In re Kerr, 89-SP-1254.

• Decision Date: 07 August 1992
• Docket Number: No. 89-SP-1254.,89-SP-1254.
• Court: D.C. Court of Appeals
• Parties: In re Frederick M. KERR, Respondent.

611 A.2d 551

In re Frederick M. KERR, Respondent.

No. 89-SP-1254.

District of Columbia Court of Appeals.

Argued March 4, 1992.

Decided August 7, 1992.

Elizabeth A. Herman, Asst. Bar Counsel, with whom Wallace E. Shipp, Jr., Acting Bar Counsel, Washington, D.C., at the time the brief was filed, for petitioner, the Office of Bar Counsel.

Joan L. Goldfrank, Executive Atty., Washington, D.C., for the Board on Professional Responsibility.

Raymond O. Gross, Clearwater, Fla., for respondent.

Before TERRY and KING, Associate Judges, and BELSON, Senior Judge.

TERRY, Associate Judge:

This case represents the latest of our continuing efforts to define the term "moral turpitude" as it applies to attorney misconduct. Respondent, an attorney, was convicted of violating 26 U.S.C. § 7206(1) (1988), which makes it a crime to file a false tax return "willfully ... under the penalties of perjury." We must decide whether that crime involves moral turpitude per se. The Board on Professional Responsibility ("the Board") argues that it does not; Bar Counsel, however, maintains that it does. We conclude that the Board's reasoning is more consistent with our case law. We therefore decline to disbar respondent, as Bar Counsel urges, and instead suspend him from the practice of law for one year, as recommended by the Board.

I

Respondent Frederick Kerr, a member of the bar of this court, has admitted that he knowingly filed a false federal income tax return in 1978. During that year he asked his employer to pay $8,000 of his annual salary to his fiancee, Hedy Valenzuela (whom he later married). The employer did as requested and paid Ms. Valenzuela $8,000 of Mr. Kerr's salary. Mr. Kerr did not report that $8,000 as income on his federal tax return for 1978, although Ms. Valenzuela did report it and paid the applicable tax. Kerr later filed an amended tax return declaring the $8,000 as his own income. He paid an additional tax on that sum, along with an assessed penalty.

Mr. Kerr's failure to report as income the $8,000 paid by his employer to Ms. Valenzuela resulted in his indictment for the willful filing of a false tax return. On August 5, 1988, he pleaded guilty in the United States District Court for the Northern District of California to one count of violating 26 U.S.C. § 7206(1).¹ He was later sentenced to pay a fine of $2,000, which he paid on the day of sentencing.

In due course Bar Counsel submitted to this court a certified copy of Kerr's criminal conviction. On November 21, 1989, we issued an order suspending Mr. Kerr from the practice of law in the District of Columbia and directing the Board to institute formal disciplinary proceedings, in the course of which the Board was to determine whether Kerr's crime involved moral turpitude, as that term is used in D.C.Code § 11-2503(a) (1989).² In a later order the Board concluded that "a violation of 26 U.S.C. § 7206(1) does not constitute moral turpitude per se" and referred the matter to a hearing committee to make factual findings and a determination of whether or not Kerr's actual conduct involved moral turpitude. After a hearing, the hearing committee found that although Kerr had violated Disciplinary Rule 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation), his filing of a false tax return did not involve moral turpitude.³ The hearing committee recommended that Kerr be suspended from the practice of law for one year. The Board agreed with the hearing committee and now makes the same recommendation to us.

II

D.C.Code § 11-2502 (1989) empowers this court to discipline members of the bar of the District of Columbia who engage in misconduct. "In the final analysis, the responsibility to discipline lawyers is the court's. The buck stops here." In re Shillaire, 549 A.2d 336, 342 (D.C.1988). While we have established the Board on Professional Responsibility to aid us in our disciplinary function, this court has the sole authority to censure, suspend, or disbar an attorney in the District of Columbia. In re Dwyer, 399 A.2d 1, 11 (D.C.1979). We review de novo any Board determination of moral turpitude, since "the ultimate issue of moral turpitude is one of law rather than of fact." In re Shillaire, supra, 549 A.2d at 343.

