Matter of Anonymous No. 2

Full title: In the Matter of ANONYMOUS NO. 2, an Attorney, Respondent. ASSOCIATION OF…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 27, 1974

45 A.D.2d 89 (N.Y. App. Div. 1974)

357 N.Y.S.2d 506

Opinion

February 27, 1974.

John G. Bonomi of counsel for petitioner.

Arnold E. Wallach of counsel for respondent.

Per Curiam.

Respondent was admitted to the Bar by the First Department in July, 1927. He concedes that he was convicted by the United States District Court for the Southern District of New York, upon his plea of guilty, of the offense of willfully and knowingly failing to file an income tax return for the calendar year 1965 in violation of section 7203 of the Internal Revenue Code ( U.S. Code, tit. 26, § 7203). The respondent was placed on probation for five years, the special condition of probation being that he pay taxes, interest and penalties owed the Government. These payments were made. The sentencing Judge stated at the time of sentence that he was "convinced beyond any shadow of a doubt" that there was no venality on the part of respondent, and this belief was supported by evidence indicating in the two preceding years he had made substantial mistakes in favor of the Government. The respondent in his answer to the charge of professional misconduct asserted that the misdemeanor to which he pleaded guilty was not a crime malum in se, but malum prohibitum, and did not involve any moral turpitude.

The Referee found that there was here no breach of trust or confidence by a client in an attorney, and no charge of any fraud in reporting or failure to pay the taxes that were due.

This court concurs in the view of the Referee that the evidence in this case discloses that the violation of law "attributed to respondent does not rise to the dimension of the kind of professional misconduct that generally characterizes proceedings of this nature" and, accordingly, the charges against respondent should be dismissed. ( Matter of Anonymous No. 1, 45 A.D.2d 88.)

The motion to disaffirm the Referee's report is denied. The petition is dismissed. And in so doing, we note the uniformly good repute borne by the respondent during all his years as an attorney.

McGIVERN, P.J., NUNEZ, KUPFERMAN, CAPOZZOLI and LANE, JJ., concur.

Petition dismissed.