210 F.Supp.2d 1062 (2002)
EXTERIOR SYSTEMS, INC. d/b/a Fabwel, Inc., Plaintiff,
v.
NOBLE COMPOSITES, INC., Larry Farver, Kenneth Farver, and Edward Welter, Defendants.
No. 3:01-CV-217 RM.
United States District Court, N.D. Indiana, South Bend Division.
June 24, 2002.
*1063 *1064 Paul J Peralta, D Lucetta Pope, Eric J Groen, Alison G Fox, Andrea G Hoffman, Baker and Daniels, South Bend, IN, for Exterior Systems Inc, a Wholly-Owned Subsidiary of Fibreboard, Inc, a Wholly-Owned Subsidiary of Owens Corning dba Fabwell Inc, plaintiff.
John D Ulmer, Yoder Ainlay Ulmer and Buckingham, Goshen, IN, for Noble Composites Inc, Larry E Farver, Kenneth Farver, defendants.
Gary D Boyn, Cynthia S Gillard, Michelle C Hilary, Warrick and Boyn, Elkhart, IN, Edward L Murphy, Jr, Stephen J Harants, Miller Carson Boxberger and Murphy, Fort Wayne, IN, for Edward Welter, defendant.

MEMORANDUM AND ORDER
NUECHTERLEIN, United States Magistrate Judge.
On March 28, 2002, five months after his previous counsel was disqualified for violating conflict of interest rules, Defendant Edward Welter's new counsel filed a Motion to Disqualify the opponent's counsel [Doc. No. 179]. The instant motion lacks merit and is DENIED.[1]

I. FACTUAL BACKGROUND
On December 4, 2001, this Court disqualified Welter's previous counsel, Cynthia Gillard and her firm Warrick & Boyn. Exterior Systems, Inc. v. Noble Composites, Inc., 175 F.Supp.2d 1112 (N.D.Ind. 2001). The Court assumes the reader's familiarity with the specific facts of that opinion and only restates the facts generally in this opinion.
Defendant Welter formed Fabwel, Inc. ("Fabwel") in 1972, and he owned and controlled Fabwel, for the most part, until 1997. During that time, the lawyers of Warrick, Weaver & Boyn (or later Warrick & Boyn) served as counsel to Welter and to Fabwel. In 1997, Welter sold Fabwel, and its successor is Plaintiff Exterior Systems, Inc. ("ESI"). ESI is now suing Welter and others for breach of covenants not to compete and related claims. ESI claims that Welter is investing in or assisting a contractually-prohibited, competing business (Noble Composites, Inc.) through his company E.W. Marine. Welter counterclaimed, alleging, among other things, that ESI failed to make payments to Welter under the provisions of a 1990 Executive Benefit Plan and its 1997 amendment.
Welter seeks to disqualify the law firm of Baker & Daniels from representing ESI because current Baker & Daniels attorneys Kennard Weaver and Angela Castille, and paralegal Beckie Mills, during their prior association with the law firm of Warrick, Weaver & Boyn ("WW & B") had *1065 represented Welter and other entities. Welter also bases his motion to disqualify on representations by other WW & B attorneys before October 1993, when Weaver, Castille, and Mills left that firm to join Baker & Daniels. Last, Welter argues for disqualification based on Weaver's recent representations of Pleasant Street Homes, LLC. ESI responds by claiming that no conflict exists and by arguing that Welter waited too long to file his motion to disqualify and thus has waived any objection to ESI's choice of counsel.

A. Representations of Welter by Attorneys Weaver and Castille and Paralegal Mills
This section will analyze and reconstruct the representation of Welter by attorneys Weaver and Castille and paralegal Mills directly. Representation of Welter performed by others in the same firm as Weaver, Castille, and Mills will be analyzed in Section I.B below. Weaver's recent representation of Pleasant Street Homes, LLC will be discussed in Section I.C below. The facts relating to the waiver issue will be discussed in Section I.D below.

1. Weaver's Representation of Welter
As a partner in WW & B, Weaver provided extensive legal services to Welter and the company formerly known as Fabwel, Inc. until September 1985. Weaver performed some of the work to form Fabwel in 1972, and provided legal advice to Fabwel after its formation. In particular, Weaver helped Fabwel acquire other companies. Those transactions often involved the drafting of covenants not to compete on behalf of Fabwel. Weaver also provided legal counsel to Welter and his family on numerous business and personal matters unrelated to Fabwel, including Welter's estate planning.
In September 1985, Weaver's representation of Welter, Fabwel, and all other Welter-related companies ended at Welter's request. Welter had Gillard represent him and Fabwel from 1985 on. Gillard removed all of Welter's and Fabwel's files from Weaver's office and kept them in her own office. Gillard was Welter's sole contact at the firm. Weaver received no correspondence or copies of correspondence from Welter or his companies after 1985. Weaver had no further contact with Welter except for a few rare and brief social encounters.
Weaver never represented E.W. Marine because Welter did not form it until 1988. Weaver was involved in the planning of various assets that were later obtained by E.W. Marine when that company came into existence. At least one of those assets, a Waco, Texas, plant is currently owned by E.W. Marine and leased to ESI. Weaver represented Welter in obtaining revenue bond financing for the Waco facility in 1983. Weaver also helped Welter form a partnership called Jewel Real Estate in 1975 and D & E Industries, Inc. These entities were precursors to E.W. Marine, Inc.
Weaver left WW & B in 1993 to join the Elkhart office of Baker & Daniels. Castille and Mills followed him to Baker & Daniels soon after. Warrick, Weaver & Boyn changed its name to Warrick & Boyn. This opinion will continue to use "WW & B" to signify the firm before Weaver left in 1993, but it will use "W & B" to denote the firm after Weaver left.
Weaver has not been involved with this case in any capacity. He has not discussed his past representation of Fabwel, Welter, or any of Welter's business interests with other Baker & Daniels lawyers working on the case, except (1) when a new business memorandum was published within the firm, he discussed with Paul Peralta and other partners whether a conflict existed; (2) he described the nature *1066 and extent of his prior representation for the purpose of preparing his affidavit in response to the motion to disqualify, and (3) he was told that the motion to disqualify Gillard had been filed, and the grounds for filing the motion.

2. Castille's Representation of Welter
Castille graduated from law school in 1988 and joined WW & B as an associate in March 1989. At that time Cynthia Gillard served as counsel for Welter and also served as counsel for the company formerly known as Fabwel, Inc. In 1990, at the beginning of her second year as an associate, Castille assisted Gillard with legal research and related tasks on behalf of Fabwel. To the best of her knowledge, Castille did not draft the 1990 Amendment to the Executive Benefit Plan and did not communicate with Welter regarding it. At most, Castille researched some legal issues relating to the 1990 Amendment under Gillard's direction.
In 1992, Castille assisted Gillard in connection with the repurchase of Fabwel stock from ABF Investors, Inc. by a company in which Welter owned a majority interest. She did not advise Welter on his rights and duties under the 1988 non-compete agreement with ABF or any other agreements not to compete. Nor did she advise Welter in 1992 regarding the 1990 Executive Benefit Plan. Castille primarily drafted documents and took no part in the negotiations surrounding the repurchase of Fabwel. Castille also provided legal advice to E.W. Marine in connection with a commercial lease unrelated to the facts of this case.
In October 1993, Castille left WW & B, along with Weaver and Mills, to join the Elkhart office of Baker & Daniels. She has not been involved with this case in any capacity. She has not discussed her past representation of Fabwel and Welter with other Baker & Daniels lawyers working on the case, except (1) she described the nature and extent of her prior representation for the purpose of preparing her affidavit in response to the motion to disqualify, and (2) she discussed the nature and extent of her past representation to the attorneys who prepared the original motion to disqualify Gillard.

3. Mills's Representation of Welter
Beckie Mills is not an attorney. She worked as a paralegal at WW & B until 1993 when she left to join Weaver and Castille at the Baker & Daniels Elkhart office. Mills provided various paralegal services to E.W. Marine, but claims not to have received any confidential information relevant to this case. Mills has not worked on the present matter and has not discussed her previous employment at WW & B with the Baker & Daniels lawyers litigating this case, except for the purposes of preparing her affidavit attached to the motion to disqualify.

B. Representation of Welter by Other Attorneys at Warrick, Weaver & Boyn
Weaver stopped working for Welter and his companies in 1985, but other attorneys at WW & B represented Welter while Weaver was still a partner of the firm. WW & B, specifically Cynthia Gillard, advised Welter in 1987 when he sold his stock in Fabwel to ABF Investors, Inc. Gillard advised Welter as to his rights and obligations under a Non-Compete Agreement with ABF. In 1988, WW & B (Gillard) advised Fabwel during the acquisition of the stock of Master-Fab Inc. from Defendant Larry Farver. WW & B (Gillard) drafted the Non-Compete Agreement signed by Defendant Larry Farver as part of the closing. This Non-Compete Agreement is part of the basis of ESI's claims against Larry Farver in this case. *1067 Also in 1988, WW & B (Gillard) incorporated E.W. Leasing, which is now known as E.W. Marine. Mills provided unrelated paralegal services to E.W. Marine sometime after 1988. W & B (through Gillard) continues to provide legal services to E.W. Marine.
WW & B also drafted the 1990 Executive Benefit Plan. Specifically, Gillard drafted the plan, although Angela Castille researched some legal issues relating to the 1990 Amendment under Gillard's direction. In 1992, WW & B assisted Welter with the repurchase of Fabwel's stock from ABF. Castille assisted Gillard with the transaction.

C. Weaver's Current Representation of Pleasant Street Homes, LLC
A group of investors, including John Guequierre, Bill Reasor and Jim Jones, started Pleasant Street Homes LLC ("Pleasant Street") in December 2000. They hired Weaver and Baker & Daniels to provide legal advice at Pleasant Street's creation. Welter joined the investor group as an outside investor of Pleasant Street. Welter has never been a sole manager, a majority owner, or an officer of the company. Weaver's only contact with Welter was at monthly managers meetings, where the discussions were with the management team of Pleasant Street as a group. Weaver never provided individual legal advice to Welter regarding his investment in Pleasant Street. Weaver and Baker & Daniels represented Pleasant Street until August 2001, and Weaver no longer has any files relating to Pleasant Street.

