Kentucky State Bar Ass'n v. Vincent

• Decision Date: 30 April 1976
• Citation: 537 S.W.2d 171
• Parties: KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Duane Lee VINCENT, Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 171

537 S.W.2d 171

KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Duane Lee VINCENT, Respondent.

Supreme Court of Kentucky.

April 30, 1976.

Carroll M. Redford, Sr., Glasgow, Leslie G. Whitmer, Director, Kentucky State Bar Ass'n, Frankfort, for complainant.

Hugh O. Skees, Raymond R. Vincent, Dale T. Wilson, Vincent & Skees, Florence, for respondent.

PER CURIAM.

This is a disciplinary proceeding against Duane Lee Vincent. On March 1, 1974, respondent was charged by an information filed in the United States District Court for the Eastern District of Kentucky with three counts of wilfully and knowingly failing to make income tax returns for the years 1968, 1969 and 1970. 26 U.S.C.S. Sec. 7203. On July 31, 1974, pursuant to a plea of guilty to one count, respondent was sentenced to prison for 12 months. The remaining two counts were dismissed.

These proceedings originally were commenced on August 21, 1974, under the current RCA 3.320, which was not in effect at the time of the commission of the offense (April 15, 1971), to which the respondent pled guilty. The Court of Appeals rule which was in effect at that time was RCA 3.330. On motion of the petitioner and the respondent, the action was remanded, on January 15, 1975, to the Board of Governors of the Kentucky Bar Association for proceedings under the terms and conditions of RCA 3.330.

On January 29, 1975, the then president of the Kentucky Bar Association filed a new charge for disciplinary proceedings against the respondent, pursuant to the provisions of RCA 3.140. It is alleged that said conduct of the respondent 'constitutes unethical and/or unprofessional conduct and the same is calculated to bring the bench and bar of the Commonwealth of Kentucky into disrepute.' On February 21, 1975, respondent filed an answer which constitutes a general traverse; states that the severity of the sentence has been appealed to the United States Court of Appeals for the Sixth Circuit and that these proceedings should be dismissed or at least deferred until the appeal has been finally adjudicated; denies that on April 15, 1971, there was any provision of the laws of Kentucky for the disbarment of an attorney solely on the basis of a criminal conviction; and says that the offense charged is not a serious misdemeanor and did not involve dishonesty or stealing.

Evidentiary hearings were held by the trial committee on April 25, 1975, and on May 22, 1975. As a preface to and at the time of the first hearing, inquiry was made by counsel for the respondent as to which rule the proceedings were under. They were, thereupon, advised that the proceedings were under RCA 3.140, to which procedure respondent objected.

RCA 3.140 and RCA 3.330 were both in effect at the time of the commission of the offense. RCA 3.140 was directed at proceedings against an attorney who may have been guilty of unprofessional conduct. RCA 3.330 was directed at proceedings against an attorney who had been convicted of a criminal offense involving moral turpitude.

Respondent challenges the right of complainant to proceed against him under RCA 3.140, since the action had been remanded for proceedings under RCA 3.330.

From 1948 until July 2, 1971, there was no provision in our law for disbarment of an attorney solely on the basis of criminal conduct per se. Kentucky State Bar Association v. Taylor, Ky., 516 S.W.2d 871, 872. Thus, our RCA 3.330 and RCA 3.140 were the only rules, at the time the offense was committed, which provided for disciplinary proceedings. The provisions of one are not inconsistent with the other, but each is complementary to the other. The Board elected to proceed under the latter rule and no prejudice has been charged or shown to exist by reason of that action. The remand for proceedings under RCA 3.330 was not a denial of the right of the Board to proceed under RCA 3.140.

Respondent charges that the offense of which he was convicted is not one involving moral turpitude.

Beginning with the case of Kentucky State Bar Association v. McAfee, Ky., 301 S.W.2d 899, we have held that a conviction for failing to file a federal income tax return does not involve moral turpitude. Even though we have held there is no moral turpitude involved in failing to file income tax returns, this conduct is not condoned by this court and we have publicly condemned the practice. Kentucky State Bar Association v. McAfee, supra.

This court is advised that respondent's appeal has been dismissed and that at this time he is serving his sentence. His request that this case be held in abeyance until his appeal of his criminal conviction is determined is now moot.

In an effort to present extenuating circumstances attending respondent's position, he was permitted to introduce much testimony and he was permitted to testify freely and at length of and concerning his personal and family-related matters, as well as testify in detail concerning his professional conduct. Respondent is 47 years of age,...