Byrd v. The Mississippi Bar

Decision Date25 July 2002
Docket NumberNo. 2001-BA-00731-SCT.,2001-BA-00731-SCT.
Citation826 So.2d 1249
CourtMississippi Supreme Court
PartiesIsaac K. BYRD, Jr. v. THE MISSISSIPPI BAR.

Hiawatha Northington, II, Precious Tyrone Martin, John L. Maxey, II, Jackson, attorneys for appellant.

Michael B. Martz, attorney for appellee.

EN BANC.

WALLER, J., for the Court.

¶ 1. Isaac K. Byrd, Jr., an attorney, appeals from an order of a complaint tribunal of the Mississippi Bar imposing a nine-month suspension from the practice of law for his failure to file federal and state income tax returns. We modify the complaint tribunal's order and order a five-month suspension from the practice of law.

FACTS AND PROCEDURAL HISTORY

¶ 2. Byrd was investigated and interviewed by the Internal Revenue Service in 1995 regarding his failure to file federal income tax returns for several years. Byrd was candid with the IRS investigators and explained that his reason for failing to file his income tax returns was procrastination and that, once he fell behind, he continued to procrastinate. During the course of the investigation, Byrd neither sought counsel nor denied his failure to file tax returns.

¶ 3. Byrd was charged with failure to file and pay federal income taxes from 1992 to 1994, in violation of 26 U.S.C. § 7203. He later pled guilty to one count of failure to file for 1992, a Class A federal misdemeanor, and was sentenced to two years probation, a $10,000 fine, and four months of home confinement. The sentence also required Byrd to determine his correct federal taxes for 1992, 1993, and 1994 and to arrange to cure his outstanding tax obligations. Byrd's total delinquent federal taxes, interest and penalties totaled $533,517.36.

¶ 4. The Mississippi Bar filed a formal complaint against Byrd, alleging that he violated Rules 8.4(b) and 8.4(d) of the Mississippi Rules of Professional Conduct. At the trial before the complaint tribunal, Byrd established that his client trust account was never in jeopardy and that he remained current on payments of federal and state employee withholding taxes. He did, however, admit that he failed to file tax returns from 1986 to 1994, not just from 1992 to 1994, and that he did not file or pay Mississippi state income taxes for 1992 to 1994 since the tax returns for these years were not signed until November 14, 1996.

¶ 5. At the close of the trial, the complaint tribunal ordered that Byrd be suspended from the practice of law for nine months. In so doing, it weighed the mitigating circumstances and aggravating circumstances presented and concluded that Byrd "engaged in professional misconduct by the commission of a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rules 8.4(b) and 8.4(d), Mississippi Rules of Professional Conduct, justifying the imposition of disciplining sanctions...." Byrd appeals from this adverse ruling.

STANDARD OF REVIEW

¶ 6. In matters pertaining to attorney discipline and reinstatement, we retain exclusive jurisdiction and are the ultimate judge of matters that arise under the Rules of Discipline for the Mississippi State Bar. Rules of Discipline for the Mississippi State Bar Rule 1(a); Rogers v. Miss. Bar, 731 So.2d 1158, 1163 (Miss. 1999) (citing Broome v. Miss. Bar, 603 So.2d 349, 354 (Miss.1992)).

¶ 7. Pursuant to Rule 9.4 of the Rules of Discipline for the Mississippi Bar, we "shall review the entire record and the findings and conclusions of the Tribunal, and shall render such orders as the Court may find appropriate." In so doing, we review attorney discipline matters under the de novo standard on a case-by-case basis sitting as triers of fact. Foote v. Miss. Bar, 517 So.2d 561, 564 (Miss.1987) (collecting authorities). Also, no substantial evidence or manifest error rule will shield the tribunal from our scrutiny. Id.

¶ 8. In attorney discipline cases, it is permissible for us to defer to the findings of a complaint tribunal because it has the exclusive opportunity to observe the demeanor and attitude of the witnesses. Emil v. Miss. Bar, 690 So.2d 301, 309 (Miss.1997); Mississippi Bar v. Robb, 684 So.2d 615, 620 (Miss.1996); Asher v. Miss. Bar, 661 So.2d 722, 727 (Miss.1995); Mississippi Bar v. Land, 653 So.2d 899, 900-01 (Miss.1994); Mathes v. Miss. Bar, 637 So.2d 840, 846 (Miss.1994). As such, we should be reluctant to reverse a complaint tribunal when, given the facts, its holding is reasonable.

