voiced the opinion that the Respondent's foregoing argument in regard to the Paperwork

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Reduction Act has "no basis in fact or law" and is "clearly frivolous." (Tr. 48, 53-54; Adm. Ex. 6 at 1-3). He noted that court decisions predating the Respondent's filing of the Patridge Brief found the argument to have no validity. (Tr. 46-50). Mr. Reid pointed out that the Court of Appeal in the Patridge case rejected the Respondent's argument, stating in part that "we have no doubt that the IRS has complied with the Paperwork Reduction Act." (Tr. 46-47; Adm. Ex. 4 at 3).

Mr. Reid identified Administrator's Exhibit 7 as a document published by Bloomberg BNA that describes "Commonly Used Frivolous Arguments" in tax cases. One of the "frivolous" arguments listed is that there is no legal requirement to file a federal tax return because Forms 1040, 1040A and 1040EZ are in violation of the Paperwork Reduction Act. The Bloomberg document refers to Revenue Ruling 2006-21(Adm. Ex. 48) that was issued on April 10, 2006. Additionally, an IRS publication (Adm. Ex. 8) lists "Frivolous Tax Arguments," and one of the ?frivolous" arguments listed is that there is no legal requirement to file a federal tax return because tax forms do not display a control number required by the Paperwork Reduction Act. (Tr. 33-34, 51-53).

On cross-examination, Mr. Reid testified that Form 1040 has to comply with the Paperwork Reduction Act, but said he does not know whether a number must be displayed on it. (Tr. 70-71). Mr. Reid was asked about the opinions in U.S. v. Patridge (Tr. 72, 77, 80, 87-88; Adm. Ex. 4) and in U.S. v. Bryan (Tr. 83-84, 87; Reps. Ex. 18;). Mr. Reid said that section 7203 of the Internal Revenue Code provides a criminal penalty for the willful failure to file a tax return or pay tax (Tr. 74-75, 78-79, 98), and Section 2012 and its regulations set forth who is required to file a tax return. (Tr. 97-98).

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Testimony of Respondent

Respondent testified that the criminal trial of Denny Patridge in was in June 2005, and Patridge was sentenced about a year later. The briefs were filed in the United States Court of Appeals for the Seventh Circuit in the fall of 2006, and oral arguments were heard in the summer of 2007. (Tr. 115-16).

The Respondent explained the process by which a federal agency, including the Internal Revenue Service (IRS), applies to the Office of Management and Budget (OMB) for approval to use a form under the Paperwork Reduction Act. He said that Respondent's Exhibits 3 through 6 "define what OMB expects of an agency." For example, Respondent's Exhibit 3, page 5, contains the 1998 "Paperwork Reduction Act Submission" by the IRS pertaining to OMB control number 1545-0074, which is Tax Form 1040. Respondent further explained that the "Certification for Paperwork Reduction Acts Submissions . . . lists all of the things that are supposed to be on a 1040 Form." (Resp. Ex. 3 at 6). However, "[o]nly one of them [is] on the 1040 Form and that's the number." That control number is displayed on the Form 1040s contained in Respondent's Exhibit 1. Similar submissions by the IRS pertaining to Form 1040 and certifications for the years 2001, 2004 and 2005 are contained in Respondent's Exhibits 4 through 6. Respondent said there was no such submission by the IRS for the years 1995 through 1997. (Tr. 116-19).

Respondent pointed out that the decision in U.S. v. Patridge referred to the earlier decision of Salberg v. U.S. from 1992 (Adm. Ex. 4 at 3), and stated that instruction booklets do not need an OMB number and that Form 1040 displays an OMB number on it, "and that's all." Respondent asserted that Form 1040 has to display more than the OMB number because "you see by the certification all the other things [that] have to be listed." (Tr. 121-22). For example,

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Form 1040 does not "tell you about the collection burdens that are associated with it" even though "the regulation says it has to." (Tr. 122).

Respondent also testified that all of the decisions including Patridge, that "killed these arguments" regarding the Paperwork Act , that is the arguments regarding what must be on the Form 1040, have "said that the filing requirement is purely statutory and that's it. Section 7203 of the Internal Revenue Code is a criminal statute that provides for criminal penalties for failing to a file tax return, but does not "define what the filing requirements are and doesn't define how to find them." Instead, Federal Regulations "help define what the filing requirement is" and Federal Regulation 1.6012-1 (a)(6) provides that From 1040 has to be filed. (Resp. Ex. 20 at 11). Respondent said that the Court of Appeals in the Patridge decision stated that Section 7203 of the Internal Revenue Code requires a tax "return" to be filed, but does not require the use of Form 1040 (Adm. Ex. 4 at 3); however, the Court did not address "the subject of looking at regulations or anything else." (Tr. 118-19, 124-26).

According to Respondent, federal tax forms, including Form 1040, do not comply with the Paperwork Reduction Act because they "do not inform the public of the legal rights for the IRS to ask the public for the information sought on Form 1040; "do not inform the public why the IRS is asking for the information;" "do not inform the public how the IRS intends to use the information;" "do not tell the public what could happen of the IRS does not receive the information;" "do not inform the public that a response is required to obtain a benefit;" "do not inform the public the response is mandatory under the law;" "do not inform the public of the statute giving the IRS the legal right to ask for the information;" and "do not inform the public the IRS [has a] legal right to ask for the information under specific regulations or IRS

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procedures." Respondent said the foregoing items "are part of what's supposed to be on the form." (Tr. 127, 132-33, 158).

Respondent maintained that federal courts have said "different things" about the Paperwork Reduction Act argument. For example, he said that in the Collins case (Adm. Ex. 6 at 25) the court said that Form 1040 must comply with the Paperwork Reduction Act. He also discussed the Chisum case (Resp. Ex. 22), in which the court said that the Paperwork Reduction Act "precludes the imposition of any penalty against a person for failing to comply with the collection of information if either it does not display a valid control number or the agency fails to alert the person that he or she is not required to respond to the collection of information unless it displays a valid control number." Chisum contended that since there was no proof that Form 1040 was a lawful form under the Paperwork Reduction Act that his indictment should have been dismissed. However, the court pointed out that the Paperwork Reduction Act protects a person for failing to file information, whereas Chisum was charged with filing false information. Thus, the court found that Chisum was not entitled to relief. (Tr. 127-29).

Respondent noted federal court decisions in other cases (Tr. 129-31, 135-36), and explained that the "reason why the PRA argument was made and kept refining itself was because "[p]art of the process of litigation is trying to get a court to answer a question and part of what we were trying to do is to get a court to answer the question in these cases." (Tr. 131).

B. Analysis and Conclusions

The evidence showed that Respondent represented Denny Patridge at a criminal trial in the United States District Court for the Central District of Illinois, at which Patridge was convicted of tax evasion, wire fraud, and money laundering. Respondent filed a notice of appeal on behalf of Patridge and, in January 2007, Respondent filed the Appellant's Opening Brief with the United States Court of Appeals for the Seventh Circuit. (Adm. Ex. 3). The Amended

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Complaint in this disciplinary case charges that two of the arguments made by Respondent in that Brief were frivolous. (Amended Complaint, Count I, pars. 7-8, 11).

On November 14, 2007, the Court of Appeals issued an opinion in Patridge's appeal, U.S. v. Patridge, 507 F.3d 1092 (7th Cir.). (Adm. Ex. 4). The Court of Appeals found that the 19 issues raised by Respondent in the Brief were "all frivolous." (Adm. Ex. 4 at 2; Patridge, 507 F. 3d at 1093-94). In December 2007, the Court fined the Respondent the amount of $10,000 for making the frivolous arguments. (Adm. Ex. 5).

1. The first alleged frivolous argument made by Respondent was that "Patridge could only be penalized if he knew which section of the Internal Revenue Code made his tax evasion unlawful." (Amended Complaint, par. 7 (a)). In the Appellant's Opening Brief, Respondent did in fact make the foregoing argument. For example, Respondent asserted that:

The Government, thus, was required to allege and prove two different elements of willful. First, they were required to allege and prove Danny Patridge was aware of the facts alleged in Counts One, Two and Three, were unlawful. Second, the Government was required to allege and prove Denny Patridge was aware of the specific provision of the tax code he is accused of violating in Counts One, Two and Three.