D. The Timing of Welter's Motion to Disqualify
On March 1, 2001, ESI's counsel, Baker & Daniels, sent a letter to Welter demanding that he end all business relations with Noble Composites. Welter's counsel responded on March 13, 2001, asserting, in part, that Baker & Daniels had a conflict of interest because it represented Pleasant Street. ESI filed its complaint on March 15, 2001. On March 16, Welter's counsel sent a letter to Baker & Daniels arguing that Baker & Daniels had a conflict of interest because of the former representation of Weaver, Castille, another lawyer, and two paralegals.
On June 25, 2001, Defendant Welter filed his Answer with Counterclaim. ESI filed an answer to the counterclaim on July 31, 2001. On August 21, 2001, ESI filed its Motion to Disqualify Counsel, which was granted on December 4, 2001. Welter's new counsel entered their appearance on February 20, 2002, and filed the present motion to disqualify on March 28, 2002. A preliminary injunction hearing is scheduled for June 25, 2002.

II. LEGAL ANALYSIS
Two critical considerations, the sacrosanct privacy of the attorney-client relationship and the prerogative of a party to proceed with counsel of its choice, require a court to proceed with careful and thoughtful analysis when deciding motions to disqualify counsel. Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir.1983).
The Seventh Circuit warns that disqualification "is a drastic measure which courts should hesitate to impose except when absolutely necessary." Cromley v. Board of Educ., 17 F.3d 1059, 1066 (7th Cir.1994) (citing Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982)). Disqualification motions "should be viewed with extreme caution for they can be misused as techniques of harassment." Freeman, 689 F.2d at 722. Yet, the Seventh Circuit has instructed courts to resolve doubts in favor of disqualification. United States v. Goot, 894 F.2d 231, 235 (7th Cir.1990).
The Local Rules of the United States District Court for the Northern District of *1068 Indiana adopt Indiana's version of the Model Rules of Professional Conduct. N.D. Ind. L.R. 83.5(f). Indiana Rule of Professional Conduct 1.9 states as follows:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known.
Applying the "substantial relationship test" in Rule 1.9 is a three-step process:
First, the trial judge must make a factual reconstruction of the scope of the prior legal representation. Second, it must be determined whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters. Third, it must be determined whether that information is relevant to the issues raised in the litigation pending against the former client.
LaSalle Nat'l Bank v. County of Lake, 703 F.2d 252, 255-56 (7th Cir.1983). If this analysis shows that a substantial relationship did exist, then the court is entitled to presume that the attorney received confidential information during his or her prior representation. Id.
Rule 1.9 applies when an individual lawyer has represented a client in a prior matter and where the issue is whether that lawyer may oppose the former client in a substantially related matter. Rule 1.10 addresses situations where a conflict of interest may be imputed to other lawyers associated in the same firm with the tainted lawyer. The pertinent portion of Rule 1.10 states as follows:
(a) While lawyers are associated in a firm, none of them shall represent a client if he knows or should know in the exercise of reasonable care and diligence that any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.8(k), 1.9, or 2.2.
(b) When a lawyer becomes associated with a firm, the firm may not represent a person in the same or a substantially related matter if it knows or reasonably should know that that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.
The Seventh Circuit analyzes whether the remedy of disqualification is warranted under a series of presumptions. As stated earlier, if the substantial relationship test is satisfied, the court is entitled to presume that the attorney received and shared confidences of the former client. This presumption is irrebuttable in situations where an entire firm switched sides, but is rebuttable in situations where particular lawyers change jobs to firms representing an adversary. Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1267 (7th Cir.1983); Chapman v. Chrysler Corp., 54 F.Supp.2d 864, 866 (S.D.Ind. 1999).
This case involves particular lawyers who have switched firms; thus, the presumption of shared confidences may be rebutted under the following three-step analysis:
First, we must determine whether a substantial relationship exists between the subject matter of the prior and present representations. If we conclude a *1069 substantial relationship does exist, we must next ascertain whether the presumption of shared confidences with respect to the prior representation has been rebutted. If we conclude this presumption has not been rebutted, we must then determine whether the presumption of shared confidences has been rebutted with respect to the present representation. Failure to rebut this presumption would also make the disqualification proper.
Cromley, 17 F.3d at 1064 (quoting Schiessle, 717 F.2d at 420).
The first Cromley test is the substantial relationship test in Rule 1.9(a). The second Cromley test is a restatement of Rule 1.10, which finds no conflict of interest where the lawyer switching firms did not actually learn client confidences. The last of the three Cromley tests  whether the presumption of shared confidences has been rebutted with respect to the present representation  involves the question of screening, sometimes referred to as an insulation wall, or in the past as a "Chinese wall." Cromley, 17 F.3d at 1065 (citing Schiessle, 717 F.2d at 421).
A party can also waive the right to seek disqualification by waiting too long to file its motion to disqualify. E.g., Cox v. American Cast Iron Pipe Co., 847 F.2d 725, 731 (11th Cir.1988); Trust Corp. MT v. Piper Aircraft Corp., 701 F.2d 85, 87 (9th Cir.1983); Central Milk Producers Co-op. v. Sentry Food Stores, 573 F.2d 988, 992 (8th Cir.1978); Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir.1975). In this situation, a violation of the Rules of Professional Conduct occurs, but disqualification is not warranted.
With these legal principals in mind, the Court will analyze the alleged conflicts of Weaver, Castille, and Mills separately.

A. Weaver

1. Weaver's Representation of Welter and Fabwel from 1972 to 1985
Weaver served as Welter's and Fabwel's main counsel as a partner in WW & B from 1972 to 1985. During that representation, Weaver performed extensive legal work ranging from the formation of Fabwel to estate planning for Welter personally. The relationship ended, however, at Welter's request in 1985. Weaver left WW & B in 1993 to join Baker & Daniels.
The legal work performed by Weaver on behalf of Welter and Fabwel from 1972 to 1985 is not substantially related to the present case. The only legal work that could arguably be substantially related is Weaver's representation of Fabwel as Fabwel acquired several smaller companies. As part of the closings in those acquisitions, Weaver drafted non-compete contracts protecting Fabwel that were signed by the principals of the acquired companies. None of those contracts are in dispute in the present case, but Welter claims that Weaver provided "advice on non-compete agreements" to Fabwel, which at the time was solely owned and controlled by Welter. Thus, Weaver would have "inside information and knowledge regarding Welter's thought processes concerning non-compete agreements." Welter's Mem. of Law in Supp. of Mot. to Disqualify at 12.
The comment to Rule 1.9 states that "a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client." The non-compete contracts at issue in this case are wholly distinct from those Weaver drafted on behalf of Fabwel. Thus, although they are the same type of problem, Weaver's work on *1070 Fabwel's non-compete contracts before 1985 is not substantially related to his current firm's prosecution of this case.[2]
Welter also claims that Weaver's work for the precursors to E.W. Marine or his work planning real estate assets that were later obtained by E.W. Marine is substantially related to the issues in this case. The Court sees no connection. When Weaver represented Welter and the precursor companies, E.W. Marine did not exist. E.W. Marine is not alleged to be the successor to the precursor companies; it obtained only some of the precursors' assets. Weaver was not involved in the decision to form E.W. Marine or in the decision to include certain assets among its holdings.

2. Representation by WW & B Lawyers Other Than Weaver from 1985 to 1993
Next, Welter points to the work performed on behalf of Welter by Weaver's partners at WW & B from 1985 (when Weaver stopped working for Welter) until 1993 (when Weaver left WW & B to join Baker & Daniels). Welter argues that the work of Weaver's partners should be imputed to Weaver, and then Weaver carried this taint with him to Baker & Daniels where it should be imputed to other Baker & Daniels lawyers.
The Rules of Professional Conduct do not support Welter's argument. The comment to Indiana's Rule 1.10 rejects the notion that "a partner in a law firm is conclusively presumed to have access to all confidences concerning all clients of the firm." Rather, Indiana's Rules of professional Conduct embrace a functional approach. "A rule based on a functional analysis is more appropriate for determining the question of vicarious disqualification." Id. As part of this functional approach, Rule 1.10(a) imputes all conflicts of interest to all lawyers in the firm while they are associated with the firm.[3] After a lawyer leaves his firm to join a new firm, however, Rule 1.10(b) governs. Rule 1.10(b) requires law firms to reject representation only where a new lawyer to the firm had represented an adverse client while at his former firm and had acquired actual client confidences. Simply working at a firm at the same time as the past representation is not enough for imputation of a conflict of interest to the lawyer's new firm.
Cromley explained how this rule functions in the Seventh Circuit's shifting presumption approach:
We must determine whether the attorney whose change of employment created the disqualification issue was actually privy to any confidential information his prior law firm received from the party now seeking disqualification of his present firm. The rebuttal can be established ... by proof that the attorney in question had no knowledge of the information, confidences and/or secrets related by the client in the prior representation *1071 .... Uncontroverted affidavits are sufficient rebuttal evidence.

Cromley, 17 F.3d at 1064-65 (citations and internal quotations omitted; emphasis added). Accord: Edwards v. 360° Communications, 189 F.R.D. 433, 436 (D.Nev. 1999) (applying a version of Rule 1.9 and Rule 1.10 under Nevada law that is nearly identical to Indiana's version); (Dieter v. Regents of the University of California, 963 F.Supp. 908, 911-12 (N.D.Cal.1997) applying the Model Rules of Professional Conduct and the Restatement (Third) of the Law Governing Lawyers as being consistent with California law). Thus, no violation of Rule 1.10(b) occurs unless the lawyer who switched firms actually gained confidential information from the former client while working for his former firm.
Under this standard, Weaver's imputed conflict does not transfer to his new firm because Weaver was not privy to Welter's confidential information on any matter related to the present dispute. It is true that at least some of the work performed by Weaver's partners (in most cases Gillard) from 1985 to 1993 is substantially related to the present case. Thus, while Weaver still worked at WW & B, any conflict would be imputed to him and he could not take a position adverse to his partners' substantially related work. Rule 1.10(a).
Weaver's disability ended, though, when he left WW & B in 1993 because he was not privy to Welter's confidences after 1985 (and none of the pre-1985 confidences relate to the present dispute). Weaver has submitted an uncontroverted affidavit stating that his representation of Welter, Fabwel, and Welter-related companies ended at Welter's request in 1985. Weaver Affidavit ¶ 4. Welter informed Weaver that Cynthia Gillard would be his lawyer and that Welter would communicate directly with Gillard. Id. Gillard removed all of Welter's and Fabwel's files from Weaver's office in 1985 and kept them in her own office. Id. ¶ 5. Gillard became Welter's sole contact at the firm, and Weaver received no correspondence or copies of them from Welter or Welter-related companies after 1985. Id. Weaver had no further contact with Welter except for a few rare and brief social encounters. Id. Nothing in the record indicates that Weaver assisted Gillard with her representation of Welter. Weaver has successfully rebutted the presumption of shared confidences.
After 1985, Weaver did not receive Welter's confidences. Accordingly, Weaver carried no taint with him to his new firm, Baker & Daniels. His partners' legal work for Welter from 1985 to 1993 does not provide a basis for disqualifying Baker & Daniels in this case.

