Cuyahoga County Bar Ass'n v. Veneziano

[Cite as Cuyahoga Cty. Bar Assn. v. Veneziano, 120 Ohio St.3d 451, 2008-Ohio-6789.]

CUYAHOGA COUNTY BAR ASSOCIATION v. VENEZIANO.

[Cite as Cuyahoga Cty. Bar Assn. v. Veneziano,

120 Ohio St.3d 451, 2008-Ohio-6789.]

Attorneys at law — Misconduct — Conduct adversely reflecting on fitness to

practice law — Failure to withhold payroll taxes and to pay personal

income taxes — One-year stayed suspension.

(No. 2008-0824 — Submitted August 26, 2008 — Decided December 30, 2008.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 07-003.

__________________

Per Curiam.

{¶ 1} Respondent, Anne D. Veneziano of Beachwood, Ohio, Attorney

Registration No. 0064382, was admitted to the practice of law in Ohio in 1995.

The Board of Commissioners on Grievances and Discipline recommends that we

suspend her license to practice for one year, staying the suspension on remedial

conditions, based on findings that she (1) failed for years to pay federal and state

withholding taxes for employees of her law office and (2) has been subject to

numerous tax liens for failing to timely file returns and pay her own federal and

state income taxes. We agree that respondent violated the Code of Professional

Responsibility as found by the board and that a one-year suspension, stayed on

conditions including the recommended two-year monitored probation of her

practice, is appropriate.

{¶ 2} In charging respondent with professional misconduct, relator,

Cuyahoga County Bar Association, filed a complaint with counts numbered 1, 2,

3, 5, 6, 7, and 8, inadvertently failing to designate a fourth count. A panel of the

board heard the case, and in preliminary proceedings, the panel chairwoman

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granted relator’s motion to dismiss Counts 2, 6, and 8 with prejudice and Count 3

without prejudice. The panel then found violations of DR 1-102(A)(6)

(prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law)

relative to Counts 1 and 7 and a violation of DR 9-102(A) (requiring a lawyer to

maintain client funds, other than advances for costs and expenses, in a separate

identifiable bank account) relative to Count 5 and recommended the one-year

stayed suspension. The board adopted the panel’s findings as to Counts 1 and 7,

dismissed as unfounded the commingling charge in Count 5, and also adopted the

recommended sanction.

{¶ 3} Respondent objects to the board’s report, arguing that her

misconduct was not deliberate and warrants no more than a public reprimand.

She insists that the failure to comply with tax-withholding and income-reporting

requirements resulted from excusable ignorance and that the panel erred in

rejecting the parties’ stipulation and her testimony to that effect. We reject

respondent’s explanation and overrule the objection.

Misconduct

Count 1

{¶ 4} Since her 1995 bar admission, respondent has practiced primarily

on her own. Respondent stipulated that she did not report income or pay required

withholding taxes for employees of her law office for the tax years 1995 through

2001. In explanation, she testified that she had had no knowledge prior to 2002,

when she consulted a tax attorney, of an employer’s obligation to withhold

employee compensation for income tax purposes and had left the financial affairs

of the law office to her husband of many years, a certified public accountant.

{¶ 5} In addition to her law degree, respondent has a bachelor’s degree

in psychology and a master’s degree in social work. She was briefly enrolled in a

master’s degree program in tax law, she spent four years in medical school, and

she is currently pursuing a doctorate in clinical psychology. Given respondent’s

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advanced education and experience, her professed obliviousness to laws requiring

employer withholding carries little weight. Lawyers, just like other employers,

must realize their duty to pay withholding for their employees and may not avoid

this responsibility by claiming “lack of business acumen.” Geauga Cty. Bar Assn.

v. Bruner, 98 Ohio St.3d 312, 2003-Ohio-736, 784 N.E.2d 687, ¶ 6.

{¶ 6} In her objections, respondent urges us to rely on the parties’

stipulation that she did not deliberately fail to pay withholding. But as relator

observes, we are the final arbiters in disciplinary cases, Ohio State Bar Assn. v.

Reid (1999), 85 Ohio St.3d 327, 330, 708 N.E.2d 193, and are not bound by the

parties’ stipulation to facts or misconduct, Trumbull Cty. Bar Assn. v Donlin

(1996), 76 Ohio St.3d 152, 155, 666 N.E.2d 1137. The objection is overruled.

