Attorney Grievance Commission v. Katz

ADKINS, J.,

Dissenting.

I agree with the Majority’s declining to impose reciprocal discipline. Yet I most respectfully dissent because the Majority imposes a sanction knowing virtually nothing about the circumstances of Respondent’s failure to file his Maryland tax returns. It thus ignores our precedent that, in failure to file cases, particular circumstances are important. Instead, I would suspend Respondent effective immediately under Rule 16-773(d) and designate a judge of the Circuit Court of Anne Arundel County pursuant to Rule 16-773(f) to hold a hearing to develop the factual record in the current case.

This case comes to the Court as a reciprocal discipline case. Both Bar Counsel and Respondent ask this Court to impose corresponding discipline of a six month suspension as was ordered in the state of Virginia. I concur in the Majority’s holding that reciprocal discipline is not appropriate in this case because Maryland should impose a substantially different sanction for attorneys who willfully fail to file income tax returns.

In deviating from imposing reciprocal discipline, I stress the locale of Respondent’s misconduct in this case. First, it is important that the misconduct occurred in Maryland. It was *323the State of Maryland that was deprived of over $700,000 in tax revenue, and it was the State of Maryland that convicted Respondent of willfully failing to file his income tax returns. This Court should not be constrained to a six month reciprocal discipline sanction simply because Virginia acted first in initiating disciplinary proceedings against Respondent. Second, as I explain below, “[t]he repeated failure to timely file tax returns is a serious violation of the MRPC.” Attorney Grievance Comm’n v. Tayback, 378 Md. 578, 588, 837 A.2d 158, 164 (2003).

Once we decide against reciprocal discipline, the question then becomes what sanction Maryland should impose on an attorney who willfully fails to file his income tax returns. I concede that the caselaw supports the Majority’s imposition of an indefinite suspension “in willful failure to file cases when no fraudulent intent is found.” Maj. Op. at 319, 55 A.3d at 915. We should not assume, however, that Respondent has no fraudulent intent when he has failed to file his return for two successive years, and substantial amounts are owed. Two successive years of failure to file is a grave offense that may merit disbarment if the attorney had dishonest intent.

This Court’s seminal case for failure to file income tax return cases is Attorney Grievance Commission v. Walman.1 There we held that a conviction for the willful failure to file income tax returns was not per se a crime involving moral turpitude. 280 Md. 453, 462, 374 A.2d 354, 360 (1977). The Court held that determining whether the “failure to file” involved moral turpitude was a factual determination to be made on a case-by-case basis. Id. The Court stated that *324“[t]he consequence of [its] holding is simply that disbarment does not automatically follow from every conviction for failure to file a federal tax return.” Id. at 463, 374 A.2d at 360. Instead, disbarment will only be ordered where the facts of the particular case involve moral turpitude.

Following Walman, we held that the failure to file involved moral turpitude when the intention of the attorney was to cheat and defraud the government. See, e.g., Attorney Grievance Comm’n v. Barnes, 286 Md. 474, 480, 408 A.2d 719, 723 (1979) (“We think that Barnes’ [willful failure to file income tax returns] involved moral turpitude since his intention was to cheat the government and his fellow citizens by avoiding payment of the substantial taxes justly due.”). This Court explained:

Convictions for willful failure to file income tax returns have received diverse treatment by this Court and have resulted in a variety of sanctions.... In cases where the attorney’s failure to file was motivated by a desire to deprive the government of income to which it was rightfully entitled we have held that deceit and moral turpitude were involved and ordered disbarment. (Emphasis added and citations omitted).

Attorney Grievance Comm’n v. Gilland, 293 Md. 316, 318, 443 A.2d 603, 605 (1982). In 1987, the term “moral turpitude” was removed from the rules of professional responsibility.2

The professional rules detailing attorney misconduct use different terminology today than they did when Walman and Barnes were decided. A1987 law review commented,

New rule 8.4(b), however, does provide that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness *325or fitness as a lawyer in other respects.” The comment to rule 8.4 suggests that the new rule represents an attempt to continue and to clarify the traditional distinction between crimes involving moral turpitude and other crimes. Hence, cases construing the term “moral turpitude” should remain persuasive authority under the new rule. (Footnotes omitted).

See Survey: Development In Maryland Law, 1985-86, 46 Md. L.Rev. 541, 577 (1987). This Court has explained:

The willful failure to file timely income tax returns is a crime. The Court need not find that Respondent actually intended to defraud the government; willful failure is sufficient to constitute a crime. Additionally, willful failure to file income tax returns adversely reflects on the lawyer’s fitness to practice law....
The willful failure to file timely income tax returns also violates Rule 8.4(c) of the Maryland Rules of Professional Conduct. The rule states that an attorney cannot engage in any conduct involving dishonesty, fraud, deceit, or misrepresentation.