3. The Duty of Loyalty Does Not Apply to Imputed Lawyers in Other Firms
Welter argues that an attorney's duty of loyalty requires disqualification in this case. He points to this Court's previous decision disqualifying his former counsel, Gillard. Welter's argument is misplaced because it misinterprets this Court's previous decision and because this motion presents a different factual situation.
First, Welter incorrectly charges this Court with recognizing a "general duty of loyalty to clients." Welter's Reply in Supp. of Mot. to Disqualify at 1 (incompletely quoting this Court's earlier decision, Exterior Systems, 175 F.Supp.2d at 1119). This Court's earlier decision noted that Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168 (5th Cir.1979), had recognized that "[t]he purpose of the substantial relationship test extended beyond protection of client confidences to a more general duty of loyalty to clients." Exterior Systems, 175 F.Supp.2d at 1119 (emphasis added). In other words, the *1072 duty of loyalty is broader, or more general than, the protection of client confidences under the facts of Brennan's and the facts of Gillard's representation of Welter. This Court never held that the duty of loyalty is simply and non-relatively "general," in the sense that it extends to all adverse positions taken by a lawyer against a former client.[4]
Second, this Court's previous decision to disqualify Gillard involved a situation where a single lawyer, Gillard, was attacking her own work. The present motion, by contrast, involves disqualification by imputation to other lawyers in other firms. As mentioned earlier, the comments to Indiana's Rules of Professional Conduct take a functional approach. The comments identify two functions served by the conflict of interest rules: preserving confidentiality and avoiding positions adverse to a client  what this opinion has called "client loyalty." The comment to Rule 1.10 addresses the second of these two functions:
The second aspect of loyalty to client is the lawyer's obligation to decline subsequent representations involving positions adverse to a former client arising in substantially related matters. This obligation requires abstention from adverse representation by the individual lawyer involved, but does not properly entail abstention of other lawyers through imputed disqualification. Hence, this aspect of the problem is governed by Rule 1.9(a). Thus, if a lawyer left one firm for another, the new affiliation would not preclude the firms involved from continuing to represent clients with adverse interests in the same or related matters, so long as the conditions of Rule 1.10(b) ... concerning confidentiality have been met.

(Emphasis added.) Under the Rules of Professional Conduct, then, client loyalty (i.e., the duty not to take a position adverse to a former client) is broader in situations where the same lawyer is representing an adverse client in a substantially related matter. In those situations  and Gillard's representation in this Court's previous decision was one of them  the duty of loyalty is equal to the duty of confidentiality under the dictates of Rule 1.9(a). The present situation, by contrast, involves a claim of conflict by imputation. Situations involving imputation to lawyers in another firm are governed by Rule 1.10(b), which limits the duty of loyalty solely to the duty to maintain client confidences.
The present disqualification motion offers a good example of why Rule 1.10(b) concerns itself only with client confidences. Welter is asking for loyalty from Weaver beyond the duty of nondisclosure even though Welter terminated the relationship with Weaver. Welter was loyal to Weaver until 1985, then he shifted his loyalty to Gillard. All of the substantially related work was performed by Gillard and other WW & B lawyers, not Weaver, after 1985. Certainly, Weaver has a continuing duty not to use the client confidences he actually learned before 1985 against his former client. However, once Welter shifted his loyalty (and his work) to a different lawyer, and Weaver left to join a different firm, Weaver has no continuing duty of loyalty in matters related to work he did not perform. Welter asks for even more than this, however. Welter asks that the *1073 duty of loyalty extend beyond Weaver to other lawyers at Baker & Daniels, trial counsel in this case, who have never represented Welter. This request takes the duty of loyalty to the extreme and would produce a result that would effectively prevent all partners and most associates from ever switching firms for fear of conflicts. The duty of loyalty, i.e., the duty not to take a position adverse to a former client, does not extend beyond the duty to preserve client confidences in cases of multiple-firm imputation under Rule 1.10(b).

4. Weaver's Representation of Pleasant Street
From December 2000 to August 2001, Weaver represented the incorporators of Pleasant Street and then the corporation after its formation. Welter was never more than a non-operating investor in Pleasant Street, so Weaver did not represent Welter individually. Even if Welter were considered one of the incorporators, Weaver's representation of him was in the past. Welter has made no showing of a substantial relationship under Rule 1.9. Weaver's representation of Pleasant Street does not serve as a basis for disqualifying Baker & Daniels in this matter.

B. Castille
Welter next argues that Baker & Daniels should be disqualified based on the work of Angela Castille while she was an associate at WW & B. Castille joined WW & B a few months after law school and worked there from 1989 to 1993. In 1993, she left WW & B to join the Elkhart office of Baker & Daniels, where she is still employed. Welter identifies two areas of conflict: Castille's work on the Executive Benefit Plan in 1990 and Castille's work on Welter's repurchase of Fabwel stock from ABF Investors in 1992.

1. Castille's Work on the 1990 Executive Benefit Plan
Billing records[5] from 1990 show that Castille worked for 5.2 hours researching whether the Executive Benefit Plan was subject to the provisions of the Employee Retirement Income Security Act ("ERISA"). That time also includes reporting her findings to Cynthia Gillard and others at WW & B. As explained in this Court's previous decision, the 1990 Executive Benefit Plan is centrally relevant to the present dispute. Welter's counterclaim alleges a breach of the 1990 agreement and its 1997 amendment.
ESI defends its position by pointing out the limited nature of Castille's representation and asserting that Castille did not acquire any confidences from Welter. ESI also argues that Fabwel (and not Welter) was the client.
Castille was just beginning her second year as a lawyer when she researched a matter related to the 1990 Executive Benefit Plan. Her research amounted to 5.2 hours of time and related to whether the plan was governed by ERISA, an issue not raised to this point in this case. Her affidavit states that "[t]o the best of my knowledge, I did not communicate with Welter or anyone else regarding Welter's intent or interpretation regarding the proposed Amendment in 1990." The billing records show no communication with Welter.
As mentioned previously, the analysis under the substantial relationship test includes the question of "whether it is reasonable to infer that the confidential information *1074 allegedly given would have been given to a lawyer representing a client in those matters." LaSalle Nat'l Bank, 703 F.2d at 255-56. If a substantial relationship is established, then Court presumes that confidences were shared. Id. at 256. The presumption may be rebutted, however, with evidence that the attorney was not privy to the confidences and secrets of the client. Id. at 257. When analyzing both the second prong of the substantial relationship test and the rebuttal of the presumption, the Court may consider several factors including "the size of the law firm, the area of specialization of the attorney, [and] the attorney's position in the firm." Freeman, 689 F.2d at 723. Accord: LaSalle Nat'l Bank, 703 F.2d at 257 and Schiessle, 717 F.2d at 420-21. Another factor is the "duration of time spent by an attorney on a particular matter." Novo Terapeutisk Laboratorium v. Baxter Travenol Labs., 607 F.2d 186, 189 (7th Cir. 1979) (panel decision), rev'd on other grounds, Novo Terapeutisk, 607 F.2d at 194-97 (en banc decision).
ESI cites Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir.1975), for a similar proposition. Silver Chrysler recognized that "ethical problems cannot be resolved in a vacuum. ... Thorough consideration of the facts ... is required. Nor can judges exclude from their minds realities of which fair decision would call for judicial notice." Id. at 753 (citations and internal quotes omitted). One of those realities concerned inexperienced associates:
It is unquestionably true that in the course of their work at large law firms, associates are entrusted with the confidences of some of their clients. But it would be absurd to conclude that immediately upon their entry on duty they become the recipients of knowledge as to the names of all the firm's clients, the contents of all files relating to such clients, and all confidential disclosures by client officers or employees to any lawyer in the firm. Obviously such legal osmosis does not occur.
Id. at 753-54. The court applied this reality to a disqualification motion alleging that a lawyer had previously represented Chrysler on several matters while a new associate at the firm of Chrysler's current counsel.
But there is reason to differentiate for disqualification purposes between lawyers who become heavily involved in the facts of a particular matter and those who enter briefly on the periphery for a limited and specific purpose relating solely to legal questions. In large firms at least, the former are normally the more seasoned lawyers and the latter the more junior. This is not to say that young attorneys in large firms never become important figures in certain matters but merely to recognize that some of their work is often of a far more limited variety. Under the latter circumstances the attorney's role cannot be considered "representation" ... so as to require disqualification.
Id. at 756-57 (citations omitted).[6]
Judge Adams's concurring opinion explained that the disqualification analysis *1075 ... should focus on the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney's involvement with the cases. As part of its review, the court should examine the time spent by the attorney on the earlier cases, the type of work performed, and the attorney's possible exposure to formulation of policy or strategy.
Id. at 760. The court concluded on the facts of that case that the lawyer's prior involvement with specific Chrysler legal matters was "at most, limited to brief, informal discussions on a procedural matter or research on a specific point of law." Id. at 756. On this basis, the court affirmed the district court's decision refusing to disqualify the lawyer. Id. at 758.
The particular facts of this case show that Castille was no more than peripherally involved in the drafting of the 1990 Executive Benefit Plan. Castille was an inexperienced lawyer in 1990, and she spent a mere 5.2 hours researching a discrete legal issue under ERISA, which has never been a part of this case. Furthermore, she never spoke to the client Welter. It is highly unlikely that she received client confidences related to the present case because her representation of Welter was peripheral. In her uncontroverted affidavit, she denies receiving confidential information. This is sufficient to rebut the presumption of acquired confidences.[7]

