Opinion
D.D. No. 75-8
Decided January 21, 1976.
Attorneys at law — Misconduct — Acts constituting — Willful failure to file federal income tax returns — Judgment of conviction — Admissible in disciplinary proceeding.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
On November 1, 1973, an indictment was filed in the United States District Court for the Southern District of Ohio, Eastern Division, charging in three counts that Forrest P. Moore, respondent herein, willfully failed to file federal income tax returns for calendar years 1968, 1969, and 1970, in violation of Section 7203, Title 26, U.S. Code. The indictment alleged that respondent had gross incomes of $7,272.39, $9,942.42, and $10,981.65, for the respective years.
In December 1973, respondent pleaded not guilty to all counts and, on February 6, 1974, was convicted of the offense charged in each count. On March 15, 1974, respondent was sentenced to a one-year term of imprisonment on each count, to be served consecutively.
Relator, the Ohio State Bar Association, then instituted this proceeding before the Board of Commissioners on Grievances and Discipline and submitted a certified copy of respondent's conviction to the hearing panel of the board. Respondent did not testify, but contended, through his counsel, that the judgment of conviction was inadmissible, and that a conviction for willful failure to file income tax returns, standing alone, did not constitute a sufficient basis for disciplinary action.
The board found that respondent was presently incarcerated, and that the fact of his conviction, evidenced from the certified copy of the court's record, was a basis for disciplinary action in this state. The board concluded that respondent violated Canon 1, DR 1-102(A) (4), (5) and (6), and recommended that he be suspended indefinitely from the practice of law.
Mr. Robert N. Farquhar, Mr. Albert L. Bell, Mr. John R. Welch and Mr. Kenneth M. Barnes, for relator.
Mr. Charles W. Kettlewell and Mr. James E. Melle, for respondent.
Respondent contends that a judgment of conviction of willfully failing to file federal income tax returns is inadmissible in a disciplinary proceeding before the Board of Commissioners on Grievances and Discipline and, therefore, that he cannot be subject to the imposition of discipline absent proof of misconduct.
In Dayton Bar Assn. v. Prear (1964), 175 Ohio St. 543, 196 N.E.2d 773, this court was presented with a similar situation. After the respondent therein was convicted of three counts of willfully failing to file federal income tax returns, the relator instituted proceedings before the board and introduced only the transcript of the information and convictions. Upon review of the board's action, it was the court's finding that such conduct, as evidenced from the transcript of the convictions themselves, warranted that respondent be indefinitely suspended from the practice of law. Cf. Toledo Bar Assn. v. Lichota (1968), 15 Ohio St.2d 217, 239 N.E.2d 45; Cincinnati Bar Assn. v. Bowman (1968), 15 Ohio St.2d 220, 239 N.E.2d 47.
By willfully failing to file federal income tax returns in the case at bar, respondent violated Canon 29 and Canon 32 of the Canons of Professional Ethics, and Canon 1, DR 1-102(A) (4) and (6), of the Code of Professional Responsibility. Respondent's behavior constituted misconduct as defined in Gov. R. V(5)(a). Furthermore, by his convictions and subsequent incarceration, respondent has lessened public confidence in the legal profession and has reflected substantial discredit upon his fellow lawyers.
Respondent's failure to file income tax returns for calendar years 1968 and 1969 occurred prior to the adoption of the Code of Professional Responsibility on October 5, 1970, while the Canons of Professional Ethics governed the bar of this state.
The recommendation of the Board of Commissioners on Grievances and Discipline is well taken and respondent is indefinitely suspended from the practice of law.
Judgment accordingly.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.