Summary
In Dayton Bar Assn. v. Prear (1964), 175 Ohio St. 543, 196 N.E.2d 773, this court was presented with a similar situation.
Summary of this case from Ohio State Bar Assn. v. MooreOpinion
D.D. No. 55
Decided March 4, 1964.
Attorneys at law — Misconduct — Disciplinary action — Indefinite suspension from practice — Acts warranting — Continued failure to file federal income tax returns.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
The relator, the Dayton Bar Association, instituted this proceeding before the Board of Commissioners on Grievances and Discipline.
The complaint contains three counts. Each count alleges that the respondent willfully and knowingly failed to make a federal income tax return in violation of Section 7203, Title 26, U.S. Code, and that, upon his plea of guilty, the respondent was convicted with respect to each charge in the United States District Court, Southern District of Ohio, Western Division.
Count No. 1 is based upon a failure to file a return for the calendar year 1959, in which year the respondent had a gross income of $11,791.73, which return was due on April 15, 1960.
Count No. 2 is based upon a failure to file a return for the calendar year 1958, in which year the respondent had a gross income of $6,970.31, which return was due on April 15, 1959.
Count No. 3 is based upon a failure to file a return for the calendar year 1955, in which year the respondent had a gross income of $3,611.92.
Respondent filed an answer before the panel. He admits that he "did fail, in fact, to make an income tax return * * * for the calendar year of 1959, that he did in fact enter a plea of guilty to the offense of failing to make a tax return for the calendar years 1959, 1958 and 1955 as set forth in the complaint."
The answer then alleges (1) that the failure to file was not willfully done or with intent to defraud the United States government, and (2) "that the aforesaid conduct of the respondent does not bring the legal profession into disrepute and same is not contrary to nor in violation of Rules XXVII and XXVIII of the Rules of Practice of the Supreme Court of Ohio nor of the Canons of Professional Ethics of the American Bar Association, as adopted by the Supreme Court of Ohio."
The relator introduced only the transcript of the informations and convictions of the respondent upon the charges enumerated in the complaint.
The respondent took the stand in his own behalf and admitted his convictions but sought to justify his failure to file the returns by argument based upon facts not contained in the transcript of the court record. He argued that there was a continuing dispute between him and the Internal Revenue Service as to the amount of his income during the years in question, and that he would have been charged with filing false and fraudulent returns if he had returned the amounts which he claimed as correct. Nevertheless, he admitted that he pleaded guilty to the informations which charged that he "willfully and knowingly" failed to file the returns, and that the explanation which he sought to offer in this proceeding was also offered at the trial.
The panel ruled that the convictions in the District Court, based upon his pleas of guilty, could not be collaterally attacked in this proceeding.
The record shows that the information, with respect to the 1955 return, was filed on August 11, 1958. Trial was held on October 23, 1958. Sentence was suspended and respondent was placed on probation for one year, which would run to October 23, 1959. He was also fined $500 which he testified before the panel was paid.
The 1958 return was due on April 15, 1959, which was during the year of probation. It was not filed. The information on the 1958 failure was filed on August 31, 1962, and trial was had on January 31, 1963. On that count, he was given a suspended sentence of one year on condition that he file all returns, as due, for a period of five years.
The information on the 1959 failure was filed on August 31, 1962, and trial was had on January 31, 1963. On it he was sentenced to three months imprisonment to begin on February 4, 1963. He served that sentence in Milan, Michigan.
The board of commissioners found the respondent guilty of misconduct in the following respects:
"1. By willfully and knowingly failing to file personal federal income tax returns for three separate years, to wit, 1955, 1958 and 1959, and by defying the court by failing to file his 1958 return during the year of his probationary sentence with respect to his 1955 failure, which conduct tended to bring the legal profession into disrepute and is conduct as to which this commission is charged to investigate and report under Rule XXVII (1) (b).
"2. By conducting himself as above stated in violation of Canon 29 of the Canons of Professional Ethics which provides that a lawyer should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.