2. Castille's Work on the 1992 Repurchase of Fabwel from ABF Investors
Billing records from 1992 show that Castille worked over 150 hours on Welter's repurchase of Fabwel stock from ABF Investors. She drafted the stock purchase agreement, the necessary paperwork to the secretary of state, a bill of sale, shareholder resolutions, a release, a Subchapter S agreement, notices, intellectual property assignment documents, a termination of stock option agreement, and other closing documents. She had conferences with WW & B lawyers and one short telephone call with Welter.
Castille was more than peripherally involved with the 1992 transaction. It is reasonable to assume that she would have received at least some client confidences relating to the repurchase of Fabwel from ABF Investors. The next question, then, is whether her 1992 representation is related to the present litigation. Welter says that it is. Welter's affidavit is nonspecific though: "Castille's work included services provided in connection with ... the purchase of Fabwel stock from ABF." Welter Affidavit ¶ 11. The affidavit also states, "The repurchase of stock of Fabwel back from ABF ... included privileged discussions with counsel regarding Non-Compete Agreements with ABF and the Executive Benefit Plan." In his Reply, Welter makes another unsupported allegation: "Part of the repurchase of Fabwel involved the negotiation surrounding the Executive Benefit Plan and discussions among the investment group of Larry Farver's Non-Compete and Confidentiality Agreement he signed in 1988." Welter's Reply in Supp. of Mot. to Disqualify at 2. Castille's billing records do not indicate a substantial relationship on their face. In sum, Welter has produced copies of billing records that do not clearly indicate a substantial relationship, a nonspecific affidavit, and an unsupported statement in his brief.
*1076 The Court finds no substantial relationship here. The repurchase occurred in 1992, nine years before the facts underlying this case and five years before Welter signed the 1997 non-compete agreement at issue in this case. Welter's non-compete agreement with ABF, which Welter signed in 1987, is not the subject of this suit. Welter's allegation that he discussed the Executive Benefit Plan with WW & B is too vague for the Court to link it with Castille. Castille denies advising Welter regarding the Executive Benefit Plan and denies conducting any of the negotiations on behalf of Welter. Welter's affidavit does not assert Castille's involvement with the discussions in 1992 relating to the Executive Benefit Plan. Neither affidavit discusses the substance of the single, short phone call between Welter and Castille. Welter's remaining contentions are not contained in his affidavit and are not properly before the Court. They are also vague and undeveloped. The 1992 repurchase of Fabwel does not provide a basis for disqualifying Baker & Daniels.

C. Mills
Mills is not a lawyer; she is a paralegal. Strictly speaking, the conflict of interest rules do not apply to paralegals who are assisting the lawyers in a law firm. Instead, paralegals are governed indirectly by Rule 5.3, which imposes on the supervising lawyers the duty to ensure that their nonlawyer assistants' conduct is "compatible with the professional obligations of the lawyer."
Welter presents very little argument as to why Baker & Daniels should be disqualified through Mills. Welter claims that Mills provided unspecified services for E.W. Marine. He claims that one of the issues in this case involves the scope of services conducted by E.W. Marine before and after the 1997 non-compete agreement signed by Welter. Baker & Daniels allegedly would have inside knowledge about the inner workings of E.W. Marine through Mills.
Welter has not described, even in general terms, the extent of Mills's work on behalf of E.W. Marine, nor has he rebutted Mills's affidavit that says she has
had no discussions about my past employment with [WW & B] or any tasks that I might have performed at [WW & B], with any Baker & Daniels attorney involved in [this case], except to the extent necessary to prepare Baker & Daniels' response to the Defendant's motion to disqualify Baker & Daniels and Baker & Daniels' motion to disqualify [W & B], and only as regards the timing and subject matter of those tasks.
Mills Affidavit ¶ 5. Welter has not cited a single case involving disqualification through a paralegal. The Court's own research has found no case disqualifying a firm based on facts similar to the present situation. Consequently, Welter's attempt to disqualify Baker & Daniels through Mills is undeveloped and unconvincing. Mills does not provide a basis for disqualifying Baker & Daniels.

D. Waiver
Welter's motion to disqualify fails on its merits. It suffers an additional defect as well. Welter filed his motion more than twelve months from the time he and his counsel first learned of the potential conflict. Twelve months is too long to wait. Welter has waived his right to seek disqualification in this case.
As mentioned before, a former client's ability to seek disqualification of its adversary's attorney can be waived if the former client knew of its attorney's representation of an adversary, but failed to raise its objection promptly. E.g., Trust Corp. MT v. Piper Aircraft Corp., 701 F.2d 85, 87 (9th Cir.1983). When determining *1077 whether a party has waived its objections, courts should consider the following: 1) the length of the delay in bringing the motion to disqualify; 2) when the former client learned of the conflict; 3) whether the former client was represented by counsel during the delay; 4) why the delay occurred; and 5) whether the delay would result in prejudice to the nonmoving party. Chemical Waste Management, Inc. v. Sims, 875 F.Supp. 501, 505 (N.D.Ill.1995).
In this case, Welter knew about the potential conflict of interest no later than March 16, 2001, when his counsel sent a letter to Baker & Daniels objecting to Baker & Daniels's conflict of interest through Weaver and Castille. Welter did not file his motion to disqualify, however, until March 28, 2002, more than twelve months later. He was represented at all times during this delay except for the two weeks it took for Welter to obtain new counsel after Judge Miller's approval of this Court's disqualification of Gillard. During those twelve months, Baker & Daniels performed thousands of hours of work litigating this case and preparing for a preliminary injunction hearing that is now just days away. To disqualify Baker & Daniels at this late date would severely prejudice ESI. Yet, the comparative prejudice to Welter if the motion to disqualify is not granted is minimal, given the extremely limited nature of the conflict.
Welter's explanation for the delay is unpersuasive. He asserts that he did not think a conflict existed until this Court disqualified Gillard. Comparing the alleged conflict of interest raised by Welter's motion to Gillard's conflict of interest is stretching the argument too thin. Gillard was disqualified because she was attacking her own work. Welter's motion attempts to string together a series of past representations on unrelated related matters and impute them to other lawyers in other firms. The principles of this Court's previous decision do not necessitate granting the present motion. It is unreasonable to suggest that Welter did not know that Baker & Daniels's potential conflict might have merit until after this Court's decision disqualifying Gillard and her firm.
Welter waited too long to file his motion. He has waived his right to seek the disqualification of ESI's counsel, Baker & Daniels.

III. CONCLUSION
Welter has not shown that Weaver worked for him on any substantially related matter from 1972 to 1985 and has not shown actual shared confidences sufficient to justify imputation of conflict from WW & B lawyers, through Weaver, to other lawyers at Baker & Daniels for work performed from 1985 to 1993. Weaver's work for Pleasant Street is not conflicting because Pleasant Street, and not Welter, was the client. Castille's involvement with the 1990 Executive Benefit Plan was merely peripheral, and it is unreasonable to assume that she received client confidences related to this case based on her limited amount of narrowly-focused legal research. Welter has also failed to show that Castille's work for E.W. Marine and her work for Welter on the 1992 repurchase of Fabwel was substantially related to the present case. Welter's argument related to Mills is too nonspecific and undeveloped to merit the disqualification of Baker & Daniels. Additionally, because Welter waited too long to bring this motion, he has waived his right to seek disqualification. Welter's motion to disqualify [Doc. No. 179] is DENIED.
SO ORDERED.
NOTES
[1]  On June 10, 2002, Welter filed a Supplemental Motion to Disqualify the Baker & Daniels Law Firm [Doc. No. 217], which raises new grounds for disqualification unrelated to the present motion. The Supplemental Motion is not ripe for decision, and this opinion does not address any of the issues raised in the Supplemental Motion.
[2]  In this Court's previous opinion, the Court recognized that a lawyer's work on the same type of problem for a past client may bolster the Court's decision to disqualify an attorney currently acting adverse to the former client. Exterior Systems, Inc., 175 F.Supp.2d at 1117-18. That opinion made clear, though, that the sufficient and independent reason for disqualification was because Attorney Gillard was essentially attacking her own work in the form of the Executive Benefit Plan. Id. at 1117. Gillard's work on the same generic type of problem  in that opinion non-competition contracts on behalf of Fabwel  was not sufficient standing alone to support disqualification, but it did bolster the Court's decision to disqualify on other grounds. Id.
[3]  Rule 1.10(a) was the basis for disqualifying Cynthia Gillard's firm, Warrick & Boyn, in the Court's previous decision.
[4]  Specifically, the Court stated that "[Rule 1.9(a)'s] loyalty requirement extends beyond situations where client confidences are actually learned and used, but the duty of loyalty does not extend to the point of never allowing an attorney to take a position adverse to a former client. [It] extends the duty of loyalty to situations where it reasonably can be inferred that the attorney learned related confidences during the prior representation on a `substantially related matter.'" Exterior Systems, 175 F.Supp.2d at 1115.
[5]  The billing records attached to Welter's reply have not been authenticated, but ESI does not challenge their authenticity. Consequently, the Court will assume that the billing records are what Welter claims they are.
[6]  Silver Chrysler's peripheral representation doctrine was cited with approval but distinguished in the panel opinion of Novo Terapeutisk, 607 F.2d at 189, 191 (panel decision). Novo Terapeutisk was reheard en banc, and the en banc court reversed the panel decision, relying in part on Silver Chrysler. Novo Terapeutisk, 607 F.2d at 197 (en banc decision). In addition, Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 223 n. 1, 227 (7th Cir.1978), and Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 712-13 (7th Cir.1976), cited the principles of Silver Chrysler with approval, but distinguished them under the particular facts of those cases.
[7]  ESI's argument that Fabwel was the client, and not Welter, is unconvincing. Welter was the largest beneficiary under the 1990 Executive Benefit Plan, and served as Fabwel's president and chief executive officer at the time the plan went into effect. Welter is best considered as a joint client with Fabwel for purposes of drafting the 1990 Executive Benefit Plan.


561 F.3d 636 (2009)
Mark W. WILES, Petitioner-Appellant,
v.
Margaret BAGLEY, Warden, Respondent-Appellee.
No. 05-3719.
United States Court of Appeals, Sixth Circuit.
Argued: December 11, 2008.
Decided and Filed: April 14, 2009.
*637 ARGUED: John J. Ricotta, LAW OFFICE, Cleveland, Ohio, for Appellant. Adam Michael Van Ho, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellee. ON BRIEF: John J. Ricotta, Law Office, Cleveland, Ohio, Henry J. Hilow, McGinty, Hilow & Spellacy, Cleveland, Ohio, for Appellant. Laurence R. Snyder, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellee.
Before MARTIN, SILER and SUTTON, Circuit Judges.
SUTTON, J., delivered the opinion of the court, in which SILER, J., joined. MARTIN, J. (pp. 642-46), delivered a separate concurring opinion.

