Attorney Grievance Commission v. Barnes, 19

• Decision Date: 11 December 1979
• Docket Number: No. 19,19
• Citation: 286 Md. 474,408 A.2d 719
• Parties: ATTORNEY GRIEVANCE COMMISSION of Maryland v. Harry Davis BARNES.
• Court: Maryland Court of Appeals

Page 474

286 Md. 474

408 A.2d 719

ATTORNEY GRIEVANCE COMMISSION of Maryland v. Harry Davis BARNES.

No. 19.

Court of Appeals of Maryland.

Dec. 11, 1979.

J. Martin McDonough, Jr., Asst. Bar Counsel, Annapolis, for Attorney Grievance Commission.

Charles E. Chlan, Towson, for Harry Davis Barnes.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, COLE and DAVIDSON, JJ.

MURPHY, Chief Judge.

Harry Davis Barnes, a member of the Maryland Bar for thirty-nine years, was indicted by a Grand Jury in the United States District Court for the District of Maryland for willful failure to file federal income tax returns for 1969 and 1970 misdemeanor offenses violative of 26 U.S.C. § 7203 (1976). ¹

On February 10, 1976, the District Court accepted Barnes' guilty plea to willful failure to file his 1970 return. It entered a judgment of conviction, suspended the imposition of sentence, placed Barnes on probation for five years, and fined him $1,000. The government entered a nolle pros on the count of the indictment charging failure to file the 1969 return.

The Attorney Grievance Commission, acting through Bar Counsel, subsequently filed a disciplinary petition against Barnes, charging that his misconduct violated Disciplinary Rule 1-102 of the Code of Professional Responsibility, I. e.:

"(A) A lawyer shall not:

(1) Violate a Disciplinary Rule.

(2) Circumvent a Disciplinary Rule through actions of another.

(3) Engage in illegal conduct involving moral turpitude.

(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."

At the evidentiary hearing held on the Commission's disciplinary petition, Barnes admitted that he did not file his 1969 and 1970 tax returns. His failure to do so, he said, was not willful but was the result of various personal, marital and family problems with which he was plagued during those years. Barnes testified that on January 13, 1969, and again on September 13, 1970, the Ku Klux Klan burned crosses on the lawn of his home in Elkton in retaliation for his long-standing support and legal representation of Black citizens, and because he provided legal counsel to the wives of Klansmen in domestic cases. Barnes said that he received numerous threats on his life from members of the Klan during 1969 and 1970 and was fearful that they would harm his wife, children and grandchildren who resided with him. He testified that he was afraid that the Klan would dynamite his house, as it had previously undertaken to do at the home of a Black community leader. As a result of his fears, Barnes employed a security guard to watch over his residence. Barnes testified that his wife lived in a state of hysteria and that so great did the stress become that he moved his family to Baltimore in early 1969, where he attempted to establish a law practice. Unsuccessful in this endeavor, Barnes returned to Elkton with his family in the summer of 1970, ultimately moving back into their former residence. During the period that he lived in Baltimore, Barnes maintained his office and legal practice in Elkton, commuting back and forth on a regular basis. Despite his difficulties, Barnes earned, according to the Internal Revenue Service, in excess of $46,000 in 1969 and over $55,000 in 1970.

In his testimony, Barnes recounted the business-related, marital and other family problems with which he was confronted in 1969 and 1970. He admitted that he was under a financial strain during this period. He said that he lost some of his records when his car was stolen and that he mislaid others in the course of moving his family to Baltimore. This was "part of the reason," he said, that he did not file tax returns for 1969 and 1970.

Evidence was adduced at the hearing corroborative of the two cross burnings at Barnes' home in 1969 and 1970. The theft of Barnes' car, which he said contained his tax records, was not shown by the evidence to have been reported to the police. That Barnes did not voluntarily disclose to the I.R.S. that he had failed to file his 1969 and 1970 tax returns was conceded by him at the hearing. Barnes admitted that his crime was discovered by the I.R.S. in 1972 when he sought an extension of time to file his 1971 tax return.

Dr. Joseph Lanzi, Barnes' family physician since July of 1970, testified that Barnes suffered from obesity, high blood pressure, diabetes, hypothyroid disease, and blurry vision. He saw Barnes twelve to fourteen times in 1970 and five times in 1971 for his various medical problems. Dr. Lanzi said that Barnes told him that he worked seven days a week, ten hours per day. He testified that Barnes did not seem to be aware of the seriousness of his medical problems and did not follow medical advice. It was Dr. Lanzi's opinion, based on Barnes' medical condition, that he was not "responsible" for failing to file his income tax returns in 1969 or 1970.

