Rohan, In re

• Decision Date: 03 May 1978
• Docket Number: S.F. 23458
• Court: California Supreme Court
• Parties: , 578 P.2d 102 In re Brian D. ROHAN on suspension.

Page 855

145 Cal.Rptr. 855

21 Cal.3d 195, 578 P.2d 102

In re Brian D. ROHAN on suspension.

S.F. 23458.

Supreme Court of California,In Bank.

May 3, 1978.

As Modified May 10, 1978.

Michael L. Krassner and Lance S. Grode, Beverly Hills, for petitioner.

Herbert M. Rosenthal, San Francisco, for respondent.

CLARK, Justice.

Petitioner attorney was convicted of the wilful failure to file his federal income tax return for the year 1969. (26 U.S.C. § 7203.) We referred the matter to the State Bar for hearing and report as to whether the facts and circumstances surrounding commission of the offense involved moral turpitude or other misconduct warranting discipline and, if so, the nature and extent of recommended discipline. (See Bus. & Prof.Code, §§ 6101, 6103-6106.1; Cal. Rules of Court, rules 951(c), 951(d).)

A local administrative committee conducted a hearing, made findings, and concluded no moral turpitude or other misconduct was involved. The State Bar Disciplinary Board, after reviewing the record, unanimously adopted committee findings. A majority of nine of the fifteen-member board concluded no moral turpitude was involved, but a differently comprised majority of nine concluded the facts and circumstances surrounding the commission of the offense involved "other misconduct warranting discipline." A majority of the board, however, could not agree on the nature or extent of recommended discipline. We conclude for reasons which follow that petitioner must be disciplined even though his misconduct does not involve moral turpitude dishonesty or corruption (see Bus. & Prof.Code, §§ 6101, 6106). ¹

Petitioner, now 40 years of age, was admitted to practice law in January 1964. He has not previously been subjected to discipline except for a private reproval in 1973 for inadvertent failure to notify clients of a default judgment. He failed to file timely federal income tax returns for the years 1964 through 1970. He testified before the committee that his failure to do so was caused by marital problems which commenced in 1963 and continued for several years. He kept no formal books of account and his check stubs and bank statements were scattered about. He had filed income tax returns for years prior to 1964 when he was in an employee status, and he was continuously aware his failure to file a return for any year constituted a criminal offense and subjected him to civil penalties. He further testified that he provided, without compensation, considerable legal services to HALO (Haight-Ashbury Legal Organization), an organization which furnished free legal services primarily in drug related matters, and that he had neglected his own affairs to assist other persons in need of legal services.

Petitioner's income improved substantially beginning in 1968, increasing from $17,000 in 1967 to $41,000 in 1968, and to $64,000 in 1969. In 1968, prior to petitioner's knowledge of the institution of any investigation by the Internal Revenue Service, petitioner hired a certified public accountant to prepare his delinquent and current tax returns. The 1964 through 1967 returns were completed by the end of 1969, but they were not then filed because petitioner wanted to complete the 1968 return before filing any return. The 1968 and 1969 returns were prepared during 1970, but their revisions were not completed until April 1971. Again petitioner delayed filing any return, this time upon the advice of counsel who was defending him in Arizona on a drug related matter. Petitioner was exonerated of all wrongdoing in that proceeding but during the pendency of the Arizona action he became aware for the first time the Internal Revenue Service was conducting a criminal fraud investigation of his failure to file returns for 1964 through 1969. The delinquent returns for those years were finally filed in November and December 1971, and the 1970 return was filed in February 1972.

Petitioner was charged in 1974 in federal court with the wilful failure to file income tax returns for each of the years 1967 through 1970. He entered a plea of guilty to that count of the information charging willful failure to file the 1969 return, and the other counts were dismissed. He was sentenced to prison for one year and fined $3,000. Execution of sentence was suspended as to the prison term, and petitioner was placed on probation for a three-year period on condition he pay the fine and all back taxes and penalties in such installments as directed by his probation officer. ²

Petitioner disputes the existence of a statutory basis upon which discipline is warranted. He argues that because there is no finding his misconduct involves moral turpitude, dishonesty or corruption, he cannot be disciplined pursuant to either section 6101 or 6106. ³ "Moral turpitude has been defined as 'an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen . . . .' (Citations.)" (In re Fahey, supra, 8 Cal.3d 842, 849, 106 Cal.Rptr. 313, 316, 505 P.2d 1369, 1372.)

