Disciplinary Action against Wylde, In re

• Decision Date: 20 April 1990
• Docket Number: No. C8-88-782,C8-88-782
• Citation: 454 N.W.2d 423
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST John R. WYLDE, Jr., an Attorney at Law of the State of Minnesota.
• Court: Minnesota Supreme Court

Page 423

454 N.W.2d 423

In re Petition for DISCIPLINARY ACTION AGAINST John R. WYLDE, Jr., an Attorney at Law of the State of Minnesota.

No. C8-88-782.

Supreme Court of Minnesota.

April 20, 1990.

Syllabus by the Court

Appropriate discipline for an attorney, having an unblemished disciplinary record for 20 years, whose only transgression of the Rules of Professional Conduct has been late filing and payment of personal income taxes, absent other egregious circumstances, is a public reprimand followed by probation with conditions.

William J. Wernz, Director of Lawyers Professional Responsibility, Betty Shaw, Sr. Asst. Director, St. Paul, for appellant.

Jack S. Nordby, Meshbesher, Singer & Spence, Ltd., Minneapolis, for respondent.

Heard, considered and decided by the court en banc.

PER CURIAM.

The referee, appointed by this court to make fact findings, conclusions of law and to recommend appropriate discipline, found that respondent, John R. Wylde, Jr., had failed to timely file and pay personal income taxes for the tax years of 1981, 1982, 1983 and 1984. The referee recommended a conditional probation as the appropriate discipline. Thereafter, the Director of the Lawyers Professional Responsibility Board and the respondent, John R. Wylde, Jr., entered into and filed with this court a stipulation which incorporated that recommended disposition. Rather than accept the recommendation and the stipulation, because of some concerns we had with the appropriateness of the discipline, we ordered briefing and oral argument. Having had the advantage of the briefs and arguments of counsel, we are now willing to accept generally the referee's recommendation, and the parties' stipulation, with a slight modification.

Because neither party ordered a transcript of the proceedings before the referee, his findings of fact are binding. Rule 14, Rules on Lawyers Professional Responsibility (RLPR). Those findings establish that respondent, whose practice was substantially concentrated in the area of handling litigation with an emphasis on criminal defense work, has been admitted to the practice of law in this state since 1968. During the course of that practice, he had no prior disciplinary record until the institution of the present proceedings which arose as a consequence of his failure to timely file federal and state income tax returns for the tax years 1981, 1982, and 1983. Nonetheless, before these disciplinary proceedings were instituted, respondent in 1984 had retained an accountant who had prepared and filed the delinquent 1981 and 1982 federal returns. The accountant had also prepared state returns for those years but respondent did not file them. Later, the Minnesota Department of Revenue prepared and filed respondent's 1981 and 1982 returns for him pursuant to the procedure set forth in Minn.Stat. Sec. 290.47 (1988). Although both state-prepared and filed returns showed personal state income taxes due from respondent, the Minnesota returns for those two years, which had been prepared (but not filed) by respondent's accountant, revealed that respondent owed substantially more taxes for those years than was shown on the state's constructed returns. Ultimately, respondent paid the taxes determined by the commissioner's returns for those years but he has not yet paid the additional amount his accountant determined he owed. Respondent also filed his 1983 federal and state personal income tax returns late, in 1985, but all taxes determined due for that year have been paid. In addition to failing to timely file annual returns from 1981 through 1984, during those years respondent paid no withholding or estimated taxes as required by law. It was only after these disciplinary proceedings had been commenced that respondent, in 1987, paid the 1984 federal and state income taxes.

