- 57 -
the level of misconduct justifying sanctions. The language of 28
U.S.C. sec. 192710 is substantially identical to that of section
6673(a)(2), and the two statutes serve the same purposes in
different fora. See Johnson v. Commissioner, 289 F.3d 452 (7th
Cir. 2002), affg. 116 T.C. 111 (2001); Harper v. Commissioner,
supra at 545. The interpretation given section 6673(a)(2) and 28
U.S.C. sec. 1927 has historically been the same.
In Harper v. Commissioner, supra, we found that while most
Courts of Appeal require a finding of bad faith as a condition
for imposing sanctions under 28 U.S.C. sec. 1927, a few have
adopted the lesser standard of recklessness. Id. at 545-546. The
Court of Appeals for the Ninth Circuit, the venue for an appeal
in the case at hand, has occasionally stated that sanctions under
28 U.S.C. sec. 1927 are appropriate where the attorney conduct
multiplying the proceedings was reckless. B.K.B. v. Maui Police
Dept., 276 F.3d 1091, 1107 (9th Cir. 2002); Fink v. Gomez, 239
F.3d 989, 993 (9th Cir. 2001); United States v. Associated
Convalescent Enters., Inc., 766 F.2d 1342 (9th Cir. 1985).
Because we find petitioner’s counsel’s conduct satisfies the
condition for a finding of bad faith, as formulated by the Court
of Appeals for the Ninth Circuit, we need not decide whether
1028 U.S.C. sec. 1927 (1988) provides that “Any attorney
* * * who so multiplies the proceedings in any case unreasonably
and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.”
Page: Previous 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 NextLast modified: May 25, 2011