Opinion
Carl O. Rodin, Portage, for respondent.
John B. Ramming, Executive Secretary, Disciplinary Commn. Indianapolis, for Indiana Supreme Court Disciplinary Commission.
ORIGINAL ACTION
PER CURIAM.
This case comes to us as a result of an action filed by the Disciplinary Commission of this Court against Carl O. Rodin, a practicing attorney of this State. The petition asks for suspension pursuant to our rules. We appointed the Honorable F. E. Rakestraw as Hearing Officer and Judge to hear the charges accordingly.
The Hearing Officer, after a consideration of all of the facts, all of which were stipulated, filed a report with this Court in the words and figures as follows:
FINDINGS OF FACT AND RECOMMENDATIONS OF HEARING OFFICER
The undersigned heretofore appointed by this Court as Hearing Officer and Judge in the above entitled cause under the provisions of Admission and Discipline Rule No. 23 of this Court, respectfully reports to this Court as follows:
The Disciplinary Commission of this Court filed a verified complaint against the respondent in this Court on March 20, 1972. The undersigned was appointed as Hearing Officer and Judge on March 21, 1972, and filed his oath and assumed jurisdiction on March 28, 1972. The respondent was served with a summons and a copy of the verified complaint on March 23, 1972. The respondent filed his return to the complaint on April 20, 1972.
This matter was set for hearing by the undersigned on May 24, 1972. However, the respondent and the Executive Secretary of the Disciplinary Commission met with the undersigned and agreed that the matter would be submitted on stipulations of fact. By agreement, the hearing was then continued.
On June 9, 1972, at 1:30 p.m., the Executive Secretary of the Disciplinary Commission and the respondent met with the undersigned in his law office in Rochester, Indiana. At that time, both the respondent and the Executive Secretary of the Disciplinary Commission submitted documents, and by stipulation, all of the documents submitted were admitted as evidence. The Executive Secretary of the Disciplinary Commission requested permission to file a brief, and was granted three weeks time to prepare and file such brief. The respondent was then granted two weeks to file a brief on his own behalf. Later the respondent requested additional time to file his brief, and was granted until July 28, 1972, to file his brief. His brief was filed with the undersigned on July 28, 1972. As indicated previously, all of the evidence before the undersigned was by stipulation. This evidence included a personal data sheet; a resume of the respondent; a recorded interview of the respondent by Federal agents; letters from various judges and the prosecuting attorney of Porter County concerning the respondent; the order admitting the respondent to practice law in Indiana; the respondent's oath; the information filed against the respondent in Federal Court and the judgment; and the probation report of the U.S. Probation Officer on the respondent. Since the evidence is without controversy, it does not appear necessary that formal findings of fact be entered. However, it may be helpful to give a brief resume of what the evidence shows concerning the respondent.
The respondent was born in Burlington, Iowa, the fourth of seven children, on October 4, 1931. He came from a poor family, with his mother working to support the family. There was apparently a great deal of conflict in the family. He began working at age thirteen, and assumed a great deal of family responsibility. At sixteen he left home to enter a college preparatory school. Through scholarships and employment he worked his way through Brown University, and later the University of Chicago Law School. He was married in 1959, and moved to Portage, Indiana, to practice law.
There have been family difficulties, with great demands for respondent's time and money. The respondent has two daughters, and he and his wife have adopted a third child. The second daughter was born prematurely and had a great deal of hospital and medical care, including heart surgery. This, of course, created much financial stress and personal anxiety.
About the same time the respondent was building a new home. This was a source of difficulty, involving the collapse of the basement wall on three different occasions.
In addition the respondent formed a partnership with two other lawyers in Portage, Indiana. Over a period of time, one of the partners became interested in other activities, and the partnership was terminated as to that partner, creating an additional burden of work and financial obligation for the respondent. Later, the second partner was appointed as Judge of the Superior Court in Porter County, throwing additional work and financial responsibility on the respondent. In terms of obligations arising out of the practice, the respondent has had much more than he can possibly handle by himself.