(Adm. Ex. 3 at 28). Respondent also asserted in the Brief that the indictment was defective because there was no testimony before the Grand Jury that Patridge had "knowledge of the specific provision" he was alleged to have violated. (Adm. Ex. 3 at 29). As a result, Respondent requested that Patridge's convictions be reversed. (Adm. Ex. 3 at 32).

In finding that Respondent's argument was frivolous, the Court of Appeals stated the following:

although counsel [Respondent] concedes that a person who earns income cannot avoid taxes by appointing it to a third party-here, by remitting the income to Trust #1- he insists that the maneuver may be penalized only if the taxpayer knows that 26 U.S.C. par. 7201 is the section of the Internal Revenue Code that makes the dodge unlawful.

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Cheek v. United States, 498 U.S. 192 (1991), holds that a person may be convicted of tax offenses only if he knows that the Code requires him to pay. The jury was so instructed, and its verdict shows that it found, beyond  a reasonable doubt that Patridge knew that he had to pay taxes on what he made from his business. It is scarcely possible to imagine otherwise: the system of offshore trusts and fictive ?loans', show that Patridge was trying to hide income that he knew to be taxable. Why else all this folderol? Yet Patridge, in common with many other people who know what the law requires, could not say just which provisions of the Code make income taxable and prevent evasion. For that matter, many tax lawyers (and most judges) could not rattle off the citations without glancing at a book. This shortcoming of memory (perhaps, for Patridge a deliberate avoidance of knowledge) prevents criminal punishment, counsel insists.

But why would this be so? No statute says it; no opinion holds it. Cheek derived its knowledge-of-law requirement from the fact that [26 U.S.C.] sec. 7201 makes only ?willful' tax evasion criminal. An act is willful for the purpose of tax law, the Court concluded, when the taxpayer knows what the Code requires yet sets out to foil the system. knowledge of the law's demand does not depend on knowing the citation any more than ability to watch a program on TV depends on knowing the frequency on which the signal is broadcast.

(Adm. Ex. 4 at 2; Patridge, 507 F. 3d at 1093-1094).

We set out in the full the Court of Appeals' discussion regarding Respondent's argument because we agree with it and, for the reasons stated, we likewise conclude that the Respondent's argument is frivolous.

Additionally, we find that the opinions that Respondent sought to rely on to support of his argument simply do not do so. For example, Respondent quoted the following language from in Bryan v. United States, 524 U.S. 184 (1998):

In certain cases involving willful violation of the tax laws, we have concluded that the jury must find defendant was aware of the specific provision of the tax code that he was charged with violating. See, e.g. Cheek v. United States, 498 U.S. 191, 201 (1991)."

(Adm. Ex. 3 at 30). However, in the same paragraph in which the Supreme Court made the above statement, the Court explained that the foregoing language applied to cases involving "highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct" and that "these statutes ?carve out an exception to the traditional

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rule' that ignorance of the law is no excuse and require that the defendant have knowledge of the law." (Cheek, 498 U.S. at 194-95). The tax violations for which Patridge was charged and convicted simply do not involve "highly technical statutes" or a situation in which individual engaging in "apparently innocent conduct" would be convicted of a crime.

Furthermore in Bryan the defendant was charged with and convicted of willfully dealing in firearms without a federal license. The Supreme Court affirmed the conviction even though there "no evidence that defendant was aware of the federal law that prohibits dealing firearms without a federal license." The Court described the evidence in Bryan as follows:

[The] evidence proved that petitioner did not have a federal license to deal in firearms; that he used so-called ?straw purchasers' in Ohio to acquire pistols that he could not have purchased himself; that the straw purchasers made false statements when purchasing the guns; that petitioner assured the straw purchasers that he would file the serial numbers off the guns; and that he resold the guns on Brooklyn street corners known for drug dealing

The Court then concluded that the "evidence was unquestionably adequate to prove that petitioner was dealing in firearms, and that he knew that his conduct was unlawful." (Bryan, 524 U.S. at 189). As set out above, the Court of Appeals pointed out that Patridge's conduct of utilizing a "system of offshore trust and fictive ?loans' show that Patridge was trying to hide income that he knew to be taxable." (Adm. Ex. 4 at 2; Patridge, 507 F.3d at 193). Thus, in Patridge as in Bryan the "evidence was unquestionably adequate to prove that [Patridge] . . . knew that his conduct was unlawful."

Consequently, we find that the opinion in Bryan provides no support for the Respondent's argument that the Government was required to prove that Patridge was aware of the specific provision of the tax code he is accused of violating.

Similarly, we find that the opinion in Cheek, 498 U.S. 192 (1991), cited in the Patridge Brief (Adm. Ex. 3 at 25, 27, 30), does not support Respondent's argument. In Cheek, the Court

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stated that, in order to prove willfulness in tax cases, the Government is required "to prove that the law imposed a duty on the defendant, that the defendant knew this duty, and that he voluntarily and intentionally violated that duty." Thus, "if the Government proves actual knowledge of the pertinent legal duty, the prosecution, without more, has satisfied the knowledge component of the willfulness requirement." The Court added that a jury "would be free to consider any admissible evidence from any source showing that Cheek was aware of his duty to file a return and treat wages as income." (Cheek, 498 U.S. at 201-202). In Patridge, as the Court of Appeals pointed out, the jury was instructed that Patridge "may be convicted of tax offenses if he knows that the Code requires him to pay," and then set out the evidence of Patridge's conduct that sufficiently proved he "was trying to hide income that he knew to be taxable." (Adm. Ex. 4 at 2; Patridge, 507 F. 3d at 192-93).

The Court in Cheek discussed an additional burden on the part of the Government in tax cases. That is, the Government's burden "requires negating a defendant's claim of ignorance of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any provision of the tax laws." (Cheek, 498 U.S. at 202). Although the evidence of Patridge's conduct set out in the opinion of the Court of Appeals was sufficient to negate a claim of good-faith ignorance of the duty to pay taxes, there is no indication in the "Statement of Facts" or the "Argument and Authority" in Patridge's Brief that he testified he was ignorant of the duty to pay taxes on the income from his insurance agency, let alone that such a belief was a "good-faith belief." (Adm. Ex. 3 at 16, 22-32). Consequently, Patridge was charged and convicted in full accord with the opinion in Cheek.

Finally, we point out that the opinions in Bryan, Cheek or any other case cited in the Appellant's Opening Brief filed by the Respondent do not expressly state or even imply that the

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Government is required to prove that a defendant in a tax case knew the specific statute that imposed the legal duty to pay taxes.

Based upon the above, we find Respondent's argument that Patridge could only be penalized if he knew which section of the Internal Revenue Code made his tax evasion unlawful to be frivolous.

2.    The second alleged frivolous argument made by Respondent in the Appellant's Opening Brief in U.S. v. Patridge (7th Cir. No. 06-3635) (Adm. Ex. 3) was that the "federal Paperwork Reduction Act, 44 U.S.C. sec. 3501 et seq., foreclosed Patridge's conviction because IRS Form 1040 lacked a valid control number from the Office of Management and Budget and the [form was] thus outlaw and bootleg." (Amended Complaint, par. 7 (b)).

The Paperwork Reduction Act of 1980, amended in 1995, requires federal agencies to submit "information collection requests" to the Director of the Office of Management and Budget (OMB) for review. If the request is approved, the Director assigns it a "control number." An agency may not attempt to collect information without such approval and displaying the OMB control number on the information request. The Act further provides, at 44 U. S.C. sec. 3512, that "no person shall be subject to any penalty for failing to comply with a collection of information" if the collection request "does not display a valid control number" or if "the agency fails to inform the person who is to respond to the collection of information [that] such person is not required to respond to the collection of information unless it displays a valid control number." It is well established that tax forms are subject to the Paperwork Reduction Act. See Dole v. United Steelworkers, 494 U.S. 1226, 1235 (1990); U. S. v. Chisum, 502 F.3d 1237, 1243 (10th Cir. 2007).

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Patridge was convicted in the United States District Court for the Central District of Illinois of tax evasion (26 U.S.C. 7201), money laundering (18 U.S.C. 1956) and wire fraud (18 U.S.C. 1343). (Adm. Ex. 3 at 23, 32, 36). On appeal, Respondent requested the Court of Appeals to reverse and to direct the District Court to dismiss the convictions because the tax Form 1040 failed to comply with the Paperwork Reduction Act in "at least four different specific violations." (Adm. Ex. 3 at 48-49, 53).