OPINION
SUTTON, Circuit Judge.
Mark Wiles murdered a fifteen-year-old boy with a kitchen knife during a botched burglary in 1985. After he waived his right to a jury trial, a panel of three Ohio judges convicted him of aggravated murder and aggravated burglary, then sentenced him to death. After exhausting his state-court appeals and post-conviction remedies, Wiles sought a writ of habeas corpus under 28 U.S.C. § 2254, arguing (among other things) that he was denied the effective assistance of counsel under the Sixth and Fourteenth Amendments. Because Wiles has not shown that he was prejudiced by his counsel's alleged shortcomings, we affirm.

I.
In 1982, Wiles went to work as a part-time laborer for Charles and Carol Klima on their horse farm, where they lived with their son Mark. State v. Wiles, 59 Ohio St.3d 71, 571 N.E.2d 97, 103 (1991). One day in early 1983, the family learned that $200 in cash was missing. That same day, Wiles had reported for work, but he could not be found after the Klimas learned of the missing cash, and he did not return to collect his paycheck or for that matter return to work any longer on the farm. Id. at 103-04. In the spring of that year, Wiles began serving a 4-25 year sentence in an Ohio prison for an unrelated burglary he had committed the previous year.
On August 7, 1985, after serving eighteen months of this sentence, Wiles returned to the Klima farm, entered the unlocked house while the family was gone and began to search the house for valuables. Wiles, 571 N.E.2d at 104. While he was still in the house, Mark Klima returned and confronted him. Id. Wiles stabbed the boy 24 times with a kitchen knife, stole approximately $260 and fled. Id. Carol Klima returned home to find her unconscious son lying on the floor with a knife buried in his back. Id. Later that day, Mark Klima died in a hospital emergency room. Id.
Wiles initially fled from the authorities. Five days after the murder, however, he turned himself in to the police in Savannah, Georgia, telling them that he was wanted for murder in Ohio. Id. at 105. After being informed of his rights, he told the police what he had done and signed a confession admitting that he had killed Klima. Id.
*638 A state grand jury indicted Wiles for aggravated murder and two counts of aggravated burglaryone for the 1985 home invasion, one for the 1983 $200 theft. Id. at 105-06. He waived his right to a jury, and a three-judge panel heard his case. Id. at 106-07. After the guilt phase of the proceedings, the court determined that there was insufficient evidence that he had committed the 1983 burglary but convicted him on the aggravated-murder and the other aggravated-burglary count. Id. at 107. After a mitigation hearing, the court determined that neither Wiles' youth (he was 22-years old at the time of the murder) nor his confession outweighed the aggravating circumstances of his crime. Id. at 107-08. The court imposed a death sentence, and the Ohio Court of Appeals and the Ohio Supreme Court affirmed his conviction and sentence. Id. at 108, 125; State v. Wiles, No. 1675, 1988 WL 59838, at *10 (Ohio Ct.App. June 3, 1988).
Wiles filed a state post-conviction petition, which included a claim that his trial counsel had provided constitutionally inadequate assistance at the mitigation phase of the trial. The state trial and appellate courts rejected the petition. In rejecting his ineffective-assistance claim, the court of appeals concluded that Wiles "ha[d] failed to demonstrate ineffective assistance of his trial counsel at the ... penalty phase" and that "he [was] unable to demonstrate with a reasonable probability that the result at trial would have been different" if his counsel had not made the alleged errors. JA 918. The Ohio Supreme Court declined review. State v. Wiles, 93 Ohio St.3d 1412, 754 N.E.2d 260, 260 (2001).
In 2002, Wiles filed a petition for a writ of habeas corpus in federal court, raising 36 claims. The district court denied the petition in 2005 and declined to issue a certificate of appealability on any of the claims. Wiles sought a COA from us, which we granted with respect to the claim that his attorneys failed him at the penalty phase of his trial.

II.
To establish ineffective assistance of counsel, a claimant must show two things. He must establish that his attorneys' performance was "deficient," which "requires showing that [they] made errors so serious that [they were] not functioning as the `counsel' guaranteed ... by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). And he must show that "there is a reasonable probability that, but for counsel's [failure to investigate], the result of the [mitigation hearing] would have been different." Id. at 694, 104 S.Ct. 2052.
Like all claimants seeking federal habeas relief after 1996, Wiles faces another hurdle: the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. Under that legislation, we may grant the writ only if the state court of appeals' decision "was contrary to, or involved an unreasonable application of, clearly established federal law." 28 U.S.C. § 2254(d)(1).

A.
In maintaining that his trial counsel did not adequately prepare for the mitigation hearing, Wiles claims that his attorneys failed (1) to uncover abuse in his childhood, (2) to uncover that he had taken barbiturates before entering the Klimas' house on the day of the murder and (3) to investigate a head injury he received twelve days before the murder. Even if we grant for the sake of argument that these claimed lapses meet the first prong of Strickland (ineffective assistance), they do not meet its second prong (prejudice). *639 See Poindexter v. Mitchell, 454 F.3d 564, 572 (6th Cir.2006).
Wiles has not shown that "there is a reasonable probability" that, but for this alleged absence of investigation, "the result" of the mitigation hearing "would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Above all, the new evidence does not "differ[] markedly from the testimony and evidence the [three-judge panel] in fact considered." Hill v. Mitchell, 400 F.3d 308, 332 (6th Cir.2005).
First, the new family-history evidence about Wiles' father and mother adds little to what was introduced at the mitigation hearing. As to his father: Counsel introduced evidence at the trial showing that his father was "stern," JA 1037, that he was "less tolerant with [Wiles] than he was [with] the other[] [children]" and that he viewed Wiles as an "interference ... in [the family's] life" because "[Wiles] was not a planned child," JA 1302-03. A counselor's report also described the following incident between Wiles and his father when Wiles was 17:
Mark has been high everyday during the past week. Sat. 1-10 his father and him got into a fight. His father got rough w/ him. Mark got pushed down some steps. Mark[']s father called the police and had him charged w/ intoxication. Mark was placed in detention....
JA 981.
Most of the ostensibly new evidence represents variations on this same theme. For example: Wiles claims that the court should have heard that his father was emotionally distantthat he was "not one to touch much," JA 783; that, after Wiles began serving time in prison for his first burglary in 1983, his father "washed [his] hands of him and did not visit him," JA 744; that his father stated that he "never wanted that bastard anyway," JA 746; that he told Wiles that he "would never amount to anything and that he did not want him," id.; and that Wiles suffered "emotional[] and physical[] abuse" from his father, JA 747, though the affidavit to this effect (from his sister Jona) offers no details about any incidents of physical violence. All of this evidence adds little to the picture that counsel already had painted of Wiles' father: a man who did not like Wiles, who resented him as an unwanted addition to the family and who, on occasion, "got rough" with him, JA 981. This is precisely the "kind of cumulative evidence that does not show prejudice," Brooks v. Bagley, 513 F.3d 618, 626 (6th Cir.2008), because it does not "differ in a substantial wayin strength [or in] subject matterfrom the evidence actually presented at sentencing," Hill, 400 F.3d at 319.
Wiles, however, does identify one new piece of evidence that was not covered at the trialthe allegation that his father was "sexually inappropriate with his sisters." JA 754. According to Wiles' post-conviction psychological expert, Robert Smith, "Wiles reluctantly disclosed that his father was `sexually inappropriate' with his sisters." JA 754. New though this allegation may be, it is not corroborated: Neither Wiles' father, his sister, nor his mother mentions any such abuse in their affidavits. Even if we accept the allegation as credible, moreover, it still amounts to exceedingly weak mitigation evidence, because nothing shows that Wiles was aware of this abuse at the time of the murder, and there is no evidence that it caused him any psychological harm beyond what he had already experienced at the hands of a distant and sometimes abusive father. Confirming the point, Smith does not refer to these allegations in discussing Wiles' troubled relationships, his overall diagnostic impressions of Wiles or his impressions of Wiles' mental state at *640 the time of the crime. Absent evidence that Wiles knew of the abuse or even evidence about how it might have affected his psychological profile, we see no tenable basis on which it could have altered the three-judge panel's sentence.
As to Wiles' mother: Counsel offered evidence at the mitigation hearing from a school psychologist who said that his "mother [was] ignoring" and that the family was "not close." JA 1037. Wiles claims that his attorneys also should have introduced evidence that his mother "was quite depressed and cleaned the house all the time for [their] father." JA 746. The expert witness, Smith, likewise spoke of the mother's "long-standing history of depression," which prompted her to "spen[d] a considerable amount of time sleeping and withdrawing from the family and others." JA 755. But this evidence adds little to what the three-judge panel heard. There is no indication that the depression affected Wiles in any way beyond causing his mother to "withdraw[]" from the family, id., and a similar theory was put before the three-judge court when it heard evidence that she "ignor[ed]" him, JA 1037.
Second, the ostensibly new evidence of drug use suffers from a similar flaw. Wiles argues that his counsel failed to introduce evidence about his "drug problems, which escalated after an industrial accident which caused the tragic death of his brother." Br. at 20. Yet this evidence, once again, largely duplicates what the judges already heard. Wiles' attorneys presented ample evidence at the mitigation hearing of Wiles' history of drug and alcohol abuse, the death of his brother Randy and the impact these events had on him.
Here, too, there is an exception. Wiles argues that his prior attorneys should have discoveredand should have presented to the courtevidence that he ingested "3 or 4 barbiturates shortly before entering the Klima home," which prevented him from thinking "clearly" at the time of the offense. Br. at 11-12. Even if we accept this new evidence as true, even if we accept that his counsel did not know about this fact and even if we overlook the conspicuous oddity that Wiles himself did not tell his counsel about this background information, there is no prejudice and indeed the omission of this evidence likely benefited Wiles. For one thing, this evidence directly contradicts his confession to the crime, in which he denied consuming drugs on the day of the murder or within the previous twelve days. The claim therefore was readily impeachable, making it unlikely to change the outcome of the hearing for that reason alone. See Owens v. Guida, 549 F.3d 399, 411 (6th Cir.2008). For another, Wiles' mitigation strategy emphasized, quite understandably, that he had confessed truthfully in all respects to the crime, see Wiles, 1988 WL 59838, at *8, but this evidence would have undercut that mitigation theme. For still another, it is hardly self-evident that getting high on barbiturates before stabbing someone to death is the kind of evidence that makes a capital defendant look better in the eyes of a court as opposed to "mak[ing] him look even worse." Carter v. Mitchell, 443 F.3d 517, 532 (6th Cir.2006). Wiles had little to gain from this new evidence and much to lose by introducing it. He thus cannot show prejudice by its omission.
Third, Wiles contends that his counsel failed him by not investigating a head injury he sustained twelve days before the murder. As Wiles tells it, a man named Joe Kelly "jumped [him] and hit [him] on the head with a tire iron" when he was leaving a bar, knocking him unconscious. Br. at 12-13. He arrived at the emergency room with cuts on his face and with his right eye "swollen shut," JA 568, and an *641 examination showed that he had "multiple facial bone [fractures]," id. After doctors cleaned and closed his wounds, Wiles left the hospital against medical advice, only to return five days later complaining of "dizziness, somnolence and difficulty walking." Id.
Notably absent from the record is any evidence that Wiles was still experiencing symptoms from his head injury on the day he murdered Mark Klima. Wiles argues only that investigation by his counsel prior to the mitigation hearing, including "retention of a neurologist and a follow up CAT SCAN, may have assisted counsel . . . in explaining to the fact finders a causal . . . connection between the head injury and [his] uncharacteristic violent behavior." Br. at 13-14. But such "speculation" as to the effects still-further investigation might have on the outcome of this theory at the mitigation hearing does not by itself establish prejudice. See Slaughter v. Parker, 450 F.3d 224, 234 (6th Cir.2006). This claim, too, necessarily fails. All of these arguments considered, the state court of appeals reasonably applied Strickland in concluding that Wiles failed to show prejudice from the failure to present this additional evidence.