DISCUSSION

I. WHETHER THE COMPLAINT TRIBUNAL ERRED IN FINDING THAT BYRD VIOLATED RULES 8.4(b) AND 8.4(d) OF THE MISSISSIPPI RULES OF PROFESSIONAL CONDUCT.
A. WHETHER FAILURE TO FILE INCOME TAX RETURNS REFLECTED ADVERSELY ON BYRD'S HONESTY, TRUSTWORTHINESS OR FITNESS AS A LAWYER IN OTHER RESPECTS

¶ 9. Under Rule 8.4(b) of the Mississippi Rules of Professional Conduct, a lawyer commits professional misconduct when he "commit[s] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Pertinent to this case is the comment to Rule 8.4 which states that "Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return." (emphasis added). While Byrd vehemently asserts that his failure to file was due to procrastination on his part, he acknowledged that he knew he was required to file. His reasons for not filing cannot be characterized as anything other than willful even though he had no intent to defraud the government.

¶ 10. Since the issue presented in this case is one of first impression in Mississippi, we look to other jurisdictions which have handled similar cases. The Court of Appeals of Maryland has held that failure to file income tax returns violates Rule 8.4(b). Attorney Grievance Comm'n v. Atkinson, 357 Md. 646, 745 A.2d 1086, 1091 (2000). In Atkinson, the attorney failed to file federal and state income tax returns from 1988 to 1996. Id. at 1087. In upholding an indefinite suspension, the court held that

The repeated failure to file tax returns —particularly when it span[ned] an uninterrupted period of over ten years— is not a minor criminal offense, is a dishonest act, and reflects adversely on a lawyer's honesty, trustworthiness and fitness to practice law. A conviction for tax evasion is not a necessary predicate to support a finding of dishonesty.

Id. at 1091. See also In re O'Connell, 687 N.E.2d 573 (Ind.1997) (holding that failure to file a state return was a serious crime that reflected adversely upon an attorney's honesty, trustworthiness and fitness as a lawyer); In re Tootle, 334 S.C. 20, 511 S.E.2d 687 (1999) (same); In re Boggs, 324 S.C. 243, 478 S.E.2d 838 (1996) (same). Since Maryland's version of Rule 8.4(b) is exactly the same as Mississippi's version and the result in Atkinson is well-founded and reasonable, we conclude that failure to file income tax returns is a violation of M.R.P.C. 8.4(b).

B. WHETHER THE COMPLAINT TRIBUNAL ERRED IN FINDING THAT BYRD ENGAGED IN CONDUCT THAT WAS PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE.

¶ 11. Byrd further contends that the complaint tribunal erred when it declared that his professional misconduct was in violation of Rule 8.4(d), which states that "engag[ing] in conduct that is prejudicial to the administration of justice" constitutes professional misconduct. Byrd relies on our decision in Rogers to support his position that failure to file income tax returns does not fall under the ambit of Rule 8.4(d).

¶ 12. In Rogers, an attorney was suspended for converting funds from his law firm by performing legal services at night and on weekends. 731 So.2d at 1161. He was charged with violating several rules, including Rule 8.4(d). Id. at 1170. We stated that "conduct prejudicial to the administration of justice" as found in Rule 8.4(d) was synonymous with "`conduct unbecoming a member of the bar' [or] conduct contrary to professional standards that show an unfitness to discharge continuing obligations to clients or the courts." Id. (quoting In re Snyder, 472 U.S. 634, 645, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985)). We further stated that Rule 8.4(d) has been applied to situations where "an attorney's conduct has a prejudicial effect on a judicial proceeding or a matter directly related to a judicial proceeding." Id. (emphasis added).

¶ 13. In support of its contention that Byrd violated Rule 8.4(d), the Bar cited Attorney Grievance Comm'n v. Breschi, 340 Md. 590, 667 A.2d 659 (1995), in its brief. In Breschi, the attorney failed to file his 1989 and 1990 federal income tax returns. Id. at 661. In finding a violation of Rule 8.4(d), the Court of Appeals of Maryland held that "Regardless of whether Respondent was criminally prosecuted or eventually paid what he owed, Respondent's conduct in willfully failing to file his 1989 and 1990 tax returns and pay his taxes in a timely fashion is inherently `conduct that is prejudicial to the administration of justice' because it violated federal law." Id. at 664. In our opinion such a proposition is inconsistent with our interpretation of Rule 8.4(d) as stated in Rogers, since Byrd's acts had no prejudicial effect on any judicial proceeding or any matter directly related to a judicial proceeding. See Rogers, 731 So.2d at 1170. See also In re Shorter, 570 A.2d 760 (D.C. 1990) (holding that failure to file income tax returns is not "conduct prejudicial to the administration of justice" because the "misconduct did not bear directly upon any decision or the decision-making process of any tribunal.") We therefore reverse the finding of the complaint tribunal that Byrd violated Rule 8.4(d).

II. WHETHER THE COMPLAINT TRIBUNAL ERRED IN SANCTIONING BYRD TO A NINE-MONTH SUSPENSION FROM THE PRACTICE OF LAW.

¶ 14. Finding that Byrd did in fact violate one of the provisions of Rule 8.4, our inquiry turns to the propriety of the nine-month suspension. In assessing a sanction...

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