They specifically cite three prior monetary sanctions and conclude that monetary sanctions are insufficient.
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
In re: JEROLD W. BARRINGER No. 11-816
ORDER
Before BRISCOE, Chief Judge, KELLY and GORSUCH, Circuit Judges.
Per Curiam.
The panel that decided a federal tax lien foreclosure appeal also determined that the appellant’s counsel, Jerold W. Barringer, made statements and arguments to the court that were frivolous. United States v. Springer, No. 10-5037 (10th Cir. Orders: Dec. 15, 2010, June 23, 2011, July 28, 2011). The panel directed that an attorney disciplinary proceeding be initiated. See Plan for Attorney Disciplinary Enforcement ("Plan") §§ 4.3, 6.2; No. 10-5037 (Order, July 28, 2011).
Accordingly, this proceeding was opened and a show cause order was issued to Mr. Barringer. See Plan § 4.2. The show cause order allowed him an opportunity to explain why he should not be sanctioned for advancing frivolous arguments. Mr. Barringer filed a response to the show cause order.
As a preliminary matter, he asks in his response for a hearing wherein he might present evidence. The court’s Plan permits a hearing, but does not require it. (If requested by the respondent, "the disciplinary panel may set the matter for a hearing before a special master." Plan § 8.1 (emphasis added)). In this instance, the court finds no need for a hearing. That request is therefore denied.
We need not repeat the various frivolous statements and arguments made by Mr. Barringer, as they can be found in the briefs and motions he has filed and are noted in the above-referenced orders entered in the Springer proceeding. Two examples of Mr. Barringer’s statements will suffice and are illustrative of the nature of his arguments to the court:
"Appellees cannot justifiably dispute the ‘IRS’ no longer legally exists." No.
10-5037 (Motion p. 4, Dec. 14, 2011).
"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." No. 10-5037 (Motion p. 7, Dec. 14, 2011).
As to whether or not he should be sanctioned, Mr. Barringer asserts in his response that his prior arguments to the court were either based on existing law or that they were based on a good faith argument for an extension, modification, or reversal of existing law. Therefore, asserts Mr. Barringer, they are not frivolous and he should not be sanctioned. See Model Rule of Professional Conduct 3.1.
However, the question of whether Mr. Barringer breached his ethical duties to the court by repeatedly asserting frivolous arguments has already been decided and this panel will not relitigate it.
We are guided by In re Smith, 10 F.3d 723 (10th Cir. 1993). In Smith, as here, an attorney was ordered to show cause why he should not be sanctioned for filing frivolous pleadings. Id. at 724. There, as here, the attorney argued in the disciplinary action that his pleadings in prior appeals "were not frivolous." Id. But the disciplinary panel declined to address that contention, stating: "The appeals were found to be frivolous by the panels who decided them. We cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent en banc reconsideration or a superseding decision by the Supreme Court." Id. (citations omitted).
The Springer panel has already made a legal determination that Mr. Barringer filed frivolous pleadings in this court. We "cannot overrule" that judgment. Id. Our decision not to revisit the previous determination is further bolstered by the fact that the Springer panel allowed Mr. Barringer the opportunity to respond to the panel's concern about his frivolous arguments. See, e.g., Selling v. Radford, 243 U.S. 46, 51 (1917) (stating that a court may recognize and follow a disciplinary sanction imposed by another court so long as the attorney was afforded due process in the prior disciplinary action). At the same time the panel issued its Order and Judgment on the merits of the appeal, it issued a separate order affording Mr. Barringer the chance to show cause why his conduct should not be referred for possible discipline. No. 10-5037 (Order, June 23, 2011). Mr. Barringer took that opportunity to reiterate his prior arguments and insist that "[t]here is nothing Counsel has said that was frivolous . . ." No. 10-5037 (Response p. 22, July 13, 2011). The Springer panel considered this response, and then issued the order directing that this disciplinary proceeding be commenced. No. 10-5037 (Order, July 28, 2011).
In summary, the question of whether Mr. Barringer advanced frivolous arguments to this court has already been answered in the affirmative.
Having determined that Mr. Barringer committed ethical misconduct by filing frivolous pleadings, the only remaining question before the court is what sanction, if any, is appropriate to the circumstances.
To assist the court in answering that question, Mr. Barringer was required in his response to the show cause order issued in this proceeding to identify any prior instances where a court has imposed a sanction on him or where an argument he raised was found
to be frivolous by a tribunal.
In response to the show cause order, Mr. Barringer states that in 2001, he was publicly censured in Illinois for filing an improper motion to recuse a state trial judge; that in 2007, he was required to pay a $10,000 sanction by the United States Court of Appeals for the Seventh Circuit for, among other things, making frivolous arguments in a tax related case; and that in the past two years he was required by the United States Tax Court to pay a $1,200 sanction for misconduct in one case and another $4,725 sanction for misconduct in another. Response, pp. 51-54.
These prior instances demonstrate that monetary sanctions have not proven effective in deterring Mr. Barringer from unethical conduct. We also note that Mr. Barringer is unapologetic about his consumption of court time with meritless contentions. Significantly, he offers no assurances that he will not continue to make frivolous arguments regarding the authority of the Internal Revenue Service if given the chance.
We are mindful that courts should exercise care in imposing sanctions for raising meritless arguments. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) (noting that Fed. R. Civ. P. 11 must be read in light of concerns that the imposition of sanctions may spawn satellite litigation and chill vigorous advocacy). However, asserting frivolous legal arguments is simply ethical misconduct masquerading as advocacy.
For all the foregoing reasons, we find that a suspension from practicing before this
court is warranted.
Jerold W. Barringer is accordingly indefinitely suspended from the practice of law in the United States Court of Appeals for the Tenth Circuit. After one year from the date of this order, Mr. Barringer may petition for reinstatement. Any petition to reinstate must be filed in this case and must: (1) demonstrate good cause why Mr. Barringer should be reinstated; (2) identify any other discipline or sanctions to which he has been subject since this court’s suspension; (3) identify all bars to which he is a member in good standing and those bars from which he has been suspended, disbarred, or has otherwise been deemed not in good standing; and (4) otherwise comply with the applicable provisions of Plan § 10.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
by:
Douglas E. Cressler
Chief Deputy Clerk
