Filed January 20, 2015
In re Jerold Wayne Barringer
Commission No. 2012PR00055
Synopsis of Review Board Report and Recommendation
This matter arises out of the Administrator's four count Complaint charging Respondent with misconduct with making frivolous arguments in briefs and motions he filed in three separate tax matters and with making a false statement to the Administrator. Following a hearing, the Hearing Board found that Respondent filed frivolous pleadings and briefs in the three tax matters. The Hearing Board found that the Administrator did not prove that Respondent made a false statement to the Administrator. The Hearing Board recommended that Respondent be suspended for a period of six months.
Upon review, the Administrator challenged the recommendation of the Hearing Board and contended that Respondent should be suspended for six months and until further order of the Court. Respondent challenged the findings of misconduct. Respondent contended that no discipline should be imposed, or in the alternative, that a three month suspension should be imposed.
The Review Board affirmed the findings of the Hearing Board. Given the concerns regarding Respondent's insistence on filing frivolous pleadings, the Review Board recommended that a probationary period following the period of suspension would best serve to protect the public. Accordingly, the Review Board recommended that Respondent be suspended for a period of two years stayed after six months by a period of probation for eighteen months with conditions.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
JEROLD WAYNE BARRINGER,
Commission No. 2012PR00055
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
Respondent was admitted to practice law in 1983. He concentrates his practice in representing individuals in tax matters. At the time of the underlying disciplinary hearing in this matter, Respondent had been disbarred from the practice of law in the United States District Court or the Western District of Oklahoma, and he had been suspended from the practice of law in the United States Court of Appeals for the Tenth Circuit and the United States District Court for the Southern District of Illinois.
The Hearing Board found that Respondent filed frivolous pleadings and briefs in three separate tax matters. The Hearing Board recommended that Respondent be suspended for a period of six months. Upon review, the Administrator argues that Respondent's suspension should be continued until further order of the Court. Respondent challenges the findings of misconduct. Respondent contends that no discipline should be imposed, or in the alternative, that a three month suspension should be imposed. For the following reasons, we affirm the findings of the Hearing Board. We agree with the Hearing Board's recommendation that Respondent be suspended but believe that a probationary period following the period of suspension would best
serve to protect the public. Accordingly, as set forth below, we recommend that Respondent be suspended for a period of two years stayed after six months by a period of probation for eighteen months with conditions.
Count I: Respondent's Filing of a Brief on Behalf of Denny Patridge
The facts underlying Respondent's misconduct are set forth in greater detail in the Hearing Board's thorough Report. In summary, Respondent represented Denny Patridge in an appeal before the United States Court of Appeals for the Seventh Circuit from Partridge's criminal conviction for tax evasion, money laundering and wire fraud. In his opening brief, Respondent based his arguments on two primary premises?1) that the federal government was required to prove at trial that Patridge was aware of the specific provisions of the tax code that he was accused of violating and 2) that the federal government was prohibited from subjecting Patridge to penalties because the tax forms in question failed to display a valid control number from the Office of Budget and Management as allegedly required by the Paperwork Reduction Act of 1995.
The Court of Appeals issued an opinion finding that the nineteen issues raised by Respondent in his brief, including the above issues, were "all frivolous." The court also stated that Respondent "performed below the standard of a pro se litigant; we have serious doubt about his fitness to practice law." United States v. Patridge, 507 F.3d 1092, 1093-1095 (7th Cir. 2007). The court noted that Respondent failed to follow court rules regarding requirements for the appendix to his brief. The court issued an order for Respondent to "show cause why he should not be fined $10,000 for his frivolous arguments and noncompliance with the Rules, and why he
should not be suspended from practice until he demonstrates an ability to litigate an appeal competently and responsibly." Respondent paid the fine and the court declined to suspend him.
While we are not bound by the decision of the court in the underlying proceeding, we can properly take the decision into account along with all of the other evidence that was presented in determining whether misconduct has been established. In re Owens, 144 Ill. 2d 372, 378-79, 581 N.E.2d 633 (1991). Pursuant to Rule 3.1 of the Illinois Rules of Professional Conduct, the determination as to whether a position is frivolous is based upon an objective standard of what is reasonable for an attorney to believe at the time a position is asserted. Simply because an attorney honestly believes the position is well grounded in law or fact does not mean the attorney has sufficient grounds to file a pleading under the Rules. See, e.g., In re Bulger, 02 CH 40 (Review Bd., May 3, 2004), approved and confirmed, No. M.R. 19079 (Jan. 20, 2004); In re Greanias, 01 CH 117 (Hearing Bd., June 12, 2003), approved and confirmed, No. M.R. 19079 (Jan. 20, 2004).
Before this Board, Respondent continues to defend his positions taken in the Patridge matter and contends that they were not frivolous. Respondent relies upon the same cases he relied upon before the Hearing Board, cases that the Hearing Board found did not support his position. As demonstrated by the record and particularly by the testimony of the Administrator's expert, Respondent refuses to recognize existing law and fails to set forth any good faith arguments for the modification or reversal of existing law. We agree with the Hearing Board that Respondent's positions were frivolous and that Respondent violated Rule 3.1(1990) by filing the brief on behalf of Patridge and violated Rule 8.4(a)(5) by engaging in conduct prejudicial to the administration of justice.
