Bunker, In re

• Decision Date: 30 June 1972
• Docket Number: No. 43487,43487
• Citation: 199 N.W.2d 628,294 Minn. 47
• Parties: In re Application for the Discipline of James E. BUNKER, an Attorney at Law of the State of Minnesota.
• Court: Minnesota Supreme Court

Page 628

199 N.W.2d 628

294 Minn. 47

In re Application for the Discipline of James E. BUNKER, an Attorney at Law of the State of Minnesota.

No. 43487.

Supreme Court of Minnesota.

June 30, 1972.

Syllabus by the Court

1. A failure to file Federal or state income tax returns constitutes a violation of an attorney's oath of office and of his duties as enunciated in the Code of Professional Responsibility.

2. Hereafter, absent extreme, extenuating circumstances, a failure by an attorney to file Federal or state income tax returns will result in either suspension or disbarment.

Heard and considered en banc.

R. B. Reavill, Administrative Director, State Board of Professional Responsibility, St. Paul, for appellant.

Joseph J. Dudley, St. Paul, for respondent.

PER CURIAM.

This matter is before the court upon the petition of the administrative director on professional conduct, at the direction of the State Board of Professional Responsibility, for the discipline of James E. Bunker, an attorney at law of the State of Minnesota.

Mr. Bunker failed to file state and Federal income tax returns for a number of years and pled guilty in Federal court to an indictment charging him with wilfully and knowingly failing to make a Federal income tax return for the year 1966. A similar indictment for the tax year 1965 was dismissed, and the respondent was placed on probation for 3 years and fined $2,500 in lieu of imposition of a prison sentence. A petition and accusation having been served on respondent after his conviction, a hearing was held before a panel of the Board of Professional Responsibility. A transcript of those proceedings, together with the report of the presentence investigation by the probation officer for the United States District Court and a stipulation between the parties hereto waiving reference of this matter to a referee, waiving filing of printed briefs, and agreeing to submission of the matter upon oral arguments, was filed with this court. The Board of Professional Responsibility made no recommendations. We hold that probation will be permitted in this case.

Respondent, James E. Bunker, was admitted to practice law in the State of Minnesota on October 14, 1952, and has practiced law in this state since then, except for the years 1959 to 1964, during which time he practiced law in the State of Iowa. Respondent has paid his registration fees required by the Rules of the Supreme Court for the registration of attorneys for the year 1971 and preceeding years. The record indicates that respondent failed to file Federal income tax returns for the years 1956, 1957, 1958, 1964, 1965, and 1966; that he failed to file Minnesota state income tax returns for the years 1957, 1958, 1959, 1964, 1965, 1966, and 1967; and that he failed to file income tax returns in the State of Iowa for the years 1959 to 1964.

Respondent was indicted by a Federal grand jury on two counts of failure to file Federal income tax returns for the years 1965 and 1966 in violation of 26 U.S.C.A. § 7203, a misdemeanor offense carrying a maximum sentence on each count of 1 year in jail or a fine of not more than $10,000, or both. Respondent pled guilty to the charge of failing to file a return for the calendar year 1966, and the charge of failure to file for the calendar year 1965 was dismissed by the United States District Attorney. Imposition of a prison sentence was suspended by the Federal court, and respondent was placed on probation for a period of 3 years and fined $2,500, which fine has been paid. The respondent has made arrangements with both the Federal and the Minnesota state governments for repayment of his tax liabilities. The obligations to the State of Iowa have been paid. In addition, the respondent was suspended from practice before the United States District Court for the District of Minnesota for a period of 5 years, commencing October 27, 1970, with permission to petition for reinstatement at any time after his release from probation.

The petition contains a reference to alleged unprofessional conduct occurring in the spring of 1958. The record before this court regarding that misconduct is so incomplete that we decline to consider it in disposing of this matter.

1. This matter is the first failure-to-file-tax-returns proceeding presented to this court by the Board of Professional Responsibility. In past years these matters have been treated as misdemeanor violations not involving moral turpitude unless connected with other matters or involving fraudulent tax returns. In re Disbarment of Diesen, 173 Minn. 297, 215 N.W. 427, 217 N.W. 356 (1927, 1928); In re Disbarment of Williams, 221 Minn. 554, 23 N.W.2d 4 (1946). A collection and comparison of various other decisions involving this question appear in Annotation, 59 A.L.R.2d 1398.

In order to facilitate the functioning of the State Board of Professional Responsibility, we herewith set forth the disciplinary measures this court intends to follow in future references involving attorneys who fail to properly file their income tax returns. At the outset, it must be observed that no general rule can be adopted which will apply to each individual case. However certain general principles can be enunciated which will still allow this court discretion as to individual circumstances.

The lawyer in our society occupies a unique role. He provides the average citizen with the means of regulating his own affairs so as to conform to the laws imposed upon citizens by the representative form of government. In addition, the lawyer provides leadership in formulating the laws and regulations by which we all live. At the time of his admission to practice in this state, each lawyer takes an oath to support the laws of the state and the nation. ¹ There is no law of the state or nation which so uniformly affects every citizen as the income tax regulations. Income tax regulations and collection of these taxes form an integral part of our government system since they insure the revenues necessary to carry out the operation of the government. Any violation of the income tax laws represents a threat to the ability or our governmental units to function, whether such action is done with corrupt intent or not. In the case of a lawyer, it most certainly represents a clear violation of his oath to uphold the Constitution and the laws of the United States and the State of Minnesota.

The lawyer in the practice of his profession achieves recognition within his community and is looked to as a leader. This position of leadership and respect is cherished by all honorable practicing attorneys. In order to maintain this position, the American Bar Association, representing lawyers throughout the United States, has adopted Canons of Professional Ethics, recently revised as a Code of Professional Responsibility. By order of this court, that code and its revisions and modifications have been adopted as the standard for lawyers practicing in the State of Minnesota. ² Canon 29 of the Canons of Professional Ethics, which was in effect until 1970, provided:

'Lawyers should expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession, and should accept without hesitation employment against a member of the Bar who has wronged his client. The counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities. The lawyer should aid in guarding the Bar against the admission to the profession of candidates unfit or unqualified because deficient in either moral character or education. He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.' ³

The failure of the lawyer to properly file his income tax returns clearly violates this standard. While one could express sympathy for the embarrassment and publicity received by the individual lawyer by reason of a Federal indictment or state prosecution for failure to file, of deeper concern is the injury to all lawyers by the failure of one to properly maintain the degree of professional propriety that reflects the integrity and honor of his profession.

In addition to the above, Canon 32, Canons of Professional...