B.
Wiles separately argues that his attorneys did not adequately prepare Dr. Willis Carpenter Driscoll, a psychologist, for the mitigation hearing: They gave Driscoll too little time to prepare for the hearing because they hired him a week before the hearing; Driscoll interviewed Wiles for just two hours and never spoke to any of his family, friends or coworkers; and Driscoll never reviewed Wiles' educational records. Driscoll's inadequate preparation, according to Wiles, led him to testify in a way that failed to convey a useful mitigation theory to the three-judge panel. Even if we accept this theory of ineffective assistance for the sake of argument, Wiles again has failed to show prejudice.
Driscoll's inadequate preparation, Wiles urges, caused Driscoll to admit a damning fact on cross-examination, namely that "one of the many factors" that motivated Wiles to kill Klima was that the boy was "the only witness" to the burglary. JA 1421. But it is hard to see how this admission could have affected the death sentence. By this stage in the case, the three-judge panel already had determined that Wiles killed Klima "for the purpose of escaping detection, apprehension, trial or punishment for another crime." Wiles, 571 N.E.2d at 106. Once the panel found that fact to be true beyond a reasonable doubt, defense counsel had every reason to accept, rather than challenge, that premise of the guilt determination and to work with, rather than reargue, the point during the mitigation hearing. A psychologist's "admission" of a fact at a mitigation hearing, one already established beyond a reasonable doubt at the liability hearing, does not establish prejudice.
Nor has Wiles succeeded in showing that a better-prepared expert would have given more useful testimony. As an example of what a well-prepared expert would have said, he offers the affidavit of Robert Smith, who has a Ph.D., a license in clinical psychology and extensive clinical experience in that field, and who has interviewed Wiles and reviewed the relevant records in this case. But Smith's submission, too, adds little to what the court heard at the hearing.
Smith opines that "the antisocial behaviors reported by Mr. Wiles are directly related to his substance dependence" and says that the murder was a "direct result" of Wiles ingestion of barbiturates. JA 765, 767. As explained, however, linking Wiles' *642 conduct to drug abuse was already in front of the panel and linking the crime to the recent consumption of barbiturates was inconsistent with his confession and with the prevailing theme of his case for leniency.
The other explanation Smith offers for the murder was that Wiles had "interpersonal difficulties," in particular a poor relationship with his parents and a brother who died shortly before Wiles began high school. JA 767. But, as mentioned, the three-judge panel heard considerable testimony regarding Wiles' difficult family circumstances, including Driscoll's opinion that Wiles' "emotional development ha[d] been arrested at the age of 10[to] 12" due, in part, to the "dearth of warmth from his father," JA 1399, and that Wiles' desire "to punish himself" due to an overabundance of guilt led him to kill Klima, JA 1424. In the end, Wiles has not shown that he was prejudiced by his counsel's preparation of and reliance on Driscoll or that the state court of appeals unreasonably concluded otherwise.

III.
For these reasons, we affirm.

CONCURRENCE
BOYCE F. MARTIN, JR., Circuit Judge, concurring.
I concur in the panel opinion. Wiles has not shown that his counsel was unconstitutionally ineffective during the mitigation phase of his trial.

* * *
Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains "arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair." Moore v. Parker, 425 F.3d 250, 268 (6th Cir.2005) (Martin, J., dissenting). At the same time, the system's necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.
The system's deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us? In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for "a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces." Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 1548-49, 170 L.Ed.2d 420 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities.[1] Make no *643 mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.
And, while this is a matter that would benefit from further study,[2] the evidence indicates that, on average, every phase of a capital case is more expensive than in a non-capital case, and that the lifetime cost of a capital case is substantially more than the cost of incarcerating an inmate for life without parole.[3] Surprising as that may *644 seem, the reason for it is simple: "lawyers are more expensive than prison guards."[4]
To begin, capital cases involve more pre-trial and trial costs than non-capital cases.[5] Capital cases are far less likely to be resolved through plea bargain,[6] and they generally require far greater time, support services, and expertise to prepare.[7] And capital trials are generally longer and more complex that non-capital trials. Beyond more attorneys and attorney time, capital cases tend to involve more experts and related expenses from experts and support staff.[8] They also require a "death-qualified" jury,[9] and bring the added costs of the "second trial" conducted during the penalty phase.[10] And, because both sides of a capital case are usually funded at public expense, these additional costs must be counted twice in calculating the added cost of a capital prosecution.[11]
Capital cases also involve a significantly longer post-conviction appeal process than non-capital cases. Unlike non-capital cases, capital cases almost invariably proceed through all avenues of post-conviction relief, including direct appeal, state post-conviction proceedings, at least one federal *645 habeas petition, and multiple petitions for certiorari. Naturally, this is because capital defendants (and advocacy groups) have a much stronger motive to pursue post-conviction remedies. But that is their right. Plus, experience has shown that every stage of review is needed to guard against wrongful convictions and correct the unusually high rate of error that plagues capital cases.[12] However, the upshot of higher rates of collateral attack and reversal is that state and federal courts are packed with capital cases,[13] and the cases themselves take decades to wind their way through the system.[14] More appeals means more costs, regardless of why the appeals arise. And reversal means repeating all or part of the process and thus duplicating its time and expense.
So, in almost every way, capital cases are more expensive than non-capital cases.[15] And given the death penalty's exorbitant costs and many basic flaws, it is clear to me that our scarce public resources can be put to better use. This is especially so given what the public is getting for its moneylittle more than the time of lawyers and judges and the "illusion" of capital punishment.[16] Moral objections *646 aside, the death penalty simply does not justify its expense.
Recent news reports indicate that the cost of the death penalty is becoming part of the public debate on capital punishment and has begun to influence policymaking.[17] That strikes me as a very positive development. I hope it continues.
NOTES
[1]  Here, I will focus on the public costs of capital punishment. But it has significant, often overlooked private costs as well. See, e.g., Thomas P. Sullivan, Efforts to Improve the Illinois Capital Punishment System: Worth the Cost?, 41 U. RICH. L.REV. 935, 967 (2007) (noting "the psychological and often the financial injuries inflicted on victims' families," upon the defendant's family, and upon the defendants themselves); Charles S. Lanier & James R. Acker, Capital Punishment, The Moratorium Movement, and Empirical Questions: Looking Beyond Innocence, Race, and Bad Lawyering in Death Penalty Cases, 10 PSYCH. PUB. POL. & L. 577, 603 (2004) (discussing the "host of secondary victims" affected by capital punishment).
[2]  See, e.g., SUSAN S. EVERINGHAM, RAND CORP., INVESTIGATING THE COSTS OF THE DEATH PENALTY IN CALIFORNIA (2008) (discussing challenges in assessing the total costs of the death penalty), available at www.rand.org/pubs/testimonies/ CT300/.

