Committee on Professional Ethics and Conduct of The Iowa State Bar Ass'n v. Klein, 86-841

• Decision Date: 15 October 1986
• Docket Number: No. 86-841,86-841
• Citation: 394 N.W.2d 358
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the Iowa STATE BAR ASSOCIATION, Complainant, v. L.G. KLEIN, Respondent.
• Court: Iowa Supreme Court

Page 358

394 N.W.2d 358

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the Iowa STATE BAR ASSOCIATION, Complainant, v. L.G. KLEIN, Respondent.

No. 86-841.

Supreme Court of Iowa.

Oct. 15, 1986.

Kasey W. Kincaid of Nyemaster, Goode, McLaughlin, Emery & O'Brien, P.C., and Hedo M. Zacherle, Des Moines, for complainant.

Mark W. Bennett of Babich, Bennett and Nickerson, Des Moines, for respondent.

Considered en banc.

WOLLE, Justice.

Respondent conceded during the disciplinary proceeding heard by a panel of the Grievance Commission (commission) that he had committed the several interrelated violations charged by the Committee on Professional Ethics and Conduct of the Iowa State Bar Association (committee). Respondent knowingly and willfully failed to file his Iowa and federal income tax returns for the years 1982 and 1983 until after they were long overdue; he also intentionally withheld executing his 1984 and 1985 combined statement and questionnaire from the Client Security and Attorney Disciplinary Commission until he could verify that the income tax returns in question had been filed. The commission has recommended in its report that we suspend respondent's license to practice law for the relatively short period of thirty days. The commission based that recommendation on favorable testimony about respondent's character, concern that a longer suspension would decimate his law practice, and its finding that the violations harmed no one and involved no moral turpitude. We conclude from our de novo review of the record that a longer period of suspension is appropriate. We suspend respondent's license to practice law indefinitely with no possibility of reinstatement for nine months from the date of this decision.

The record developed before the commission consisted of respondent's admission of facts underlying the charged violations, together with testimony he presented concerning his character for honesty and the general nature of his law practice. Respondent is a sixty-one year old attorney-farmer who has been practicing law in and near Iowa City for nearly thirty years. He does not have a large office practice and does no tax work, concentrating instead on criminal law, family law and litigation arising out of automobile accidents. Although he is a sole practitioner, respondent estimated that at the time of the hearing before the commission he had about 250 pending cases. He has a reputation among his peers for honesty and integrity, and he is generally regarded as an aggressive advocate for his clients.

Respondent emphasized that his clientele includes many persons who, for financial reasons or otherwise, could not obtain representation from other members of the local bar. In respondent's own words, he has gotten into the habit of

just helping everybody or representing everybody and being available, too busy I guess to send out bills, and then of course as time goes on I just never felt like saying no. I tried to help people out and a lot of people don't have the money, so I say I'll catch you the next time, and if they don't have it you represent them and you do it on a free basis and perhaps some time they'll help you out.

He testified that over the last five years, thirty to thirty-five percent of his work has been pro bono.

Respondent did not file his federal and Iowa income tax returns for the tax years 1982 and 1983 until nearly eleven months after the expiration of the extensions of time he had received for filing each return. The record shows that respondent's income for the years 1982 and 1983 far exceeded the amounts which mandated filing of returns. His failure to file those returns by the dates they were due violated several provisions of the Iowa Code of Professional Responsibility for Lawyers: EC 1-5, EC 9-6, and DR 1-102(A)(1), (3), (4), (5), and (6). See Committee on Professional Ethics & Conduct v. Piazza, 389 N.W.2d 382, 383 (Iowa 1986); Committee on Professional Ethics & Conduct v. Vasey, 373 N.W.2d 146, 147 (Iowa 1985); Committee on Professional Ethics & Conduct v. Lawler, 342 N.W.2d 486, 489 (Iowa 1984).

Before the commission, respondent emphasized that he owed no additional tax on the dates when the tax returns were due because he had paid some income tax in advance and was entitled to refunds for payment of federal gasoline taxes. He argued that his late filings therefore did not damage the public. Asked why he had filed his returns late, he testified I guess it's a number of reasons. One, I knew I had a loss; two, I knew there was no tax liability. I felt that if there was no tax due, tax liability, there would be no penalty or interest. Work load, did not feel that there was anything unethical about it. If you didn't have a tax liability, I didn't feel that there was anything unethical about it or anything dishonest.

Respondent's testimony is troubling, suggesting that he either has ignored or refused to accept what this court repeatedly has held in similar cases. In Committee on Professional Ethics & Conduct v. Bromwell, 221 N.W.2d 777, 780 (Iowa 1974), we said in no uncertain terms:

[O]ne who is familiar with income tax laws and whose gross income exceeds the sum which triggers the filing requirement impliedly misrepresents that income when he willfully elects not to file. There is an element of deceit involved which, coupled with a deliberate election to violate statutes which foundation the economic structure of our government, impels the conclusion respondent has committed an offense involving moral turpitude.

Id. at 780. In subsequent cases we have reemphasized that the failure to file income tax returns involves moral turpitude. See, e.g., Committee on Professional Ethics & Conduct v. McKey, 343 N.W.2d 489, 490 (Iowa 1984); Committee on Professional Ethics & Conduct v. Thompson, 328 N.W.2d 520, 522 (Iowa 1983); Committee on Professional Ethics & Conduct v. Nordenson, 284...