Discipline of Johnson, Matter of

• Citation: 414 N.W.2d 199
• Decision Date: 23 October 1987
• Docket Number: No. C6-86-212,C6-86-212
• Parties: In the Matter of the Application for the DISCIPLINE OF Richard A. JOHNSON, an Attorney at Law of the State of Minnesota.
• Court: Supreme Court of Minnesota (US)

Page 199

414 N.W.2d 199

In the Matter of the Application for the DISCIPLINE OF Richard A. JOHNSON, an Attorney at Law of the State of Minnesota.

No. C6-86-212.

Supreme Court of Minnesota.

Oct. 23, 1987.

Syllabus by the Court

Failure by an attorney, while on supervised professional probation arising from neglect of client matters, to timely file or pay Minnesota personal individual income taxes, and to timely file state employee withholding statements or to timely pay state taxing authorities those withheld taxes, merits indefinite suspension from the practice of law.

Richard A. Johnson, Minneapolis, for appellant.

William J. Wernz, Director, Kenneth L. Jorgensen, Asst. Director, Office of Lawyers Professional Responsibility, St. Paul, for respondent.

Heard, considered and decided by the court en banc.

PER CURIAM

Although the respondent Richard C. Johnson admitted service of a petition in which the Director of Minnesota Lawyers Professional Responsibility alleged he had violated terms of a previously imposed and existing attorney discipline probation by additionally committing during the course of that probation acts constituting violation of the income tax laws--in and of themselves constituting attorney misconduct--he failed to either deny the allegations by answer or otherwise to controvert the charges contained in the petition. Such failure bears the consequence that all of the petition's allegations are deemed admitted. ¹ Thus, there remains for this court only the imposition of appropriate discipline. Not only to remain consistent with, and to reaffirm, this court's traditional view that violation of the tax laws merits the imposition of serious attorney discipline, but additionally in this case, because some of the respondent's violations occurred while he was already in a disciplinary probation status, the imposition of more onerous sanctions than normally imposed is indicated. We, therefore, indefinitely suspend Richard A. Johnson from the practice of law and preclude the filing of any application for reinstatement before the expiration of 18 months from the date of this opinion.

Respondent Johnson was first admitted to the practice of law in this state in 1973. Charges against him of unprofessional conduct first came to the attention of the Lawyers Professional Responsibility Board in 1982 when Johnson admitted failure to render prompt accounting to a client in violation of DR 1-102(A)(6) and DR 9-102(B)(3) Minnesota Code of Professional Responsibility (MCPR), and further admitted failure to maintain trust account books and records as required by DR 9-102(A), DR 9-103(A), MCPR ² and Opinion 9 of the Lawyers Professional Responsibility Board. On that occasion Johnson was privately reprimanded and required to complete certain conditions to bring his trust account back into compliance with legal requirements.

In 1985 Johnson admitted a client complaint made to the Lawyers Professional Responsibility Board alleging that he had repeatedly failed to pursue the client's personal injury action and had failed to properly communicate with the client in violation of DR 6-101(A)(3) and DR 7-101(A)(1) and (2), MCPR. He likewise admitted failure to timely provide written communications to the Director's office in violation of DR 1-102(A)(5) and (6), MCRP and Rule 25, Rules of Lawyers Professional Responsibility. As a result of these admitted disciplinary transgressions, Johnson, by stipulation, was placed on a two-year private supervised probation pursuant to Rule 8(c)(3) Rules of Lawyers Professional Responsibility (RLPR).

Less than a year later an additional complaint originating with the same client, resulted in a further petition seeking disciplinary action. This petition alleged violation of the previously imposed probation and also alleged Johnson's failure to cooperate with the supervisor appointed to monitor his probation. Johnson again admitted these allegations, stipulated to continued supervised probation, and accepted a public reprimand. By court order then entered in 1986, Johnson's supervised probation was continued for an additional two years.

The first count of the present disciplinary petition, after reciting Johnson's disciplinary history, additionally alleges that Johnson failed to timely file his Minnesota individual income tax returns for 1981, 1983, 1984, and 1985--years in which respondent had sufficient personal income to require personal filings. ³ Because those allegations are deemed admitted for failure to answer and by virtue of our July 22, 1987 order, Johnson's failure to timely file 1981 and 1983 Minnesota individual income tax returns and to pay taxes due violated DR 1-102(A)(5) and (6), MCPR and In re Bunker, 294 Minn. 47, 199 N.W.2d 628 (1972). Similar failure to file 1984 and 1985 returns violated Rules 8.4(b) and (d), MRPC, In re Bunker, and the terms of respondent's disciplinary probation.

By failing to answer the second count of the present complaint, Johnson admits that during a period from 1984 to 1987, he was a partner in a law firm which had two employees. As an employer, Johnson was required by Minn.Stat. Sec. 290.92 (1986) to timely file Minnesota quarterly employer's withholding tax returns. Johnson failed to file the quarterly income tax withholding return for the quarter ending March 30, 1984 until March 6, 1986, and failed to file any income tax withholding returns for employees for quarters ending June 30, 1984, through and including December 31, 1986--even though he withheld taxes from the employees during those quarters. In other words, Johnson collected the withholding taxes but neither filed the required returns or paid the amounts that had been withheld to the state. Those failures occurring before September 1, 1985, violated DR 1-102(A)(5) and (6), MCRP as well as our holding in In re Bunker, 294 Minn. 47, 199 N.W.2d 628 (1972). His failure to properly file and pay after September 1, 1985, violated Rule 8.4(b) and (d), MRPC, In re Bunker, and the terms of respondent's disciplinary probation.

This court has traditionally viewed failure to file tax returns as warranting stringent lawyer discipline. ⁴

The bar of this state has been on notice at least since 1972 that failure to file personal individual income tax returns has subjected the delinquent attorney to almost certain disciplinary sanctions. In re Bunker, 294 Minn. 47, 53-55, 199 N.W.2d 628, 631-32 (1972). That we still consider such failure to file personal income tax returns as a violation of the Code, and now the Rules, of Professional Responsibility is convincingly demonstrated by such cases as In re Knutson, 405 N.W.2d 234 (Minn.1987); In re Shaw, 396 N.W.2d 573 (Minn.1986); In re Piper, 387 N.W.2d 882 (Minn.1986); In re Jones, 383 N.W.2d 686 (Minn.1986); In re Anastas, 368 N.W.2d 271 (Minn.1985); In re McCallum, 366 N.W.2d 100 (Minn.1985); In re Larson, 324 N.W.2d 656 (Minn.1982); In re Serstock, 316 N.W.2d 559 (Minn.1982). Ever since In re Bunker we have repeatedly noted that the most appropriate discipline in tax misconduct cases is suspension, and, in some cases disbarment. See, e.g., In re Jones, 383 N.W.2d 686, 688 (Minn.1986). Disciplinary probation is rarely considered an appropriate alternative to suspension or disbarment, and then only when there have existed extreme extenuating circumstances in mitigation. Very rarely, on an ad hoc basis, we have granted limited and strictly regulated probation in the presence of such mitigation circumstances as illness, chemical dependency, or depression which have clearly been the productive cause of the income tax violation. See, e.g., In re McCallum, 289 N.W.2d 146 (Minn.1980); In re Kerr, 287 N.W.2d 652 (Minn.1979); In re Knutson, 405 N.W.2d 234 (Minn.1987). Here, respondent Johnson has completely failed...