Specifically, Respondent argued that: (a) the Form 1040 for the pertinent years, 1996, 1997, and 1999, did not contain valid OMB control numbers because the same "approval number has been displayed upon the Form 1040 since 1981;" (b) the IRS did not file and application with OMB for 1995 to comply with the 1995 Paperwork Reduction Act "because the government was shut down," and thus there was no approved Form 1040 or valid OMB number on it for the years 1996 and 1997; (c) tax forms, including Form 1040, fail to state that a person is not required to respond to the collection of information unless the form displays valid control number; and (d) tax forms, including Form 1040, fail to state the reason for the information being collected, the way the information is to be used, an estimate of the burden of the collection, whether responses to the collection of information are voluntary, required to obtain a benefit , or mandatory. (Adm. Ex. 3 at 49, 52).

The Court of Appeals found that Respondent's argument based on the Paperwork Reduction Act was frivolous. (Adm. Ex. 4; Patridge, 507 F.3d at 1093-95). We also find that the Respondent's argument is frivolous.

The federal courts have repeatedly and consistently held that, even if a tax form were to fail to comply with the requirements of the Paperwork Reduction Act, that would not be a defense to a criminal prosecution for a statutory tax violation, such as tax evasion in violation of

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26 U.S.C. 7201. See U.S. v. Wunder, 919 F.2d 34, 38 (6th Cir. 1990); U.S. v. Hicks, 947 F.2d 1356, 1359 (9th Cir. 1991); U.S. v. Kerwin, 945 F.2d 92 (5th Cir. 1991); U.S. v. Ryan, 969 F.2d 238, 240 (7th Cir. 1992); Salberg v. U.S., 969 F.2d 379, 383-84 (7th Cir. 1992) (Adm. Ex. 4); U.S. v. Ouwenga, 173 Fed. Appx. 411, 417 (6th Cir. 2006) (Adm. Ex. 35); Chisum, 502 F.3d at 1243-44 (10th Cir. 2007) (Resp. Ex. 22). The basis for the foregoing holdings is twofold. First, a criminal tax prosecution stems from a violation of specific federal statute, and nothing in the Paperwork Reduction Act invalidates the statutory requirement to file tax returns and pay taxes. See e.g. U.S. v. Wunder, 919 F.2d at 38; U.S. v. Ryan, 969 F.2d at 240; Springer v. U.S., 447 F. Supp. 2d 1235, 1238 (N. D. Okla. 2006). Second, the Paperwork Reduction Act provides that "no person shall be subject to any penalty for failing to comply with a collection of information" if certain requirements are not met. However, criminal tax prosecutions, such as in Patridge's case, are not based upon a failure to provide information, but rather on a violation of a specific federal statute. See e.g., Hicks, 947 F.2d 1359; Salberg, 969 F.2d at 384.

The decision of the Court of Appeals in the Patridge case is in full accord with the above precedent. For example, the Court stated the following:

Patridge evaded taxes by shuffling his income among trusts in an attempt to conceal it from the IRS. That crime does not depend on the contents of any form. Evading one's taxes is illegal independent of the information one does or does not supply.

* * *

Anyway, as we held in Salberg, the obligation to file a tax return stems from 26 U.S.C. Sec 7203, not from an agency's demand. The Paperwork Reduction Act does not repeal sec. 7203.

(Adm. Ex. 4 at 3; Patridge, 507 F.3d at 1094-95).

Illinois Supreme Court Rule 375 (b) states that an "appeal or other action will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a

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good-faith argument for the extension, modification, or reversal of existing law." The Respondent's argument that Patridge's convictions should be reversed because of the failure of tax Form 1040 to comply with the Paperwork Reduction Act is clearly not warranted by existing law. Furthermore in the Brief he filed, Respondent did not acknowledge the existing law and certainly made no good-faith argument for its modification or reversal. Thus, the argument by Respondent was frivolous.

We also conclude, as did the Court of Appeals, that Respondent's argument claiming tax Form 1040 did not comply with the requirements of the Paperwork Reduction Act is frivolous.

(a)    The fact that the Form 1040 has displayed the same OMB control number for many years does not demonstrate, or even suggest, that the form was not approved as required by the Paperwork Reduction Act. Respondent asserted in his Brief that there was a violation of 44 U.S.C. 3507(g). (Adm. Ex. 3 at 49). However, 44 U.S.C 3507(g) states that the OMB "Director may not approve a collection of information for a period in excess of 3 years." It says nothing about requiring a different number upon each approval. The Court of Appeals stated the following in regard to this argument by Respondent:

Form 1040 bears a control number from OMB, as do other forms the IRS commonly distributes to taxpayers. That this number has been constant since 1981 does not imply that OMB has shirked its duty. Section 3507 requires periodic review, not periodic change in control numbers. Patridge offers us no reason to think that the necessary review has not been conducted.

(Adm. Ex. 4 at 3; Adm. Ex. 50; Patridge, 507 F.3d at 1095). See also Lewis v. Commissioner. 523 F.2d 1272, 1276 (10th Cir.2008).

We also note that Respondent's Exhibits 2 through 6 affirmatively show that OMB approved the IRS applications for Form 1040 in the years 1998, 2001, 2004, and 2005, and that the same OMB number, "1545-0074," was assigned upon each approval. Thus, it is clear that the same control number may be assigned to a form year after year.

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(b)    Respondent argued that the IRS did not file an application with OMB for 1995 and thus there was no approved Form 1040 or valid OMB number for the years 1996 and 1997. The Court of Appeals rejected the foregoing argument, stating:

That OMB didn't re-review Form 1040 between 1995 and 1996 tax years is irrelevant; nothing in the 1995 amendments says that all existing approvals become invalid or that all forms must be resubmitted.

(Adm. Ex. 4 at 3; Patridge, 507 F.3d at 1095).

We agree with the above. We also point out that Respondent's own exhibits show that the OMB approval made in December 1998 had an expiration date of "09/30/ 2001" (Resp. Ex. 3 at 1), and the OMB approval made in September 2004 had an expiration date of "09/30/ 2007" (Resp. Ex. 5 at 1). Based upon the foregoing exhibits, there would have been no need for the IRS to request approval of Form 1040 in 1995 because an approval given in 1994 would have an expiration date in late 1997.

(c)    The Respondent's argument that Patridge's convictions must be reversed because Form 1040 does not state that a person is not required to respond to the collection of information unless the form displays valid control number is also frivolous.

The Paperwork Reduction Act, 44 U. S.C. sec. 3512, provides that "no person shall be subject to any penalty for failing to comply with a collection of information" if the collection request "does not display a valid control number" or if "the agency fails to inform the person who is to respond to the collection of information [that] such person is not required to respond to the collection of information unless it displays a valid control number." The foregoing language in the Act is clear that the prohibition against penalizing a person pertains to the person's failure to comply with the information request. As discussed above, the criminal prosecution of Patridge was not for a failure to provide information requested on a form from the IRS, but rather he was prosecuted for violating federal statutes. Consequently the prohibition in the Paperwork

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Reduction Act against penalizing a person for not complying with an information request simply is not applicable to the criminal prosecution of Patridge. (Adm. Ex. 4; Adm. Ex. 35; Resp. Ex. 22; See Patridge, 507 F.3d at 1094; Hicks, 947 F.2d at 1359 (9th Cir. 1991); Salberg, 969 F.2d at 383-84 (7th Cir. 1992); (Ouwenga, 173 Fed. Appx. at 417 (6th Cir. 2006); Chisum, 502 F.3d at 1243-44 (10th Cir. 2007)).

(d)    Respondent further argued that tax forms, including Form 1040, do not comply with the Paperwork Reduction Act, 44 U.S. C. Sec 3506, because they do not state the reasons for the information being collected, the way the information is to be used, an estimate of the burden of the collection, whether responses to the collection of information are voluntary, required to obtain a benefit, or mandatory. (Adm. Ex. 3 at 52-53).

The pertinent statute, 44 U.S.C. sec. 3506 (c) requires the agency director to ensure that persons who receive a collection of information request are informed of the reasons the information is being collected and the other matters mentioned above. Also, 44 U.S.C. sec. 3512, requires "the agency" to inform the person who is to respond to the collection of information [that] such person is not required to respond to the collection of information unless it displays a valid control number. The Respondent's exhibits include sample instruction booklets pertaining to Form 1040 for the years 1992, 1993, 2005, and 2012. Those instruction booklets contain all of the information required by the above statutes. (Resp. Exs. 8, 9, 10, 11). For example, the instruction booklet for the year 2005 includes the following:

You are not required to provide the information requested on a form that is subject to the Paperwork Reduction Act unless the form displays a valid OMB control number.

