Opinion
D.D. No. 80-6
Decided December 17, 1980.
Attorneys at law — Misconduct — Indefinite suspension — Acts warranting — Willful failure to file income tax returns.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
This cause arose from the findings and recommendation of the Board of Commissioners on Grievances and Discipline, wherein the board, upon review of the complaint and evidence submitted by relator, Columbus Bar Association, against respondent, Frank C. Dunbar, Jr., found that respondent had violated DR 1-102(A)(1), (3), (4) and (6) of the Code of Professional Responsibility. The board of commissioners accordingly recommended that respondent be suspended indefinitely from the practice of law.
The facts as adduced from the evidence submitted in the hearing in Columbus on January 18, 1980, before the duly appointed hearing panel of the board, respondent being present, were that respondent had been charged on a three-count information filed May 25, 1979, in the United States District Court, Southern District of Ohio, Eastern Division, designated as case No. CR-2-79-46, covering willful and knowing failure to file income tax returns in violation of Section 7203, Title 26, U.S. Code; and that respondent appeared before that court on August 10, 1979, with counsel, and entered a guilty plea to the allegations. Thereafter, respondent was convicted of failure to file income tax returns in three separate years.
The respondent offered testimony before the board that he had been admitted to the Ohio Bar and practiced law in Columbus for some 42 years. He also testified to his many and varied activities within the legal profession. He testified that he believed that he had not willfully failed to make such income tax returns to the Internal Revenue Service, and he denied that he had failed to maintain high standards of professional conduct and that he had violated the Disciplinary Rules.
As stated, upon review of all the evidence the board concluded that respondent had violated DR 1-102(A)(1), (3), (4) and (6) and recommended that this court indefinitely suspend respondent from the practice of law.
On June 18, 1980, this court confirmed the board's findings of fact and recommendation, and ordered respondent's indefinite suspension. Upon motion of respondent, this court's order of June 18, 1980, was vacated. Respondent was ordered to file objections to the board's findings of fact and recommendation with this court on or before October 2, 1980. Respondent has filed objections as ordered.
Messrs. Fontana, Ward Kaps and Mr. David S. Bloomfield, for relator.
Messerman Messerman Co., L.P.A., and Mr. Gerald A. Messerman, for respondent.
It is the prevailing rule in this state that when an attorney is convicted of the willful failure to file a federal income tax return, and such determination becomes final, that attorney will be indefinitely suspended from the practice of law. Ohio State Bar Assn. v. Stimmel (1980), 61 Ohio St.2d 316; Cincinnati Bar Assn. v. Pandilidis (1979), 57 Ohio St.2d 47; Dayton Bar Assn. v. Westbrock (1978), 56 Ohio St.2d 75; Cincinnati bar Assn. v. Beall (1978), 54 Ohio St.2d 168; Cleveland Bar Assn. v. Stein (1972), 29 Ohio St.2d 77.
The record here shows that respondent did plead guilty to a three-count information and was accordingly found guilty of violating Section 7203, Title 26, U.S. Code, a conviction which is now final. Respondent was suspended from the practice of law before the United States District Court for the Southern District of Ohio, Eastern Division, for failing to file income tax returns for three separate years.
Prior cases of this court, beginning with Stein, supra, have consistently held that the fact of conviction for willful failure to file income tax returns with the Internal Revenue Service is sufficient to support a finding that the attorney involved has violated DR 1-102(A) of the Code of Professional Responsibility, thereby warranting that attorney's indefinite suspension from the practice of law in this state. Cincinnati Bar Assn. v. Pandilidis, supra; Cincinnati Bar Assn. v. Beall, supra; Ohio State Bar Assn. v. Moore (1976), 45 Ohio St.2d 57.
In the recent case of Ohio State Bar Assn. v. Stimmel, supra, this court, at page 320, restated the rule that the discipline to be imposed in cases involving attorneys' willful failure to file income tax returns would continue to be indefinite suspension, in that "***the fundamental principles of ethical conduct embodied in the Code of Professional Responsibility are best served by the discipline announced in Stein***."
There are no compelling circumstances here which would move this court to favorably consider an exception to the basic rule of the Stein case. The respondent here, unlike the respondent in Stein, has plead guilty to three counts, rather than one, of violating Section 7203, Title 26, U.S. Code, dealing with failure to file income tax returns. Here, there were three successive years in which respondent failed to file federal income tax returns.
Upon examination of the record in this proceeding, we find that respondent has violated DR 1-102(A)(1), (3), (4) and (6) of the Code of Professional Responsibility, and he is, therefore, indefinitely suspended from the practice of law in this state.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, MCBRIDE, SWEENEY, LOCHER, HOLMES and DOWD, JJ., concur.
MCBRIDE, J., of the Second Appellate District, sitting for P. BROWN.