The government of Switzerland filed an elegantly understated amicus brief for Judge Gold's consideration on Thursday (according to PACER) or yesterday (according to the media). The upshot of it is that enforcement of the United States' summons—which it implies (but refrains from outright saying) is just a "fishing expedition"—circumvents the applicable treaty and violates Swiss law. Here is the very abridged version:
The Government of Switzerland has a strong interest in the preservation of the integrity of Swiss law and sovereignty and in promoting respect by the United States of its international treaty obligations to Switzerland.
If the Court were to order UBS to produce evidence from Switzerland, and backed that order with coercive powers, the Court would be substituting its own authority for that of the competent Swiss authorities, and therefore would violate Swiss sovereignty and international law.The Wall Street Journal reports that an IRS agent speaking at a financial conference in Miami confirms that more "John Doe" summonses are in the works.
The Swiss necessarily relied upon the services of American attorneys in preparing their amicus brief. As such, any deficiencies found therein could accurately be termed as “constrained for fear of reprisal” rather than “elegant”. Apparently, zealous representation takes a back seat to self-preservation. This reader finds it inconceivable that the attorneys in question are incapable of formulating a more persuasive and dispositive brief.
ReplyDeleteThe team of attorneys submitted a brief that is well supported by controlling authorities. However, it seems obvious they were disinclined to take full advantage of their client’s strong legal position. For every strong legal argument raised, this reader encountered neutralizing language and what appeared to be an obvious desire to disengage.
I am once again drawn to the amicus brief filed at Docket No.: 29. There, the reader encounters strong legal arguments – seemingly made without reservation. Curiously, the ‘elegant’ amicus brief prepared for Switzerland argues many of the points raised in the pro se brief filed at Docket No.: 29, but in a much more restrained manner. The pro se brief also argued that the petitioner lacked ‘standing’. The attorneys “representing” Switzerland waived this potentially pivotal issue in its entirety.
Holding back is not only detrimental to a client, who suffers directly; such behavior also damages the reputation of the legal community. The public should not come away from this case feeling that zealous representation is unavailable in certain classes of cases or against “certain” adversaries. A perverted sense of self-preservation which leaves attorneys who ostensibly oppose the DOJ / IRS unwilling to zealously represent their clients will inevitably lead to a deterioration of trust that will plague the legal profession.
Regardless of whose side you’re on; this case, like every case, must be decided on the rule of law. The two amicus briefs discussed here show convincingly that the “law” that controls the UBS case is not the Internal Revenue Code.