* * *

We ask for tax return information to carry out the tax laws of the United States. We need it to figure and collect the right amount of tax.

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If you do not file a return, do not provide the information we ask for, or provide fraudulent information, you may be penalties and be subject to criminal prosecution.

* * *

Generally, tax returns and return information are confidential. However [there are exceptions].

(Resp. Ex.10 at 2).

In Lewis v. Commissioner of the Internal Revenue, 523 F.3d 1272 (10th Cir. 2008), the Court held that the disclosures set out in Sections 3506 and 3512 are satisfied by being provided in the instruction booklet. The Court stated:

The IRS, an agency, satisfies this obligation by making these disclosures in the instruction booklet associated with Form 1040. We reject Lewis's argument that Form 1040 itself, not the associated instructions, must display PRA disclosure information.

* * *

In sum, Lewis's arguments have no merit and cannot be supported by case law. We hold that Form 1040 satisfies the PRA requirements.

(Adm. Ex. 50 at 4; Lewis, 523 F.3d at 1277).

We also consider the fact, as shown by Respondent's exhibits, that the Director of the Office of Management and Budget has continually approved the use of tax Form 1040 in accordance with the Paperwork Reduction Act. (Resp. Exs. 3, 4, 5, 6). It would be unreasonable to believe that Form 1040 would have been continually approved if, in fact, it failed to comply with the requirements of the Paperwork Reduction Act.

Finally, we considered the opinion of expert witness David R. Reid that the above discussed arguments made by Respondent are frivolous. We found Mr. Reid's testimony and written explanations (Adm. Ex. 6) to be well-reasoned, well-documented, and credible.

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Based upon the above, we find the Administrator proved by clear and convincing evidence that the Respondent brought a proceeding or asserted or controverted an issue therein, when there was 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),

II.    Respondent is charged in Count I with 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).  

A. Evidence Considered

We considered the evidence set out in Sections I, above.

B. Analysis and Conclusions

An attorney's misconduct is prejudicial to the administration of justice if it has an adverse impact on the representation of a client or on a judicial proceeding. See In re Storment, 203 Ill. 2d 378, 399, 786 N.E.2d 963 (2002); In re Gerstein, 99 SH 1, M.R. 18377 (Nov. 26, 2002) (Review Bd. at 4-5); In re Scholz, 2011PR00114, M.R. 26086 (Sept. 25, 2013) (Hearing Bd. at 21).

Prejudice to the administration of justice has been found when an attorney's misconduct caused additional pleadings to be filed, additional proceedings to be held, or additional work to be performed by a judge or other attorneys. For example, the attorneys in the following cases engaged in conduct prejudicial to the administration of justice. In In re Hess, 2010PR00047, M.R. 25481 (Sept. 17, 2012), the attorney's' filing of a frivolous cause of action wasted the time and resources of the court, opposing counsel and the named defendants. (Review Bd. at 15). In In re Hoffman, 08 SH 65, M.R. 24030 (Sept. 22, 2010), because of the attorney's misconduct involving false allegations against the judge, the judge found it necessary to issue otherwise unnecessary orders, or portions thereof, and a hearing was delayed." (Review Bd. at 14-15;

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Hearing Bd. at 26-27). In In re Verett, 07 SH 105, M.R. 22567 (Sept. 17, 2008), the attorney's misconduct caused "additional and otherwise needless motions to be filed, court proceedings, court orders, and appearances by other counsel and parties." (Hearing Bd. at 34). In In re Cagle, 05 SH 23, M.R. 21355 (Mar. 19, 2007), the attorney failed to appear at scheduled court proceedings without notice and, as result, "additional proceedings were held, the court and other counsel were inconvenienced, additional pleadings were filed, and the case was delayed." (Hearing Bd. at 36-37, 40).

In this case, as a direct result of the Respondent's frivolous arguments in an appellant's brief in the United States Court of Appeals for the Seventh Circuit, the federal judges, government attorneys, and court personnel were greatly inconvenienced. The judges read the frivolous arguments, presided at the oral argument, and spent time preparing an opinion to address the frivolous arguments. The government attorneys certainly read Respondent's frivolous arguments and prepared a brief responding them, and also appeared at oral argument.

Based on the above, we find the Administrator proved by clear and convincing evidence that the Respondent engaged 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).

COUNT II

I.    Respondent is charged in Count II with 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) and Rule 3.1 of the Illinois Rules of Professional Conduct (2010).

A. Evidence Considered

We considered the testimony of David Reid and the Respondent. We also considered Administrator's Exhibits 9-28, 31- 34, 37-39, 41, and 45. We further considered Respondent's

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Exhibits 22, 30. In addition we considered the Respondent's admissions in his Answer to the Complaint.

Testimony of David R. Reid

Mr. Reid testified that he reviewed the Appellant's Brief Respondent filed in U.S. v. Springer, in the United States Court of Appeals for the Tenth Circuit, No. 10-5037. (Adm. Ex. 15). In that Brief, Respondent argued that because there have been no Internal Revenue Districts and no District Directors since about 2000, "the Secretary [of the Treasury] has no authority to enforce the internal revenue laws outside of the seat of government [Washington D.C.] . . . and no authority to proceed with collection in this matter." He further argued that 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." (Adm. Ex. 15 at 15; Tr. 56-57). Respondent also filed a Motion for Stay in the same case, No. 10-5037, before the United States Court of Appeals for the Tenth Circuit. In the Motion, Respondent made the same argument as in his Brief, set out above. (Tr. 57-59; Adm. Ex. 16 at 2, 4).

Mr. Reid testified that Respondent's statement in the above pleadings that there are no Internal Revenue Districts is not true. He explained that prior to the Restructuring and Reform Act of 1998, the Internal Revenue Service had geographic district. For example there were two districts in Illinois. However, after the Restructuring and Reform Act, the Internal Revenue Service "switched from being geographic divisions to taxpayer subjects," such as "small individual taxpayers [and] self-employed taxpayers." Thus, there are districts, but "not based on geography." (Tr. 54-57).

Mr. Reid voiced the opinion that the Respondent's argument that the Secretary of Treasury has no authority to enforce tax laws or collect taxes outside the District of Columbia

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has "no legal basis or factual basis" and is "clearly frivolous." (Tr. 61-62, 64; Adm. Ex. 23). Mr. Reid pointed out that Respondent's argument is that no one in this country who lives outside the District of Columbia has to pay taxes, which is "just totally false." (Tr. 57). He also noted that the Respondent cited the case of Hughes v. U.S. 953 F.2d 531, 542 (9th Cir. 1992) (Adm. Ex. 49), for the proposition that without Internal Revenue Districts the Secretary of Treasury is prohibited from exercising his office outside the District of Columbia (Adm. Ex 16 at 2, 4), but that the Hughes opinion does not support that proposition (Tr. 59-60).

Mr. Reid was asked about the order the United States Court of Appeals entered denying Respondent's Motion for Stay (Adm. Ex. 18), and the opinion entered by that Court in the Springer case (Adm. Ex. 22). In the order, the Court stated: "Springer devotes a considerable portion of his brief to the theory that the IRS has no authority to collect taxes outside of Washington, D.C. . . . ignoring authority recognizing such arguments as patently frivolous." (Tr. 61-62; Adm. Ex. 18 at 4-5). In regard to the same argument, the Court of Appeals described it as a type "of spurious delegation arguments [that] were rejected as frivolous before the RRA [Restructuring and Reform Act of 1998] was enacted . . . and they have been rejected as frivolous since." (Tr. 62-63; Adm. Ex. 22 at 6;).

On March 30, 2012, Respondent filed a Motion to Dismiss in the case of U.S. v. Sanders, in the United States District Court for the Southern District of Illinois, No. 12-CV-96. (Adm. Ex. 24). In the Motion, Respondent made the same argument regarding the IRS lack of authority as he made in the Springer case discussed above. In support of his argument, Respondent again cited the Hughes case. Mr. Reid said the Hughes case did not support the argument (Tr. 67-68). Mr. Reid was asked about the U.S. Attorney's Response to Respondent's Motion to Dismiss (Adm. Ex. 25), and Mr. Reid said that he believes "the government's position is correct." (Tr.