One aspect of this problem that merits further attention is the relationship between the threat of a capital charge and plea bargain rates. Compare KENT S. SCHEIDEGGER, CRIMINAL JUSTICE LEGAL FOUNDATION, THE DEATH PENALTY AND PLEA BARGAINING TO LIFE SENTENCES (2009) (arguing that the availability of the death penalty affects plea bargain rates), available at www.cjlf.org/papers/wpaper09-01.pdf, with Ilyana Kuziemko, Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York's 1995 Reinstatement of Capital Punishment, 8 AM. L. & ECON. REV. 116 (2006) (concluding that availability of a capital charge affects the terms of plea bargains but not their frequency).
[3]  For data on the costs of state capital cases, see CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE, FINAL REPORT 147 (2008) (estimating that a system of life without parole would save $121.2 million annually); JOHN ROMAN, ET AL., URBAN INSTITUTE, THE COST OF THE DEATH PENALTY IN MARYLAND 2 (2008) (finding that average lifetime cost of a capital case is $1.9 million more than the average non-capital case); WASHINGTON STATE BAR ASSOCIATION, FINAL REPORT OF THE DEATH PENALTY SUBCOMMITTEE OF THE COMMITTEE ON PUBLIC DEFENSE (2006) (finding that the cost of a capital trial and post-conviction proceedings is $467,000 more than life without parole); MARY E. FORSBERG, NEW JERSEY POLICY PERSPECTIVE, MONEY FOR NOTHING? THE FINANCIAL COST OF NEW JERSEY'S DEATH PENALTY (2005) (finding capital punishment created $253 million in additional costs from 1983 to 2005, or $11 million per year); STATE OF KANSAS, LEGISLATIVE DIVISION OF POST AUDIT, COSTS INCURRED FOR DEATH PENALTY CASES: A K-GOAL AUDIT OF THE DEPARTMENT OF CORRECTIONS 10 (2003) (estimating the median cost of a capital case to be $1.2 million through execution  70% more than life without parole); INDIANA CRIMINAL LAW STUDY COMMISSION, COMMISSION REPORT ON CAPITAL SENTENCING (2002) (finding death penalty system is 35-38% more costly than one of life without parole); S.V. Date, The High Price of Killing Killers: Death Penalty Prosecutions Cost Taxpayers Millions Annually, PALM BEACH POST, Jan. 4, 2000, at 1A (estimating that the death penalty costs Florida an additional $51 million annually); PHILIP J. COOK & DONNA B. SLAWSON, THE COSTS OF PROCESSING MURDER CASES IN NORTH CAROLINA 78 (1993) ("The extra cost per execution of prosecuting a case capitally is more than $2.16 million."); Christy Hoppe, Executions Cost Texas Millions Study Finds It's Cheaper to Jail Killers for Life, DALLAS MORNING NEWS, Mar. 8, 1992, at 1 A (reporting that the cost of an average capital case was $2.3 million-three times as much as a non-capital case imposing a 40-year sentence); Pamela Manson, Matter of Life or Death: Capital Punishment Costly Despite Public Perception, It's Cheaper to Keep Killers in Prison, ARIZ. REPUBLIC, Aug. 23, 1993, at A1; Stephen Magagnini, Closing Death Row Would Save State $ 90 Million a Year, SACRAMENTO BEE, Mar. 28, 1988, at A1; Robert Spangenberg & Elizabeth R. Walsh, Capital Punishment or Life Imprisonment? Some Cost Considerations, 23 LOYOLA L.A. L.REV. 45 (1989); Margot Garey, Comment, The Cost of Taking a Life: Dollars and Sense of the Death Penalty, 18 U.C. DAVIS L.REV. 1221 (1985).

For trial cost data on the federal level, see JON B. GOULD & LISA GREENMAN, JUDICIAL CONFERENCE COMMITTEE ON DEFENDER SERVICES, UPDATE ON THE COST, QUALITY, AND AVAILABILITY OF DEFENSE REPRESENTATION IN FEDERAL DEATH PENALTY CASES 24 (2008) (finding the median defense cost of authorized cases to be $353,185 as opposed to $44,809 in non-authorized cases), available at www.uscourts.gov/defenderservices/FDPC_ Contents.cfm. The report does not address the costs of prosecution or post-conviction costs.
[4]  U.C. Berkeley Law Professor Franklin Zimring, quoted in Sam Howe Verhovek, Across the U.S., Executions are Neither Swift Nor Cheap, N.Y. TIMES, February 22, 1995, at A1.
[5]  See, e.g., ROMAN ET AL., supra note 3, at 30 ("The majority (70%) of the cost differential between a death notice and a non-death notice case occurs during the trial phase. This difference is due to a greater number of pre-trial motions, longer and more intensive voir dire, longer trials and a greater amount of general preparation time.").
[6]  Roughly 95% of state and federal felony cases are resolved through plea bargain. Russell D. Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings, 82 TUL. L.REV. 1237, 1238 (2008). Most capital cases, on the other hand, proceed to trial. Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence, 46 CASE W. RES. L.REV. 1, 11 (1995) ("80% of capital cases go to trial."); GOULD & GREENMAN, supra note 3, at 18 (reporting that 65% of capital cases handled by federal defenders between 1998 and 2004 went to trial).
[7]  See, e.g., AMERICAN BAR ASSOCIATION, GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES 3 (rev. ed. 2003) ("[D]eath penalty cases have become so specialized that defense counsel have duties and functions definably different from those of counsel in ordinary criminal cases."). The ABA Guidelines go on to outline these duties and functions in detail.
[8]  GOULD & GREENMAN, supra note 3, at 29 ("The use of experts has a substantial influence on case cost. . . . [E]xperts were utilized in both authorized and non-authorized cases. There is a significant difference, however, in the prevalence, and hence cost, of expert assistance between authorized and non-authorized cases.").
[9]  As the 2006 Report by the Washington State Bar explains, "Since a very large number of potential jurors likely will be excused, it is not uncommon for the court to summon over 1,000 potential jurors. . . . In a non-capital case, fewer than 100 potential jurors are typically summoned." FINAL REPORT OF THE DEATH PENALTY SUBCOMMITTEE OF THE COMMITTEE ON PUBLIC DEFENSE, supra note 3, at 16. Capital cases also involve much more searching, individualized voir dire than non-capital cases. As a result, jury selection in a capital case can take a month instead of one or two days. Id. at 16-17.
[10]  See generally AMERICAN BAR ASSOCIATION, SUPPLEMENTARY GUIDELINES FOR THE MITIGATION FUNCTION OF DEFENSE TEAMS IN DEATH PENALTY CASES (2008).
[11]  "[V]ery few" capital defendants can afford to pay for their own defense, so they rely upon public defenders or counsel appointed by the court under the Criminal Justice Act. GOULD & GREENMAN, supra note 3, at 16-17.
[12]  A prominent study of state and federal capital cases between 1973 and 1995 fixed the overall error rate in capital cases at 68% (as opposed to 15% in non-capital cases). JAMES S. LIEBMAN, JEFFREY FAGAN & VALERIE WEST, A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES 1973-1995 at 8-9 (2000), available at www2.law.columbia.edu/instructionalservices/liebman/. The study further found that 40% of the death sentences that were upheld on direct appeal and through state post-conviction were subsequently overturned during federal habeas proceedings. Id. at 6.
[13]  Including Wiles, 118 of Ohio's 166 death row inmates (71%) have cases pending in federal court. RICHARD CORDRAY, OHIO ATTORNEY GENERAL, CAPITAL CRIMES ANNUAL REPORT: STATE AND FEDERAL CASES 2008 at 22 (2009). 28 more (17%) have cases pending in state court. Id.
[14]  This case, involving a death sentence imposed in 1986 (when the law clerk assisting me on this case was three years old), is unexceptional in this regard. The average elapsed time from sentence to execution in 2007 was 153 monthstwelve years and nine months. TRACY L. SNELL, BUREAU OF JUSTICE STATISTICS, CAPITAL PUNISHMENT, 2007STATISTICAL TABLES (2008), available at www.ojp.usdoj.gov/bjs/ pub/html/cp/2007/cp07st.htm. The median elapsed time since sentencing for inmates on death row at the end of 2007 was 133 months. Id.
[15]  This is in spite of the fact that capital defense services continue to be underfunded, much to the prejudice of indigent capital defendants. See generally Stephen Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime, but for the Worst Lawyer, 103 YALE L.J. 1835 (1994); see also ABA MORATORIUM IMPLEMENTATION PROJECT, STATE DEATH PENALTY ASSESSMENTS: KEY FINDINGS (2007) (finding, among other things, "[T]hat . . . (4) Capital indigent defense systems, whether statewide or county-by-county, generally are significantly underfunded; (5) Many states are failing to provide for the appointment of two lawyers at all stages of a capital case, nor are they guaranteeing access to investigators and mitigation specialists; (6) Many states are requiring only minimal training and experience for attorneys handling death penalty cases; and (7) The compensation paid to appointed capital defense attorneys is often woefully inadequate, dipping to well under $50 per hour in some cases") (emphasis added).
[16]  Kozinski & Gallagher, supra note 6, at 3. Only nine of the thirty-six states which retain the death penalty carried out executions in 2008, a year in which there was a total of thirty-seven executions nationwide. SNELL, supra note 14. At the end of 2007, there were 3,220 prisoners on death row. Id.

Whatever one's opinion of the intractable debate over deterrence, the empirical evidence is too inconclusive to warrant much weight. See generally John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 STAN. L.REV. 791 (2005) (conducting an exhaustive review of the empirical literature on the death penalty and concluding, "Our estimates suggest not just `reasonable doubt' about whether there is any deterrent effect of the death penalty, but profound uncertainty. We are confident that the effects are not large, but we remain unsure even of whether they are positive or negative").
[17]  See, e.g., Opponents Focus on Cost in Death Penalty Debate (National Public Radio April 1, 2009); Judy Kerr, What Price Vengeance, SAN FRANCISCO CHRONICLE, Mar. 13, 2009, at A15; Saving Lives and Money, THE ECONOMIST, Mar. 12, 2009, available at www. economi st.com/world/unitedstates/displayStory.cfm?story_id=13279051; Michelle Millhollon, Economics of Executions, ADVOCATE CAPITOL NEWS, Mar. 8, 2009, at 1A; Deborah Hastings, In Hard Times, Executions Become a Question of Cost, ASSOCIATED PRESS, March 7, 2009, available at www.usatoday.com/news/nation/2009-03-07-exepensive-to-execute_N.htm; Steve Mills, In Many States, Cost is Slowly Killing Death Penalty, CHICAGO TRIBUNE, March 7, 2009, available at archives.chicagotribune.com/ 2009/mar/07/nation/chi-death-penalty-costsmar08; Abigail Goldman, Debating the Cost of the Death Penalty, LAS VEGAS SUN, March 4, 2009, available at www.lasvegassun.com/news/2009/mar/04/debating-cost-death-penalty/; Martha Bellisle, Nevada Bill Requires Moratorium, Study of Death Penalty Cost, RENO GAZETTE-JOURNAL, March 3, 2009, available at www.rgj.com/article/20090303/ NEWS18/90303060; Ed Quillen, The Death Penalty's Costs, DENVER POST, March 1, 2009, available at www.denverpost.com/ perspective/ci_11795714; Ian Urbina, Citing Cost, States Consider End to Death Penalty, N.Y. TIMES, February 25, 2009, at A1.

In addition to New Mexico, which abolished the death penalty on March 18, 2009, a number of states, including Colorado, Nevada, Montana, Nebraska, Kansas, Maryland, and New Hampshire are reconsidering their capital punishment policies, in part because the cost of the death penalty. Colorado, for example, is currently considering a bill (H.B.09-1274) that proposes to abolish the death penalty and instead spend the money saved on investigating cold cases.


                      T.C. Memo. 2011-158

                     UNITED STATES TAX COURT

                 RONALD L. FAUST, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

     Docket No. 9231-09.                Filed July 6, 2011.

