Committee on Legal Ethics of West Virginia State Bar v. Boettner

• Citation: 394 S.E.2d 735,183 W.Va. 136
• Decision Date: 23 March 1990
• Docket Number: No. 19211,19211
• Court: Supreme Court of West Virginia
• Parties: The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. John L. BOETTNER, Jr.

Page 735

394 S.E.2d 735

183 W.Va. 136

The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. John L. BOETTNER, Jr.

No. 19211.

Supreme Court of Appeals of

West Virginia.

March 23, 1990.

Dissenting Opinion of Justice Brotherton April 17, 1990.

Syllabus by the Court

1. "Where there has been a final criminal conviction, proof on the record of such conviction satisfies the Committee on Legal Ethics' burden of proving an ethical violation arising from such conviction." Syllabus Point 2, Committee on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989).

2. A license to practice law is a valuable right, such that its withdrawal must be accompanied by appropriate due process procedures. Where annulment of an attorney's license is sought based on a felony conviction under Article VI, Section 23 of the Constitution, By-Laws, and Rules and Regulations of the West Virginia State Bar, due process requires the attorney be given the right to request an evidentiary hearing. The purpose of such a hearing is not to attack the conviction collaterally, but to introduce mitigating factors which may bear on the disciplinary punishment to be imposed.

3. The right to an evidentiary mitigation hearing is not automatic. In order to obtain such a hearing, the attorney must make a request therefor after the Committee on Legal Ethics files its petition with this Court under Article VI, Section 25 of the Constitution, By-Laws, and Rules and Regulations of the West Virginia State Bar.

4. To the extent that In the Matter of Mann, 151 W.Va. 644, 154 S.E.2d 860 (1967), and like cases fail to provide for a mitigation hearing, they are overruled. Pending the outcome of the mitigation hearing, the West Virginia Supreme Court of Appeals retains the right to suspend temporarily the license of an attorney who has been convicted of a felony.

Jack M. Marden, Cynthia Santoro Gustke, The Committee on Legal Ethics of the West Virginia State Bar, Charleston, for The Committee on Legal Ethics.

James T. Cooper, Lovett, Vaughn & Cooper, Charleston, for John L. Boettner, Jr.

MILLER, Justice:

In this disciplinary proceeding, the Committee on Legal Ethics of the West Virginia State Bar (Committee) asks us to annul the license to practice law of John L. Boettner, Jr. Mr. Boettner pled guilty in the United States District Court for the Southern District of West Virginia to violating 26 U.S.C. § 7201, which makes it a felony willfully to evade the payment of federal taxes. ¹ The Committee maintains that this is a violation of Rule 8.4 of the Rules of Professional Conduct for lawyers. ²

The respondent attorney first asserts that the facts surrounding his violation of 26 U.S.C. § 7201 do not warrant an annulment. He also requests that we remand the case to the Committee to enable him to have an evidentiary hearing to develop mitigating facts. In lieu of having his license annulled, the respondent asks that consideration be given to allowing him to serve without remuneration in a legal services corporation.

The director of the West Virginia Legal Services Plan, Inc. (Legal Services), joins in this request and asserts that there is a substantial need for the respondent's services. Attached to the brief of Legal Services is a letter from the United States Probation Office for the Southern District of West Virginia. This letter indicates that the probation office will accept the respondent's work for Legal Services as approved community service work which is required by his federal sentence.

This disciplinary proceeding was conducted pursuant to Article VI, Section 25 of the Constitution, By-Laws, and Rules and Regulations of the West Virginia State Bar (Bar By-Laws), which states that "a certified copy of the order or judgment of conviction shall be conclusive evidence of guilt of the crime or crimes of which the attorney has been convicted." ³ Under this section the certified order is filed with this Court, thus bypassing the usual hearing before a panel required by Article VI, Section 14 of the Bar By-Laws. ⁴

In addition to the certified order, we have the criminal information to which the guilty plea was made and the plea agreement. There is also a transcript of the guilty plea hearing before the federal judge and the attorney's trial testimony in an unrelated case. ⁵ From these documents, the following facts can be established.

The respondent was a member of the West Virginia Senate and was its majority leader during the time involved. He obtained, through the help of a lobbyist, a bank loan. During the year 1985, the lobbyist and another person made several interest payments on Mr. Boettner's loan directly to the bank. Under the Internal Revenue Code, such payments constitute constructive income, ⁶ which the respondent failed to report on his federal income tax return. These payments would have increased the respondent's taxable income of $25,046 by approximately $4,000. In turn, this would have increased his income tax liability from $8,456 to $10,033.

