Cleveland Bar Ass'n v. Acker

• Decision Date: 26 January 1972
• Docket Number: No. 71-3,71-3
• Citation: 58 O.O.2d 71,29 Ohio St.2d 18,278 N.E.2d 32
• Parties: , 58 O.O.2d 71 CLEVELAND BAR ASSOCIATION v. ACKER. D. D.
• Court: Ohio Supreme Court

Page 18

29 Ohio St.2d 18

278 N.E.2d 32, 58 O.O.2d 71

CLEVELAND BAR ASSOCIATION v. ACKER.

D. D. No. 71-3.

Supreme Court of Ohio.

Jan. 26, 1972.

Lester J. Farber, Thomas J. Scanlon and John A. Zangerle, Cleveland, for relator.

Fred N. Acker, in pro. per.

PER CURIAM.

After his first conviction, respondent was sentenced to serve eight months in the Federal Reformatory in Milan. Following his release, respondent filed income tax returns and paid his deficiencies for the prior years. Sentence on the second conviction was suspended and respondent was placed on probation for five years. The offenses were misdemeanors. See Ohio State Bar Ass'n v. Hart (1968), 15 Ohio St.2d 97, 238 N.E.2d 560.

Respondent freely admits the convictions and the further failure to file federal income tax returns for the years 1962 through 1970. However, he contends that his conduct did not offend Canons 29 and 32 because all his infractions were actuated solely by his conscientious belief that the federal government does not have the unlimited power to tax income. The impact of such taxation at the present rates, he submits, is confiscatory and beyond the taxing power granted to Congress by Section 8, Article I of the United States Constitution.

Relator contends that when respondent refused to heed the decisions of the federal courts after his first conviction (Acker v. Commissioner of Internal Revenue (C.C.A.6, 1958), 258 F.2d 568) and proceeded again to invite prosecution and conviction for the same charge, this conduct, with its resultant publicity, constituted a transgression of Canons 29 and 32. We agree.

This court has repeatedly held that successive convictions for willful and knowing failure to file income tax returns constitute a violation of Canons 29 and 32 warranting suspension for an indefinite period from the practice of law. Dayton Bar Ass'n v. Prear (1964), 175 Ohio St. 543, 196 N.E.2d 773; Ohio State Bar Ass'n v. Hart, supra, 15 Ohio St.2d 97, 238 N.E.2d 560; Cleveland Bar Ass'n v. Bilinski (1964), 177 Ohio St. 43, 201 N.E.2d 878. Cf. Cincinnati Bar Ass'n v. Leroux (1968), 16 Ohio St.2d 10, 242 N.E.2d 347 (wherein the particular facts of the case persuaded this court to impose discipline of public reprimand).

Canon 29 requires that an attorney 'should strive at all times to uphold the honor and to maintain the dignity of the profession.' And, although the duty expressed in Canon 32 to 'observe the statute law' is qualified until ' a statute shall have been construed and interpreted by competent adjudication,' the constitutionality of the congressional taxing power and of progressive income tax rates was not in doubt at the time of respondent's failure in 1958 to file an income tax return, after which the instant proceedings were instituted. Acker v. Commissioner of Internal Revenue, supra, 258 F.2d 568. See, also, Brushaber v. Union Pacific Rd. Co. (1916), 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493.

Thus, this record does not require us to decide whether respondent's first conviction, standing alone, offended Canon 32, particularly in the light of any civil remedy which might have been available for him to test the question which he sought to raise by his failure to file his tax return in 19...