Weisensee, In re

• Decision Date: 15 January 1975
• Docket Number: No. 11315,11315
• Citation: 224 N.W.2d 830,88 S.D. 544
• Parties: In the Matter of the Discipline of George WEISENSEE, as an Attorney at Law.
• Court: South Dakota Supreme Court

Page 830

224 N.W.2d 830

88 S.D. 544

In the Matter of the Discipline of George WEISENSEE, as an Attorney at Law.

No. 11315.

Supreme Court of South Dakota.

Jan. 15, 1975.

Marvin Truhe, Robert Wichser, Asst. Attys. Gen., Pierre, for the state.

Sam W. Masten, Canton, for respondent.

DOYLE, Justice.

This is a disciplinary proceeding against George Weisensee, an attorney duly licensed to practice law in this state. The proceeding was brought by the attorney general of this state pursuant to order of this court dated June 12, 1973.

The facts are not in dispute. On June 8, 1973, respondent entered a plea of nolo contendere in United States District Court to the offense of failing to make an income tax return for the calendar year 1970, in violation of 26 U.S.C.A., § 7203, which violation is a misdemeanor.

The complaint filed by the attorney general charged respondent with the above described misdemeanor conviction and requested that respondent's license to practice law be either suspended or revoked on the basis of SDCL 16--19--2(1), which reads:

'* * *

(1) Conviction of a felony or a misdemeanor involving moral turpitude, in either of which cases the record of conviction is conclusive evidence * * *.'

Respondent admits the allegations of the complaint but contends that said misdemeanor does not involve moral turpitude and, by way of answer, affirmatively represented that respondent, at times pertinent, was of good moral character and a fit and proper person to practice law in this state. Thus, under the pleadings in this matter, we confine ourselves to the sole question of whether the failure to make an income tax return in violation of 26 U.S.C.A., § 7203, is a misdemeanor involving moral turpitude.

Pursuant to SDCL 16--19--16 this court referred this matter to the Honorable Leslie R. Hersrud, Circuit Judge of the Eighth Judicial Circuit, for the purpose of taking testimony and making findings and recommendations. The referee found that the evidence affirmatively demonstrates that respondent has through his years of practice of the profession of the law competently and professionally served his clients' interests and has demonstrated that he is a competent and able lawyer. There was no evidence that respondent had failed to properly represent clients nor in any manner violated the code of professional responsibility and ethics of an attorney. The recommendation of the referee was that the respondent's license to practice law remain in force.

The findings of the referee are amply supported by the evidence; consequently, such findings will not be disturbed by this court. In re Goodrich, 78 S.D. 8, 98 N.W.2d 125. We must keep in mind that the real and vital issue to be determined in disbarment proceedings is whether or not the accused, from the whole evidence as submitted, is a fit and proper person to be permitted to continue in the practice of law. In re Van Ruschen, 1917, 38 S.D. 254, 160 N.W. 1006. Again this court said in In re Rude, 1974, S.D., 221 N.W.2d 43:

'The purpose of disciplinary proceedings is not to punish but to remove from the profession those attorneys whose misconduct has proved them unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney so that the public may be protected from further wrongdoing.'

We next turn to the question of whether or not a violation of 26 U.S.C.A., § 7203, is a misdemeanor involving moral turpitude. The courts are not in harmony on this question. The general rule is stated in Anno., 59 A.L.R.2d...