Attorney Grievance Commission of Maryland v. Walman

• Decision Date: 09 June 1977
• Citation: 374 A.2d 354,280 Md. 453
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Joseph WALMAN. Misc. (Subtitle BV) 17.
• Court: Maryland Court of Appeals

Page 453

280 Md. 453

374 A.2d 354

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Joseph WALMAN.

Misc. (Subtitle BV) 17.

Court of Appeals of Maryland.

June 9, 1977.

William H. Zinman, Baltimore, for respondent.

L. Hollingsworth Pittman, Bar Counsel, Annapolis, for petitioner.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

LEVINE, Judge.

In 1973, Joseph Walman, a member of the Maryland Bar since 1964, was indicted by a grand jury in the United States District Court for the District of Maryland with "wilfully and knowingly" failing to file his federal income tax return for the years 1967, 1968, and 1969. On October 31, 1973, respondent appeared before United States District Judge Alexander Harvey and offered a plea of guilty to the second count of the indictment, pertaining to the year 1968. The court accepted the guilty plea, sentenced respondent to imprisonment for one month, which he commenced to serve on December 3, 1973, and ordered that he thereafter be placed on probation for 23 months, whereupon the United States Attorney entered a nolle prosequi of the two remaining charges. In consequence of his conviction, respondent was, on January 30, 1974, disbarred from the practice of law before the United States District Court for the District of Maryland. This disciplinary proceeding followed.

After a petition for disciplinary action was filed by the Attorney Grievance Commission of Maryland, this Court passed an order on January 14, 1976, transmitting the charges to the Supreme Bench of Baltimore. The case was heard, pursuant to Maryland Rule BV9 by a panel consisting of Judges Basil A. Thomas, Robert B. Watts and James W. Murphy of the Eighth Judicial Circuit of Maryland. Although no testimony was presented to the court, the transcript of testimony heard by a panel of attorneys designated by the Bar Association of Baltimore City, which had recommended that disciplinary action be instituted but that respondent receive a reprimand, was admitted in evidence by stipulation.

Thereafter, a memorandum opinion, containing findings of fact and conclusions of law, and the recommendation of the three-judge panel that respondent be suspended from the practice of law for one year, was filed in this Court in accordance with Rule BV11 a 1. No exceptions having been filed by either party within the prescribed time, we issued an order requiring respondent to show cause why he should not be disbarred or suspended from the practice of law for a period in excess of the one year recommended by the panel. The matter was thereafter heard by us, but we remanded the case to the same three-judge panel for the taking of additional evidence "bearing on whether extenuating circumstances exist(ed) in connection with respondent's conviction for failure to file . . . and particularly with respect to the respondent's medical condition during the period in question . . . ."

Subsequently, the panel heard testimony from two physicians who had attended respondent, from the I.R.S. agent who had investigated the tax case against him, and from the respondent himself. Dr. Philip Moore, who had seen respondent for the first time in 1973, had then found him suffering from obesity, hypertension, heart disease, narcolepsy and diabetes. The physician saw respondent on three additional occasions in 1973, but did not see him again until October 1976. On the last occasion, he recommended that respondent be hospitalized for treatment of his diabetes condition. The witness was unable to render an opinion concerning respondent's condition during the critical period of 1967-69. Dr. Harry Klinefelter testified that he had seen respondent a total of eight times between July 1966 and March 1968, and once again in September 1971. He diagnosed respondent's condition as narcolepsy, a relatively rare disease, in which sleep comes suddenly and the patient is unable to prevent it. The prescribed treatment was benzedrine, an amphetamine. The witness stated, however, that although respondent required a "high" dosage, no side effects would have resulted.

Respondent, with some corroboration furnished by the I.R.S. agent, testified that during the period involved in the tax case he was providing substantial contribution to the support of a brother and his two sons, and his grandparents, who were his adoptive parents. Following the death of his grandmother in 1966, respondent provided all of the necessary financial care for his grandfather. He described in detail his various physical ailments, but since, as the panel found, those conditions were of "limited significance" in regard to the tax problems, we need not recount his testimony here.

Concerning his tax difficulties, respondent stated that he filed his first three quarterly returns for 1967, paying the appropriate amount in each instance. He then prepared his final return and wrote a check for the balance due, but did not mail it because he did not have sufficient funds to cover the payment. Shortly before that payment was due, his brother had required funds for his son's college tuition, and respondent had furnished the money. He knew then, however, that it would have been possible to avoid criminal prosecution by filing the return without making the payment. Beyond his financial difficulties, respondent was unable to offer any explanation for his failure to file the tax returns.