     Ronald L. Faust, pro se.1

     Christina L. Lewerenz, for respondent.

     1
      Henry Stoever, an attorney who is not a member of the Tax
Court bar, was initially recognized by the Court as Ronald
Faust’s representative under Rule 24(a)(4) of the Tax Court Rules
of Practice and Procedure. Stoever represented Ronald Faust at
the calendar call. Shortly before trial, Stoever and Ronald
Faust asked that Stoever’s appearance be withdrawn, and the Court
ordered the appearance withdrawn.
                                     -2-

                  MEMORANDUM FINDINGS OF FACT AND OPINION

     MORRISON, Judge:       The petitioner, Ronald L. Faust, and his

wife, Toni B. Faust, filed joint income-tax returns for 2005 and

2006.       The Internal Revenue Service (the IRS)2 issued a statutory

notice of deficiency to the Fausts on January 26, 2009,

determining the following income-tax deficiencies and accuracy-

related penalties:

                                             Penalty
                  Year     Deficiency       Sec. 6662
                  2005        $649           $129.80
                  2006       1,385            227.00

Seeking a redetermination, Ronald Faust filed a Tax Court

petition.       The petition was not signed by his wife, and therefore

she is not a party to this case.        After a concession,3 three

issues remain for decision:

        •      Are the deductions claimed as the business expenses of

               MacLeisure Creations allowable?

        •      Are the deductions claimed as the employee business

               expenses of Ronald Faust’s wife allowable?

     2
      We use the term “IRS” to refer to both the Internal Revenue
Service and to the Commissioner of Internal Revenue, who is the
head of the IRS and is the respondent in this case.
     3
      Faust concedes that his wife’s taxable pension income was
$13,096.86, not $13 as reported on the 2006 tax return.
                                -3-

     •    Is Faust liable for the penalty imposed by section

          6662(a) on inaccurate tax returns?4

                         FINDINGS OF FACT

     Reverend Ronald Faust resided in Missouri at the time he

filed his petition with the Tax Court.     The case was tried in

Kansas City, Missouri.   The parties stipulated some of the facts;

these stipulations are adopted as factual findings.

     Faust is a retired minister.     After his retirement, he

supposedly created a new enterprise called MacLeisure Creations.

The word “MacLeisure” is a combination of Ronald Faust’s previous

name, “Mac Keyes”, and the phrase “leisure ministry”.5

     In Faust’s view, MacLeisure Creations encompassed virtually

all his activities.   Consistent with this view, Faust claimed

business deductions on his 2005 and 2006 joint tax returns for

the costs of, among other things:

     •    writing books that he distributed to his friends and

          family for free;

     •    buying groceries;

     •    buying books and magazines;

     •    going on ski trips with friends;

     •    buying boating equipment;

     4
      All references to sections are to the Internal Revenue Code
of 1986, as in effect during the tax years 2005 and 2006.
     5
      Faust had used “Mac Keyes” as his full name.
                                  -4-

     •    repairing his washing machine;

     •    repairing and maintaining his house;

     •    dining with his wife;

     •    buying clothes for his son;

     •    attending comedy shows;

     •    paying utility and telephone bills;

     •    attending art exhibits with his daughter, who is an

          artist.

     During the 2005 and 2006 years Faust’s wife was employed by

the Montessori Center Inc., Curves for Women, Casa de los Ninos,

Inc., and Rondamar Enterprises, Inc.6

     On their 2005 Form 1040, U.S. Individual Income Tax Return,

the Fausts reported gross receipts of $235 from Ronald Faust’s

supposed enterprise, “MacLeisure Creations”. The Fausts reported

that the enterprise had business expenses of $20,771, with a

resulting business loss of $20,536.     The return also claimed that

Faust’s wife had employee business expenses of $6,157.

     On their 2006 income-tax return the Fausts claimed that

MacLeisure Creations earned $210 in gross receipts, expended

$36,509, and had a business loss of $36,299.    The return also

claimed that Faust’s wife had employee business expenses of

$5,821.

     6
      The Forms W-2, Wage and Tax Statement, name the “Montesson
Center, Inc.” as the employer of Faust’s wife. This appears to
be a typographical error.
                                -5-

     In its notice of deficiency, the IRS disallowed the

deductions for business expenses claimed for MacLeisure Creations

and instead allowed the Fausts itemized deductions up to the

amount of the gross income reported for MacLeisure Creations

(i.e., $235 for 2005 and $210 for 2006).    The IRS also disallowed

the deductions for employee business expenses of Faust’s wife.

                              OPINION

     Faust bears the burden of proving that the determinations in

the notice of deficiency are erroneous.    See Rule 142(a)(1), Tax

Court Rules of Practice and Procedure.    Faust does not assert

that the burden of proof shifts to the IRS under section 7491(a).

On the record before us, we conclude that the burden of proof

does not shift to the IRS under that section.

1.   Are the Business Expenses Claimed for MacLeisure Creations
     Deductible?

     The IRS’s notice of deficiency made adjustments that were

premised on the theory that the activities of MacLeisure

Creations were not engaged in for profit within the meaning of

section 183.   This theory was thoroughly vindicated at the trial.

Section 1.183-2(a) of the Income Tax Regulations contains a

nonexhaustive list of nine factors to consider in determining

whether an activity is conducted for profit.    Considering these

nine factors, we believe that MacLeisure Creations was not

conducted for profit:
                                  -6-

     •    “Manner in which the taxpayer carries on the activity.”

          Faust kept no separate bank accounts or books for

          MacLeisure Creations.    He did not systematically

          analyze or monitor the profitability of the activities.

          Although Faust had a document entitled “Business

          Plan:”, the existence of this document does not evince

          a desire to make a profit.    At trial Faust admitted

          that he drafted the document for tax purposes and that

          he really did not intend to earn a profit.7

     •    “The expertise of the taxpayer or his advisors.”

          There is no evidence that Faust had expertise in

          operating the activities for profit, or that he sought

          advice or guidance on how to make the activities

          profitable.

     •    “The time and effort expended by the taxpayer in

          carrying on the activity.”    Faust testified that he

          spent all his time on the activities of MacLeisure

          Creations.    Although the amount of time expended on an

          activity may indicate that the activity was intended to

          earn a profit, the amount of time that Faust spent on

          the activities of MacLeisure Creations is merely the

     7
      We do not consider whether this admission alone is
dispositive of the conducted-for-profit inquiry.
                            -7-

    result of his expansive definition of the supposed

    enterprise.

•   “Expectation that assets used in activity may

    appreciate in value.”     There is no evidence that any of

    the assets used in the activities were expected to

    increase in value.

•   “The success of the taxpayer in carrying on other

    similar or dissimilar activities.”     Although Faust is

    an ordained minister and earned a living at one time as

    a paid employee of a church, there is no evidence that

    he ever profitably carried on the activities in

    question independent of an established church.

•   “The taxpayer’s history of income or losses with

    respect to the activity.”     The Fausts reported that

    MacLeisure Creations had large net losses eight years

    in a row.   Evaluated as a business, the supposed

    activities of MacLeisure Creations have been a

    financial disaster.

•   “The amount of occasional profits, if any, which are

    earned.”    Faust never earned a profit from the

    MacLeisure Creations activities.

•   “The financial status of the taxpayer.”     The Fausts

    relied on other income to subsidize the activities.
                                  -8-

     •      “Elements of personal pleasure or recreation.”   Faust

            derived personal enjoyment from the activities he

            conducted under the guise of MacLeisure Creations.

     The activities of MacLeisure Creations were not conducted

for profit.    The expenses are therefore not deductible, except,

as the IRS concedes, to the extent of the gross income from the

activities.    See sec. 183(b)(2).   The IRS also argues that the

deductions must be disallowed because the expenses are not

substantiated, but we need not address this additional argument.

2.   Are the Employee Business Expenses of Faust’s Wife
     Allowable?

     An employee is entitled to a deduction for the ordinary and

necessary expenses paid in performing services for his or her

employer.    See sec. 162(a).   However, no deduction is allowed for

personal, living, or family expenses.     See sec. 262(a).

     Faust failed to demonstrate that any of the expenses claimed

on the returns as employee business expenses were related in any

way to his wife’s employment.    Therefore, the deductions are not

allowable.

3.   Is Faust Liable for the Section 6662(a) Accuracy-Related
     Penalty?

     Section 6662(a) and (b)(1) imposes a 20 percent accuracy-

related penalty on any portion of the underpayment of tax

required to be shown on a return if the portion is attributable

to negligence or disregard of rules or regulations.     The term
                                -9-

“negligence” includes any failure to make a reasonable attempt to

comply with the provisions of the Internal Revenue Code.   Sec.

6662(c).   The penalty is not imposed when the taxpayer can show

that the underpayment was due to reasonable cause and good faith.

Sec. 6664(c).

     The IRS bears the burden of producing evidence that it is

appropriate to impose the accuracy-related penalties for the tax

years 2005 and 2006.   See sec. 7491(c) (“the Secretary shall have

the burden of production in any court proceeding with respect to

the liability of any individual for any penalty, addition to tax,

or additional amount imposed by this title”).   The taxpayer has

the burden of proof.   See Higbee v. Commissioner, 116 T.C. 438,

446-447 (2001) (“Congress’ use of the phrase ‘burden of

production’ and not the more general phrase ‘burden of proof’

* * * indicates to us that Congress did not desire that the

burden of proof be placed on the Commissioner with regard to

penalties.”).   The IRS has presented sufficient evidence that the

contested deductions were reported on the returns as the result

of negligence in regard to the federal income tax laws.

Furthermore, Faust has not persuaded us that the reporting was

not the result of negligence.

     The taxpayer has the burden of proving reasonable cause and

good faith regarding an underpayment.   See Higbee v.

Commissioner, supra at 446 (“the Commissioner need not introduce
                                 -10-

evidence regarding reasonable cause, substantial authority, or

similar provisions”; “the taxpayer bears the burden of proof with

regard to those issues”).   We are not persuaded that the Fausts

had reasonable cause for the underpayments or that they acted in

good faith in preparing their tax returns in the erroneous manner

in which they did.   Consequently, the accuracy-related penalty is

imposed upon the underpayments of tax attributable to the

challenged tax treatment.

     To reflect the foregoing,

                                             Decision will be entered

                                        for respondent.