Opinion
October 31, 1990
On April 20, 1990, respondent was convicted in the Police Court of the City of Albany upon a plea of guilty of a violation of New York State Tax Law § 1801 (a), failure to file an income tax return, which is a misdemeanor. Respondent was sentenced to 60 days in the Albany County Jail commencing July 13, 1990, and was fined $10,000.
On August 29, 1990, this court denied a motion by petitioner, the Committee on Professional Standards, pursuant to Judiciary Law § 90 (4) (f), for an order temporarily suspending respondent by reason of his conviction of a serious crime. A cross motion by respondent to set aside the automatic suspension imposed by section 90 (4) (f) was granted and he was directed to show cause why a final order of discipline should not be entered (Judiciary Law § 90 [g]). Respondent was heard in mitigation on October 18, 1990.
Respondent's failure to file a New York State income tax return constitutes serious professional misconduct. Such misdemeanors are among those crimes specifically designated as "serious" by statute (Judiciary Law § 90 [d]) and for which the Legislature imposes an automatic suspension from practice in the absence of any countervailing order by the Appellate Division (see also, 22 NYCRR 806.7). Further, "an attorney has a duty to comply strictly with statutory mandates, particularly those relating to making income tax returns and payment of taxes due" (Matter of Abbate, 38 A.D.2d 144).
We note that respondent has demonstrated personal circumstances which tend to mitigate his misconduct to some degree. He enjoys an otherwise unblemished disciplinary record and a good reputation among his peers. Further, his misconduct was not related to his legal practice but was of a personal nature; it does not evidence dishonesty as might have intentional inaccuracies on a tax return; and there does not appear to be a likelihood of a recurrence of respondent's misconduct. Finally, respondent has already incurred significant punishment as a result of his conviction and by the adverse publicity attendant thereto.
Under all of the circumstances, we conclude that respondent should be suspended from the practice of law for a period of three months (see, e.g., Matter of Sullivan, 92 A.D.2d 978; Matter of Romas, 71 A.D.2d 969; Matter of Breslin, 26 A.D.2d 212).
Respondent suspended from the practice of law for a period of three months and until further order of this court, the date of commencement to be fixed in the order to be entered hereon. Kane, J.P., Weiss, Yesawich, Jr., Mercure and Harvey, JJ., concur.