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

• Decision Date: 13 July 1965
• Docket Number: No. 12439,12439
• Court: West Virginia Supreme Court
• Parties: The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. Harry SCHERR, Jr.

Page 141

143 S.E.2d 141

149 W.Va. 721

The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. Harry SCHERR, Jr.

No. 12439.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1965.

Decided July 13, 1965.

Syllabus by the Court

1. The crime of failure to file federal income tax returns provided for in Section 7203 of Title 26, United States Code, is a misdemeanor and should be distinguished from the crime provided for in Section 7201 of Title 26, United States Code, for attempt to evade or defeat the payment of taxes which is a felony.

2. The best general definition of the term 'moral turpitude' is that it imports an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general, which is contrary to the usual, accepted and customary rule of right and duty which a person should follow.

3. An attorney held not guilty of 'moral turpitude' under facts and circumstances of the instant case in connection with conviction in Federal Court of the failure to file income tax returns in violation of Section 7203 of Title 26, United States Code, but notwithstanding mitigating circumstances, is held guilty of unethical and unprofessional conduct in violation of Canons 29 and 32 of the Canons of Legal Ethics in such cases. Accordingly, suspension of license to practice law is ordered for a period of one month.

Ned H. Ragland, Beckley, for complainant.

Scherr, Meek & Vinson, J. B. Meek, Huntington, for defendant.

BERRY, Judge.

This is a proceeding to suspend the license of Harry Scherr, Jr. to practice law in the State of West Virginia, instituted in this Court by the Committee on Legal Ethics of the West Virginia State Bar under the provisions of the By-Laws, Rules, and Regulations of the West Virginia State Bar, approved with amendments thereto by this Court.

It appears from the complaint of the Legal Ethics Committee and papers filed therewith that Harry Scherr, Jr., a member of the West Virginia State Bar, was charged in an information filed in the United States District Court for the Northern District of West Virginia on February 25, 1964 with the failure to file income tax returns for the years 1957, 1958, 1959, 1960 and 1961, each year consisting of a separate count in the information, in violation of Section 7203 of Title 26, United States Code. On April 17, 1964 the said Harry Scherr, Jr. pleaded guilty to counts 1 and 2 of the information charging him with the failure to file income tax returns for the years 1957 and 1958. He was sentenced to pay a fine of $2500.00 on each count, and the said fines were paid in full and counts 3, 4 and 5 were dismissed.

After receiving information with regard to this matter, Ralph L. Miller, the Chairman of the Legal Ethics Committee, wrote a letter to Mr. Scherr on May 21, 1964, stating that in accordance with the By-Laws of the West Virginia State Bar the Committee had made an investigation of the information filed against him in the United States District Court for the Northern District of West Virginia, which resulted in the imposition of a fine against him on two counts of said information, all of which was in violation of Section 7203 of Title 26 of the United States Code. It directed his attention to Chapter 30, Article 2, Section 6 of the West Virginia Code providing for disciplinary action against any attorney convicted of a felony or any other offense involving moral turpitude. It referred to three cases holding that a conviction under this Section of the United States Code warranted disbarment on the grounds of moral turpitude and specifically advised Mr. Scherr that he was charged with having been convicted of an offense involving moral turpitude and that pursuant to provisions of Chapter 30, Article 2, Section 6, he was subject to disciplinary action as a result thereof. He was also advised that under Section 13 of Article VI of the By-Laws of the West Virginia State Bar he could request a formal hearing of the matter by a written request mailed by registered or certified mail to the Chairman of the Legal Ethics Committee, but it did not direct him to appear before the Committee at a time and place stated therein for an informal hearing as required by Section 12, Article VI of the By-Laws of the West Virginia State Bar; and apparently the notice was not served on him in accordance with the provisions of Section 35 of Article VI of the By-Laws of the State Bar, as required by Section 12 thereof.

On June 4, 1964 Harry Scherr Jr. wrote to the Chairman of the Legal Ethics Committee stating that he would like to have toe opportunity to appear and to be heard on his own behalf. However, it appears from correspondence between Mr. Scherr and his attorney, and the Chairman of the Legal Ethics Committee that no hearing was held on this matter before the Committee and that it was specifically waived by Mr. Scherr and his attorney.