"3. By conducting himself as above stated in violation of Canon 32 of the Canons of Professional Ethics, which enjoins upon each lawyer the duty not to render any service or advice involving disloyalty to the law and the duty to impress upon clients exact compliance with the strictest principles of moral law and which specifically provides that the lawyer must observe, and advise his client to observe, the statute law.
"4. Notwithstanding the differences in court decisions as to the definition of moral turpitude the panel believes that the knowing, willful and repeated defiance of the federal statutes by the respondent constituted conduct that was reprehensible and extremely bad so that the offense committed was a crime involving moral turpitude and constitutes misconduct under Section 5 of Rule XXVII."
The board recommended that respondent be suspended for an indefinite period from the practice of law.
Respondent appeared in this court on his own behalf and argued orally. He stated in oral argument that he had filed his 1958 return but that the Internal Revenue Service office in Cincinnati had asserted it had not been received, and that he had later given a copy of it to an agent in Dayton. He stated further that, on advice of his counsel, he had pleaded guilty to the charge of not filing the 1958 return.
In all other respects, respondent admitted the findings of the board with regard to the facts, and that he had pleaded guilty to the charges and served a sentence, asserting that he was sentenced to three months imprisonment, that he served two months of this sentence, and that the judge suspended the last 30 days thereof.
Mr. Francis S. McDaniel and Mr. Walter A. Porter, for relator.
Mr. J. Paul Prear, in propria persona.
The respondent has violated Canons 29 and 32 of the Canons of Professional Ethics, as charged. The board found that the respondent had violated paragraph (5) (a) of Rule XXVII, as adopted by this court, in that he had been convicted of a crime involving moral turpitude. Respondent contends that he is not guilty of moral turpitude.
The question is whether the conviction, in itself, of an attorney for willful failure to file a federal income tax return constitutes moral turpitude so as to be in violation of paragraph (5) (a) of Rule XXVII.
There are two lines of cases on this subject — one holding that such conduct involves moral turpitude, and the other, that it does not. See annotation, 59 A.L.R. (2d), 1398.
In re Hallinan (1954), 43 Cal.2d 243, 272 P.2d 768, is the leading case supporting the theory that such conduct does not necessarily involve moral turpitude.
The court determined that the conviction, in itself, of an attorney for willfully and knowingly filing a false and fraudulent income tax return was not conclusive proof of the commission of an act involving moral turpitude.
It should be noted that in In re Hallinan the charge was for "filing a false and fraudulent return," whereas, in the instant case, the charge is for "failure to file."
A review of the cases in other jurisdictions leads this court to the conclusion that each of those cases was considered individually upon its merits, including mitigating circumstances involved and the previous standing and record of the attorney involved, and the court's appraisal of his future conduct in the light of his past record.
Without expressing an opinion upon the question of whether the failure to file a return in one year, coupled with the mitigating circumstances in this case, would involve moral turpitude, this court is of the opinion that the continued failure to file returns for the years 1955, 1958 and 1959, including the failure to file a return during a period when respondent was on probation resulting from his conviction for a similar offense, is such intentional, willful and fraudulent conduct on the part of the respondent as to justify the discipline recommended.
The court in this case has also had the opportunity to observe and question the respondent during his oral argument before this court.
The objections to the recommendation of the board are overruled, and the recommendation of the board is confirmed.
Report confirmed and judgment accordingly.
TAFT, C.J., ZIMMERMAN, O'NEILL, GRIFFITH and HERBERT, JJ., concur.
GIBSON, J., dissents.
MATTHIAS, J., not participating.
Section 6 of Rule XXVII of this court provides that each attorney and counselor at law or judge found guilty of misconduct shall be disciplined. Section 5 of of the same rule states that "the commission or conviction of a crime involving moral turpitude" is misconduct. The question in this case then is whether the crime for which the respondent was convicted involved moral turpitude.