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68). The Court entered a Memorandum & Order denying Respondent's Motion to Dismiss in the Sanders case. (Adm. Ex. 28). The Court summarized Respondent's argument and rejected it "entirely." (Adm. Ex. 28 at 6-10; Tr. 69).

Mr. Reid was also asked about a Motion to Dismiss filed by Respondent on January 9, 2013, in U.S. v. Jerold Barringer, in the United States District Court for the Central District of Illinois, No. 12-3324. (Adm. Ex.31). In the motion, Respondent raised the same "district argument" he raised in the cases discussed above. (Tr. 69).

Testimony of Respondent

Respondent testified that the IRS districts and district directors were abolished following the passage of the Reform and Restructuring Act of 1998. That Act gave the Commissioner of Internal Revenue the opportunity to change the structure of the IRS. As a result, by the year 2000, the IRS districts and the district directors were eliminated. However, regulations have continued to refer to the districts and the district directors in the assessment and collection of taxes. For example, Respondent said that 26 CFR 301.6301 still provides "taxes imposed by the internal revenue laws shall be collected by the district directors" (Resp. Ex. 26 at 208; Resp. Ex. 27 at 224); the definition of district directs is still contained in 26 CFR 301.7201 (Resp. Ex. 26 at 638; Resp. Ex. 27 at 699); and 26 CFR 301.7621 still refers to internal revenue districts for the purpose of administering the internal revenue laws" (Resp. Ex. 26 at 605). (Tr. 140-47).

Respondent also explained that 26 USC 7621 authorizes the President to establish Internal Revenue Districts for the purpose of administering the revenue laws outside of Washington, D.C. However, there has been no change in the regulations or the delegations regarding the collection of taxes. (Tr. 148-49, 159).

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Respondent said that it is not clear what the replacement is for the IRS Districts, "hence the reason why the issue has been raised. He said that in the Sanders case he "was trying to find out . . . what is the territorial or jurisdictional . . . structure of the IRS right now that lets them do what they're doing." He added that:

[t]here's not a nation wide jurisdiction for the IRS. That's why the districts are still a part of the statute that we see today, and so that's why you see the arguments made in Sanders, in my case asking the question . . . what is the structure, because the structure defines whether or not they can go forward and do the things they want to do.

Within the district director structure you had a clear hierarchy of who had authority to do what. Now we don't have that . . . You're bouncing all over the place with no structure in terms of who has authority to do what.

That's why the argument was made.

(Tr. 156-57).

B. Analysis and Conclusions

In 2008, the United States filed a civil action against Lindsey Springer in the United States District Court for the Northern District of Oklahoma to reduce federal tax assessments to judgment and to foreclose on properties of Springer, U.S. v. Springer, No. 08 CV 278. (Adm. Ex. 9). In March 2010, the court granted summary judgment in favor of the United States. Springer appealed to the United States Court of Appeals for the Tenth Circuit. (U.S. v. Springer, No. 10-5037). Respondent entered his appearance on behalf of Springer in the appeal on March 26, 2010.

On July 21, 2010, Respondent filed the Appellant's Brief in Springer (10th Cir. No. 10-5037). (Adm. Ex. 15). In the Brief, Respondent stated that Internal Revenue Districts and District Directors have not existed since the year 2000, and argued that without the Districts and District Directors:

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the Secretary [of the Treasury] has no authority to enforce the internal revenue laws outside 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 the District of Columbia.

(Adm. Ex.15 at 17-21).

On December 14, 2010, in the same case, Springer (10th Cir. No.10-5037), Respondent filed a Motion for Stay of District Court Orders. (Adm. Ex. 16). In the Motion, Respondent argued that: (a) "Appellees cannot justifiably dispute the ?IRS' no longer exists;" (b) without Internal Revenue Districts, "the Secretary [of the Treasury] is prohibited by Title 4, sec. 72 from exercising his office outside the District of Columbia;" and (c) "it should be clear by now that there is no lawfully established Internal Revenue Service with jurisdiction outside the District of Columbia or among the several States." (Adm. Ex. 16 at 4, 7).

In April 2010, Lindsey Springer was convicted of tax related crimes, including tax evasion and failure to file a tax return, in the United States District Court for the Northern District of Oklahoma, and was sentenced to 180 months in prison. (Adm. Exs. 10,11). Springer filed a pro se notice of appeal, and his criminal appeal was docketed in the United States Court of Appeals for the Tenth Circuit, Springer, No. 10-5055. Respondent entered his appearance on behalf of Springer in the appeal on May 4, 2010. On January 3, 2011, Respondent filed an Appellant's Revised Opening Brief in Case No. 10-5055. (Adm. Ex. 37). In the Brief, Respondent presented an argument that "challenges the [Treasury] Secretary's jurisdiction and authority to enforce offenses concerning the Internal Revenue Laws." (Adm. Ex. 37 at 18). He concluded his argument by stating that the "District Court should have dismissed all count for failure to establish jurisdiction and venue over each Count since all IRDs and DDs were abolished in 2000 preventing any authorization to prosecute Springer for any offenses related to internal revenue after that year." (Adm. Ex. 37 at 21).

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In an Order entered on December 15, 2010, two Circuit Judges (O'Brien and Holmes) of the Tenth Circuit found that Respondent made "blatantly frivolous statements" in the Motion for Stay he filed in Case No. 10-5037. The statements found to be frivolous included: (a) "Appellees cannot justifiably dispute the ?IRS' no longer exists;" (b) "The Secretary [of the Treasury] is prohibited by Title 4, sec. 72 from exercising his office outside the District of Columbia;" and (c) "It should be clear by now that there is no lawfully established Internal Revenue Service with jurisdiction outside the District of Columbia or among the several States." (Adm. Ex. 17).

In an Order and Judgment entered on June 23, 2011 in Springer, No. 10-5037, three Circuit Judges (Tymkovich, Baldock and Brorby) of the Tenth Circuit stated that, in the Brief filed by Respondent "Springer devotes a considerable portion of his brief to the theory that the IRS has no authority to collect taxes outside of Washington, D. C. ignoring authority recognizing such arguments as patently frivolous." (Adm. Ex. 18 at 4). In an Order entered on August 2, 2011, in the matter of In re Jerold W. Barringer, No. 11-816, the same three Circuit Judges who participated in the foregoing Order and Judgment stated that Respondent "advanced patently frivolous arguments," including: that "the IRS has no authority to collect taxes outside of Washington, D.C." since Internal Revenue Districts "were abolished when the IRS restructured in 1998;" and "without Internal Revenue Districts and Division Districts there could never have been any proper delegation of authority outside the District of Columbia from the Secretary of the Treasury to any U.S. Attorney." (Adm. 19 at 1-2).

In an Order entered on September 2, 2011, in Barringer, No. 11-816, three Circuit Judges (Briscoe, Kelly and Gorsuch) of the Tenth Circuit suspended Respondent from practicing before the Court based upon the frivolous arguments he made in the Brief he filed in Springer, No. 10-5037. They provided two examples of Respondent's frivolous arguments: "Appellees cannot

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justifiably dispute the ?IRS' no longer legally exists;" and "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." (Adm. Ex. 21 at 1-2).

In an Opinion filed on October 26, 2011, in the criminal appeal, Springer, No. 10-5055, three Circuit Judges (Lucero, Baldock, and Tymkovich) of the Tenth Circuit pointed out that one of the arguments advanced by Respondent was that "defendants committed no [tax] crimes because there is no government entity outside of Washington, D.C. with the lawfully delegated power to collect taxes or enforce the internal revenue law." The Court found that the foregoing "delegation argument" made by Respondent to be "patently frivolous." The Court pointed out that Respondent's "spurious" argument has been previously rejected as "frivolous. (Adm. Ex. 22 at 6; U.S v. Springer, 444 Fed. Appx. 256, 261 (10th Cir. 2011)). See also U.S. v. Ford, 514 F.3d 1047, 1053 (10th Cir. 2008) (the Court found the argument that IRS employees have no lawful delegated authority to administer internal revenue laws to be one of the "oft-repeated tax protestor arguments that have long been rejected by the federal courts as ?patently frivolous'," and "we reject them again today." ).

Consequently, no less than nine Circuit Judges on the United States Court of Appeals for the Tenth Circuit have determined that the arguments Respondent made in the Appellant's Brief and in the Motion for Stay in Springer , No. 10-5037, and those Respondent made in the Brief in Springer, No. 10-5055, are frivolous.