On January 27, 1965, the Legal Ethics Committee under provisions of Section 17, Article VI of the By-Laws and Rules and Regulations of the West Virginia State Bar made a report of its findings and recommendations, sending copies to both the accused and his counsel of record, as well as the president and secretary of the State Bar. The report, after finding that the accused had violated Section 7203 of Title 26, United States Code, by the failure to file income tax returns, had pleaded guilty to counts 1 and 2 of the information filed in connection therewith and had been fined $2500.00 without costs on each count, further found that all the fines, taxes due, and penalties were promptly paid by the accused.

The report of the Committee then found and concluded that the accused was guilty of unethical and unprofessional conduct in that:

'a. He violated Section 2 of said Article VI of the said By-Laws, Rules, and Regulations of The West Virginia State Bar by the commission of a criminal offense showing professional unfitness by reason of the convictions heretofore referred to herein;

'b. That he violated said Section 2 of said Article VI of the By-Laws, etc. of The West Virginia State Bar by the commission of a criminal offense showing moral turpitude by reason of the convictions herefore referred to herein;

'c. He violated Canon 29 of the Canons of Legal Ethics promulgated by the Supreme Court of Appeals of West Virginia, in that he did not uphold the honor and maintain the dignity of the profession by reason of the convictions heretofore referred to herein;

'd. He violated Canon 32 of the Canons of Legal Ethics promulgated by the Supreme Court of Appeals of West Virginia, in failing to obey its injunction to observe statute law as evidenced by the convictions heretofore referred to herein;

'7. That the aforementioned action of said Harry Scherr, Jr. constitutes good grounds for and warrants disciplinary proceedings, as provided for in said Article VI of said By-Laws, Rules and Regulations of the West Virginia State Bar;

'8. That said Committee recommends that the license to practice law of the said Harry Scherr, Jr., be suspended for a period of one year.'

The recommendation of the Committee, after consideration of all papers filed with the report, was that the matter be submitted to this Court by proper petition for the purpose of suspending the license of the accused to practice law for one year.

It should be pointed out that the letter written to the accused on May 21, 1964 by the Chairman of the Legal Ethics Committee, which was apparently the only notice given to the accused in connection with this matter, did not contain any of the charges which the Committee found him guilty of in its report and later incorporated into its petition to this Court. He was originally specifically charged with having been convicted of an offense involving moral turpitude under the provisions of Chapter 30, Article 2, Section 6 of the West Virginia Code.

The report made by the Probation Officer to the Judge of the United States District Court for the Northern District was very favorable to the accused and stated that he had a good reputation as a citizen and lawyer, and it also appears from the record otherwise that during this period of time when he failed to file tax returns his mother and father were seriously ill and died soon thereafter, as did his wife also. The only detrimental statements made in the report of the Probation Officer were that the accused drank to excess during this period of time, failed to attend to his business, and lived beyond his means to maintain his community status. The District Judge, after considering the investigation and report of the Probation Officer, imposed a fine on only two counts and specifically stated he would not impose any imprisonment or place Scherr on probation because in his opinion it might be harmful to Scherr and his family in his community. The Judge suggested that Scherr abstain from the use of alcohol and regain his self-respect in his community.

The crime for which the accused in this case was charged and to which be pleaded guilty is a misdemeanor and should be distinguished from the crime provided for in Section 7201 of Title 26, United States Code, for attempt to evade or defeat the payment of taxes, which is a felony and has been held to involve moral turpitude. In re Foley, (Mo.) 364 S.E.2d 1; In re Teitelbaum, 13 Ill.2d 586, 150 N.E.2d 873; In re Landon, (Mo.) 319 S.E.2d 553. Even in this type of case involving a felony, mitigating circumstances are taken into consideration as a rule and in some cases moral turpitude is not found to be present. State v. Cain, 19 Wis.2d 50, 119 N.W.2d 391; Baker v. Miller, 236 Ind. 20, 138 N.E.2d 145, 59 A.L.R.2d 1393.

The cases are about evenly divided as to moral turpitude being involved in the failure to file income tax returns, the charge involved in the case at bar, but the better reasoned cases hold either directly or by implication that it does not involve moral...