Count II: Respondent's Filing of a Brief on Behalf of Lindsey K. Springer
Respondent represented Lindsey Springer in an appeal before the United States Court of Appeals for the Tenth Circuit. The United States had filed a civil action against Springer seeking to reduce tax assessments to judgment and to foreclose on IRS liens. A judgment was entered against Springer and Springer appealed. Respondent filed a brief devoting a considerable portion of his brief arguing that the IRS has no authority to collect taxes outside of Washington, D.C. In addition, after a criminal indictment was returned against Springer, Respondent filed a motion to stay in the civil appeal, arguing that the IRS no longer legally existed. The Tenth Circuit Court of Appeals found that Respondent's made "blatantly frivolous statements" in the motion to stay and the court entered an Order and Judgment in the case finding that Respondent's arguments in his brief were "patently frivolous."
Springer was convicted of tax evasion and failure to file a tax return. In his appeal from his criminal conviction, Respondent filed a brief again offering the same arguments and contending that the Treasury Secretary lacked the "jurisdiction and authority to enforce offenses concerning the Internal Revenue Laws" outside of the District of Columbia. The Tenth Circuit Court of Appeals found that Respondent's arguments had previously been rejected as frivolous.
The Tenth Circuit Court of Appeals initiated disciplinary proceedings against Respondent based upon the frivolous arguments Respondent made in the Springer brief. In September 2011, the court suspended Respondent from practicing before it.
As found by the Hearing Board, Respondent's arguments have been unanimously rejected by numerous other federal courts. In addition, Respondent has raised similar arguments in other cases and that his positions have uniformly been rejected as frivolous or meritless. Respondent has not directed this Board's to one court decision that found that any of his
arguments have any merit. Consequently, we affirm the findings of the Hearing Board that Respondent violated Rule 3.1(2010) by filing a brief that contained numerous frivolous positions and violated Rule 8.4(d)(2010) by engaging in conduct prejudicial to the administration of justice. Respondent's conduct burdened the court system and wasted judicial resources. See, In re Carr and Hess, 2010PR00046 and 2012PR00047 (Review Bd., June 28, 2012), approved and confirmed, No. M.R. 25521 (Nov. 19, 2012) and No. M.R. 25481 (Sept. 17, 2012)(respondents violated Rule 8.4(a)(5) by filing frivolous claims).
Count III: Respondent's Filing of a Motion to Dismiss on Behalf of Frankie Sanders
Frankie Sanders had not paid income taxes or filed returns between 1998 and 2010. In February 2012, the United States filed a petition to enforce an IRS summons against Sanders in the United States District Court for the Southern District of Illinois. In March 2012, Respondent filed a motion to dismiss arguing, as in the Springer case, that the United States could not proceed against Sanders because IRS district directors could only undertake collection functions within their geographic internal revenue districts and the Secretary of the Treasury had no authority to enforce tax laws outside the District of Columbia. The court denied the motion stating that Respondent had previously made the same arguments in prior cases before the court and the court had found them meritless. The court stated that it "refuses to expend further resources to repeat the same findings and conclusions here."
On December 10, 2012, the United States District Court for the Southern District of Illinois suspended Respondent from the practice of law in that court and terminated Respondent's representation of Sanders, stating that the court "need not allow [Respondent] to waste the valuable time of the Court nor subject additional clients to such worthless advocacy."
We agree with the Hearing Board's assessment that Respondent did not acknowledge existing law and made no good-faith argument for its modification or reversal and we affirm the findings that Respondent violated Rules 3.1 and 8.4(d).
In determining the appropriate sanction, this Board must consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). In addition, this Board 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, 1034 (2000).
In aggravation, the Administrator noted that Respondent unsuccessfully sought reinstatement to the Tenth Circuit, and in November 2012, claimed that his arguments before the Tenth Circuit were "poorly chosen and done in haste" and would not occur again. The Tenth Circuit declined to reinstate Respondent to the practice of law, stating that his petition did not "reflect that Mr. Barringer fully understands the gravity of his unethical conduct and the resulting waste of judicial resources." Despite his statements in his petition for reinstatement to the Tenth Circuit, Respondent continued to make the same arguments he claimed he would not make again, including in his own tax case. In August 2011, Respondent was served with an IRS summons seeking information about his tax liability for the years 2001 through 2007. Respondent filed a motion to dismiss in January 2013 based on his "geographic districts" argument that the Secretary of the Treasury has no authority to enforce tax laws outside the
District of Columbia. Thus, Respondent filed this motion just two months after he claimed he would not make the same arguments again.
Respondent has been previously disciplined. In 2001, Respondent was disciplined for his statements in a motion for substitution of judge. In re Barringer, 00 SH 80, petition to impose discipline on consent allowed, No. M.R. 17621 (Sept. 21, 2001). Respondent represented a husband in divorce post-decree matters. He falsely claimed that the judge had applied for a loan at his client's place of employment but had been rejected because of his poor financial state, that the judge had held the client in contempt for failure to meet his financial obligation when the judge had his own financial problems, and that the judge had held an improper ex parte interview with one of the client's minor children. Respondent was censured on consent.
