Ohio State Bar Ass'n v. Stimmel, 79-20

• Citation: 401 N.E.2d 926,61 Ohio St.2d 316
• Decision Date: 19 March 1980
• Docket Number: No. 79-20,79-20
• Parties: , 15 O.O.3d 389 OHIO STATE BAR ASSOCIATION v. STIMMEL. D.D.
• Court: United States State Supreme Court of Ohio

Page 316

61 Ohio St.2d 316

401 N.E.2d 926, 15 O.O.3d 389

OHIO STATE BAR ASSOCIATION v. STIMMEL.

D.D.No. 79-20.

Supreme Court of Ohio.

March 19, 1980.

Relator, the Ohio State Bar Association, filed a complaint against respondent, John P. Stimmel, pursuant to Gov.R.V., wherein relator charged respondent with violations of DR 1-102(A)(4), (5) and (6) and Canon 1 of the Code of Professional Responsibility.

The record shows that on April 17, 1978, the United States Attorney filed in federal District Court, Southern District of Ohio, Western Division, an information which charged that respondent received a gross income of $56,870 for the 1972 calendar tax year; that respondent knew because of said income that he was required by Section 7203, Title 26, U.S.Code, to file a federal income tax return; that well knowing the aforementioned facts respondent willfully and knowingly failed to make an income tax return on or before April 15, 1973.

On April 17, 1978, respondent appeared in District Court for arraignment on the aforementioned charge and pleaded nolo contendere. The United States Attorney indicated to the court that he had entered into a plea bargain arrangement with respondent, wherein in exchange for respondent's plea of nolo contendere to the pending charge the government would not prosecute respondent for the failure to file a tax return for the years 1973 and 1974. Respondent's plea was thereafter entered upon the court record.

The evidence adduced at the hearing before this court's Board of Commissioners demonstrates that subsequently, on May 30, 1978, respondent appeared before the District Court for sentencing. For the purpose of mitigation, respondent's counsel contended that the element of "willfulness" was not present in respondent's cause due in part to respondent's psychological reaction upon learning of the traumatic death of a friend on April 17, 1972. It appears from the record that respondent had known the deceased and his wife both professionally and socially, and was requested to render professional representation to the wife for the purpose of securing a divorce. The divorce was granted and the decree was sent to the husband in California. Several days later he was found dead, the apparent victim of a suicide. Respondent later unsuccessfully prosecuted an action to recover insurance proceeds allegedly payable to the deceased's spouse. While the insurance action was pending, respondent's wife was apparently the victim of an attempted rape-murder.

The record indicates that the trial judge suggested that the submitted plea be withdrawn and one of not guilty be substituted, but counsel for respondent indicated that it was the respondent's desire to retain the entered plea of nolo contendere. Even though the trial court found that extenuating circumstances were present in respondent's cause, that court accepted respondent's plea, "adjudged the defendant guilty as charged * * * and ordered that * * * (respondent) be fined in the amount of * * * ($3,000) and that he be placed on probation for a period of two * * * years * * *." (Emphasis added.) It appears from the record that no appeal was filed and the trial court's judgment thereafter became final.

In the hearing before this court's Board, the evidence further demonstrated that respondent had been a member of this bar since 1967 and had been a responsible member of the legal profession. When questioned as to the circumstances underlying his failure to file income tax returns for 1972 through 1974, respondent indicated that he was unsure of the actual causes, but stated also that the pressures associated with the burgeoning practice, coupled with his dependency on alcohol and the apparent suicide of his friend (at a time when he was representing the friend's wife in a divorce action), may have contributed to his actions. Respondent indicated further that in 1974 and 1975 his "income dropped and the needs of * * * (his) family increased" and that he needed a loan to pay his tax liability for 1975. When queried concerning his refusal to withdraw his plea of nolo contendere and challenge the charges on the grounds that the element of "willfulness" was lacking, respondent averred that his decision was based primarily upon his realization that a jury trial would in all likelihood result in a conviction, considering his professional status, and that a trial would drain his resources and cause him to run "the risk of imprisonment."

Respondent introduced in evidence a letter from the trial judge who sentenced respondent on the instant tax charge. The letter indicated in essence that the court's presentence report demonstrated that the "element of willfulness (in respondent's case) was very weak" and that in the court's opinion sufficient extenuating circumstances existed which indicated a likelihood of acquittal had respondent elected to proceed to trial.

Upon a review of the evidence submitted by the parties, the board of commissioners concluded, inter alia, that relator had not sustained its burden of proving that respondent "willfully" failed to file his federal income tax return for 1972. Accordingly, the board recommended that respondent be given a public reprimand.

This matter is now before us for consideration of the report of the board and objections of respondent.

Keith McNamara, Columbus, William L. Burton,...