Summary
In Cincinnati Bar Assn. v. Leroux (1968), 16 Ohio St.2d 10, the Ohio Supreme Court also found that the failure to file federal income tax returns constituting a misdemeanor did not necessarily involve moral turpitude.
Summary of this case from Rossiter v. Ohio State Medical Bd.Opinion
D.D. Nos. 90, 91 and 92
Decided November 20, 1968.
Attorneys at law — Misconduct — Acts warranting public reprimand — Failure to file income tax returns.
ON CERTIFIED REPORTS by the Board of Commissioners on Grievances and Discipline.
In each of these three cases the local bar association filed a complaint against an attorney at law charging him with professional misconduct in that he willfully failed to file income tax returns, in violation of Section 7203, Title 26, U.S. Code.
Respondents Robert L. Leroux and Paul J. Weber, who have been law partners for approximately 22 years, were both convicted in federal court for failing to file income tax returns for 1960 and 1961. The present disciplinary complaint against Weber also charges him with failing to file a return for 1959.
Respondent Robert A. Bostick was convicted for failing to file returns for 1960, 1961 and 1963.
The Board of Commissioners on Grievances and Discipline found that all the respondents had violated Canons 29 (dignity of the profession) and 32 (duty to observe statute law) of the Code of Professional Ethics. Due to the mitigating circumstances in each of the cases, the board recommended that a public reprimand be the discipline. None of the relators or respondents object to the recommended discipline, but the relator in the Leroux case, the Cincinnati Bar Association, does object to the board's conclusion that the crimes did not involve moral turpitude, within the purview of Rule XVIII (5) (a) of the Rules of Practice of the Supreme Court.
Mr. Peter Outcalt and Mr. James L. Elder, for relator in case D.D. No. 90.
Mr. Thomas A. Luken, for respondent in case D.D. No. 90.
Mr. Lawrence A. Kane, Jr., and Mr. Arnold Morelli, for relator in case D.D. No. 91.
Mr. Thomas A. Luken, for respondent in case D.D. No. 91.
Mr. Robert J. Eilerman and Mr. Harry P. Jeffrey, for relator in case D.D. No. 92.
Mr. Lloyd H. O'Hara and Mr. James T. Lynn, Jr., for respondent in case D.D. No. 92.
In each of these three cases the Board of Commissioners on Grievances and Discipline considered whether the failure to file income tax returns were crimes involving moral turpitude, and in each case the board decided that they were not.
The failure to file income tax returns is a misdemeanor, Section 7203, Title 26, U.S. Code. While such classification does not control the determination of whether moral turpitude is involved, it does indicate that Congress did not consider the offense serious enough to be made a felony.
More important is the evidence that there was no attempt on the part of respondents to evade income taxes. Respondents Leroux and Weber, for example, filed accurate partnership returns during at least one of the years for which they failed to file personal returns, which would be inconsistent with a plan to defraud the government. All of the respondents co-operated fully with the Internal Revenue agents. There was no indication that the records maintained were either inadequate or deceptive. There was considerable evidence that the reputation and competence of respondents ranged from good to very good.
Whether a charge based upon a willfull omission to file income tax returns (for which the explanations offered were so various as to include physical or emotional illness, family problems and economic problems) involves moral turpitude, must necessarily turn on the particular circumstances of each case. See Dayton Bar Assn. v. Prear, 175 Ohio St. 543. Certainly the inclusion of evidence negating an intention to defraud is such a circumstance.
The lack of evidence from which such an intent might be inferred must be considered to distinguish such cases from those in which such evidence is affirmatively shown. Openness and remorse alone will not excuse an offense which is clearly reprehensible, but may be considered, with other mitigating circumstances, in evaluating a difficult borderline case. We agree with the board's conclusions that the respondents' offenses under the circumstances of the cases here in question did not involve moral turpitude. Compare annotation, 59 A.L.R. 2d 1398, 1404.
The board was also correct in finding that respondents violated Canons 29 and 32 of the Canons of Professional Ethics. See Dayton Bar Assn. v. Prear, supra; Cleveland Bar Assn. v. Bilinski, 177 Ohio St. 43; and Ohio State Bar Assn. v. Hart, 15 Ohio St.2d 97.
Under all the circumstances in the instant cases, and considering the mitigating factors, the court chooses to follow the recommendation of the Board of Commissioners on Grievances and Discipline and to impose in each case as discipline a public reprimand.
Reports confirmed and judgment accordingly.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, DOYLE, SCHNEIDER and BROWN, JJ., concur.
DOYLE, J., of the Ninth Appellate District, sitting for HERBERT, J.