Herbst Asset Mgmt. Trust, et al. - Page 12




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                    The undersigned copied the Petitioner’s file,                     
               mailed same to Mr. Lehotsky, and prepared and mailed a                 
               Notice of Substitution to the Tax Court indicating that                
               Mr. Lehotsky would be representing the Petitioners.                    
               The undersigned also called Mr. Lehotsky and left a                    
               detailed message regarding the status of the case and                  
               inviting him to call the undersigned on his cell phone                 
               should he desire to discuss the case.  Thereafter the                  
               undersigned closed his office and left town for a two                  
               week vacation.                                                         
                    Upon returning it was discovered that the under-                  
               signed’s Notice of Substitution of Counsel had been                    
               returned and stamped “Not admitted U.S. Tax Court”.                    
               The undersigned again left a voice mail message for Mr.                
               Lehotsky and forwarded discovery requests to his office                
               address.  After having had no reply from Mr. Lehotsky                  
               the undersigned contacted Mr. Binge and advised that                   
               his office had been in contact with Mr. Lehotsky and                   
               that they had assurances that the [sic] would be admit-                
               ted to practice in the Tax Court or would co-counsel                   
               with another attorney admitted to practice who would                   
               shortly enter an appearance.  The undersigned cautioned                
               Mr. Binge about the importance of timely complying with                
               discovery and the sanctions that could be imposed for                  
               failure to comply.                                                     
                    On September 4th [2001] the undersigned received                  
               District Counsel’s Motion to Compel and very shortly                   
               thereafter the Court’s Order directing petitioner to                   
               respond to the Motion to Compel and the undersigned to                 
               file a motion to withdraw as counsel on or before                      
               September 13th [2001].  The undersigned contacted Terry                
               Bentivegna, an assistant to James Binge, who advised                   
               that he was contacting Mr. Lehotsky who would take care                
               of the matter.                                                         
                    After having not had any communication with Mr.                   
               Lehotsky the undersigned contacted Mr. Binge on Friday                 
               the 7th [of September 2001] and related the urgency of                 
               complying with discovery and the possible sanctions for                
               failure to comply.  Mr. Binge indicated that he was                    
               about to go out of town for a conference and that he                   
               would have to attend to the matter when he returned to                 
               the office on Tuesday.  As a result of the Court’s                     
               Order requiring a reply by the 13th [of September 2001]                
               and Mr. Binge’s inability to address the situation                     
               until the 11th [of September 2001] the undersigned                     





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