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destined to prevail. Moreover, their misconduct is properly
characterized as vexatious;13 they misled the Court, manipulated
the test case process, and caused a multiplication of the
proceedings that has resulted in such substantial delay in
bringing the Kersting project cases to a close as to amount to an
obstruction of justice.14 The Commissioner's institutional good
faith in promptly reporting the misconduct to the Court does not
negate or abrogate the bad faith inherent in Messrs. Sims' and
McWade's actions. See United States v. Associated Convalescent
Enters. Inc., supra at 1347 (Government's failure to move to
disqualify opposing party's attorney did not mitigate or excuse
attorney's misconduct in failing to disclose his potential
conflict of interest to the Court until the eve of trial).
The Court shares the concerns expressed by the Court of
Appeals for the Ninth Circuit in DuFresne v. Commissioner, 26
F.3d at 107, that it was necessary that these matters be
thoroughly ventilated "to determine the full extent of the wrong
done by the government trial lawyers". The resulting inquiry has
not had so much to do with the merits of petitioners' cases as it
13 Blacks Law Dictionary 1559 (7th ed. 1999), defines the
term "vexatious" as: "(Of conduct) without reasonable or
probable cause or excuse; harassing; annoying."
14 A court may find an obstruction of justice not only when
a miscarriage of justice results but also when the course of
justice is unreasonably delayed or burdened. See United States
v. Wells, 154 F.3d 412, 414 (7th Cir. 1998).
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