Dr. Merrill Berman, a psychiatrist, testified that on September 13, 1975 he did a complete psychiatric evaluation of Barnes to determine whether, in not filing tax returns, Barnes harbored a criminal intent. Dr. Berman testified that Barnes was not psychotic, psychopathic, or neurotic, but instead suffered from a long-standing character disorder which he described as "chronic depressant" with some attributes of a passive-aggressive individual. Dr. Berman concluded that because of Barnes' medical condition, particularly his uncontrolled diabetes, he acted in a self-destructive and self-defeating manner; that the physical stress caused by the Klan's activities, which placed Barnes in fear of his life, affected his hypertension, diabetes, and depression and constituted medically mitigating reasons for his failure to file the tax returns. Dr. Berman said that Barnes' marital and other domestic problems contributed to his stress and anxiety, causing him not to act in his own best interests. As a result of these stresses, and because Barnes' "top priority was saving his own life," Dr. Berman thought that no criminal intent was involved in Barnes' failure to file his tax return.

Upon consideration of this evidence, Judge Harry E. Clark, who was designated to hear the disciplinary charges pursuant to Maryland Rule BV10, concluded that "there can be no doubt that the Barnes' family lived in a state of terror during 1969 and 1970." He recognized that Barnes also suffered from poor health and had marital and other domestic problems. Judge Clark nevertheless found that Barnes' failure to file his 1969 and 1970 tax returns was willful; to otherwise conclude, he said, would be to "completely ignore the fact that during this period the Respondent was able to hold onto his law practice, generate gross income in excess of $85,000, safekeep his family and himself from harm and not engage in any bizarre behavior." Judge Clark was of the opinion that Barnes' willful failure to file his tax returns was a crime of moral turpitude and, as such, violated DR 1-102(A)(1), (3) and (6).

Barnes took exception to Judge Clark's finding that his failure to file was "willful." The element of willfulness is, of course, an essential element of the offense to which Barnes pleaded guilty. As used in 26 U.S.C. § 7203, it is "a voluntary, intentional violation of a known legal duty, . . . (and) not through accident or mistake or other innocent cause." Attorney Grievance Comm'n v. Walman, 280 Md. 453, 374 A.2d 354, 359 (1977), citing cases at 460, 374 A.2d 354. The District Court, after accepting Barnes' guilty plea, and receiving evidence concerning his medical and psychiatric condition, said at the sentencing hearing: "I can understand what a psychologist means in terms of the pressures that were on you, but I cannot accept the ultimate conclusion, frankly, that you did not wilfully do what you were doing."

Under Maryland Rule BV10 e 1, Barnes' conviction, entered upon his guilty plea, is "conclusive proof" of his guilt and hence that his failure to file was willful. As we said in Bar Ass'n of Balto. City v. Siegel, 275 Md. 521, 527, 340 A.2d 710 (1975), the integrity of the criminal conviction "cannot be attacked in a disciplinary proceeding by invoking this Court to reweigh or to re-evaluate the respondent's guilt or innocence." To the same effect, See Maryland St. Bar Ass'n v. Rosenberg, 273 Md. 351, 329 A.2d 106 (1974); Maryland St. Bar Ass'n v. Kerr, 272 Md. 687, 326 A.2d 180 (1974).

Barnes also took exception to Judge Clark's finding that his failure to file was a crime involving moral turpitude. We said in Maryland St. Bar Ass'n v. Agnew, 271 Md. 543, 318 A.2d 811 (1974), that when an attorney is convicted of a crime of moral turpitude, disbarment follows automatically unless compelling extenuating circumstances are established. We defined "moral turpitude" as "an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." Braverman v. Bar Assn. of Balto., 209 Md. 328, 344, 121 A.2d 473, 481, Cert. denied, 352 U.S. 830, 77 S.Ct. 44, 1 L.Ed.2d 51 (1956). Because intent to defraud is not an element of the crime of willful failure to file income tax returns under 26 U.S.C. § 7203, the Court held in Attorney Grievance Comm'n v. Walman, supra, that the offense did not per se involve moral turpitude; rather, it depended on the particular facts of the individual case. The Court concluded in Walman (three judges dissenting) that because the attorney's failure to file tax returns for three consecutive years was not shown by the evidence to have been accompanied by a fraudulent or dishonest intent, or for the purpose of evading the ultimate payment of taxes, the crime was not one infected with moral turpitude. No showing...