{¶ 7} Respondent’s failure to withhold federal payroll taxes from her

employees’ earnings for seven years violated DR 1-102(A)(6). Accord Bruner,

98 Ohio St.3d 312, 2003-Ohio-736, 784 N.E.2d 687.

Count 7

{¶ 8} Respondent stipulated that 17 tax liens have been filed against her

as a result of her failure to timely file federal and state income tax returns and pay

taxes owed for the years 2001 through 2005. She thereby violated DR 1-

102(A)(6). Accord Cleveland Bar Assn. v. Smith, 102 Ohio St.3d 10, 2004-Ohio-

1582, 806 N.E.2d 495.

Sanction

{¶ 9} When imposing sanctions for attorney misconduct, we consider

relevant factors, including the duties the lawyer violated, the lawyer’s mental

state, and sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli,

96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final

determination, we also weigh evidence of the aggravating and mitigating factors

listed in Section 10 of the Rules and Regulations Governing Procedure on

Complaints and Hearings Before the Board of Commissioners on Grievances and

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Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary

case is unique, we are not limited to the factors specified in the rule but may take

into account “all relevant factors” in determining what sanction to impose.

BCGD Proc.Reg. 10(B).

{¶ 10} Respondent violated duties to the public and the legal profession

by failing to pay withholding taxes for her employees and her income taxes. We

typically suspend lawyers from practice for the willful failures to pay taxes.

Disciplinary Counsel v. Baker (1992), 65 Ohio St.3d 302, 603 N.E.2d 990; and

Disciplinary Counsel v. Bowen (1988), 38 Ohio St.3d 323, 528 N.E.2d 172

(attorneys’ convictions of willful failure to file federal income tax returns

warranted a one-year actual suspension from the practice of law for each).

Though the parties agree that respondent’s deficiencies were not willful, her

claimed complete ignorance of fundamental withholding and income tax

obligations does not, as she seems to assert, have the mitigating effect of a

causally related mental disability or chemical dependence on her misconduct. Cf.

BCGD Proc.Reg. 10(B)(2)(g) and Cuyahoga Cty. Bar Assn. v. Lazzaro, 98 Ohio

St.3d 509, 2003-Ohio-2150, 787 N.E.2d 1182 (lawyer with cocaine addiction who

had failed to file income tax returns for five years and also missed a court date

after accepting cocaine in lieu of legal fee received a one-year conditionally

stayed suspension).

{¶ 11} Respondent voluntarily reported to tax authorities and has since

been negotiating to establish a payment schedule to satisfy her federal and state

income tax delinquency, efforts that we have previously found mitigating. See

Smith, 102 Ohio St.3d 10, 2004-Ohio-1582, 806 N.E.2d 495, ¶ 6 (lawyer had

already filed the tardy tax returns by the time disciplinary proceedings were

initiated against her); and Lazzaro, 98 Ohio St.3d 509, 2003-Ohio-2150, 787

N.E.2d 1182, ¶ 6 (lawyer had filed the tax returns by the time disciplinary

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proceedings reached this court). Respondent also has no prior disciplinary record.

See BCGD Proc.Reg. 10(B)(2)(a). Finally, respondent has established her overall

good character and reputation apart from the underlying incidents. See BCGD

Proc.Reg. 10(B)(2)(e). Witnesses repeatedly testified to her integrity and

compassion in representing clients, including her respect for them and the legal

system.

{¶ 12} The primary purpose of the disciplinary process is to protect the

public from lawyers who are unworthy of the trust and confidence essential to the

attorney-client relationship and to allow us to ascertain the lawyer’s fitness to

practice law. Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-

6510, 858 N.E.2d 368, ¶ 10, citing Disciplinary Counsel v. O'Neill, 103 Ohio

St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53, and Ohio State Bar Assn. v.

Weaver (1975), 41 Ohio St.2d 97, 100, 70 O.O.2d 175, 322 N.E.2d 665. In this

case, that goal is served by a one-year suspension stayed on the condition that

respondent complete two years of monitored probation in accordance with

Gov.Bar R. V(9).

{¶ 13} We therefore suspend respondent from the practice of law in Ohio

for one year. The suspension is stayed on the conditions that respondent

successfully complete a two-year term of probation, during which she must

complete at least 12 hours of continuing legal education relating to law-office

management, allow a monitoring attorney appointed by relator to oversee the

office management of her practice, and engage in no further professional

misconduct. If respondent fails to comply with the terms of the stay and

probation, the stay will be lifted and respondent will serve the entire one-year

suspension.

{¶ 14} Costs are taxed to respondent.

Judgment accordingly.

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MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

O’DONNELL, LANZINGER, and CUPP, JJ., concur.

__________________

Ellen S. Mandell, Bar Counsel, Andrew A. Zashin, and Leif B. Christman,

for relator.

Kegler, Brown, Hill & Ritter and Geoffrey Stern; Barry Y. Freeman; and

Anne D. Veneziano, pro se, for respondent.

______________________

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