Attorney Grievance Comm’n v. Atkinson, 357 Md. 646, 650, 745 A.2d 1086, 1088 (2000). A willful failure to file is also conduct prejudicial to the administration of justice in violation of Rule 8.4(d). Id. at 651, 745 A.2d at 1088-89.

This Court has since continued to require a finding of an intent to cheat or defraud the government3 before disbarring an attorney for failure to file income tax returns. See Attorney Grievance Comm’n v. O’Toole, 379 Md. 595, 616, 843 A.2d 50, 62 (2004) (ordering a 30 day suspension because “O’Toole’s violations were not committed with an intent to defraud the government”); Atkinson, 357 Md. at 659, 745 A.2d at 1093 (noting that an intention to cheat the government will result in disbarment but ordering an indefinite suspension with right to reapply after 1 year because the attorney was not charged in a *326criminal prosecution); Attorney Grievance Comm’n v. Post, 350 Md. 85, 101, 710 A.2d 935, 943 (1998) (ordering an indefinite suspension with right to reapply after 30 days because “it is significant that there is an explicit finding of no intent, on the [attorney]’s part to defraud the State”).

We should not lose sight of the importance of intention and motive in fashioning a sanction for the failure to file tax returns. Attorney Grievance Comm’n v. Gavin, 350 Md. 176, 197, 711 A.2d 193, 204 (1998); Attorney Grievance Comm’n v. Breschi 340 Md. 590, 602, 667 A.2d 659, 665 (1995) (“Because motive plays a large part in the determination of proper sanctions, and because in failure to file cases the motive is sometimes deceitful and sometimes not, we have rendered diverse sanctions in such cases over the years.”).4

The question of when the failure to file income tax returns qualifies as an intentional dishonest act is inherently a factual one that will vary between cases. Nevertheless, a general framework can be stated.

First, if the failure to file income tax returns is found to be willful, then it is an intentional act. This Court has long accepted that the word “willfully” “requires only that the Government prove a voluntary, intentional violation of a known legal duty, and that the failure to file was not through accident or mistake or other innocent cause.” Walman, 280 Md. at 460, 374 A.2d at 359 (citations omitted); see also Tayback, 378 Md. at 589, 837 A.2d at 165 (“In attorney grievance matters based on the willful failure to file tax *327returns, this Court has consistently defined willfulness as the voluntary, intentional violation of a known legal duty not requiring a deceitful or fraudulent motive.” (citations and quotation marks omitted)).

Second, finding the crime of willful failure to file income tax returns to be a dishonest act will be the “most logically expected conclusion.” Atkinson, 357 Md. at 654, 745 A.2d at 1091. This Court has previously observed that “[t]he repeated failure to file tax returns ... is not a minor criminal offense, [it] is a dishonest act, and reflects adversely on a lawyer’s honesty, trustworthiness and fitness to practice law.” Id. at 655, 745 A.2d at 1091 (emphasis added).

When an attorney fails to file an income tax return, he fails “to do that which every citizen of this republic knows that he must do if his income is more than a mere pittance.” Walman, 280 Md. at 471, 374 A.2d at 365 (Smith, J., dissenting). By failing to fulfill this most basic of civic duties, “a lawyer appears to the public to be placing himself above [the] law” and “may seriously impair public confidence in the entire profession.” Id. at 465, 464, 374 A.2d at 361 (majority opinion).

In Barnes, the attorney failed to file tax returns for two years, and presented substantial mitigating evidence — medical evidence of serious health problems, as well as evidence that he and his family were the subject of serious harassment by the Ku Klux Clan motivated by his representation of African-Americans as well as wives of Clan members in divorce proceedings. Nevertheless, the Court assessed his failure to file as serious misconduct justifying disbarment:

As we have observed, Barnes’ failure to file was not discovered by reason of any voluntary disclosure on his part; indeed it must be inferred that by going to the I.R.S. in 1972 for an extension of time to file his 1971 return, without disclosing his earlier failures to file, that Barnes intended to conceal his crime, and thus avoid the ultimate payment of his 1969 and 1970 taxes. We think that Barnes’ misconduct, considered in the light of the total circum*328stances revealed by the record, involved moral turpitude since his intention was to cheat the government and his fellow citizens by avoiding payment of the substantial taxes justly due. That Barnes’ tax records may have been lost, as he claimed, hardly excuses him from his duty to file — a known legal duty conclusively shown by his conviction to have been voluntarily and intentionally violated. (Citation omitted).