The conviction of a wilful failure to file a federal income tax return does not establish, on the face thereof, the involvement of moral turpitude (In re Fahey, supra, 8 Cal.3d 842, 849-850, 106 Cal.Rptr. 313, 505 P.2d 1369) and, if moral turpitude is to be established, it must be based on special circumstances which are not necessarily present whenever the offense is committed. (Id. at p. 850, 106 Cal.Rptr. 313, 505 P.2d 1369.) In the instant case we requested a finding on the moral turpitude issue and both the local committee and board found no moral turpitude was involved and, further, petitioner "at no time misrepresented the facts or falsified any of the records either before the IRS, the committee, or otherwise. There is no evidence that (petitioner) sought to achieve any personal financial gain by not filing his tax returns." Although we must exercise our independent judgment on the weight and sufficiency of the evidence (Lee v. State Bar (1970) 2 Cal.3d 927, 939, 88 Cal.Rptr. 361, 472 P.2d 449) and on the legal question of moral turpitude (In re Higbie (1972) 6 Cal.3d 562, 569, 99 Cal.Rptr. 865, 493 P.2d 97) we discern no basis for departing from the foregoing findings and conclusion that no moral turpitude was involved in petitioner's failure to timely file his income tax returns.

The disciplinary board was of the opinion that, aside from conduct involving moral turpitude, there is "other misconduct warranting discipline" ⁴ because petitioner has violated his oath as an attorney. ⁵ Every attorney upon his admission to practice law is required to take an oath "to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability." (§ 6067.) Among the duties of an attorney at law is the duty to "support the Constitution and laws of the United States and of this State." (§ 6068, subd. (a).) Because petitioner was convicted of a federal crime he failed to support a law of the United States, he thereby failed to discharge his duties as an attorney to the best of his knowledge and ability, and such breach of his oath as an attorney is urged to constitute grounds for disciplinary action.

The foregoing suggests the violation of a state or federal criminal statute by an attorney constitutes a breach of his oath and is grounds for disciplinary action in particular cases. Aside from statutory provisions which relate to an attorney's professional responsibilities (§§ 6103-6105) only sections 6101 and 6106 deal directly with criminal conduct as grounds for disciplining an attorney. (See also, § 6106.1.) If we are to embrace the proposition that criminal conduct not involving moral turpitude nevertheless warrants disciplinary action because it constitutes a breach of an attorney's oath, we would necessarily impose higher disciplinary standards than those imposed by statute.

We have heretofore disciplined members of the bar in absence of a finding of moral turpitude for violations of their oath and duties as attorneys. In all reported cases to which we are referred, however, the misconduct related to the attorney's professional responsibilities and not to unrelated criminal misconduct. (See Spindell v. State Bar (1975) 13 Cal.3d 253, 118 Cal.Rptr. 480, 530 P.2d 168; Moore v. State Bar (1964) 62 Cal.2d 74, 41 Cal.Rptr. 161, 396 P.2d 577; Hogan v. State Bar (1951) 36 Cal.2d 807, 228 P.2d 554; Christopher v. State Bar (1945) 26 Cal.2d 663, 161 P.2d 1.) This court possesses inherent powers to discipline a wayward attorney whether or not his misconduct involves moral turpitude. Our inherent powers are not limited by our interpretation of statutory provisions to the effect that criminal conduct unrelated to an attorney's professional responsibilities does not constitute grounds for discipline unless it involves moral turpitude, dishonesty or corruption within the meaning of section 6106. (See also 6106.1.) The Legislature has provided that nothing contained in the State Bar Act (§§ 6000-6172) "shall be construed as limiting or altering the powers of the Supreme Court of this State to disbar or discipline members of the bar as this power existed prior to the enactment of" the 1927 State Bar Act. (§ 6087.) Moreover, the "statutory grounds for discipline are not exclusive. (Citations.)" (Stratmore v. State Bar, supra, 14 Cal.3d 887, 889-890, 123 Cal.Rptr. 101, 102, 538 P.2d 229, 230.)

Petitioner contends that although we have inherent powers in disciplinary matters, we have heretofore concluded a willful failure to file federal income tax returns, when that failure did not involve moral turpitude, dishonesty or corruption and was unrelated to the attorney's professional responsibilities, does not constitute grounds for disciplinary action. (See In re Fahey (1973) 8 Cal.3d 842, 106 Cal.Rptr. 313, 505 P.2d 1369.)

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