Although the referee was not unmindful of the 18 year old dictum, first enunciated in In re Bunker, 294 Minn. 47, 199 N.W.2d 628 (1972), to the effect that violation of obligations with respect to filing and paying personal income taxes would ordinarily result in disbarment or suspension, in making his recommendation for discipline, he noted certain factors in this case which he felt mitigated against the imposition of the extreme sanction of suspension. ¹ Among the mitigating factors the referee found was the fact that neither federal nor state criminal proceedings ever had been instituted against respondent by the taxing authorities; that the respondent had retained an accountant to prepare and file the delinquent 1981 and 1982 returns before the Director had instituted these proceedings; that, in fact, respondent had paid all delinquent taxes and penalties for all the tax years involved--with the exception of the additional state income tax owing for 1981 and 1982 as determined by respondent's accountant; that respondent had no prior disciplinary record for more than 20 years and has been and is held in high esteem by judges and peers for professional competence. Additionally, the referee recognized respondent's contribution of time and services in pro bono work, church and community affairs, as well as in various professional associations. The referee also found relevant the fact that a number of respondent's clients during the years in question had failed to pay legal fees owed to respondent, as well as a substantial financial loss sustained by him because a former professional associate failed to pay his share of office expenses. Finally, even though respondent eschewed claiming as mitigating factors matters which had occurred in his personal life, the referee felt those matters were indeed relevant to the mitigation issue. Those personal matters included the fact that respondent's father had been in an automobile accident in 1981 which resulted in multiple medical problems; that respondent's mother had died following an illness in 1983; that respondent had suffered from some depression for which he had received counseling; and that throughout these disciplinary proceedings, respondent had cooperated with the Director's office. ²

One reason why we initially declined to accept the referee's recommendation for discipline was our concern that it facially, at least, appeared to materially depart from the dictum found in In re Bunker. As a result of the comprehensive briefs filed, as well as the oral arguments, we have been able to review almost two decades of disciplinary precedents involving cases arising from violation of personal income tax law filing requirements. We acknowledge, as we must, that we have not always literally followed the In re Bunker dictum even though we have rather persistently given it lip service. Rather, we have structured the discipline relative to the egregiousness of the lawyer conduct under consideration. When that historical approach is applied in this case, we now conclude the recommended discipline is not outside the mainstream of our prior opinions. Thus, we now are prepared to accept the referee's recommendation as incorporated by the parties in the stipulation with one minor addendum.

Our language in In re Bunker admittedly was dictum, not a holding. Thus, it is not conclusive evidence of the law and is not entitled to stare decisis deference. Nonetheless, it should not be ignored, and is entitled to great weight. In re Estate of Bush, 302 Minn. 188, 208, 224 N.W.2d 489, 501 (1974) cert. denied, sub nom. Lee v. Arrowwood, 420 U.S. 1008, 95 S.Ct. 1454, 43 L.Ed.2d 768 (1985). We have never abandoned that dictum or rejected its underlying rationale, both of which we have clearly and recently re-affirmed. See In re Chrysler, 434 N.W.2d 668, 669 (Minn.1989).

We note, however, that notwithstanding our language in In re Bunker, we have never disbarred a lawyer whose only misconduct involved violation of personal income tax law filing requirements. ³ However, nonfiling or late filing of personal income tax returns to avoid or delay tax payment has generally, and especially when combined with other instances of egregious professional discipline, warranted the imposition of the most severe professional discipline. ⁴ Suspension from practice usually has been deemed to be the appropriate discipline when such other egregious conduct is present, although the length of suspension often follows from a balancing of the conduct against asserted mitigating factors. And occasionally, consistent with the In re Bunker dictum, public reprimand and probation has been considered appropriate notwithstanding existence of concomitant egregious attorney misconduct, provided the lawyer has established that he or she was suffering from a physical, chemical, or mental disability; that such disability was causative of the conduct; and that the disability had been addressed by treatment; and it was unlikely to recur. See In re Sahr, 444 N.W.2d 290, 292 (Minn.1989). Thus, when the respondent lawyer has been able to establish by clear and convincing evidence "extreme extenuating circumstances" by way of mitigation and that the nonfiling of the personal tax returns had been caused by disabilities which had been treated, arrested, and were unlikely to recur, probation has been granted. See, e.g. In re Weiss, 421 N.W.2d 706, 706 (Minn.1988); In re McCallum, 289 N.W.2d 146, 147 (Minn.1980); In re Kerr, 287 N.W.2d 652, 652-53 (Minn.1979).

On the other hand, we have suspended for varying lengths of time a number of lawyers who were guilty of tax law filing violations. Generally, the duration of those suspensions has depended upon the existence and nature of other...