Summary
In Cleveland Bar Assn. v. Stein (1972), 29 Ohio St.2d 77, this court established the rule that an attorney found guilty of willful failure to file a federal income tax return be suspended indefinitely from the practice of law.
Summary of this case from Butler County Bar Assn. v. BartelsOpinion
D.D. No. 71-4
Decided February 9, 1972.
Attorneys at law — Misconduct — Indefinite suspension from practice — Acts warranting — Failure to file income tax returns.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
William H. Stein, the respondent herein, is 46 years old and was admitted to the practice of law in Ohio in 1951 by examination. He has practiced continuously since that time in Cleveland, specializing in the field of municipal law. He has in the past represented several municipalities in Cuyahoga County.
The relator, the Cleveland Bar Association, instituted this proceeding before the Board of Commissioners on Grievances and Discipline, charging respondent with violations of Canons of Professional Ethics, Nos. 29 and 32.
On April 2, 1969, an information was filed in the United States District Court for the Northern District of Ohio, Eastern Division, charging in four counts that respondent wilfully failed to file federal income tax returns for 1963, 1964, 1965 and 1966, in violation of Section 7203, Title 26, U.S. Code. On that same day the respondent entered a plea of guilty to the charge of failing to file the 1965 return and the U.S. Attorney moved for dismissal of the other three charges, which was granted by the court.
The counts of the information alleged that, in 1963, respondent had a gross income of $30,970; in 1964, a gross income of $27,190; in 1965, a gross income of $38,774.06; and in 1966, a gross income of $29,086.79.
Respondent's plea of guilty was accepted. He appeared for sentencing on May 28, 1969, at which time he was fined $1,000 and placed on probation for one year.
The findings of fact of the Board of Commissioners point out that the only information which the Cleveland Bar Association had regarding respondent's plea of guilty to this charge is a letter, dated April 3, 1969, written by respondent in which he advised the executive secretary that he had entered such a plea. The letter stated that, while there was an admitted tax liability of $2,375.94 in 1963, $2,260.01 in 1964, $4,011.54 in 1965 and $1,869.23 in 1966, a portion of the tax liability for each year had been covered by withholding taxes. This letter stated further that respondent had not been motivated in any way by an intent to evade income tax responsibility or to violate the law, but had resulted from a personal breakdown relating to his personal affairs and professional responsibilities during the years involved. That letter concluded with the following paragraph:
"As a lawyer I fully realize my solemn oath and responsibility to uphold and encourage respect for the laws of our country and the Canons of my profession, and I therefore submit to the Bar Association for review my conduct as set forth in this letter."
Respondent testified under oath before the hearing panel of the Board of Commissioners on Grievances and Discipline. He stated that, commencing in 1961, he was involved in extreme marital difficulties, resulting in a separation from his wife and son in 1964 and ultimately a divorce in 1968; that, commencing in 1963, his financial circumstances were deplorable and he was required to borrow substantial sums of money to make expenses; that he did not know that he could file a return without full payment of his tax obligation and that in March 1964, when his 1963 income tax, amounting to $2,900, was due, he was unable to pay it; that he did not file a return and he did not know that it was a crime to fail to file this return; that in subsequent years at tax payment time he did not have the money to pay the current tax, nor for the prior years, and the matter simply compounded itself until early in 1969, when the Internal Revenue Service reminded him of his deficiency. The filing of the information and his plea of guilty followed.
Counsel for relator recommended to the panel that if discipline was found to be appropriate, a public reprimand be imposed.
The board findings were as follows:
"1. Under the evidence and the facts developed and in consonance with the cases cited on page two, the conviction of the respondent for a wilful failure to file his federal income tax return for the calendar year 1965, which was a violation of Section 7203, Title 26, U.S. Code, was not a conviction of a crime involving moral turpitude.
"2. Based upon the admitted facts in this cause, the findings made in similar cases which have come before this board and the case law announced by the Supreme Court of the State of Ohio, the board finds that the conviction of the respondent in the incident case constituted a violation of Canons 29 and 32."
The board recommended that respondent be administered a public reprimand pursuant to Section (6)(c) of Rule XVIII of the Rules of Practice of this court.
Mr. Lewis Einbund, Mr. Charles B. Donahue, II, and Mr. Lawrence M. Bell, for relator.
Mr. Fred Weisman, for respondent.
Failure of an attorney to timely file his income tax return constitutes a violation of Canon 29 and Canon 32 of the Canons of Professional Ethics, and also violates Rule XVIII(5)(a) of the Rules of Practice of this court.
Canon 29, entitled "Upholding the Honor of the Profession," reads, in part:
"* * * He should strive at all times to uphold the honor and to maintain the dignity of the profession * * *."
Canon 32, entitled "The Lawyer's Duty in Its Last Analysis," reads, in part:
"* * * He must also observe and advise his client to observe the statute law * * *."
Rule XVIII, entitled "Disciplinary Procedure," defines, in Section (5)(a), what actions constitute misconduct:
"Misconduct shall mean * * * any violation of the Canons of Professional Ethics * * *."
Any candor of respondent reflected in the facts set forth above comes too late, and the question which concerns us is the degree of discipline.
We recognize that in the past there has not been a consistent policy adhered to by this court in the discipline applied in cases of this nature. And we understand how the Board of Commissioners on Grievances and Discipline, in the light of certain precedents, arrived at its recommendation that a public reprimand be imposed as discipline.
However, we choose not to follow this recommendation under the facts reflected in the record in this proceeding. We are of the opinion that the time has come to establish and publicly announce a pattern of consistency in the imposition of discipline in cases of wilful failure by an attorney licensed to practice in Ohio to make an income tax return.
Respondent pleaded guilty to the crime of wilfully failing to make an income tax return for the year 1965. Charges involving similar offenses for three other years were dismissed in the United States District Court.
The law which respondent failed to respect affects many millions of persons in the United States. They are required to obey that law whether they like it or otherwise. Each of those persons is charged with knowledge of the existence of that law. There is nothing new about this federal requirment to file an income tax return because our country has had such laws following the adoption of the Sixteenth Amendment to the United States Constitution on February 25, 1913.
One of the fundamental tenets of the professional responsibility of a lawyer is that he should maintain a degree of personal and professional integrity that meets the highest standard. The integrity of the profession can be maintained only if the conduct of the individual attorney is above reproach. He should refrain from any illegal conduct. Anything short of this lessens public confidence in the legal profession — because obedience to the law exemplifies respect for the law.
For the foregoing reasons this court is of the opinion that the acts committed by respondent warrant disciplinary measures more severe than a public reprimand. Consequently, we impose upon respondent the discipline of indefinite suspension from the practice of law.
Judgment accordingly.
O'NEILL, C.J., SCHNEIDER, HERBERT, COLE, CORRIGAN, STERN and LEACH, JJ., concur.
COLE, J., of the Third Appellate District, sitting for DUNCAN, J. JUDGE COLE of the Court of Appeals was, pursuant to Section 2 of Article IV of the Constitution of Ohio, duly directed by the Chief Justice "to sit with the justices of the Supreme Court in the place and stead of" JUSTICE DUNCAN and JUDGE COLE did so and heard and considered this cause prior to the resignation of JUSTICE DUNCAN on November 28, 1971.