The Court has suspended attorneys who have engaged in conduct that is similar to Respondent's misconduct. In In re Holman, 96 CH 679, petition to impose discipline on consent allowed, No. M.R. 12939 (Nov. 26, 1996), the attorney was suspended for five months for filing a meritless claim in an employment matter. The attorney also lied to his opposing counsel in the case. In In re Dore, 07 CH 122 (Review Bd., Feb. 25, 2011), recommendation adopted, No. M.R. 24566 (Sept. 20, 2011), the attorney was suspended for five months and until he completed the ARDC Professionalism Seminar for filing frivolous pleadings in three separate matters and for making false statements about the integrity of a judge. In In re Carr and Hess, 2010PR00046 and 2012PR00047 (Review Bd., June 28, 2012), approved and confirmed, No. M.R. 25521 (Nov. 19, 2012) and No. M.R. 25481 (Sept. 17, 2012), Carr filed, on Hess's behalf, frivolous pleadings in litigation arising out of Hess's departure from a law firm. Carr was suspended for nine months and Hess was suspended for six months. Given the precedent and the seriousness of Respondent's misconduct, we believe that the misconduct warrants a suspension of six months.
While the Administrator seeks to impose a suspension of six months and until further order of the Court, he offers no precedent for such a harsh sanction given the Hearing Board's findings that Respondent did not act with malicious intent, did not falsely impugn the integrity of anyone else, and did not intend to harass anyone. Cf., , In re Sarelas, 50 Ill. 2d 87, 277 N.E.2d 313 (1971) (respondent suspended for two years and until further order for engaging in a "litigious storm" that included unwarranted accusations of fraud and corruption by the court).
On the other hand, we are troubled by Respondent's continued insistence on filing frivolous pleadings and briefs that waste judicial resources and thwart the court's ability to efficiently adjudicate matters before it. We believe that simply suspending Respondent for a period of several months will do little to address this concern. Instead, we believe that the public and the profession would be better served by requiring Respondent to participate in a longer period of probation following his suspension, during which his practice could be monitored. See, e.g., In re Jordan, 157 Ill.2d 266, 275, 623 N.E.2d 1372 (1993).
We recommend that Respondent, Jerold Wayne Barringer, be suspended for a period of two years, with the suspension stayed after six months, by a period of probation for eighteen months subject to the following conditions which are to be satisfied prior to the termination of probation:
Respondent shall comply with the provisions of Article VII of the Illinois Supreme Court Rules on Admission and Discipline of Attorneys and the Illinois Rules of Professional Conduct and shall timely cooperate with the Administrator in providing information regarding any investigations relating to his conduct;
Respondent shall successfully complete the ARDC Professionalism Seminar during the first year of his probation;
Respondent shall attend meetings as scheduled by the Commission probation officer. Respondent shall submit quarterly written reports to the Commission
probation officer concerning the status of his practice of law and the nature and extent of his compliance with the conditions of probation;
Respondent shall, within the first thirty (30) days of probation, enroll in a law office management program sponsored by or through the Cook County, Chicago or other bar association and shall, upon enrollment, notify the Administrator, in writing, of the name of the attorney with whom Respondent is assigned to work. In the alternative, Respondent shall obtain an attorney mentor that meets with the approval of the Commission probation officer. Through Respondent's participation in the law office management program or involvement with a mentor, Respondent shall:
Establish and maintain a system for maintaining records as required by Supreme Court Rule 769; and
Report to the law office management program, his mentor and to the Administrator any issuance or imposition of sanctions or fines upon Respondent by any court;
Respondent shall authorize the attorney assigned to work with him in the law office management program to:
Periodically review pleadings and briefs filed by Respondent in court for compliance with the Rules of Professional Conduct;
Disclose to the Administrator on a quarterly basis, by way of signed reports, information pertaining to the nature of Respondent's compliance with the law office management program or mentoring program and the above described conditions;
Promptly report to the Administrator Respondent's failure to comply with any part of the above described conditions; and
Respond to any inquiries by the Administrator regarding Respondent's compliance with the above described conditions;
Respondent shall reimburse the Commission for the costs of this proceeding as defined in Supreme Court Rule 773 and shall reimburse the Commission for any further costs incurred during the period of probation;
At least thirty (30) days prior to the termination of the period of probation, Respondent shall reimburse the Disciplinary Fund for any Client Protection payments arising from his conduct;
Respondent shall notify the Administrator within seven (7) days of any arrest or charge alleging his violation of any criminal or quasi-criminal statute or ordinance;
Respondent shall notify the Administrator within fourteen (14) days of any change of address; and
Probation shall be revoked if Respondent is found to have violated any of the terms of probation. If probation is revoked, Respondent shall be suspended for eighteen months.
Johnny A. Fairman, II
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 Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office onJanuary 20, 2015.
Kenneth G. Jablonski, Clerk of the