Barnes, 286 Md. at 480, 408 A.2d at 723.

In short, an attorney’s willful failure to file income tax returns represents either (1) a lie that the attorney did not make sufficient income to be required to file a return, or (2) is a blatant disregard for the most basic requirement of all citizens of this country. In either case, the willful failure to file is marked by a lack of honesty, and the conduct constitutes a dishonest act.

Once it is determined that the willful failure to file is an intentional dishonest act, I submit that the appropriate sanction should be disbarment, absent compelling mitigating circumstances. Although there are cases imposing the lesser discipline of suspension, this Court has consistently recognized “the unparalleled importance of honesty in the practice of law: Unlike matters relating to competency, diligence and the like, intentional dishonest conduct is closely entwined with the most important matters of basic character to such a degree as to make intentional dishonest conduct by a lawyer almost beyond excuse.” Attorney Grievance Comm’n v. Angst, 369 Md. 404, 420, 800 A.2d 747, 757 (2002) (quoting Attorney Grievance Comm’n v. Lane, 367 Md. 633, 646, 790 A.2d 621, 628 (2002)). Because honesty is a bedrock standard for attorneys, this Court does not “attempt to distinguish between degrees of intentional dishonesty based upon convictions, testimonials or other factors.” Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 418, 773 A.2d 463, 488 (2001). Absent a showing of compelling extenuating circumstances justifying a lesser sanction, “[djisbarment ordinarily should be the sanction for intentional dishonest conduct.” Id.; see also Attorney Griev*329ance Comm’n v. Zdravkovich, 381 Md. 680, 704, 852 A.2d 82, 96 (2004).

Unfortunately, Virginia, in its proceedings against Respondent, developed no factual record for us to rely on. We have no information other than that Respondent intentionally failed to file income tax returns. The Majority has pronounced its willingness to act on a bare record, suspending him, without considering facts and circumstances mandated by our cases. In the absence of extenuating circumstances, in my view, Respondent’s admitted crime is an intentional dishonest act subject to the most severe sanction of disbarment. I would suspend Respondent effective immediately pursuant to Rule 16-773(d) and designate a judge of the Circuit Court of Anne Arundel County to hold a hearing on the current case. See Md. R. 16 — 773(f). At the hearing, facts should be developed that reflect on Respondent’s intent to cheat the government as well as any extenuating circumstances that would justify imposing a lesser sanction than disbarment.

Judges BATTAGLIA and BARBERA authorize me to state that they agree with the views set forth herein.

. Prior to Walman, the first case in which this Court disciplined an attorney for willfully failing to file income tax returns was Rheb v. Bar Ass'n of Baltimore City. In that case, the Court held that the attorney “deliberately failed to make returns or keep records[] for the purpose of cheating the Federal Government and the State of Maryland out of taxes justly due.” 186 Md. 200, 204, 46 A.2d 289, 291 (1946). The Court held that "[s]uch conduct might properly be characterized as fraud or deceit,” and furthermore, "that a crime of this character, even though not a felony, involves moral turpitude.” Id. The proper sanction was disbarment.

. Compare Md.Code of Prof. Responsibility DR 1-102(A)(3) (1986) (prohibiting a lawyer from engaging in "illegal conduct involving moral turpitude”), with Md. R. Of Prof. Conduct 8.4(b) (It is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”).

. Instead of using the phrase "cheat or defraud the government,” the Majority uses the term "deceitful or fraudulent motive” or "fraudulent intent.” See, e.g., Maj. Op. at 317-18, 55 A.3d at 914.

. There are also cases using an intentional dishonest act standard to disbar attorneys who commit multiple acts of misconduct, one of which includes a failure to file income tax returns. See Attorney Grievance Comm’n v. Gore, 380 Md. 455, 473-74, 845 A.2d 1204, 1214 (2004) (holding that the failure to file plus the issuing of bad checks to pay the back taxes was willful and created a “deceptive intent” on the part of the attorney, which warranted the sanction of disbarment); Attorney Grievance Comm’n v. Angst, 369 Md. 404, 419-21, 800 A.2d 747, 756-57 (2002) (holding that the failure to file income tax returns along with a lack of diligence in representing clients and being uncooperative with Bar Counsel amount to intentional, "dishonest[,] and evasive conduct” that justified the sanction of disbarment).