Tax Protestor has Constitutional Right to Choose his Tax Attorney

Okay United States v. Nolen is yet another fascinating case (this case will probably make it into the criminal procedure books used in law schools). Nolen addresses the issue as to whether a tax protester has a Sixth Amendment right to choose his own attorney, even if the attorney, unfortunately, insults the court.

Nolen is a Texas dentist, a tax protester, and now 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. Nolen then 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 then 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 provides for the right to counsel. The right to assistance of effective counsel is part of that right. The Supreme Court has held that this right does not apply to the ineffective assistance of counsel. That is essentially what the Fifth Circuit held in this case. The court said 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. Unfortunately the court remanded the case to the lower court so that that court could balance these interests. I am not sure whether that court will be sufficiently disinterested to rule fairly in this matter; however, this case does make it clearer that even tax protesters have the right to hire the tax attorney of their choosing.