In re Anonymous No. 49 D.B. 77

McDONNELL, Member, Pursuant to Rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement (rules), The Disciplinary Board of the Supreme Court of Pennsylvania (board), herewith submits its findings and recommendation to your honorable court with respect to the above petition for discipline. [541] I. HISTORY OF PROCEEDINGS On October 25, 1977, the Supreme Court entered an order referring this matter to the Disciplinary Board as a result of respondent’s conviction on two counts of violating the Internal Revenue Code in that he filed a false income tax statement and willfully evaded the payment of income taxes for the year 1970. On February 3, 1978, the office of disciplinary counsel filed a petition for discipline in two counts charging respondent with having violated the Code of Professional Responsibility. Charge I was his conviction of two counts of violating two sections of the Internal Revenue Code. Charge II alleged that respondent falsely testified under oath to agents of the Internal Revenue Service during a question and answer session concerning his 1970 income tax filing. Petitioner charged that respondent violated D.R. 1-102(A)(3) which prohibits illegal conduct involving moral turpitude; D.R. 1-102(A)(4) which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation; D.R. 1-102(A)(6) which prohibits conduct that adversely reflects on fitness to practice law. Respondent did not file any formal answer to the petition but did file an informal letter dated May 7, 1978. The Disciplinary Board assigned the case to the hearing committee who held hearings on April 5, 1978 and May 2, 1978. As a result of these hearings the hearing committee concluded that respondent had violated the aforementioned rules of the Code of Professional Responsibility both as to Charge I and Charge II. The committee’s recommendation was that respondent be suspended from the practice of law for one year. Thereafter, respondent filed exceptions to [542] the hearing committee’s report and requested oral argument. No exceptions were filed by petitioner. Oral argument was set for March 9, 1979 and prior to argument, respondent withdrew his exceptions. The panel, assigned to hear the oral argument, decided to allow petitioner to set forth its position and respondent also put forward his position. II. DISCUSSION Respondent is 44 years of age, married and the father of three children. He was admitted to practice before the Supreme Court in 1961 and has practiced as a trial lawyer since that time. He has never been charged with any other violation of the Code of Professional Responsibility nor has he ever been convicted of any crime before. As a result of his conviction on two counts of violating the Internal Revenue Code he was put on probation for a total of three years and fined $7,000. There is no question that respondent was convicted on two counts of violating the Internal Revenue Code, however, respondent seriously questioned whether Charge II was properly brought in this proceeding. That charge pertained to a question and answer session that respondent participated in under oath with the Internal Revenue Service during the investigation of his 1970 income tax obligations. The committee found that this was properly brought by the office of disciplinary counsel and that it was a proper matter for the committee to consider. The committee found that during the course of that question and answer session respondent was not truthful concerning the source of the moneys which he used to obtain a certificate of deposit for the sum of $35,000. The committee concluded that he had testified falsely in the answer to [543] the question concerning the certificate of deposit. Having found that Charge I and Charge II were substantiated by the evidence, the committee concluded that respondent should be suspended from the practice of law for twelve months. The committee further pointed out that respondent had not practiced law since about September of 1977 and that he had undergone emotional strain and was seeing a psychiatrist. The committee also found as a result of respondent’s testimony that he was contrite for the wrong that he had done. It is apparent from the entire report of the hearing committee that the result recommended was arrived at after conscientious evaluation of all of the evidence. The committee’s recommendation appears to the board to be appropriate under all the circumstances. III. RECOMMENDATION The board recommends that respondent, [ ], be suspended from the practice of law for a period of one year. Messrs. Henry and Reath dissent and would recommend a two year suspension. Mr. Harrington did not participate in the adjudication.