Summary
In Columbus Bar Assn. v. Wolfe (1982), 70 Ohio St.2d 55 [24 O.O.3d 113], Cincinnati Bar Assn. v. Mittendorf (1983), 4 Ohio St.3d 123, and Ohio State Bar Assn. v. Loha (1983), 4 Ohio St.3d 190, lawyers who had violated Section 7203, Title 26, U.S. Code, were suspended from the practice of law for a period of one year.
Summary of this case from Bar Ass'n v. LittOpinion
Nos. 82-4 and 82-12
Decided May 12, 1982.
Attorneys at law — Misconduct — One year suspension from practice — Acts warranting — Failure to file income tax returns.
ON CERTIFIED REPORTS by the Board of Commissioners on Grievances and Discipline.
The following cases have been consolidated as they both deal with the appropriate disciplinary penalty to be imposed in cases where an attorney is found guilty of willful failure to file federal income tax returns.
1. D.D. No. 82-12. In February 1981, respondent, David L. McClure, plead guilty to the charge of willful failure to file an income tax return for the calendar year 1975. He was subsequently sentenced in United States District Court to a fine of $1,000 and placed on probation for a period of one year.
Thereafter, relator, Columbus Bar Association, filed a complaint with the Board of Commissioners on Grievances and Discipline charging McClure with violations of DR1-102(A)(4), (5) and (6) of the Code of Professional Responsibility. During the hearing, evidence was adduced to the effect that respondent's wife had suffered from severe emotional problems since 1973. Her eventual suicide in January 1981 can be attributed to her mental instability. Further testimony revealed that respondent filed extensions in 1974, 1975, and 1976, and paid a total of $31,000 with these extensions towards his income tax liability; that he was held in high esteem by members of the Bench and Bar; and that his clients were not injured as a result of his failure to file.
The board found the respondent guilty of violating DR1-102(A)(4), (5) and (6) of the Code of Professional Responsibility and recommended that he be suspended from the practice of law for one year.
2. D.D. No. 82-4. Respondent, Willis E. Wolfe, Jr., was convicted in United States District Court for the willful failure to file income tax returns for the calendar years 1974 and 1975.
The record of the hearing before the board of commissioners supports a finding that during 1974-1975, respondent was suffering from both physical and emotional problems. Various factors combined which weighed heavily on his stability and affected his judgment, including marital discord arising out of his wife's manic depression and his own impaired vision as a result of an unsuccessful cataract operation. As a result of these factors, respondent failed to file his income tax returns.
Taking the above facts into consideration, the board recommended that respondent be suspended from the practice of law for a period of one year.
Mr. Joseph W. Schilder, for relator in D.D. Nos. 82-4 and 82-12.
Mr. Kenneth J. Spicer, for relator in D.D. No. 82-12.
Mr. Bradley Hummel, for respondents Wolfe and McClure.
Mr. Paul R. Gingher, for respondent McClure.
These cases share a common issue. Whether, in view of the changes in the manner of discipline under Section (6) of Gov. R. V, a one-year suspension penalty should be ordered in the case of an attorney who is convicted of willful failure to file federal income tax returns.
Since 1972, the rule in Ohio has been that an attorney who is convicted of the charge of willful failure to file income tax returns is indefinitely suspended from the practice of law. Cleveland Bar Assn. v. Stein (1972), 29 Ohio St.2d 77; Cincinnati Bar Assn. v. Beall (1978), 54 Ohio St.2d 168; Dayton Bar Assn. v. Westbrock (1978), 56 Ohio St.2d 75; Cincinnati Bar Assn. v. Pandilidis (1979), 57 Ohio St. 47; Ohio State Bar Assn. v. Stimmel (1980), 61 Ohio St.2d 316. However, at the time the above cases were decided, the only sanctions available to this court were public reprimand, indefinite suspension, or disbarment.
Now, in addition to the previously available sanctions, Section (6) of Gov. R. V, as amended in January 1981, permits the imposition of a one-year suspension from the practice of law as an alternative disciplinary penalty. In view of this recent amendment, it is the opinion of this court that to impose an indefinite suspension on these respondents would be an unduly harsh sanction.
This result does not necessarily preclude a finding that in some instances an indefinite suspension would be in order. However, a suspension for a one-year period is a more appropriate penalty for willful failure to file federal income tax returns when the attorney's actions have in no way prejudiced their client's interests. Due to the many mitigating circumstances involved in the present cases, the respondents should be given the opportunity to resume their respective practices following a one-year suspension. Accordingly, it is the judgment of this court that respondents be suspended from the practice of law for a period of one year.
Judgments accordingly.
W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.
CELEBREZZE, C.J., not participating.