Dayton Bar Ass'n v. Carter, 74-7

• Decision Date: 20 November 1974
• Docket Number: No. 74-7,74-7
• Citation: 40 Ohio St.2d 43,319 N.E.2d 358
• Parties: , 69 O.O.2d 291 DAYTON BAR ASSOCIATION v. CARTER. D. D.
• Court: Ohio Supreme Court

Page 43

40 Ohio St.2d 43

319 N.E.2d 358, 69 O.O.2d 291

DAYTON BAR ASSOCIATION v. CARTER.

D. D. No. 74-7.

Supreme Court of Ohio.

Nov. 20, 1974.

Respondent, Russell L. Carter, was convicted in the United States District Court for the Southern District of Ohio, Western Division, after his plea of not guilty, upon a jury verdict of guilty, of the offenses of willfully attempting to evade payment of income taxes due in 1963, 1964 and 1965 by filing false and fraudulent income tax returns, in violation of Section 7201, Title 26, U.S.Code. The United States Court of Appeals for the Sixth Circuit affirmed the judgment of conviction, and respondent's petition for a writ of certiorari to the United States Supreme Court was denied.

Relator filed a complaint with the Board of Commissioners on Grievances and Discipline, alleging that respondent was guilty of violating Canon 1, DR 1-102(A)(3) and (4).

The Board of Commissioners found that respondent was guilty of misconduct, as defined in Gov.R. V(5)(a), ¹ because he was convicted of crimes involving moral turpitude, and because his filing of fraudulent income tax returns constituted a violation of Canon 1, DR 1-102(A)(3) and (4), and recommended that he be suspended for an indefinite period from the practice of law. Respondent objects to both the finding of misconduct and the recommendation of the board.

Estabrook, Finn & McKee and Robert P. Bartlett, Jr., Dayton, for relator.

James T. Lynn, Jr., Dayton, for respondent.

PER CURIAM.

Respondent's basic contention is that, inasmuch as he pleaded not guilty to filing three false and fraudulent income tax returns and that the government's case against him was based largely upon a computation of his net worth before and after the taxable periods, moral turpitude was not involved in the crimes for which he was convicted, within the purview of Gov. R. V(5)(a), and that he did not engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or moral turpitude, within the purview of Canon 1, DR 1-102(A)(3) and (4).

In support of that proposition, respondent cites In re Hallinan (1954), 43 Cal.2d 243, 272 P.2d 768, wherein the California Supreme Court determined that the cinviction per se, for willfully and knowingly filing a false and fraudulent income tax return was not conclusive proof of the commission of an act involving moral turpitude.

Respondent's reliance on Hallinan is misplaced. In this state, an attorney is guilty of misconduct when he commits or is convicted of a crime involving moral turpitude. Gov.R. V(5)(a), supra. In Cincinnati Bar Assn. v. Bowman (1968), 15 Ohio St.2d 220, 239 N.E.2d 47, this court specifically held, at page 222, 239 N.E.2d at page 48, that:

'Conviction of the offense of wilfully and knowingly attempting to evade income tax due by causing to be filed a false and fraudulent income tax return is conviction of a crime involving moral turpitude.'

Accordingly, we confirm the board's finding that respondent is guilty of misconduct as defined in Gov.R. V(5)(a), supra.

This court held further in Bowman, supra, at 222, 239 N.E.2d at 49, that: 'The filing of a false and fraudulent tax return by an attorney, an officer of this court, is an act involving moral turpitude.'

Applying that holding to the facts of this case, we confirm the board's finding that respondent engaged in illegal conduct involving moral turpitude and engaged in conduct involving fraud, and thereby violated Canon 1, DR 1-102(A)(3) and (4).

We come now to the recommendation of the board that respondent be suspended for an indefinite period from the practice of law. The board determined that the seriousness of the crimes involved and past pronouncements of this court ² dicated a recommendation of indefinite suspension or disbarment, rather than public reprimand as urged by respondent. Parenthetically, we note that the board considered evidence of respondent's good character and requtation, as follows:

'Twenty-one highly reputable citizens of the community testified as to the excellent character and reputation of the respondent, of his worthwhile contributions to the community, of his previous fine record as a member of the bar, including his high competence and integrity as such. By stipulation, thirty additional letters of the...