Opinion
D.D. No. 82-32
Decided April 13, 1983.
Attorneys at law — Misconduct — One-year suspension — Conviction for willful failure to file federal income tax return — Consideration of emotional and physical stress.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
Relator, Cincinnati Bar Association, instituted the present complaint before the Board of Commissioners on Grievances and Discipline ("board"), asserting that respondent, Richard K. Mittendorf, had violated DR 1-102 of the Code of Professional Responsibility. The allegations were based upon respondent's having pleaded guilty in the United States District Court for the Southern District of Ohio to willful failure to file a federal income tax return for the year 1975. The court had, on December 29, 1980, sentenced respondent to a one-year term in prison, of which all but ten days were suspended, ordered him to cooperate with the Internal Revenue Service in the determination of his tax liability and to pay same, and placed him on probation for three years.
DR 1-102 provides, in pertinent part:
"(A) A lawyer shall not
"* * *
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"(5) Engage in conduct that is prejudicial to the administration of justice.
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
On September 17, 1982, the board held a hearing on the matter. Though determining that respondent's actions had indeed contravened DR 1-102(A)(4), (5) and (6), the board also found that respondent was beset by immensely debilitating personal and family troubles at the time of his malfeasance. As a real estate specialist, his earnings and ability to support his wife and seven children had been severely diminished by the recession in the mid-1970's. Moreover, during the same period, his wife attempted to commit suicide; one son dropped out of school, later to be arrested for drug-related offenses; and another son was plagued by problems that necessitated his temporary confinement in a mental institution.
The board acknowledged respondent's cooperation with government officials in reconstructing his tax records for the subject years and in scheduling the timely discharge of his obligations. Further, the board noted that none of respondent's clients or business associates had suffered harm as a result of his actions and that, in all other respects, his professional conduct was beyond reproach.
Although respondent was only convicted of willful failure to file an income tax return for the year 1975, he was charged with not having filed a return for the year 1974 as well.
The board recommended that respondent, for violating DR 1-102(A)(4), (5) and (6), be suspended from the practice of law for a one-year period.
Messrs. Jacobs, Kleinman, Seibel McNally and Mr. Kenneth F. Seibel, for relator.
Bartlett, Junewick Weigle Co., L.P.A., Mr. Douglas S. Weigle and Mr. Terry Serena, for respondent.
Upon review of the board's findings of fact and recommendation in the instant action, we find our decision last term in Columbus Bar Assn. v. Wolfe (1982), 70 Ohio St.2d 55 [24 O.O.3d 113], controlling herein. In Wolfe, this court held that a one-year suspension was the appropriate disciplinary penalty for an attorney who, under pronounced emotional and physical stress, willfully failed to file an income tax return where such failure did not, however, adversely affect his clients. We find no reason to depart from so recent a decision, reached by delicately balancing the interests of the profession, the individual practitioner and society.
Thus, it is hereby ordered that respondent be suspended from the practice of law for a period of one year.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, O'NEILL and J.P. CELEBREZZE, JJ., concur.
O'NEILL, J., of the Seventh Appellate District, sitting for C. Brown, J.