Committee on Professional Ethics and Conduct of the Iowa State Bar Ass'n v. McMillen, 89-1224

• Decision Date: 20 December 1989
• Docket Number: No. 89-1224,89-1224
• Citation: 449 N.W.2d 339
• Parties: The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Complainant, v. Thomas D. McMILLEN, Jr., Respondent.
• Court: Iowa Supreme Court

Page 339

449 N.W.2d 339

The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Complainant, v. Thomas D. McMILLEN, Jr., Respondent.

No. 89-1224.

Supreme Court of Iowa.

Dec. 20, 1989.

Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.

Thomas Reilly, Des Moines, for respondent.

Considered en banc.

NEUMAN, Justice.

This matter is before the court for final disposition upon the Grievance Commission's recommendation that respondent Thomas J. McMillen's license to practice law be suspended. McMillen is charged with failure to timely file income tax returns and filing false reports with the Client Security and Disciplinary Commission. In accordance with Iowa Court Rule 118.10, we have reviewed de novo the record made before the commission. The violations have been established by a convincing preponderance of the evidence. Following the pattern of our prior cases, we suspend McMillen's license for nine months.

I. The Committee on Professional Ethics and Conduct of the Iowa State Bar Association (committee) charged McMillen with knowing and willful failure to timely file his 1983, 1984, 1985, and 1986 state and federal income tax returns. In each of these years, records obtained from the Iowa Department of Revenue and Internal Revenue Service revealed that the returns were filed, on the average, two years late. No extension of the filing deadlines were sought or approved.

The committee also alleged that in 1986 McMillen falsely reported to the Client Security and Disciplinary Commission that he had timely filed his 1984 returns. The committee further charged that McMillen's client security reports for 1985, 1987, and 1988 were deliberately filed late in an attempt to conceal his failure to file income tax returns in 1983, 1985, and 1986.

McMillen denied the committee's request for admissions concerning these charges. While admitting that he "knew each State and Federal return herein mentioned was filed late," he disclaimed any intent to conceal that fact. He also asserted that he was "unaware that 'late' filing in and of itself constituted an ethical violation."

McMillen did not appear before the Grievance Commission to contest the charges. In an affidavit filed after the hearing, McMillen explained that his absence was due to an adverse reaction to a pain medication that caused him to sleep through the hearing. He asked the commission to consider the explanation previously offered in his response to request for admissions. He also suggested that burdensome alimony and child support obligations had led to his inability to meet the income tax deadlines.

We have repeatedly held that an attorney's willful failure to timely file federal and state income tax returns demonstrates a disrespect for the law regulating income taxation and thereby violates the Iowa Code of Professional Responsibility. See e.g., Committee on Professional Ethics & Conduct v. Jones, 441 N.W.2d 370, 371 (Iowa 1989); Committee on Professional Ethics & Conduct v. Morris, 427 N.W.2d 458, 460 (Iowa 1988); Committee on Professional Ethics & Conduct v. Belay, 420 N.W.2d 783, 784 (Iowa 1988). Giving false answers on a Client Security Commission questionnaire also constitutes ethical misconduct. Committee on Professional Ethics & Conduct v. Clauss, 445 N.W.2d 758, 760 (Iowa 1989); Morris, 427 N.W.2d at 460; Committee on Professional Ethics & Conduct v. Davison, 414 N.W.2d 97, 99 (Iowa 1987). Failure to file those questionnaires when due conceals an attorney's income tax violation "just as surely as if he [or she] had answered untruthfully." Committee on Professional Ethics & Conduct v. Klein, 394 N.W.2d 358, 360 (Iowa 1986).

The burden is upon the committee to establish its charges by a convincing preponderance of the evidence. Davison, 414 N.W.2d at 98. That standard is easily met here. McMillen pleads ignorance, not of the tax laws, but of his professional responsibility to adhere to them. Given the many, many reported cases of this kind, we find McMillen's unfamiliarity with the law not only surprising but utterly insufficient to excuse his misconduct. Like the Grievance Commission, we conclude that he has violated the following provisions of the Iowa Code of Professional Responsibility for Lawyers: EC 1-5 (lawyer's violation of law tends to lessen public confidence in legal profession) and DR 1-102(A)(1), (4), (5) and (6) (lawyer shall not violate disciplinary rules and shall not engage in illegal conduct involving moral turpitude, dishonesty, deceit or misrepresentation, conduct that is prejudicial to the administration of justice, or any other conduct adversely reflecting on fitness to practice law).

II. The Grievance Commission recommended that we suspend McMillen's license for not less than three months. While we give respectful...