Opinion
No. 92-1348
Submitted October 21, 1992 —
Decided December 14, 1992.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 92-12.
In an amended complaint filed February 26, 1992, relator, Disciplinary Counsel, charged respondent, John M. Baker (Registration No. 0017471), with violating, inter alia, DR 1-102(A)(6) (conduct adversely reflecting on one's fitness to practice law). The charge stemmed from an investigation initiated by the Internal Revenue Service in May 1989, concerning respondent's failure to file federal income tax returns for 1984, 1985, 1986 and 1987. (Respondent personally completed and timely filed his 1988 return.) As a result of the investigation, respondent entered into a plea agreement with the United States under which he was charged with willfully failing to file returns for 1985, 1986 and 1987. He pled guilty to failing to file his 1987 return, a misdemeanor offense under Section 7203, Title 26, U.S.Code. In exchange, the government dismissed the charges relating to 1985 and 1986. Respondent was placed on probation for a period of five years. In his answer filed on March 16, 1992, respondent admitted the factual allegations contained in the complaint, but denied that his actions constituted misconduct.
At a hearing held May 19, 1992 before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court, respondent admitted that his actions violated DR 1-102(A)(6), and offered the testimony of his physician, psychologist, and numerous character witnesses in mitigation. The record shows that on September 29, 1985, respondent suffered a massive heart attack that left him extremely depressed and almost dysfunctional until his return to work full-time in early 1987. After his return to work, respondent remained under the care of his physician and psychologist for his physical ailments and persistent depressive state. Further, in 1990, respondent was diagnosed as suffering from sleep apnea, relating back to the time of his heart attack.
The testimony of the character witnesses, corroborated by extensive correspondence, establishes respondent's integrity, involvement in numerous civic and religious activities, and exemplary professional skills and achievements. Further, the record reflects that respondent has committed no other disciplinary violations, has cooperated fully with the criminal and disciplinary proceedings, and has expressed remorse for his actions.
The panel found that respondent violated DR 1-102(A)(6) by failing to file income tax returns and by failing to rectify the failure within a reasonable period of time after discovery. The panel recommended that respondent be publicly reprimanded, noting that the crime committed was a misdemeanor; that respondent has a strong social, familial, and professional support system; that resolving this matter by reprimand would best assist his persistent depressive state, his familial obligations, and his financial obligations to the Internal Revenue Service; and that neither the public nor respondent's clients were harmed by his actions.
The board adopted the findings and conclusions of the panel; however, it recommended that respondent be suspended from the practice of law for a period of one year. In rejecting the panel's recommendation, the board found that the mitigating circumstances surrounding respondent's failure to file in 1985 and 1986 did not extend to 1987, when he returned to work; that the failure to file for that year was willful; and that a one-year suspension was required in accordance with this court's precedent. See Disciplinary Counsel v. Bowen (1988), 38 Ohio St.3d 323, 528 N.E.2d 172.
In accordance with Gov.Bar R. V(8)(A), this court ordered respondent to show cause why the board's recommendation should not be adopted. Respondent replied that the appropriate sanction should be a public reprimand or, alternatively, a suspension stayed in accordance with Gov.Bar R. V(6)(B). To support his position, respondent argues that Bowen, and other cases imposing one-year suspensions, do not present the overwhelming mitigating factors present in this case. Further, respondent points out that the post- Bowen amendment to former Gov.Bar R. V(7)(c), renumbered V(6)(B), now permits this court to stay suspensions of six months to two years.
Relator answered that this court's precedent supports a one-year suspension even in cases where the failure to file was caused by pronounced emotional and physical stress. Columbus Bar Assn. v. Wolfe (1982), 70 Ohio St.2d 55, 24 O.O.3d 113, 434 N.E.2d 1096; Cincinnati Bar Assn. v. Mittendorf (1983), 4 Ohio St.3d 123, 4 OBR 369, 447 N.E.2d 103.
J. Warren Bettis, Disciplinary Counsel, and Harald F. Craig III, for relator.
Gerald S. Gold and Robert A. Ranallo, for respondent.
This court concurs with the board that respondent violated DR 1-102(A)(6). We also agree that respondent willfully failed to file his 1987 tax return and that our precedent in such cases requires a one-year suspension from the practice of law. Further, the testimony offered in mitigation is insufficient to warrant a lesser sanction, particularly when the record shows that respondent's disability ended with his return to work in 1987. Accordingly, we order that respondent be suspended from the practice of law in Ohio for a period of one year. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES and WRIGHT, JJ., concur.
DOUGLAS, H. BROWN and RESNICK, JJ., separately dissent.
I would suspend respondent from the practice of law for a period of six months.
I have no disagreement with the findings of fact or conclusions of law reached in this case. Rather, my disagreement is over this court's decision to adopt the board's recommended sanction of a one-year suspension. I would instead adopt the recommendation of the panel that respondent be publicly reprimanded. The panel considered all relevant mitigating factors and reached the appropriate conclusion. Specifically, the panel recognized that respondent's medical and psychological illnesses placed him under an enormous strain during the time in question, and that those illnesses directly prevented him from filing tax returns.
I find the majority's reliance on precedent in its resolution of this, a disciplinary case, to be inappropriate. I particularly cannot agree with the majority that our precedent "requires" a one-year suspension. It has been our practice in disciplinary cases not to be bound by our previous decisions, but instead to resolve each on a case-by-case basis. Because I believe the mitigating factors present here warrant a public reprimand, I respectfully dissent.
DOUGLAS, J., concurs in the foregoing dissenting opinion.