The respondent has also been very active in civic and community affairs, devoting to them a great deal of his time and energy.
During the existence of the law partnership, the respondent was the one principally responsible for the maintaining of partnership records, and the information available indicates that the records were correctly kept, and that the partnership tax returns were filed.
The respondent was charged in Federal District Court with failure to file tax returns for the years 1965, 1966, and 1967. The other evidence available indicates that he did not file tax returns for the years 1968, 1969, and 1970. He has now hired an accountant to handle his tax returns and records, and arrangements have been made to straighten out his tax matters. The respondent was assessed a fine in the amount of Seven Thousand Five Hundred Dollars ($7,500.00) in the Federal District Court on the charge of failing to file tax returns.
There is no evidence in this proceeding of any misconduct on the part of the respondent aside from the matter of failing to file tax returns, and all information submitted indicates that the respondent is considered to be of good character and reliable.
The Executive Secretary of the Disciplinary Commission and the respondent have both filed briefs. In the brief of the Disciplinary Commission, numerous cases are cited involving the failure to file tax returns. However, there is no uniformity in the action taken by the various courts. The penalties have ranged from very brief suspensions to indefinite suspensions, and in some cases total disbarment. In the reported cases, the Courts apparently give a great deal of weight to whether or not there are mitigating circumstances. The Disciplinary Commission has asked that the respondent be suspended from the practice of law for at least six months.
In his brief, the respondent points out that there are no Indiana cases where a lawyer has been disciplined merely for failing to file tax returns. Where taxes are a part of the Indiana cases, the cases have involved willful invasion of taxes or filing fraudulent returns. In the case of In re Ewing, 1972, Ind., 283 N.E.2d 536, there was some discussion of failing to file tax returns. However, the primary charges in that case involved misappropriating funds of clients and other far more serious offenses. The respondent maintains that there should be no disciplinary action for mere failure to file tax returns, and that the complaint should be dismissed and the entire record in this cause expunged.
The undersigned cannot agree that failing to file income tax returns is not a matter for disciplinary action against lawyers. It is a violation of Canons 29 and 32 of the Canons of Professional Ethics of the American Bar Association and of Disciplinary Rules, D.R. 1--102(A)(3), (4), (5), and (6) of the Code of Professional Responsibility. One of the lawyers most important duties is to obey the law, and one who willfully disobeys the law should not be permitted to earn his living from practicing law. Failing to file tax returns is a matter involving some moral turpitude, since it is a violation of the duty of all citizens to comply with the law. A violation of this magnitute extending over six years can hardly be considered an inadvertent oversight on the part of a lawyer.
The fact that failure to file is a misdemeanor while other tax offenses may constitute felonies is not of material importance. Likewise, the fact that there are no previous cases in the State of Indiana in which lawyers have been disciplined for failing to file tax returns is not a reason for dismissing this case. It is a matter of common knowledge that the disciplinary procedures in this state have been cumbersome and inefficient. Largely as a result, the enforcement of the lawyer's professional responsibility has been grossly inadequate. It was because of this inadequacy that the current Admission and Discipline Rule 23 was adopted by this Court. The only question to be determined is whether failure to file tax returns is a violation of the lawyer's professional responsibility. In the opinion of the undersigned, it is.
On the other hand, there are many factors in this case which the courts have considered as mitigating circumstances. There is no evidence that any clients or members of the public have been harmed. The respondent has been cooperative at all stages of this proceeding, as he was in the proceedings of the Federal District Court. He has made no attempt to conceal anything, and has cooperated fully in revealing all relevant information. This indicates a desire on his part to assume his professional responsibility.
Taking into consideration all the foregoing facts, the undersigned respectfully recommends the respondent be suspended from the practice of law in the State of Indiana for a period of thirty (30) days, subject to his application for readmission in accordance with the rules in this Court.
The Court having examined said report, does now approve the same in whole as this Court's findings of fact and recommendations and the said Carl O. Rodin is suspended from the practice of law in the State of Indiana for a period of thirty (30) days, from the date of this Order, subject to his application for re-admission in accordance with the rules of this Court.