In addition to the above decisions, other federal courts have unanimously reached the same result in regard to the "delegation argument." In U.S. v. Frankie Sanders, United States District Court for the Southern District of Illinois, No. 11-CV-912, the Court (Judge Stiehl) issued a Memorandum and Order on September 17, 2012. (Adm. Ex. 28). Sanders, who was

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represented by Respondent, argued that "because of the lack of ?district directors,' the United States was not entitled to pursue collection remedies against him." The Court said the "crux of Sander's motion for dismissal rests on his assertion that after enactment of the RRA [Restructuring and Reform Act of 1998], the district directors were abolished, and, according to the language of particular code sections, the entire federal taxing system rests upon the existence of districts and their directors." Following an analysis, in which the Court discussed various statutes and court decisions, the Court found Respondent's argument "to be meritless." (Adm. Ex. 28 at 6-10). Judge Stiehl reached the same result in the case of Sharon Sanders, who was also represented by Respondent. (Adm. Ex. 45; U.S. v. Sharon Sanders, No, 09CV-430, Sept. 12, 2012).

The Respondent made the same "delegation argument" in a Motion to Dismiss in the case of Frankie Sanders, United States District Court for the Southern District of Illinois, No. 12-CV-96. (Adm. Ex. 24). On October 22, 2012, the Court (again Judge Stiehl) denied the Respondent's Motion to Dismiss. The Court stated it "previously considered and rejected [in Case No. 11-CV-912]" Respondent's assertion that "because of the lack of internal revenue districts and district directors, the United States is not entitled to seek enforcement of summons or to require [Sanders] to mandatorily complete the Forms 1040," and that the "Court refuses to expend further resources to repeat the same finding s and conclusions here." (Adm. Ex. 27).

Respondent made the same "delegation argument" in U.S. v. Sanders, United States District Court for the Southern District of Illinois, No. 10-CV-358, and another judge (Murphy) found Respondent's argument to be "meritless." (Adm. Ex. 25 at 2).

In the case of U.S. v. Jerold Barringer, United States District Court for the Central District of Illinois, No. 12-3324, an Order filed on January 18, 2013, denied Respondent's

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motion to dismiss and rejected his delegation argument. The Court (Judge Myerscough) stated that the "crux of Respondent's Motion is that Internal Revenue Restructuring and Reform Act . . . eliminated internal revenue districts and district directors," and "[b]cause the position of district director no longer exists, and ?no new delegation individual in a statutory or regulatory structure has been identified,' the United States does not have the authority to proceed with enforcement of the [Internal Revenue Service] summons." The Court pointed out that Respondent's argument was rejected in Grunsted v. Commissioner, 136 T.C. 455, 461 (2011); U.S. v. Frankie Sanders, (S.D. Ill., No. 11-CV-912) (Adm. Ex. 28);.Springer, 10th Cir. No. 10-50370 (Adm. Exs. 18-19); and U.S. v. Miller, 444 Fed. Appx. 106 (8th Cir. 2011) (Adm. Ex. 39). The Court added that it "agrees with the reasoning set forth in" the foregoing cases. (Adm. Ex. 33 at 3-6).

In U.S v. Miller, 444 Fed. Appx. 106 (8th Cor. 2011), the Court rejected and found frivolous Miller's arguments that "an IRS restructuring in 2000 abrogated the duty to pay taxes by eliminating the district offices where taxpayers previously filed returns;" and that the "IRS has no authority to collect taxes outside of Washington, D.C." (Adm. Ex. 39 at 1-2). Similarly in U.S. v. Gilbertu, 6th Cir. No. 10-6527 (2012), the Court held that the "absence of a ?district director' and ?internal revenue district' did not make venue improper or deprive the district court of jurisdiction." (Adm. Ex. 41 at 2).

In the Tax Court case of Grunsted v. Commissioner, 136 T.C. 455 (2011), the petitioner argued that "there is no district director, therefore, no assessment officers have been properly appointed and so there can be no valid assessment of frivolous return penalties against him." The Court rejected the petitioner's argument.

Petitioner is correct in arguing there are no longer any district directors. He errs, however, in concluding that there were no valid assessments because of the absence of district directors.

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The IRS has been reorganized several times in recent history. The district director position and responsibilities were reassigned to others after the Internal Revenue Service Restructuring and reform Act of 1998 required the Commissioner to eliminate or substantially modify the IRS' national, regional and district structure. To ensure continuity of operations, the RRA specifically included a savings provision. The savings provision applies to keep in effect regulations that refer to officers whose positions no longer exist. It also provides that nothing in the reorganization plan would be considered to impair any right or remedy to recover any penalty claimed to have been collected without authority.

Furthermore, [an IRS delegation order] allows directors, submission processing, compliance services filed and accounts management filed to appoint assessment officers. This order further implemented Congress' intent that the IRS' normal duties, including that of assessment, not be obstructed by the reorganization. In short, petitioner's frivolous return penalties were properly assessed and his argument, albeit novel, is without merit.

Grunsted, 136 T.C. at 460-61. The above analysis in Grunsted was cited with approval in the above discussed orders entered in U.S. v. Barringer, C. D. Ill. No. 12-3324 (Adm. Ex. 33) and U.S. v. Sanders, S.D. Ill. No. 11-CV-912 (Adm. Ex. 28).

We particularly find the analysis in the Memorandum and Order of Judge Stiehl (Adm. Ex. 28 at 6-10); in the Opinion of Judge Myerscough (Adm. Ex. 33 at 3-6); in the Grunsted Tax Court decision (Adm. Ex. 45 at 2); and in the United States Attorney's Response to Respondent's Motion to Dismiss in the Sanders' case (Adm. Ex. 25 at 3-14) to well founded and persuasive.

Finally, we considered the opinion of expert witness David R. Reid that the above discussed arguments made by Respondent while representing Lindsey Springer are frivolous. We found Mr. Reid's testimony and written explanations (Adm. Ex. 23) to be well-reasoned, well-documented, and credible.

We find, as alleged in the Amended Complaint that the above arguments made by Respondent in the two Briefs and Motion for Stay in the United States Court of Appeals for the

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Tenth Circuit are frivolous. We find no reasonable basis in fact or law for the arguments, and no good-faith argument for extension, modification, or reversal of existing law.

Based upon the above, we find the Administrator proved by clear and convincing evidence that the Respondent brought a proceeding or asserted or controverted an issue therein, when there was 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).

We do not find that Respondent violated Rule 3.1 of the Illinois Rules of Professional Conduct (1990) because none of the misconduct in Count II was alleged to have occurred prior to January 1, 2010.

II.    Respondent is charged in Count II with 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 Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

A. Evidence Considered

We considered the evidence set out in Sections I, above.

B. Analysis and Conclusions

As set out in Count II of the Amended Complaint, because of the Respondent's frivolous arguments in the two Briefs and Motion For Stay he filed on behalf of Lindsey Springer in the United States Court of Appeals for the Tenth Circuit, the Court found it necessary to address the frivolous arguments in written orders and to proceed with disciplinary action against Respondent. Clearly, the Respondent's frivolous arguments greatly inconvenienced several federal judges, government attorneys, and court personnel, and wasted judicial resources.

Based upon the authorities cited and our findings in Section II of Count I, above, we find the Administrator proved by clear and convincing evidence that the Respondent engaged in

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

We do not find that Respondent violated Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (1990) because none of the misconduct in Count II was alleged to have occurred prior to January 1, 2010.

COUNT III

I.    Respondent is charged in Count III with 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).

A. Evidence Considered

We considered the evidence set out in Section I of Count II, above.

In February 2012, the United States Attorney filed a Petition to Enforce Internal Revenue Summons against Frankie Sanders in the United States District Court for the Southern District of Illinois. (Sanders, No. 12-CV-96). On March 30, 2012, Respondent filed a Motion to Dismiss on behalf of Sanders. (Adm. Ex. 24). In the Motion, Respondent argued that all collection functions were delegated to the IRS district directors in an IRS district; district directors and districts no longer exists; no new delegated individual in a statutory or regulatory has been identified; and the United States cannot proceed until it complies with its own statutes and regulations. Thus, Respondent asserted the United States was not properly entitled to pursue the Petition to Enforce Summons against Sanders. (Amended Complaint, pars. 27, 28 and Answer; Adm. Ex. 24 at 18-19). The Government filed a Response on May 3, 2012. (Adm. Ex. 25).