As stated in the facts, the respondent failed to file federal income tax returns for the years 1955, 1958 and 1959. He was charged and convicted in each case of violating Section 7203, Title 26, U.S. Code, which provides:
"Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return * * * who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall * * * be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution." (Emphasis added.)
As might reasonably be expected, state courts have reached different answers as to whether a failure to make a federal income tax return is an offense involving moral turpitude. See annotation, 59 A.L.R. (2d), 1398. One of the reasons for the different conclusions reached by courts is the difficulty of defining "moral turpitude". See Cincinnati Bar Association v. Massengale (1961), 171 Ohio St. 442; Words and Phrases, under the heading, "Moral Turpitude". It certainly means something extremely bad since turpitude is derived from the Latin word, "turpis," meaning vile. In re McBride (1956), 164 Ohio St. 419, 425. The Oxford English Dictionary defines "turpitude" as "base or shameful character; baseness, vileness; depravity, wickedness." Not all crimes involve moral turpitude. See In re Jacoby (1943), 74 Ohio App. 147, 155. But as a general rule it could reasonably be said that those crimes classed as mala in se, e.g., murder, rape, robbery, larceny, burglary, involve moral turpitude. The real area of difficulty lies where the act or omission is criminal only because ordered or prohibited by statute.
The mere fact that a person acts so as to violate the positive statutory law does not necessarily mean that the conduct is base or vile. Today, as always, we live in a time when men have deliberately acted contrary to statutory law and yet no reasonable person would deem every such action infected with moral turpitude. See the article by Professor Charles Frankel entitled, "Is It Ever Right to Break the Law?", in the New York Times Magazine, January 12, 1964, page 17.
There is nothing inherently good or bad about filing or not filing an income tax return. Only within the last 50 years has there been a federal income tax. In the early days there were serious questions as to the policy and constitutionality of a federal income tax. The number of men who have at some time sought to evade the payment of this tax or another, or some part thereof, is legion. Even within the past decade some persons have built substantial public careers by willfully and deliberately refusing to pay federally imposed income or other types of taxes.
To say that one who knowingly fails to file a federal income tax return is base or vile or depraved is to misuse words. Apparently, state courts in disciplinary proceedings against attorneys at law most often have viewed the crime of tax evasion as one not necessarily involving moral turpitude. 59 A.L.R. (2d), 1398, 1401. In this connection, how is the respondent's failure to file a federal income tax return on three occasions any more base, vile or depraved than his failure to file such return on a single occasion? Such conduct certainly does not involve any fraud.
Just how the previous standing and record of respondent or how our appraisal of his future conduct in the light of his past record affects in any respect a determination as to whether he was convicted of a crime involving moral turpitude escapes me. These factors may and should, however, be considered in determining the discipline to impose if, and only if, the respondent has committed or has been convicted of a crime involving moral turpitude.
I do not condone respondent's conduct, but it would seem that the statutorily prescribed penalties for failure to file a federal income tax return are sufficient. Presumably Congress has determined that the penalties prescribed are adequate for the offense and sufficient to secure compliance with the law. There is no question that, in addition to the other tax penalties provided by law, the respondent should be punished after conviction, as he was, by criminal sentence.
Since in my opinion the crime of knowingly failing to file federal income tax returns pursuant to the requirements of Section 7203, Title 26, U.S. Code, does not involve those qualities of baseness, vileness, or depravity necessary to constitute moral turpitude, there is no basis for indefinitely suspending respondent from his sole means of livelihood, the practice of law. As the complaint against the respondent involves no other charge of misconduct and the only evidence of misconduct presented consisted of certified copies of the information and judgments of the federal court against him, I would dismiss the complaint.
It is worthy of note that the crime for which this court indefinitely suspends the respondent from his profession and sole means of livelihood, when considered by the federal court, which had authority to impose a fine of $10,000 and a year in prison, or both, for each violation, was deemed to warrant a sentence, covering all three counts, of only $500 and three months in prison.