Summary
In Cincinnati Bar Assn. v. Beall (1978), 54 Ohio St.2d 168, 375 N.E.2d 423, the respondent was charged with violating DR 1-102 of the Code of Professional Responsibility after his plea of nolo contendere to the charge of the willful failure to file a federal income tax return resulted in his federal conviction.
Summary of this case from Cincinnati Bar Assn. v. PandilidisOpinion
D.D. No. 78-1
Decided May 3, 1978.
Attorneys at law — Misconduct — Indefinite suspension — Acts warranting.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
Mr. Peter W. Swenty and Mr. Robert R. Lavercombe, for relator.
Messrs. Beall, Hermanies Bortz and Mr. Walter C. Beall, for respondent.
Augustus Beall, III, respondent herein, admitted to the practice of law in Ohio, was charged on August 19, 1977, by the Cincinnati Bar Association, relator herein, with the violation of Canon 1 and DR 1-102 of the Code of Professional Responsibility. The cause came on for hearing in Cincinnati on November 18, 1977, before the duly appointed hearing panel of the Board of Commissioners on Grievances and Discipline.
The complaint states that respondent was charged on an information filed April 4, 1977, in the United States District Court for the Southern District of Ohio, Western Division, Case No. CR1-77-30, with the offense of willfully and knowingly failing to file a federal income tax return for the year 1973, in violation of Section 7203, Title 26, U.S. Code, respondent having received a gross income in 1973 of $41,055.43. The complaint further recited that on May 16, 1977, respondent appeared in person before said court, with counsel, entered a plea of nolo contendere to the charge and was found guilty by the court. Because of this conviction, respondent is now charged with a violation of DR 1-102(A) and Canon 1 of the Code of Professional Responsibility.
For his answer to the complaint, respondent admitted his conviction as alleged, denied that he had failed to file said income tax return with intent to deceive or defeat the payment of taxes, denied "that his actions were knowingly involved with either the administration of justice or moral turpitude," denied that his late filing was for the purpose of fraudulently denying the existence of income or its amount or for the purpose of avoiding responsibility, and stated that the government was informed of his income by virtue of the partnership federal income tax return he had prepared and filed on behalf of his firm.
The chairman of the hearing panel placed in the record as the panel's Exhibit 1, a letter of Walter C. Beall, brother of respondent, dated November 14, 1977, addressed to the chairman explaining that an appearance at the hearing would not be made by him or by respondent. Relator offered in evidence Exhibit 1, consisting of copies of all documents filed in the proceedings before the United States District Court. Relator then rested and the chairman declared the hearing concluded.
The board found that the offense of failure to file an income tax return constituted misconduct on the part of the respondent and was a basis for disciplinary action; it was the conclusion of the board that the respondent had violated DR 1-102(A) of the Code of Professional Responsibility. The board recommended that the respondent be indefinitely suspended from the practice of law.
The matter is now before this court for consideration of the report of the board and relator's objection to the findings.
The report of the Board of Commissioners on Grievances and Discipline contains the following statement: "* * * [O]ur Supreme Court has found that the offense of failure to file an income tax return constitutes misconduct * * *." This is imprecise.
The fact in this area of lawyer discipline found by this court to warrant indefinite suspension from the practice of respondent has been guilty of a willful failure to file a fed-law is a final federal determination, in a criminal case, that eral income tax return.
DR 1-102(A) admonishes, inter alia:
"A lawyer shall not:
"* * *
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"(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 action, we find that respondent has violated DR 1-102(A) of the Code of Professional Responsibility and he is hereby indefinitely suspended from the practice of law.
Judgment accordingly.
HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
O'NEILL, C.J., not participating.