Opinion
No. 76-4
Decided June 16, 1976.
Attorneys at law — Misconduct — Indefinite suspension — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
A two-count information was filed on January 16, 1974, by the United States Attorney for the Northern District of Ohio, Eastern Division, against respondent, John Vaporis. The first count charged that respondent received a gross income of $25,405.67 during the calendar year 1969, and that he did "wilfully and knowingly" fail to make an income tax return to the District Director of Internal Revenue. The second count charged that during the calendar year 1970, he received a gross income of $31,626.66, on which he did not make an income tax return. Both counts alleged violation of Section 7203, Title 26, U.S. Code. On January 24, 1974, respondent was arraigned in the United States District Court, entered a plea of not guilty to each count and was released on personal bond. On September 16, 1974, respondent appeared in the same court, withdrew his not guilty plea to the second count of the information and entered a plea of nolo contendere. The district judge, having been advised of the facts involved by the assistant United States attorney, adjudged the respondent guilty and sentenced him to pay a fine of $2,500. Whereupon, at the request of the assistant United States attorney, the court dismissed the first count of the information.
The Ohio State Bar Association, relator herein, then instituted this proceeding before the Board of Commissioners on Grievances and Discipline, charging that respondent's aforesaid conduct was in violation of DR 1-102 (A) (4), (5) and (6), and Canon 1 of the Code of Professional Responsibility. Respondent, while admitting his conviction, denied that he had violated the disciplinary rules and alleged that the Grievance Committee of the Mahoning County Bar Association had found him not guilty of any professional misconduct. At the closed hearing before a panel of the board, relator offered in evidence all the motions and entries, as well as the judgment, of the proceedings before the United States District Court. Respondent stipulated as to the authenticity of said documents but disputed their admissibility.
Respondent then offered in evidence a letter from the Chairman of the Grievance Committee of the Mahoning County Bar Association setting forth its aforesaid finding, but declined to testify further or make any statement.
The panel declined to enter in evidence the documents offered by relator, with the exception of the judgment entry of conviction. The letter from the Mahoning County Bar Association was also received in evidence.
The board of commissioners found that the respondent was guilty of misconduct, as defined in Gov. R. V(5)(a), and recommended that he be suspended indefinitely from the practice of law in Ohio.
Respondent was represented by able counsel throughout the entire matter.
Mr. John R. Welch, Mr. Albert L. Bell, Mr. Joseph G. Miller and Mr. John J. Moffett, for relator.
Messrs. Pfau, Comstock Springer and Mr. William E. Pfau, Jr., for respondent.
Respondent contends that where a county bar association has made an investigation of alleged misconduct, and finds none, the matter should be closed, according to his interpretation of Gov. R. V(4).
Respondent then proceeds to question the use of a conviction of a misdemeanor, based upon a plea of nolo contendere, in a charge of misconduct warranting a suspension from the practice of law in Ohio. This court over a number of years has established the admission of a judgment of conviction in disciplinary cases. See Ohio State Bar Assn. v. Moore (1976), 45 Ohio St.2d 57; Dayton Bar Assn. v. Radabaugh (1975), 43 Ohio St.2d 155; Ohio State Bar Assn. v. Tekulve (1975), 42 Ohio St.2d 285; Ohio State Bar Assn. v. Hart (1968), 15 Ohio St.2d 97; Cincinnati Bar Assn. v. Bowman (1968), 15 Ohio St.2d 220; Dayton Bar Assn. v. Prear (1964), 175 Ohio St. 543. Although respondent attempts to distinguish most of these cases from the instant matter, they are distinctions without a difference. The record bears out the legitimacy of the guilty finding by the court. And, it is that judgment which is the ultimate basis for these proceedings.
Unfortunately, the number of suspensions for willful failure to file an income tax return is growing at an alarming rate. See Dayton Bar Assn. v. Kern (1976), 46 Ohio St.2d 342; Bar Assn. of Greater Cleveland v. Kates (1976), 46 Ohio St.2d 34; Dayton Bar Assn. v. Radabaugh, supra; Ohio State Bar Assn. v. Tekulve, supra; and Columbus Bar Assn. v. Dixon (1974), 40 Ohio St.2d 76.
We accept the recommendation of the Board of Commissioners on Grievances and Discipline, and indefinitely suspend the respondent from the practice of law.
Judgment accordingly.
O'NEILL, C.J., HERBERT, CORRIGAN, STEPHENSON, CELEBREZZE and W. BROWN, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for STERN, J.