The initial position taken by our Committee in presenting the Connolly, the *Page 1089 Leche, and the instant case was that the final conviction of an attorney of a felony was conclusive evidence of his guilt of misconduct and under the rule of this court in question he should be ipso facto or automatically disbarred. By the majority opinions in the foregoing cases, the court held that the defendant in a disbarment proceeding was entitled to a hearing and that a certified copy of the final judgment of conviction of a felony was prima facie evidence of his guilt of misconduct. When each of these cases was before us for consideration on exceptions of no right and no cause of action, the writer endeavored to point out the legal and practical complications and difficulties which would result from the majority holding that in a disbarment proceeding (a civil action) the petitioner is relieved of the obligation of setting forth in the petition the facts on which the misconduct was based and proving them by competent evidence as usually required in a civil suit. Louisiana State Bar Ass'n v. Connolly, 201 La. 342-379, 9 So.2d 582; Louisiana Bar Ass'n v. Leche, 201 La. 293, 294-299, 9 So.2d 566 and Louisiana Bar Ass'n v. Steiner, 201 La. 923-942,10 So.2d 703. However, as the view that under our rule the annexed certified copy of the final judgment of conviction of a felony of an attorney establishes a right or cause of action and a prima facie case against him prevails, that was the law of this State at the time the defendant appeared before our Commissioner in response to the notice of trial. He was apprised of the fact from the petition and the annexed certified copy of the judgment of conviction that he was charged with having wilfully attempted to *Page 1090 defeat and evade the payment of income taxes to the United States Government for three consecutive years and had been convicted and sentenced in the Federal District Court for the Eastern District of Louisiana under his plea of nolo contendere. Under the prevailing opinions in the three above-cited cases, he knew it was encumbent upon him to rebut the prima facie case established against him, because those opinions antedated his appearance before the Commissioner.
The record shows that the defendant pleaded not guilty to an indictment in the United States District Court for the Eastern District of Louisiana charging him with wilfully attempting to defeat and evade the payment of income taxes of the United States for the years 1936, 1937 and 1938. Subsequently, he withdrew this plea and entered a plea of nolo contendere, upon which he was convicted on June 23, 1942. He was fined $980.35 on Counts 1, 2, 3, 4 and 5 of the indictment and ordered to pay the sum of $3,921.32 income tax, which he had sought to evade, with legal penalties and interest amounting to the sums of $1,726.17 and $1,037.43, respectively, and the costs of the prosecution. He was granted twenty-four hours in which to make payment in full. The imposition of the prison sentence was suspended, provided the above amounts were paid within the time allowed and he was placed under probation for five years. When the defendant was brought before the Commissioner appointed by this court to hear his case, he asked for a continuance, which was denied, but he was granted every opportunity and all the time he needed by the Commissioner to present *Page 1091 any and all evidence he desired to introduce. Although his attention was specifically called to the seriousness of the charges and that the Commissioner would grant him every consideration in presenting his case, the defendant refused to present any evidence whatsoever and left the court room. He did not even testify before the Commissioner as to what the extenuating circumstances were that he or his attorney had imparted to the United States District Judge, who was prompted thereby to impose a suspended sentence. This information was peculiarly within the knowledge of the defendant and he could have readily and easily informed the Committee and the Commissioner thereof. Our Committee did not have this information and it is not contained in the certified copy of the judgment of conviction, although that document shows that the prison sentence was suspended without assigning the reasons therefor. Therefore, the Committee was unable to present to the Commissioner any evidence or testimony tending to show the extenuating circumstances. The defendant had entered his plea of nolo contendere to the charges of wilfully attempting to evade and defeat the payment of income taxes to the United States Government for three years amounting to a substantial sum and when granted all of the time he needed and every opportunity to do so by the Committee and the Commissioner to explain his actions so as to show, if possible, that he did not wilfully or intentionally file income tax returns to evade and defeat the proper payment of the taxes due the Government, he declined to do so. It is also apparent that the defendant paid the income taxes *Page 1092 that he was charged with having wilfully attempted to evade and defeat and also paid the fines, penalties and interest and the cost of court within twenty-four hours, otherwise he would have been incarcerated under a prison sentence and would not have been free at the time he appeared before the Commissioner. He has left his actions in this respect unexplained, although the Committee and the Commissioner pointed out to him that it was encumbent upon him to account for them. Taking all of these facts and circumstances into consideration, it appears from the defendant's own actions and conduct that he is guilty of misconduct in wilfully attempting to evade and defeat the payment of United States Government income taxes on three separate and distinct occasions.
When we come to a consideration of the question of whether or not we will disbar or suspend the defendant, and, if we suspend him — for what period of time — we experience difficulties, because the court is not informed of what acts the defendant committed in attempting to evade and defeat the payment of the income taxes. This is a result of the majority holding in the above cases. If the petitioner had been required to allege the facts and to prove them, we would have known just what the defendant had done and would have been in a much better position to decide the above issues. As the matter stands, we must rely mainly upon presumptions and generalities in arriving at our conclusion as to what is a just and fair decree to enter. The severity of the judgment of this court should be in proportion to the gravity of the offenses, the moral turpitude involved, *Page 1093 and the extent that the defendant's acts and conduct affect his professional qualifications to practice law. The Committee could and should have better informed the Commissioner and this court of the facts of the case or the acts of the defendant in attempting to evade the taxes by making a part of the petition for disbarment and introducing in evidence a certified copy of the indictment upon which the defendant was convicted under his plea of nolo contendere, and particularly Counts 1, 2, 3, 4 and 5, which, under the law, must specifically set forth the facts upon which the charges of violating the income tax statute were based. This has been the practice by previous Committees in presenting similar cases to this court. Unfortunately, this procedure was not followed herein, although such documentary evidence was available. Nevertheless, it sufficiently appears from the defendant's own acts and conduct that he is guilty of misconduct, committed three separate times, affecting his professional qualifications to serve as an attorney and justifying his suspension for a period of two years.
For these reasons, I concur in the decree.