State ex rel. Oklahoma Bar Ass'n v. Simms

• Decision Date: 05 December 1978
• Docket Number: No. 2599,2599
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Barry R. SIMMS, Respondent. S.C.B.D.
• Court: Oklahoma Supreme Court

Page 184

590 P.2d 184

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Barry R. SIMMS, Respondent.

S.C.B.D. No. 2599.

Supreme Court of Oklahoma.

Dec. 5, 1978.

W. E. Boswell, Jr., Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for complainant.

James W. Bill Berry, Oklahoma City, for respondent.

LAVENDER, Vice Chief Justice:

Barry Simms, a member of the Oklahoma Bar Association, through a plea of nolo contendere was found guilty and convicted of violating Title 26, U.S.C., Section 7206(1) in making and subscribing certain of his individual tax returns. Oklahoma Bar Association furnished documents, consisting of the indictment and judgment of conviction, to the Chief Justice of the Supreme Court. Rules-Bar Association, Art. 10, § 4(b), 5 O.S.A., c. 1, Appendix 1.

The Bar Association and Simms were ordered to brief on the issue of the violation being an offense involving moral turpitude. Under date of April 3, 1978, this court, by order, determined violation of § 7206(1) is per se an offense involving moral turpitude and suspended the member from the practice of law until final determination as to any discipline. There, we said:

"The United States District Court judgment determines Simms was guilty of Willfully making and subscribing individual tax returns, made under the penalties of perjury, which Simms Believed were not true.

Section 7206(1) reads as follows:

'Any person who

(1) Declaration under penalties of perjury. Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter;'

Though finding a non-willful offense involved in State ex rel. Oklahoma Bar Ass'n v. Jones, Okl., 566 P.2d 130 (1977), we said the elements of intent and knowledge were important in the concept behind the phrase 'moral turpitude.' Again, in Oklahoma Bar Association v. Houts, Okl., 420 P.2d 498 (1966), the suggestion that moral turpitude was involved came from willfully and knowingly attempting to evade income taxes.

Here, the violation of § 7206(1) itself requires those same elements of willful intent and the knowledge or belief that the returns were not true. This then is a crime of moral turpitude.

The cases principally relied upon by Simms are distinguished, for the violations were of a nature that might or might not involve moral turpitude depending on the circumstances, such as failure to file a return or violations of § 145(b), 1939 I.R.C. (similar to present § 7702). These are not the offenses for which Simms was found guilty.

Violation of § 7206(1) is per se an offense involving moral turpitude * * *."

Simms complied with the order of suspension and waived his right to contest through a "show cause" proceeding. Simms did seek and was allowed a hearing for the taking of oral evidence on the issue as to the degree of discipline.

This court designated its Referee, James Giles, as the hearing officer. That officer was directed to require a transcript of the evidence to accompany the Referee's report in writing on filing with this court. That report and transcript have been filed. Both Simms and the Bar Association waived additional briefing.

The Referee's report showed some twenty odd letters, indicating Simms to be a man of high moral character, were introduced into evidence. Two business men testified as to engaging Simms for legal services, of their satisfaction, and...