Committee on Professional Ethics and Conduct of the Iowa State Bar Ass'n v. Davison, 87-740

• Decision Date: 21 October 1987
• Docket Number: No. 87-740,87-740
• Citation: 414 N.W.2d 97
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Appellee, v. Burns H. DAVISON II, Appellant.
• Court: Iowa Supreme Court

Page 97

414 N.W.2d 97

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Appellee, v. Burns H. DAVISON II, Appellant.

No. 87-740.

Supreme Court of Iowa.

Oct. 21, 1987.

Frank A. Comito, Des Moines, for appellant.

Mark W. Bennett of Babich, Bennett & Nickerson, Des Moines, for appellee.

Considered en banc.

McGIVERIN, Chief Justice.

In this attorney disciplinary proceeding involving respondent, Burns H. Davison II, we review the Grievance Commission's findings and recommendations pursuant to Iowa Supreme Court Rule 118.11. After evidentiary hearing of this case which was brought by complainant Committee on Professional Ethics and Conduct, the commission found that the respondent knowingly and willfully failed to timely file both state and federal income tax returns for the years 1981, 1982 and 1984. Additionally, the commission found that he falsely certified compliance with state and federal income tax filing requirements in his 1983, 1984 and 1986 Iowa client security questionnaires. See Iowa Sup.Ct.R. 121.4. The commission recommended a six-month suspension of Davison's license to practice law. For reasons explained in division II, we suspend respondent's license for one year.

On appeal, our review is de novo. See Iowa Sup.Ct.R. 118.11. We must determine if the complainant has established its charges by a convincing preponderance of the evidence. Committee on Professional Ethics & Conduct v. Wollenzien, 342 N.W.2d 490, 490 (Iowa 1984).

The facts of this case seem all too familiar. Respondent went through a dissolution of marriage in 1982 which he characterized at the commission hearing as a personal and emotional disaster. He admitted in substance to devoting too much time to resolving the property settlement terms of the dissolution decree and too little time to timely filing his tax returns. Despite obtaining income tax filing deadline extensions, his 1981 and 1982 federal and state income tax returns were each filed over a year after the extended due date. After timely filing his 1983 tax returns, respondent again failed to file both his state and federal tax returns for 1984 on time. Davison claimed that difficulty in ascertaining the amount of his state penalties for previous late filings from the Iowa Department of Revenue explained part of his delay. This, however, does not explain why he filed these returns over six months after the expiration of the extended due date granted by the Internal Revenue Service and the Iowa Department of Revenue.

The record shows that Davison did not file or pay any tax on an estimate of income in at least two of the three delinquent years even though he had substantial income tax liability for all three years.

In completing and filing the client security commission questionnaires in 1983, 1984 and 1986, respondent certified that he had filed his state and federal income tax returns for each applicable preceding year. On direct examination, Davison explained that he felt answering "yes" to each question, although wrong, was more appropriate than answering "no" because he had turned over his records and files to a certified public accountant who soon would have his tax returns ready for filing. On cross-examination, he admitted knowing the filing question on the client security questionnaire left a blank after the "no" answer for explanations. He did not explain his failure to make use of the opportunity to give reasons for his late filing.

For the purpose of the evidentiary hearing, Davison stipulated to the late tax return filings and the false answers on the client security questionnaires. Throughout the hearing, respondent was cooperative with the commission and did not deny his wrongdoing.

I. Mandatory public service. Based upon these facts, the commission recommended a six-month suspension of Davison's license to practice law. Davison's appeal does not challenge the commission's fact finding. Rather, he asserts that the commission erred in not recommending that a mandatory period of public service be substituted for some or all of the length of the suspension.

We have twice rejected the use of mandatory public service as a disciplinary device, see Committee on Professional Ethics & Conduct v. Matias, 397 N.W.2d 514, 516 (Iowa 1986); Committee on Professional Ethics & Conduct v. Ulstad, 376 N.W.2d 612, 615 (Iowa 1985), and we do so again here. In Ulstad we stated:

Disciplining a lawyer for dishonesty by merely requiring the lawyer provide free legal services would communicate an improper message. It would inform other lawyers and the public in general that we will permit a lawyer who has committed an act involving fraud to continue to practice law with the act having no adverse effect on his ability to practice.

376 N.W.2d at 615 (quoted in Matias, 397 N.W.2d at 516).

We are aware of respondent's argument that mandated public service will help the public by providing needed legal assistance. However, our obligation in disciplining attorneys includes "assuring the public that courts will maintain the ethics of the legal profession." Ulstad, 376 N.W.2d at 614; Committee on Professional Ethics & Conduct v. Wollenzien, 342 N.W.2d 490, 490 (Iowa 1984). As the complainant committee notes, mandating public service would announce to the public that an attorney who is unfit to practice for clients who can pay is fit to practice for those who cannot. We do not wish to convey that message.

We reject Davison's request to perform public service as an alternative to suspension.

II. Length of suspension. There can be no doubt that a convincing preponderance of the evidence supports the findings of misconduct by Davison. We hold that respondent's failure to file timely income tax returns violates DR 1-102(A)(1), (4), (5) and (6). See, e.g., Committee on Professional Ethics & Conduct v. Piazza, 389 N.W.2d 382, 383 (Iowa 1986); Committee on Professional Ethics & Conduct v. McKey, 343 N.W.2d 489, 490 (Iowa 1984). By falsely certifying on his client security questionnaires that he had filed those tax returns, respondent violated DR 1-102(A)(4) and Iowa Supreme Court Rule 121.4(b). See id.

We have routinely stated that we give respectful consideration to the commission's findings and recommendations but are not bound by them. Wollenzien, 342 N.W.2d at 490....