On October 22, 2012, the Motion to Dismiss filed in Case No. 12-CV-96 by Respondent was dismissed. (Adm. Ex. 27). In its order, the Court pointed that it recently considered the argument that "because of the lack of internal revenue districts and district directors the United

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States is not entitled to seek enforcement of the summons" and found the argument "meritless" in U.S. v. Sanders, No. 12-CV-912. (Adm. Ex. 28). The Court added that it "refuses to expend further resources to repeat the same findings and conclusions here" and "adopts its finding and rulings in the Memorandum and Order" in that case. (Adm. Ex. 27 at 1-2).

On December 12, 2012, the Court entered an order terminating Respondent's representation of Frankie Sanders, and attached thereto an Order by the Chief Judge of the United States District Court for the Southern District of Illinois suspending Respondent as reciprocal discipline based upon the suspension of Respondent by the United States Court of Appeals for the Tenth Circuit. In the Order, the Chief Judge stated that the "Court need not allow [Respondent] to waste the valuable time of the Court nor subject additional clients to such worthless advocacy." (Adm. Ex. 29).

B. Analysis and Conclusions

Based upon the facts set out above, the authorities cited and our findings in Section I of Count II, above, we find the Administrator proved by clear and convincing evidence that the Respondent brought a proceeding or asserted or controverted an issue therein, when there was 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).

II.    Respondent is charged in Count III with 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).

A. Evidence Considered

We considered the evidence set out in Section I, above.

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B. Analysis and Conclusions

The evidence showed that, as a direct result of the frivolous argument Respondent made in the Motion to Dismiss he filed on behalf of Frankie Sanders in the United States District Court for the Southern District of Illinois. In U.S. v. Sanders, No. 12-CV-96, a federal judge found it necessary to consider the argument and issue an order finding the argument "meritless." (Adm. Ex. 27). Clearly, the Respondent's frivolous arguments greatly inconvenienced a federal judge, government attorneys, and court personnel, and wasted judicial resources. (See Adm. Ex. 29 at 2).

Based upon the authorities cited and our findings in Section II of Count I, above, we find the Administrator proved by clear and convincing evidence that the Respondent engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

COUNT IV

I.    Respondent is charged in Count IV with knowingly making a false statement of material fact in connection with a disciplinary matter, in violation of Rule 8.1 (a) of the Illinois Rules of Professional Conduct (2010).

A. Evidence Considered

We considered the testimony of the Respondent and Administrator's Exhibits 46- 47. We also considered the Respondent's Answer to the Complaint, pars. 33-37.

Administrator's Exhibit 47

Administrator's Exhibit 47 is a partial transcript of the sworn statement Respondent made at the Offices of the Attorney Registration and Disciplinary Commission on February 1, 2012. The transcript shows that Respondent was asked the following questions and gave the following answers:

Q.    Are you still doing a lot of tax defense?

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A.    No.

Q.    Are you doing any?

A.    A couple of minor things on a civil level. I've got one criminal case that's been pending for a while in 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, cases going on, I haven't had a new case in two years."

The Amended Complaint

The Amended Complaint alleges at paragraph 35 of Count IV that, as of February 1, 2012, Respondent had appearances on file in three cases in the United States District Court for the Southern District of Illinois:

1.    U.S v. Frankie Sanders, No. 10-CV-358 (entry of appearance filed June 29, 2010 and appearance terminated by court order on December 12, 2012);

2.    U.S. v. Frankie Sanders, No. 11-CV-912 (entry of appearance filed November 26, 2011 and appearance terminated by court order on December 12, 2012); and

3.    U.S. v. Sharon Sanders, No. 19-CV-430 (entry of appearance filed November 10, 2009 and appearance terminated by court order on December 12, 2012).

Respondent did not deny in his Answer that the above dates are accurate. Also, he acknowledged during his testimony that the above dates as to when he entered his appearance on behalf of Frankie Sanders are accurate. (Tr. 104-105).

Testimony of Respondent

Respondent denied that he intentionally lied during his sworn statement. He explained that:

I didn't even think in terms of the Sanders case[s] when she asked the question because the Sanders cases were administrative review proceedings. Three of them were summons and one was try to collect on a lien. I didn't think of them . . . at all in terms of her question. Did not intend to mislead.

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(Tr. 163-64).

On cross examination, Respondent further explained:

I thought in terms of . . . tax court or in criminal cases, things of that nature that were more structured, more long-term than a summons or a lien case. The summons and lien cases were supposed to be, because they are administrative generally, supposed to be very fast.

(Tr. 165-66).

B. Analysis and Conclusions

Based upon the overall circumstances, including Respondent's demeanor and testimony, we do not believe there is clear and convincing evidence that Respondent knowingly made a false statement to the ARDC on February 1, 2012. Respondent appeared to be proud of what he does, the clients he represents in tax matters, and the effort he has put forth on behalf of those clients. We found Respondent's explanation for the answers he gave during his sworn statement to be credible. We simply did not find any persuasive reason for Respondent to deny that he was representing the clients in the three cases set out above. Rather, we conclude that the misstatement he made during his sworn statement was more likely the result of a mistake in understanding or thought on his part, and not made with the intent to deceive.

Furthermore, Respondent appeared to be intelligent and fully aware that the Administrator had access to court records in cases Respondent represented clients. Thus, he would have known that a false statement regarding whether he was representing clients in tax cases would be discovered by the Administrator.

Based on the above, we find that the Administrator did not prove by clear and convincing evidence that the Respondent knowingly made a false statement of material fact in connection with a disciplinary matter, in violation of Rule 8.1(a) of the Illinois Rules of Professional Conduct (2010).

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II.    Respondent is charged in Count IV with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4 (c) of the Illinois Rules of Professional Conduct (2010).

A. Evidence Considered

We considered the evidence set out in Section I, above.

B. Analysis and Conclusions

The factual basis for this charge is the answers Respondent gave during his sworn statement on February 1, 2012, as set out in Section I, above. Based upon our analysis and conclusion in Section I, above, we similarly conclude that there no clear and convincing evidence that Respondent had any deceptive or dishonest intent by the answers he gave during the sworn statement. See In re Mulroe, 2011 IL 111378l, par. 22; In re Thomas, 2012 IL 113035, pars. 87-90.

Therefore, we find that the Administrator did not prove by clear and convincing evidence that the Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4 (c) of the Illinois Rules of Professional Conduct (2010).

III.    Respondent is charged in Count IV with 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).

A. Evidence Considered

We considered the evidence set out in Section I, above.

B. Analysis and Conclusions

Based upon the analysis and conclusions in Sections I and II, above, we find that there was no clear and convincing evidence that the Respondent engaged in misconduct at his sworn statement.

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Therefore, we find that the Administrator did not prove by clear and convincing evidence that the Respondent engaged 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).

EVIDENCE OFFERED IN AGGRAVATION AND MITIGATION

The Respondent was licensed to practice law in Illinois in 1983. He was previously disciplined by the Supreme Court of Illinois. See In re Barringer, 00 SH 80, M.R. 17621 (Sept. 21, 2001). His prior misconduct involved the filing in the circuit court a motion for substitution of judge for cause, in which Respondent made statements about the judge that he knew or should have known were false. (Petition to Impose Discipline on Consent, pars. 1, 5-8). As a result of his miscount Respondent was censured.

Respondent is currently suspended in the United States Court of Appeals for the Tenth Circuit and in the United States District Court for the Southern District of Illinois. He is disbarred in the United States District Court for Western District of Oklahoma. (Tr. 103-104, 114).

Additionally, after the United States Court of Appeals for the Tenth Circuit suspended Respondent for making frivolous arguments, he continued to make the same arguments in subsequent cases. (See Adm. Exs. 21, 24, 26, 31).

RECOMMENDATION

The purpose of the attorney disciplinary system is not to punish the attorney for the misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Cutright, 233 Ill. 2d 474, 491, 910 N.E.2d 581 (2009). In determining the appropriate sanction, we must consider the nature and seriousness of the misconduct, and any aggravating and mitigating circumstances shown by the evidence. In re

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Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will "help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028 (2000); Gorecki, 208 Ill. 2d at 361. Although each disciplinary case must be decided on its own unique facts, the Supreme Court strives for "consistency and predictability in the imposition of sanctions. Cutright, 233 Ill. 2d at 491; In re Mulroe, 2011 IL 111378, par. 25.

