Bar Ass'n of Baltimore City v. McCourt

• Citation: 276 Md. 326,347 A.2d 208
• Parties: . Misc. (Subtitle BV) 11. Court of Appeals of Maryland
• Decision Date: 12 November 1975
• Court: Maryland Court of Appeals

Page 326

276 Md. 326

347 A.2d 208

The BAR ASSOCIATION OF BALTIMORE CITY v. Frank McCOURT.

Misc. (Subtitle BV) 11.

Court of Appeals of Maryland.

Nov. 12, 1975.

Marvin J. Garbis, Baltimore, for respondent.

Robert W. Kernan, Baltimore, for petitioner.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

PER CURIAM.

Frank McCourt, a member of the Bar of Maryland since October 24, 1958, was indicted by the federal grand jury in October of 1971, and arraigned on a four-count indictment charging him with wilfully, knowingly, and unlawfully failing to file federal income tax returns for the years 1964 Upon the filing of a petition for disciplinary action against McCourt by The Bar Association of Baltimore City, we referred the petition, pursuant to Maryland Rule BV3 b (now BV9 b), to the Supreme Bench of Baltimore City, designating Judges Anselm Sodaro (presiding), James A. Perrott and Robert I. H. Hammerman of the Eighth Judicial Circuit of Maryland to hear the charges and make a recommendation to the Court.

1965, 1966 and 1967. He was found guilty as to the second count (1965) and his plea of nolo contendere as to the other counts was accepted by the Court. On June 14, 1972, the imposition of sentence was suspended and McCourt was placed on probation for one year.

The memorandum opinion containing the findings of fact, conclusion of law and recommendation of the panel was filed in this Court in accordance with Rule BV5 a (now BV11 a 1) and no exceptions having been filed by either party within the time prescribed by Rule BV5 b 2 (now BV11 b 2), we issued an Order requiring McCourt 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 twice argued before us and upon consideration of the record before the panel of judges and the record and proceedings in this Court, the memorandum opinion of the panel of judges is hereby adopted and made a part of this opinion. Accordingly, we accept the panel's recommendation that Frank McCourt be suspended from the practice of law in this State for a period of one year accounting from December 12, 1975.

It is so ordered.

MEMORANDUM OPINION

FINDINGS OF FACT

On October 22, 1974, the Bar Association of Baltimore City, pursuant to Article 10, Section 13 of the Annotated Code of Maryland (1968 Repl.Vol.) and Rule BV3 of the Maryland Rules of Procedure, filed in the Court of Appeals of Maryland a petition for Disciplinary Action against the Respondent, Frank J. McCourt, who has been a member of the Bar of the State of Maryland since October 24, 1958. The Petition sets forth conduct by the Respondent, which, in the opinion of the Baltimore City Bar Association, warranted the bringing of charges against Mr. McCourt of professional misconduct, crimes involving moral turpitude and conduct prejudicial to the administration of justice.

The Court of Appeals of Maryland, by order dated October 30, 1974, transmitted the charges to the Supreme Bench of Baltimore City to be heard and determined by this panel consisting of Judges Anselm Sodaro (presiding), James A. Perrott and Robert I. H. Hammerman of the 8th Judicial Circuit of Maryland in accordance with Rule BV4 of the Maryland Rules of Procedure. On November 15, 1974, Mr. McCourt, through his counsel, filed an Answer to the Petition admitting the allegations contained therein but denied that his convictions on June 14, 1972, for having failed to file Federal Income Tax Returns in violation of Title 26 U.S.Code, Section 7203 for each of the years 1964 through 1967 constituted professional misconduct, crimes involving moral turpitude or conduct prejudicial to Leave was granted to the parties at the conclusion of the hearing to file memoranda. Respondent has conceded for the purposes of this case, that his conviction of having failed to file Federal Income Tax Returns for the years 1964 through 1967 constitutes professional misconduct and therefore exposes him to disciplinary action.

the administration of justice. A hearing was held before the above referred to Judges of the Supreme Bench of Baltimore City on December 2, 1974. At the hearing, counsel for the Petitioner, pursuant to instruction from the Petitioner's Executive Council, advised the Court that the Bar Association of Baltimore City did not seek the ultimate penalty of disbarment in this case. At the hearing counsel for the Petitioner recommended to the Court that the appropriate sanction would be the Respondent's suspension from the practice of law for a reasonable period of time.

The federal misdemeanors of failing to file Federal Income Tax Returns of which the Respondent stands convicted occurred between April 15, 1965 and April 15, 1968. These offenses were committed by the Respondent during the time that he was an elected Delegate to the Maryland House of Delegates and a Senator in the Maryland State Senate. In each of the years involved the Respondent also earned income in the form of legal fees from which Federal Taxes were not withheld. Some of the Respondent's fees were paid in cash. The fees paid in cash totalled a little more than $3,000.00 during the four (4) year period. The Respondent's income from legal fees was not reported to the Internal Revenue Service until after it was discovered by an investigation conducted by the Internal Revenue Service. Shortly after he failed to file his Federal Income Tax Return in April of 1968, the Respondent left the country. He subsequently returned to this country, and in October of 1971 was indicted and arraigned on a four-count indictment charging him with wilfully, knowingly and unlawfully failing to make Income Tax Returns to the Federal Government.

On November 29, 1971, after waiver of a jury trial and trial by the Court, the Respondent was found guilty of each of the alleged violations; however, on June 9, 1972, after a In refusing to sentence the Respondent to a term of confinement, the Court took into consideration the Government's position, as expressed by the prosecutor, that it was willing to recommend the Respondent's probation in order to avoid the lengthy hearings which would be entailed in resolving the Respondent's contention that 'tainted' evidence provided a basis for the prosecution. The Court also accepted his contention that if he had been successful on the 'tainted' evidence question, no tax liability would have remained in three of the years involved, and only a very small amount of tax liability would have resulted in the remaining year. This latter amount would have been eliminated by a carry forward upon the filing of a return for the following year. In sentencing the Respondent, the Court took into account only those facts which were clearly not 'tainted...