Opinion
D.D. No. 79-20
Decided March 19, 1980.
Attorneys at law — Misconduct — Indefinite suspension — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
Relator, the Ohio State Bar Association, filed a complaint against respondent, John P. Stimmel, pursuant to Gov. R.V., wherein relator charged respondent with violations of DR 1-102(A)(4), (5) and (6) and Canon 1 of the Code of Professional Responsibility.
The record shows that on April 17, 1978, the United States Attorney filed in federal District Court, Southern District of Ohio, Western Division, an information which charged that respondent received a gross income of $56,870 for the 1972 calendar tax year; that respondent knew because of said income that he was required by Section 7203, Title 26, U.S. Code, to file a federal income tax return; that well knowing the aforementioned facts respondent willfully and knowingly failed to make an income tax return on or before April 15, 1973.
On April 17, 1978, respondent appeared in District Court for arraignment on the aforementioned charge and pleaded nolo contendere. The United States Attorney indicated to the court that he had entered into a plea bargain arrangement with respondent, wherein in exchange for respondent's plea of nolo contendere to the pending charge the government would not prosecute respondent for the failure to file a tax return for the years 1973 and 1974. Respondent's plea was thereafter entered upon the court record.
The evidence adduced at the hearing before this court's Board of Commissioners demonstrates that subsequently, on May 30, 1978, respondent appeared before the District Court for sentencing. For the purpose of mitigation, respondent's counsel contended that the element of "willfulness" was not present in respondent's cause due in part to respondent's psychological reaction upon learning of the traumatic death of a friend on April 17, 1972. It appears from the record that respondent had known the deceased and his wife both professionally and socially, and was requested to render professional representation to the wife for the purpose of securing a divorce. The divorce was granted and the decree was sent to the husband in California. Several days later he was found dead, the apparent victim of a suicide. Respondent later unsuccessfully prosecuted an action to recover insurance proceeds allegedly payable to the deceased's spouse. While the insurance action was pending, respondent's wife was apparently the victim of an attempted rape-murder.
The record indicates that the trial judge suggested that the submitted plea be withdrawn and one of not guilty be substituted, but counsel for respondent indicated that it was the respondent's desire to retain the entered plea of nolo contendere. Even though the trial court found that extenuating circumstances were present in respondent's cause, that court accepted respondent's plea, "adjudged the defendant guilty as charged***and ordered that***[respondent] be fined in the amount of***($3,000) and that he be placed on probation for a period of two * * * years * * *." (Emphasis added.) It appears from the record that no appeal was filed and the trial court's judgment thereafter became final.
In the hearing before this court's board, the evidence further demonstrated that respondent had been a member of this bar since 1967 and had been a responsible member of the legal profession. When questioned as to the circumstances underlying his failure to file income tax returns for 1972 through 1974, respondent indicated that he was unsure of the actual causes, but stated also that the pressures associated with the burgeoning practice, coupled with his dependency on alcohol and the apparent suicide of his friend (at a time when he was representing the friend's wife in a divorce action), may have contributed to his actions. Respondent indicated further that in 1974 and 1975 his "income dropped and the needs of * * * [his] family increased" and that he needed a loan to pay his tax liability for 1975. When queried concerning his refusal to withdraw his plea of nolo contendere and challenge the charges on the grounds that the element of "willfulness" was lacking, respondent averred that his decision was based primarily upon his realization that a jury trial would in all likelihood result in a conviction, considering his professional status, and that a trial would drain his resources and cause him to run "the risk of imprisonment."
Respondent introduced in evidence a letter from the trial judge who sentenced respondent on the instant tax charge. The letter indicated in essence that the court's presentence report demonstrated that the "element of willfulness [in respondent's case] was very weak" and that in the court's opinion sufficient extenuating circumstances existed which indicated a likelihood of acquittal had respondent elected to proceed to trial.
Upon a review of the evidence submitted by the parties, the board of commissioners concluded, inter alia, that relator had not sustained its burden of proving that respondent "willfully" failed to file his federal income tax return for 1972. Accordingly, the board recommended that respondent be given a public reprimand.
This matter is now before us for consideration of the report of the board and objections of respondent.
Mr. Keith McNamara, Mr. William L. Burton, Mr. John R. Welch and Mr. Albert L. Bell, for relator.
Mr. H. Fred Hoefle and Mr. Burgess L. Doan, 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. Cincinnati Bar Assn. v. Pandilidis (1979), 57 Ohio St.2d 47, 385 N.E.2d 1317; Dayton Bar Assn. v. Westbrock (1978), 56 Ohio St.2d 75, 381 N.E. 1320; Cincinnati Bar Assn. v. Beall (1978), 54 Ohio St.2d 168, 375 N.E.2d 423; Cleveland Bar Assn. v. Stein (1972), 29 Ohio St.2d 77, 278 N.E.2d 670.
The imposition of indefinite suspension in this matter is challenged primarily upon the ground that relator failed to prove the "willfulness" of respondent's misconduct. The record demonstrates however that relator has submitted a certified copy of respondent's conviction for the willful failure to file a federal income tax return in violation of Section 7203, Title 26, U.S. Code, a conviction which is now final. Prior cases of this court have consistently indicated that this fact 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, 341 N.E.2d 302.
It is contended as an additional ground upon which this court should depart from the standard of discipline enunciated in Cleveland Bar Assn. v. Stein, supra, and its progeny, that the extenuating circumstances surrounding respondent's conviction distinguishes the instant matter from prior cases. In Columbus Bar Assn. v. Dixon (1974), 40 Ohio St.2d 76, 77, 320 N.E.2d 293, it is stated that "efforts to distinguish cases of this nature on other than clear-cut grounds serve only to prolong the uncertainty and anguish already besetting those under investigation."
Although we are not unmindful of the unfortunate circumstances which often accompany this area of discipline, including those in the cause sub judice, we are of the view that the fundamental principles of ethical conduct embodied in the Code of Professional Responsibility are best served by the discipline announced in Stein, supra. The rationale for that discipline bears repeating. Cleveland Bar Assn. v. Stein, supra, states, at page 81:
"One of the fundamental tenets of the professional responsibility of a lawyer is that he should maintain a degree of personal and professional integrity that meets the highest standard. The integrity of the profession can be maintained only if the conduct of the individual attorney is above reproach. He should refrain from any illegal conduct. Anything short of this lessens public confidence in the legal profession — because obedience to the law exemplifies respect for the law."
DR 1-102(A) admonishes, inter alia:
"A lawyer shall not:
"* * *
"(5) Engage in conduct that is prejudicial to the administration of justice.
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
Upon examination of the record in this proceeding, we find that respondent has violated DR 1-102(A)(5) and (6) of the Code of Professional Responsibility and he is, therefore, indefinitely suspended from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
HOLMES, J., not participating.