D.D. No. 75-12
Decided April 21, 1976.
Attorneys at law — Misconduct — Acts warranting indefinite suspension — Failure to file federal income tax returns.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
An information was filed by the United States Attorney for the Northern District of Ohio, Eastern Division, on October 25, 1974, charging Robert A. Kates, respondent herein, with two counts of "willfully and knowingly" failing to file federal income tax returns for the calendar years 1968 and 1969, in violation of Section 7203, Title 26, U.S. Code. The alleged gross income received was not in dispute and is irrelevant to the disposition of this matter. On November 11, 1974, respondent entered a plea of nolo contendere, and the district court, having first been satisfied that there was a factual basis for the plea, adjudged him guilty as charged and convicted him.
Imposition of sentence was suspended and respondent was placed on "probation for a period of one (1) year on each count to run concurrent with one another." He was further fined $1,000 on each count.
The Bar Association of Greater Cleveland filed a complaint before the Board of Commissioners on Grievances and Discipline alleging that respondent's conduct involved moral turpitude in violation of Gov. R. V(5) (a), the attorney's Oath of Office, and DR 1-102(A) (3) of the Code of Professional Responsibility. An answer was duly filed admitting most of the allegations of the complaint including "* * * [t]hat the willful and knowing failure to file income tax returns is a crime of moral turpitude in violation of Rule V, Section 5(a) of the Supreme Court Rules for the Government of the Bar of Ohio." The answer further contained a "Separate Defense" alleging that the respondent's conduct "was due to circumstances beyond his control."
A private hearing was conducted, at which the relator opened and rested on the record that included the admission contained in the answer. Respondent submitted himself for examination by the board and offered three written exhibits in an attempt to explain his plea of nolo contendere. His $2,000 fine was unpaid as of the time of the hearing before the board.
Respondent has been represented by competent and devoted counsel throughout all proceedings. It is undisputed that respondent enjoyed a fine family background and personal and professional reputation.
The board of commissioners concluded that the respondent was guilty of misconduct as defined in Gov. R. V (5) (a) for the reason that he violated DR 1-102 (A) (4-6) of the Code of Professional Responsibility and recommended that he be suspended indefinitely from the practice of law.
Mr. Richard J. McGraw, Mr. Henry A. Hentemann and Mr. James M. Porter, for relator.
Mr. Nathaniel Kates, for respondent.
Respondent contends that his failure to file was not willful in that he was experiencing emotional trauma at the time. In the face of the conduct displayed on November 11, 1974, at the time he entered his plea of nolo contendere, and the explanation offered at the hearing, it is difficult to accept this as a valid argument. The proceedings in this matter were not brought on the basis of respondent's condition at the time when the income tax returns should have been filed, but were brought as a direct and sole result of his plea in the federal district court. And, there is nothing in the record to indicate any incapacity, mental or otherwise, at the time of the plea. Unfortunately, the record actually discloses that the respondent was, at least, partially motivated at that time by private, plausible reasons.
This court has, within the year, decided two almost identical cases, in both instances confirming the recommendation of the board. We refer to Ohio State Bar Assn. v. Tekulve (1975), 42 Ohio St.2d 285, and Dayton Bar Assn. v. Radabaugh (1975), 43 Ohio St.2d 155. An inconsistent decision is not merited upon the facts in the instant case. The only item of difference in the three cases is the amount of income which, as already determined, is irrelevant.
In Cleveland Bar Assn. v. Stein (1972), 29 Ohio St.2d 77, the following appears at page 81:
"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."
We accept the recommendation of the Board of Commissioners on Grievances and Discipline and indefinitely suspend the respondent from the practice of law.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
CORRIGAN, J., not participating.