Tax Protestors Has Right to Choose Own Tax Attorney

The Sixth Amendment guarantees criminal defendants the right to choose their own tax counsel, but what happens when that chosen counsel insults the court? The United States v. Nolen, 472 F.3d 362 (5th Cir. 2006) case explores this issue in the context of a tax protester who hired a series of attorneys to resolve his tax troubles.

The case raises questions about the extent of a defendant’s Sixth Amendment rights and the balance between those rights and the need for ethical practice in the courtroom. The case provides an important reminder that the right to effective counsel is fundamental and that any attempt to remove a defendant’s chosen counsel must be carefully weighed against the interests underlying ethical standards in the legal profession.

Facts & Procedural History

Nolen is a Texas dentist, a tax protester, and now a federal prisoner. Nolen basically made the usual tax protester arguments and he failed to file tax returns.

Nolen contacted a number of tax attorneys in order to “resolve” his tax troubles. According to the court opinion, Nolen employed a “frustration-litigation strategy,” at the direction of his tax attorneys, which consisted of “a series of document requests and related civil lawsuits against the IRS.”

Nolen initially hired California attorney Roger Agajanian to represent him. The IRS later filed a motion for inquiry into whether Nolen was receiving the effective assistance of counsel guaranteed by the Sixth Amendment. The magistrate judge appointed Texas attorney Gerald Cobb as Agajanian’s co-counsel.

On Nolen’s request, the District Court reversed the magistrate’s appointment of Cobb.

Nolen then hired Texas attorney John Green. This case is about Mr. Green. Mr. Green filed a motion for a continuance that contained this language that the court found offensive:

Magistrate Bush claimed [that ensuring that Nolen received effective assistance of counsel] was his basis for appointing Gerald Cobb as court-appointed counsel. Though we know now that was NOT the basis for the appointment (or it would not have been done the way it was done and later REVERSED by the trial court after multiple requests for de novo review and motions to reconsider — a huge waste of defense resources and time), a GRANT of this continuance and the 180 days sought by the defendant to properly prepare for trial would go a long way toward correcting the amazing number of inequities that have already occurred in this case.

The District Court asserted that this language violated the Texas disciplinary rule that provides that “[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

The District Court then essentially removed Green from the case and it ordered that Green could not practice before that particular district court for a period of five years.

Nolen then hired a third lawyer, Justin Low. The court denied Low’s motion for a continuance and held the trial.

At the trial, Nolen was convicted and sentenced to 37 months imprisonment and three years supervised release. Nolen appealed, arguing (among other arguments) that the court violated his Sixth Amendment right to counsel.

The Sixth Amendment Right to Counsel

Nolen contends that the district court erred when it revoked Attorney Green’s pro hac vice admission.

The Sixth Amendment guarantees criminal defendants the right to choose their own counsel. This right is not absolute and can be overruled if it conflicts with the higher interest of the effective administration of the courts.

An attorney can only be disqualified for violating ethical rules if the social need for ethical practice outweighs the party’s right to counsel of their choice. This balancing is a prerequisite to disqualifying counsel.

The court revoked the pro hac vice admission of Attorney Green for allegedly violating Rule 8.02 of the Texas Disciplinary Rules of Conduct. The court failed to mention the defendant’s Sixth Amendment rights in its decision, leading the appellate court to conclude that the district court abused its discretion. The case was remanded to the district court for reconsideration and to conduct and verbalize the necessary balancing analysis.

The Takeaway

The right to assistance of effective counsel is a fundamental right. This right does not apply to the ineffective assistance of counsel. The court i this case confirmed that the lower court must balance the interests underlying the standards of ethics, to determine that the social need for ethical practice outweighs the party’s right to counsel of his choice before removing an attorney. Because the lower court did not document its balancing of these interests, the court reversed the lower court’s position. The court remanded the case to the lower court so that that court could balance these interests.