Geoffrey K. Calderone, Sr. - Page 15

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          to petitioners, Jacob was the architect of the ESOP and, as such,           
          was precluded by Rule 24(g)(1) from representing them.                      
          Petitioners also assert that Jacob was a potential witness who              
          was precluded from representing them by Rule 24(g)(3).                      
               On the basis of the record at hand, we reject petitioners’             
          primary argument.  Contrary to petitioners’ assertions, the Court           
          was informed on two occasions by respondent as to an issue                  
          involving Jacob and Rule 24(g).  First, respondent informed the             
          Court on September 25, 2001, that there were problems under Rule            
          24(g) with Jacob’s representation.  Second, respondent informed             
          the Court in his pretrial memorandum, filed October 5, 2001, that           
          there were potential problems under Rule 24(g)(1) and (3) with              
          Jacob’s representation.  As petitioners correctly state, a                  
          necessary element of fraud on the Court is the Court’s lack of              
          knowledge regarding a material fact so that “damage to the                  
          judicial process is sustained.”  Spence-Parker v. Md. Ins. Group,           
          937 F. Supp. 551, 562 (E.D. Va. 1996).  In Spence-Parker, the               
          plaintiff sued the defendant insurance company, alleging that she           
          was entitled to recover under an insurance policy issued by the             
          defendant to a third party.  In a prior action against the third            

               6(...continued)                                                        
               disappointed party challenges a decision on the ground                 
               that the party’s prior counsel had a conflict of                       
               interest.  Paragraph (f) is designed to insure that the                
               bar of this Court disclose or rectify any conflict of                  
               interest. [93 T.C. 858.]                                               





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