Upon his plea of guilty to the income tax evasion charge, the respondent was required to resign from the Senate. He was sentenced to four years of supervised probation and was required to perform 1,600 hours of community service work. He agreed to work with representatives of the Internal Revenue Service to determine his correct tax liability for calendar years 1985 to the present. The plea agreement also indicates that two other charges, which had been investigated by the United States Attorney, would not be pursued. ⁷

While the Committee initially based its disciplinary proceeding on Rule 8.4, it also refers us to Article VI, Section 23 of the Bar By-Laws, which relates to the disbarment of an attorney "upon proof that he has been convicted--(a) of any crime involving moral turpitude[.]" ⁸ The Committee relies on several earlier cases where we held that the willful failure to pay income taxes under 26 U.S.C. § 7201 is a crime of moral turpitude. E.g., In re Trent, 154 W.Va. 333, 175 S.E.2d 461 (1970); In re West, 155 W.Va. 648, 186 S.E.2d 776 (1972); In the Matter of Mann, 151 W.Va. 644, 154 S.E.2d 860 (1967). The applicable law is summarized in Syllabus Point 2 of In the Matter of Mann, supra:

"Section 23, Part E., Article VI of the By-Laws of the West Virginia State Bar imposes upon any court before which an attorney has been qualified a mandatory duty to annul the license of such attorney to practice law upon proof that he has been convicted of any crime involving moral turpitude."

While Syllabus Point 2 of Mann authorizes "any court before which an attorney has been qualified" to annul the license, this was based on an older version of Article VI, Sections 23 and 24 of the Bar By-Laws. The present Article VI, Section 25 of the Bar By-Laws explicitly requires that a certified copy of the order of conviction be filed with this Court. ⁹ As we have already pointed out, once this procedure is invoked, the customary evidentiary hearing under Article VI, Section 14 is bypassed.

Rule 8.4, under which the Committee has proceeded and which became effective on January 1, 1989, concentrates on "a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Our prior professional code provided that "a lawyer shall not ... engage in illegal conduct involving moral turpitude." Model Code of Professional Responsibility, DR 1-102(A)(3). The American Bar Association, which developed and approved the present rules, has prepared a book, entitled Annotated Model Rules of Professional Conduct," which describes the difference between these rules:

"The Model Rules also eliminate the troublesome 'moral turpitude' standard of DR 1-102(A)(3) of the Model Code. This standard has been broadly defined 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.' " Annotated Model Rules of Professional Conduct, Rule 8.4 comment at 353 (1984). (Citation omitted). ¹⁰

In Committee on Legal Ethics v. Six, 181 W.Va. 52, 54, 380 S.E.2d 219, 221 (1989), we observed that " 'moral turpitude' is an elusive concept incapable of precise definition[.]" See also Committee on Legal Ethics v. Scherr, 149 W.Va. 721, 726, 143 S.E.2d 141, 145 (1965) (" '[M]oral turpitude' ... has never been clearly defined because of the nature of the term."). In Six, we found the crime of embezzlement was an offense involving moral turpitude.

We find merit in Rule 8.4's abandonment of the term "moral turpitude" and the rule's focus on the criminal act as it reflects on the attorney's fitness to practice law. Moreover, we believe that there is a certain rigidity to the approach taken in our tax evasion cases. By categorizing all tax evasion convictions as involving "moral turpitude," annulment of the license becomes automatic under Article VI, Section 23 of the Bar By-Laws.

We acknowledged in Syllabus Point 2 of Committee on Legal Ethics v. Six, supra, that proof of final conviction satisfies the Committee's burden of proof:

"Where there has been a final criminal conviction, proof on the record of such conviction satisfies the Committee on Legal Ethics' burden of proving an ethical violation arising from such conviction."

From a procedural due process standpoint, we believe that the respondent should be able to make an evidentiary record to show mitigating factors bearing on the disciplinary sentence.

There is general agreement that a license to practice law is a valuable right, such that its withdrawal must be accompanied by appropriate due process procedures. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); In re Thies, 213 U.S.App.D.C. 256, 662 F.2d 771 (D.C.Cir.1980); In re Jones, 506 F.2d 527 (8th Cir.1974); The Florida Bar v. Cruz, 490 So.2d 48 (Fla.1986); The Florida Bar v....