United States v. Trafficante, 20474.

• Decision Date: 31 January 1964
• Docket Number: No. 20474.,20474.
• Citation: 328 F.2d 117
• Parties: UNITED STATES of America, Appellant, v. Santo TRAFFICANTE, Jr., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

328 F.2d 117 (1964)

UNITED STATES of America, Appellant, v. Santo TRAFFICANTE, Jr., et al., Appellees.

No. 20474.

United States Court of Appeals Fifth Circuit.

January 31, 1964.

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, John B. Jones, Acting Asst. Atty. Gen., Robert A. Bernstein, Atty., Dept. of Justice, Washington, D. C., Edith House, Asst. U. S. Atty., Miami, Florida., Thomas J. Hanlon, III, Asst. U. S. Atty., Tampa, Fla., David O. aWlter, Attorney, Dept. of Justice, Washington, D. C., Edward F. Boardman, U. S. Atty., for appellant.

Roger L. Davis, Fort Lauderdale, Fla., for appellees.

Before TUTTLE, Chief Judge, JONES, Circuit Judge, and JOHNSON, District Judge.

JONES, Circuit Judge.

During the period between April 20, 1955, and April 20, 1959, Roger L. Davis was employed as an attorney in the office of the Regional Counsel of the Internal Revenue Service at Jacksonville, Florida. While so employed he handled income tax claims for the years 1945, 1946 and 1947 against Santo Trafficante, Jr. and Sam Trafficante. During the employment of Mr. Davis these claims were settled and stipulated decisions were entered in the Tax Court. On January 11, 1962, the United States brought suit against the Messrs. Trafficante above named and others for the foreclosure of liens for federal taxes, including the income taxes for 1945, 1946 and 1947. A liability for wagering taxes, penalties and interest was also asserted. The Government's complaint set forth certain payment credits upon the 1945, 1946 and 1947 income tax assessments and specified balances owing by each of the Messrs. Trafficante. The Government also set forth the details of its claim for wagering taxes of the Messrs. Trafficante and of its tax claims against other defendants.

On January 24, 1962, Roger L. Davis wrote one of the attorneys in the Department of Justice requesting advice as to the propriety of his representing the Messrs. Trafficante in the action then pending. A reply from an Assistant Attorney General advised that "While the statutory provisions regarding conflict of interests probably do not cover this case, it is believed that professional ethics would dictate your not representing the defendant." On January 22, 1962, prior to his inquiry, Davis had been employed to represent the Messrs. Trafficante and the other taxpayer defendants in the pending action. On February 15, 1962, Davis replied to the Department of Justice, saying that he deemed the matter in suit to be entirely unrelated to work performed during his Government employment, and that he had accepted employment.

On March 5, 1962, Davis filed, on behalf of the taxpayer defendants, including the Messrs. Trafficante, an answer in which the correctness of the payment credits and balances on the 1945, 1946 and 1947 income tax liabilities, as pleaded by the United States, was denied. The United States filed a motion seeking the disqualification and removal of Roger L. Davis as attorney in the action on the ground that his participation would be in violation of the Canons of Ethics of the American Bar Association and of the Florida Bar. The motion was denied. From the order denying the motion, the Government has appealed.

Both the Government and the appellees, in their briefs, state the question presented as being whether 18 U.S.C.A. § 207(a)¹ disqualified Mr. Davis from representing the defendants Trafficante in the pending suit. But, we think, the appeal must be decided on the record. There was no application made to disqualify Mr. Davis by reason of any violation of Section 207(a). The Government's motion, which presented the issue decided by the district court, asserted violations of those provisions of the Code of Ethics of the Florida Bar designated as Canons 6,² 36,³ and 37,⁴ 31 F.S.A.

But whether the question be one which involves the Canons of Professional Ethics or Section 207(a), it is our view that the conduct of Mr. Davis constitutes a violation which disqualifies him from the representation which he has undertaken in this case. The test is not, as appellees urge, whether the attorney represented the adverse party, here the United States, with respect to the specific issues in the pending litigation. Prichec v. Tecon Corporation, Fla. App., 139 So.2d 712; 5 Am.Jur. 296-97, 299-300, Attorneys at Law §§ 64, 69. The prohibition of Canon 36 is against acceptance of employment "in connection with any matter which he has investigated or passed upon while in such public office or employ." The collection of a tax is "in connection with" the determination or assessment of the tax. We do not think Section 207(a) permits any less rigid standard of conduct or prescribes any less exacting test. The statutory interdiction includes acting adversely to the United States in connection with a claim of the United States in which the attorney participated personally and substantially. Mr. Davis "handled" income tax "claims" of the Government against some of the Trafficantes. The handling by Mr. Davis resulted in the...