D.C.Bar Rule XI, § 10 sets forth the disciplinary steps to be taken when a member of the bar is convicted of a crime. Bar Counsel begins formal disciplinary action by filing a certified copy of the conviction with the Board and this court. If the convicted attorney has committed a "serious crime,"⁴ he or she must be immediately suspended (as Mr. Kerr was in November 1989) while the Board conducts further proceedings to determine the ultimate discipline. See Rule XI, § 10(c). The Board then makes a preliminary determination of whether the statutory elements of the convicted attorney's crime involve moral turpitude per se. "The threshold focus ... is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense." In re Colson, 412 A.2d 1160, 1164 (D.C.1979) (en banc) (emphasis in original). If the Board finds that the crime "inherently involves moral turpitude," its inquiry is complete; it "must recommend disbarment." Id.

If the Board's threshold examination of the elements of the crime establishes that it does not involve moral turpitude per se, the Board refers the matter to a hearing committee for an inquiry into the facts surrounding the conviction. See Rule XI, § 10(d). The hearing committee then determines whether or not the attorney's conduct demonstrated moral turpitude. It may hold a hearing, and it must ultimately recommend a sanction to the Board. The Board either accepts that recommendation or rejects it and makes one of its own, then forwards the case to this court for final disposition.

In the instant case, the only contested issue is whether the Board was correct in its threshold determination that a violation of 26 U.S.C. § 7206(1) does not involve moral turpitude per se.⁵ The Board held that the elements of filing a false tax return in violation of section 7206(1) do not inherently involve moral turpitude. In reaching that conclusion, the Board relied heavily on this court's decision in In re Shorter, 570 A.2d 760 (D.C.1990), in which we held that a violation of 26 U.S.C. § 7201 (1988), which makes purposeful evasion of the payment of taxes a crime, does not involve moral turpitude per se.⁶ Bar Counsel maintains that violating 26 U.S.C. § 7206(1) does inherently involve moral turpitude, in accordance with his general view that the filing of a false tax return is essentially perjury. Since this court held in In re Meisnere, 471 A.2d 269 (D.C.1984), that perjury is a crime which involves moral turpitude per se, Bar Counsel argues that the elements of 26 U.S.C. § 7206(1) must similarly involve moral turpitude.

Looking strictly at the elements of the offense and not the facts surrounding Mr. Kerr's conviction, as Colson and other cases require, this court must make its own determination of whether a violation of section 7206(1) inherently involves moral turpitude. That term has "less than a finite definition," In re Colson, supra, 412 A.2d at 1167, and our reliance on the dictionary to ascertain its meaning has not always been too helpful. See id. at 1168 (citing two dictionary definitions). At best, we have concluded that "if a crime is one involving moral turpitude, it is because the act denounced by the statute offends the generally accepted moral code of mankind." Id. That precept does not offer much guidance in this case, in which we must deal with a statute providing that any person who "willfully makes and subscribes any return ... which contains or is verified by a written declaration that it is made under the penalties of perjury, and which that person does not believe to be true and correct as to every material matter" is guilty of a felony.

We turn, consequently, to the case law, on which both the Board and Bar Counsel rely. The Board regards 26 U.S.C. § 7206(1) as a tax evasion statute; Bar Counsel, on the other hand, interprets it as closer to a perjury statute. That distinction defines their respective arguments. Since this court held in Shorter that tax evasion does not involve moral turpitude per se and in Meisnere that perjury does involve moral turpitude per se, our placement of 26 U.S.C. § 7206(1) in one category or the other — tax evasion or perjury — would begin and end our inquiry. Unfortunately, our task is not that easy, for section 7206(1) does not fit neatly into either category.

We put to one side the question of whether a violation of 26 U.S.C. § 7206(1) is a lesser included offense of the crime defined in 26 U.S.C. § 7201, the general tax evasion statute which was at issue in In re Shorter, supra.⁷ Some courts have held that whether the willful filing of a false tax return is a lesser included offense of tax evasion depends on the facts of each case.⁸ But that analysis may no longer be valid in light of Schmuck v. United States, 489 U.S. 705, 715-721, 109 S.Ct. 1443, 1450-1453, 103 L.Ed.2d 734 (1989), which rejected a fact-based test in favor of an "elements test" for determining whether one offense is necessarily included in another. Whether prior case law on this point survives Schmuck is a question we will leave for the federal courts. Besides, the Board in this case did not really say that filing a false tax return (section 7206(1)) was a lesser included offense of tax evasion (section 7201). Rather, it adopted the position of the hearing committee, which said simply that tax evasion was "the more serious offense" without discussing whether either was included within the other.

In any event, Shorter is instructive for our purposes here. We held in Shorter that tax evasion in violation of section 7201 "does not, per se, involve an act of moral turpitude." 570 A.2d at 766. Adverting to definitions of moral...