Summary
In Toledo Bar Assn. v. Stichter (1985), 17 Ohio St.3d 248, an attorney was found guilty of having willfully failed to file income tax returns for three years, which constituted misdemeanors.
Summary of this case from Rossiter v. Ohio State Medical Bd.Opinion
D.D. No. 85-1
Decided June 12, 1985
Attorneys at law — Misconduct — One-year suspension — Willful failure to file federal income tax return — No credit for time served under automatic suspension.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Relator, Toledo Bar Association, filed the complaint in this disciplinary case against respondent, Richard D. Stichter. The complaint alleged that respondent had violated the following Disciplinary Rules: DR 1-102(A)(3) (engaging in conduct involving moral turpitude); DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); and DR 1-102(A)(6) (engaging in conduct that adversely reflects on respondent's fitness to practice law). These allegations arose out of the finding made by the United States District Court for the Northern District of Ohio, Western Division, that the respondent was guilty of having violated Section 7203, Title 26, U.S. Code (willful failure to file income tax return), for the years 1976, 1977 and 1978, a misdemeanor. On July 11, 1984, this court automatically suspended respondent from the practice of law pursuant to Gov. Bar R. V (8)(a)(iii).
The report of the Board of Commissioners on Grievances and Discipline indicates that respondent failed to file federal income tax returns for the years 1970 through 1978. The board found that respondent had preserved the records necessary to file the subject tax returns and is now fully cooperating with the Internal Revenue Service in order to settle his delinquent tax liabilities. The board also noted that the presiding judge in the respondent's criminal trial recommended that the board impose a one-year suspension on respondent based on respondent's convictions for failing to file federal income tax returns for the years 1976, 1977 and 1978.
The board concluded that the facts underlying respondent's conviction constitute a violation of DR 1-102(A)(4) and (6), but not a violation of DR 1-102(A)(3). It was the recommendation of the board that the respondent be suspended from the practice of law in the state of Ohio for a period of one year, with the proviso that he be given credit for the time he is currently serving under the suspension order by this court of July 11, 1984.
J. Jeffrey Lowenstein, for relator.
William M. Connelly, for respondent.
After a careful review of the facts and circumstances underlying the instant disciplinary action, we are convinced that the respondent has violated DR 1-102(A)(4) and (6) of the Code of Professional Responsibility.
We note that the responsibility for properly filing one's tax returns is a responsibility that should never be taken lightly by any citizen, especially one who is licensed as an officer of the court. We are convinced that the respondent has come to realize the gravity of his offense by virtue of his willingness to fully cooperate with the Internal Revenue Service. Nevertheless, the illegal conduct undertaken by respondent in the past should not be countenanced by this court and, therefore, we find that the sanction recommended by the board fits the offense for which respondent was convicted.
Accordingly, it is the judgment of this court that respondent be suspended from the practice of law in the state of Ohio for a period of one year.
Judgment accordingly.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES and WRIGHT, JJ., concur.
C. BROWN and DOUGLAS, JJ., dissent.
I respectfully dissent. The report to this court from the Board of Commissioners on Grievances and Discipline of the Bar states, in pertinent part, that "[t]he Board of Commissioners on Grievances and Discipline of the Bar recommends that the Respondent be suspended from the practice of law in the State of Ohio for a period of one year, and that he be given credit for the suspension time served pursuant to Rule V, Section (8)(ii) Suspension. * * *" (Emphasis added.) Unfortunately the majority has seen fit not to accept the recommendation of the board that respondent be given credit for the time he has already been suspended from the practice.
Respondent's suspension commenced July 11, 1984. The order of this court is for a one-year suspension. By now ordering a one-year suspension without granting credit for "time served," respondent's suspension will be, in effect, a suspension of two years. Even a worse scenario is imaginable if the respondent had decided to appeal his conviction and the order of this court for suspension after hearing was issued at the conclusion of the appellate process. Respondent would have been, upon conviction, immediately suspended from the practice, pursuant to Gov. Bar R. V(8)(a)(iii), and this suspension would have continued in effect for the two-to-three-year period of appeal. Then this court would have ordered the sanction of a one-year suspension and, because respondent had chosen to exercise his or her rights of appeal from the judgment of conviction, the total time of suspension could very easily have been three to four years for an offense that is generally punished by a one-year suspension. It does not take much thought to recognize what a chilling effect this result would have on a respondent who might be contemplating an appeal of a criminal conviction.
In addition, it should be pointed out that for a person convicted of a crime and incarcerated in a state of Ohio correctional facility therefor, the Adult Parole Authority is required to give credit for the number of days "dead time" spent prior to commitment. See R.C. 2967.191. Should lawyers be treated any differently with regard to a penalty imposed when that penalty involves the loss of their profession and livelihood? I think not. Accordingly, I dissent.
C. BROWN, J., concurs in the foregoing dissenting opinion.