The testimony reveals that respondent earned the following gross income for the years relevant to the charges in the indictment: 1967, $11,450; 1968, $13,202; 1969, $9,543. The amount of his total tax liability at the time of the conviction in the federal court was $4,799 plus penalties and interest. He had paid approximately $1,600 toward this delinquency in 1974. All of his federal returns covering the period 1970 to date have been filed, though most have not been accompanied by payment. It was disclosed for the first time at the hearing on remand that respondent had not filed his Maryland income tax returns since 1965.

In its supplemental opinion and recommendation, as we have indicated, the panel of judges below noted respondent's medical condition, but found it to be of "limited significance," since it had not been shown to interfere with his "functioning as an attorney." The panel adhered to its prior recommendation that respondent be suspended for one year, concluding that disbarment would be "too harsh a penalty," since respondent's failure to file was not "a result of a fraudulent or dishonest intent to avoid the payment of taxes." The panel gave no consideration to respondent's failure to file the Maryland returns, since neither criminal nor disciplinary charges had been filed on those grounds.

Petitioner filed exceptions to the panel recommendation, contending that respondent's failure to file the state returns was properly before the panel. Further, it argued, since the federal crime committed by respondent was one involving moral turpitude, the sanction to be imposed should be greater than the one-year suspension recommended by the panel. Respondent also noted exceptions and replied to those filed by petitioner. He contended that since the crime had been committed without fraudulent intent, being the result of his inability to pay the required sums, he should be subjected to a sanction of no greater severity than a reprimand.

Because of our holding in Maryland St. Bar Ass'n v. Agnew, 271 Md. 543, 550, 551, 553, 318 A.2d 811 (1974), that absent compelling extenuating circumstances, disbarment of an attorney follows from conviction of a crime that involves moral turpitude and is characterized by dishonesty, fraud or deceit, accord, Maryland St. Bar Ass'n v. Hirsch, 274 Md. 368, 377, 335 A.2d 108, cert. denied, 422 U.S. 1012, 95 S.Ct. 2638, 45 L.Ed.2d 676 (1975); Bar Ass'n of Balto. City v. Snyder, 273 Md. 534, 536, 331 A.2d 47 (1975); Maryland St. Bar Ass'n v. Callanan, 271 Md. 554, 556, 318 A.2d 809 (1974), it first becomes necessary for us to decide whether the crime of which respondent was convicted was one involving moral turpitude. Agnew, of course, involved the felony of willful tax evasion, as set forth in 26 U.S.C. § 7201, while respondent was convicted under § 7203 of willfully failing to file, a misdemeanor. We carefully noted in Agnew that we were not there addressing the sanction to be imposed in cases involving § 7203. Maryland St. Bar Ass'n v. Agnew, 271 Md. at 553, n.8, 318 A.2d 811.

In only two reported decisions does it appear that we have been confronted in the disciplinary context with the lesser crime of failure to file. Although Rheb v. Bar Ass'n of Baltimore, 186 Md. 200, 46 A.2d 289 (1946), has been read in some quarters to stand for the proposition that the crime of failing to file tax returns always involves moral turpitude, close examination of the opinion in that case reveals that the decision did not rest on that principle. In addition to being convicted for failure to make income tax returns for the years 1940, 1941 [374 A.2d 358] and 1942, Rheb admitted that he had not filed a return since the commencement of his law practice in 1932. The Court concluded that those admissions and Rheb's failure to keep records justified a finding that his purpose was to cheat the federal government and the State of Maryland. Moreover, Rheb was found to have been guilty of further professional misconduct relating to his participation in a fraudulent stock scheme and to a breach of a confidential relationship. While noting in dicta that "the authorities support the proposition that a crime of this character, even though not a felony, involves moral turpitude," the Court concluded "upon the whole case" that Rheb "ha(d) shown himself to be unfit for the further practice of law." Rheb v. Bar Ass'n of Baltimore, 186 Md. at 204, 209, 46 A.2d at 293 ¹.

Nor did we in Bar Ass'n of Balto. City v. McCourt, 276 Md. 326, 347 A.2d 208 (1975), flatly decide the...