In this case, the Administrator requested the sanction of suspension for one year and until further order of the Court. (Administrator's Report of Prior Discipline and Argument at 5). We note that the Administrator's request is based upon the misconduct charged in all four Counts of the Amended Complaint. However, we found that the charges in Count IV, which included knowingly making a false statement to the ARDC, were not proved.

The Respondent's misconduct of filing frivolous pleadings in federal courts was serious. It was charged and proven that Respondent made frivolous arguments in an appellant's brief he filed in the United States Court of Appeals for the Seventh Circuit (Count I); in an appellant's brief and a motion for stay in a civil matter, and an appellant's brief in a criminal matter all of which he filed in the United States Court of Appeals for the Tenth Circuit (Count II); and in a motion to dismiss he filed in the United States District Court for the Southern District of Illinois (Count III). As a direct result of his frivolous pleadings, federal judges, court personnel, and government attorneys were required to waste their valuable time and resources in addressing the frivolous issues. Clearly, such misconduct cannot be tolerated.

In mitigation, the Respondent did not act with a malicious intent, did not falsely impugn the honesty or integrity of any individual, did not intend to harass anyone, and did not act out of

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selfish or self-serving motives. In aggravation, we consider that the Respondent's misconduct was not limited to a single matter, but involved five separate pleadings filed in three different courts between January 2007 and March 2012. Additionally, he continued to make the same or similar arguments after they had been determined to be frivolous.

We also consider the fact that Respondent was previously disciplined. He was censured for filing in the circuit court a motion for substitution of judge for cause, in which Respondent made statements about the judge that he knew or should have known were false. Barringer, 00 SH 80 (Sept. 21, 2001) (Petition to Impose Discipline on Consent, pars. 1, 5-8). In determining whether prior discipline is a significant aggravating factor, the nature of the prior misconduct, that is whether it was similar to the current misconduct, and the length of time between the prior discipline and the current misconduct, are to be considered. In In re Masters, 98 CH 60, M.R. 17674 (Mar. 8, 2002) (Review Bd. at 39), the prior discipline, imposed 7 years before the current misconduct, was "not a significant aggravating factor" because the prior misconduct was "completely different." The prior misconduct was neglect, and the current misconduct involved dishonesty and making a false statement to a tribunal. Similarly, in In re Weitzman, 93 CH 511, M.R. 12217 (Mar. 6, 1996) (Review Bd. at 2-3), "little weight" was assigned to the attorney's prior discipline because the "nature of the prior misconduct was significantly different." In 1982 the attorney was disciplined for failure to file income tax returns, and his current misconduct, which commenced in 1988, consisted of neglect and making misrepresentations to clients. The Administrator cited two cases in which prior misconduct was considered as an aggravating factor. In In re Levin, 118 Ill. 2d 77, 78, 88, 514 N.E.2d 174 (1987), the respondent's current misconduct included neglecting three criminal appeals. He was previously disciplined for "neglecting the affairs of three different clients." In In re Sosman, 06 CH 83, M.R. 22319 (May

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19, 2008) (Hearing Bd. at 6, 8), the respondent's current misconduct included neglecting a criminal matter and lying to the ARDC. He was previously disciplined for neglecting four client matters and lying to the ARDC.

In the case before us, we do not find Respondent's prior misconduct sufficiently similar to be accorded significant weight in aggravation. While his prior misconduct involved a pleading, it consisted of making false factual accusations against a judge with reckless disregard as to their truth or falsity. The prior misconduct occurred in 1999 and he was disciplined in 2001. The misconduct in this case commenced in 2007 and involved arguments of a legal nature, without any false accusations of fact against a judge or any other person.

In support of the imposition of a suspension until further order of the Court, the Administrator cited the cases of In re Greanias, 01 SH 117, M.R. 19079 (Jan. 20, 2004) and In re Denzel, 92 CH 114, M.R. 10694 (Mar. 27, 1995). In Greanias, the respondent, with reckless disregard for the truth or falsity of her allegations, filed five lawsuits claiming that several Commissioners of the Industrial Commission and several attorneys engaged in conspiracy, bribery, fraudulent schemes, and other willful wrongdoing. By doing so, respondent "publicly impugned the honesty and integrity of the named defendants, brought personal and professional embarrassment to them, and caused them to expend time and money to defend against her groundless charges." Also, "[b]y publicly charging fraud and corruption by the Commissioners of the Industrial Commission and by the attorneys who practiced before the Commission, the Respondent acted to destroy public confidence in the Industrial Commission, the legal profession, and the administration of justice." (Hearing Bd. at 35). In Denzel, the respondent "knowingly filed the petitions containing false allegations of judicial wrongdoing in order to

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harass or maliciously injure the defendants." Respondent's "actions served to bring the courts into disrepute and defeat the administration of justice." (Hearing Bd. at 21; Review Bd. at 2).

Unlike in Greanias and Denzel, the Respondent in the case before us did not falsely attack the integrity or honesty of any judge, or the fairness of any judicial proceeding. Thus, although the Respondent's misconduct is serious, it is considerably less egregious than the misconduct in Greanias and Denzel.

We have not found any disciplinary case that involved pleadings or misconduct similar to that in this case. However, we have considered the following cases in determining the appropriate sanction in this case.

In In re Dore, 07 CH 122, M.R. 24566 (Sept. 20, 2011), the respondent, in three separate matters, filed frivolous pleadings that "asserted a position on behalf of a client when he knew or reasonably should have known that such would serve merely to harass or maliciously injure another." In one of the matters, respondent made "unfounded accusations against" a judge. The respondent's misconduct "wasted the time and resources of the federal and the Illinois courts, caused needless expense for his opposing parties, and harmed [a judge] by maligning his integrity". The respondent had no prior discipline and "positive character evidence." The Review Board agreed with the Hearing Board that "a five-month period of suspension will adequately protect the public, the administration of justice, and the integrity of the legal profession while allowing the Respondent the opportunity to reflect on his conduct and take whatever steps are necessary to prevent similar misconduct in the future." (Review Bd. at 7, 13). The respondent was suspended for five months and until he completed the Professionalism Seminar.

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In In re Carr and Hess, 2010PR00046 and 2010PR0047, consolidated for hearing, Hess was involved in a fee dispute with the law firm where he was previously employed, and retained Carr to represent him. They filed a lawsuit that was "frivolous and totally without merit against" a husband and wife named Loyd. The lawsuit was filed "for the purpose of harassing the Loyds" and to obtain a settlement in Hess' fee dispute with the law firm. "In other words, the Respondents intentionally used a meritless lawsuit against the Loyds, who were innocent third parties, as a negotiating ploy [to get the law firm] to settle Hess' fee dispute." Additionally, the respondents "sent notices of attorney's liens for which they had no legal basis in cases involving the Loyds, Penny Eller, and Robert Thompson." The liens "were also intentionally used to harass and intimidate the foregoing individuals and to obtain a settlement in Hess' separate dispute with [the law firm]." In aggravation, the respondents acted with "self-serving motives," their "misconduct did not consist of an isolated incident," they "had thoroughly discussed and deliberated the course of actions they took;" and their misconduct "harmed individuals who Hess had [previously] represented." Also, the testimony of the respondents "indicated that they do not understand the seriousness or wrongfulness of their misconduct and have no remorse." It was determined that Carr's misconduct was more serious than that of Hess because Carr initiated the course of action. Carr was suspended for nine months (Carr, 2010PR00046) and Hess was suspended for six months (Hess, 2010PR00047).

As mentioned above, the Respondent in this case did not act out of malice, evil motive, or self-serving interest. We conclude that a suspension for six months will sufficiently protect the public, the administration of justice, and the integrity of the legal profession. Such a suspension will impress upon Respondent the serious nature of his misconduct and serve to deter him from future misconduct. Respondent would be required, among other things, to notify all of his clients,

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all courts in which he has matters pending, and all jurisdictions in which he is licensed to practice of the action of the Supreme Court in this disciplinary case. (See Sup. Ct. Rule 764). We believe the Respondent intends to engage in the practice of law following a suspension and he will recognize that, if he were to engage in similar misconduct, the resulting discipline would effectively end his legal career.

Therefore, we recommend that the Respondent, Jerold Wayne Barringer, be suspended from the practice of law for a period of six (6) months.

Respectfully Submitted,

Richard W. Zuckerman
Ronald S. Motil
Ted L. Eilerman

CERTIFICATION

I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on May 30, 2014.

Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois