Lurkins, In re, 49599

• Decision Date: 13 January 1964
• Docket Number: No. 49599,49599
• Citation: 374 S.W.2d 67
• Parties: In the Matter of Earl H. C. LURKINS, Respondent.
• Court: Missouri Supreme Court

Page 67

374 S.W.2d 67

In the Matter of Earl H. C. LURKINS, Respondent.

No. 49599.

Supreme Court of Missouri, En Banc.

Jan. 13, 1964.

Walter M. Clark, St. Louis, special counsel for informants.

Earl H. C. Lurkins pro se.

STORCKMAN, Judge.

This is a disciplinary proceeding filed in this court by the Twenty-Second Judicial Circuit Bar Committee, as informants, against Earl H. C. Lurkins, a duly licensed attorney at law, who maintains an office in the City of St. Louis, and who will sometimes be referred to as the respondent. The respondent filed an answer and the Honorable John Hall Dalton was appointed as special commissioner to take evidence on the issues joined and to report the evidence taken together with his findings of fact and conclusions of law. The commissioner filed his report and recommended that the respondent be suspended from the practice of law for a period of five years. Thereafter the matter was briefed and argued orally by the parties. The respondent has appeared pro se throughout the proceedings in spite of repeated recommendations by the informants and the commissioner that he employ counsel to advise and represent him.

On July 27, 1961, the respondent was convicted by a jury in the United States District Court for the Eastern District of Missouri, Eastern Division, of willfully and knowingly failing to make an income tax return to the District Director of Internal Revenue or any other proper officer of the United States for the calendar years 1954 and 1955 in violation of Title 26, U.S. Code, Sec. 7203. Thereafter, on October 24, 1961, he was fined $10,000 on each of the two counts. The respondent was represented by counsel at all stages of the trial in federal court. He did not appeal his conviction and, within the time allowed by the court, paid the total fines of $20,000.

The respondent was admitted to the Bar in 1923. For a number of years he practiced with various lawyers and thereafter opened and maintained his own law office. His practice consisted largely of probate, corporate, and office matters. He also engaged in business activities among which was a partnership in a bowling alley which was not profitable according to the respondent's testimony. About 1942 he began investing in the common stock of corporations and this venture was quite successful. He invested in 'peace stocks' during World War II and his investments increased substantially after the war was ended. He continued to invest successfully thereafter and advised others with respect to investments. In 1949 the respondent suffered a stroke which for a time affected his physical and mental condition.

The respondent concedes that he did not file income tax returns for the years 1946 on through 1955. He testified that he paid something on account of taxes each year; however, during his income tax trial, as a condition imposed on him by the trial judge, he paid all of his delinquent income taxes. For the years covered by the criminal information, he paid as additional taxes $4,000 for 1954 and $17,978.80 for 1955.

At the hearing before the commissioner, the respondent contended that his offense did not involve moral turpitude and presented somewhat the same issue in his oral argument and brief in this court. He cites five cases from other jurisdictions on this question. They are: In re Hallinan, 43 Cal.2d 243, 272 P.2d 768, Baker v. Miller, 236 Ind. 20, 138 N.E.2D 145, 59 A.L.R.2d 1393, People ex rel. Dunbar v. Fischer, 132 Colo. 131, 287 P.2d 973, United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, and In re Disbarment of Rothrock, 16 Cal.2d 449, 106 P.2d 907, 131 A.L.R. 226. Not all of these cases support the claim which the respondent makes. But regardless of what other jurisdictions may hold, it is now well settled in this state that willfully and knowingly failing to make a federal income tax return is an offense involving moral turpitude within the purview of state statutes and the rules of this court authorizing suspension of an attorney from the practice upon conviction of a criminal offense involving moral turpitude. 26 U.S.C.A. Sec. 7203; S.Ct. Rule 4.47, V.A.M.R.; Sec. 484.240, RSMo 1959, V.A.M.S.; In re Burrus, 364 Mo. 22, 258 S.W.2d 625, 627; In re Moon, Mo., 310 S.W.2d 935, 938. There is nothing in the cases of Neibling v. Terry, 352 Mo. 396, 177 S.W.2d 502, 152 A.L.R. 249, In re McNeese, 346 Mo. 425, 142 S.W.2d 33, or State ex rel. Shackelford v. McElhinney, 241 Mo. 592, 145 S.W. 1139, cited by the respondent which is persuasive of a contrary ruling.

The respondent also cites Louisiana State Bar Ass'n v. Connolly, 206 La. 883, 20 So.2d 168, on the proposition that, where a disbarment proceeding was based on a certified copy of a federal court judgment convicting an attorney of income tax evasion, the judgment of conviction was not conclusive and the attorney was entitled to introduce evidence of circumstances surrounding the conviction. Regardless of what the rule may be elsewhere, this court will not permit the...