Disciplinary Counsel v. Large

[Cite as Disciplinary Counsel v. Large, 122 Ohio St.3d 35, 2009-Ohio-2022.]

DISCIPLINARY COUNSEL v. LARGE.

[Cite as Disciplinary Counsel v. Large, 122 Ohio St.3d 35, 2009-Ohio-2022.]

Attorneys at law — Misconduct — Failure to pay income taxes and report

employee wages — One-year suspension.

(No. 2009-0041 — Submitted February 18, 2009 — Decided May 6, 2009.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 08-038.

__________________

Per Curiam.

{¶ 1} Respondent, John Harold Large of Warren, Ohio, Attorney

Registration No. 0068732, was admitted to the practice of law in Ohio in 1997.

The Board of Commissioners on Grievances and Discipline recommends that we

suspend respondent’s license to practice for one year, conditionally staying the

last six months. The board based the recommendation on findings that respondent

failed to file returns for personal income taxes for the tax years 2000 through

2004 and also failed to report employee wages he paid during the same period.

We agree that respondent violated the Disciplinary Rules of the Code of

Professional Responsibility as found by the board; however, we conclude that a

one-year suspension, none stayed, is the appropriate sanction.

{¶ 2} Relator, Disciplinary Counsel, charged respondent with

professional misconduct, including violations of DR 1-102(A)(4) (prohibiting

conduct involving dishonesty, fraud, deceit, or misrepresentation) and 1-

102(A)(6) (prohibiting conduct that adversely reflects on the lawyer’s fitness to

practice law). Respondent answered the complaint, admitting most of the factual

allegations but not the charged misconduct. A panel of the board heard the case

in mid-November 2008, found violations of DR 1-102(A)(4) and (6), and

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recommended the one-year suspension and six-month stay. The board adopted

the panel’s findings of misconduct and recommendation.

{¶ 3} The parties have not objected to the board’s report.

Misconduct

Respondent Failed to File Personal Income Tax Returns for the

Tax Years 2000, 2001, 2002, 2003, and 2004

{¶ 4} After working for a small law firm for nearly two years,

respondent opened a solo practice in October 1999. For that tax year, respondent

had a certified public accountant prepare and file his federal income tax return.

For the next five years, however, respondent did not pay personal income taxes to

either the federal government or the state.

{¶ 5} When respondent initially consulted the accountant about filing his

taxes for 2000, the accountant estimated that he would owe in excess of $10,000.

The accountant still needed more information to complete the return, however,

and he obtained extensions for respondent to supply it in the months that

followed. Respondent did not provide the information and did not file a timely

return for 2000, claiming an inability to pay.

{¶ 6} Not until 2002 did respondent provide his accountant the

information necessary for the 2000 federal return. The accountant then prepared

the return, which declared a tax liability of $11,099, and had it ready for

respondent’s signature by June 18, 2002. By October 3, 2002, the accountant had

also completed a return for the tax year 2001, for which respondent owed

$24,096. Respondent did not file either return, still claiming insufficient funds.

{¶ 7} Also in 2002, respondent received approximately $72,000 as his

fee for settling a personal-injury claim for a client. However, at about the time he

received this fee, he purchased a used Jaguar automobile and a used Chris Craft

motor boat rather than paying the taxes he owed.

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{¶ 8} In succeeding years, respondent also failed to timely file his

personal income tax returns for 2002, 2003, and 2004, again claiming that he did

not have the money. Respondent testified that due to his embarrassment, he kept

the default a secret and did not seek professional advice. He also ignored IRS

delinquency notices and letters inquiring about his failure to file tax returns.

{¶ 9} In 2004, respondent and a partner formed a limited-liability

company and then a legal professional association. The partner, who decided to

leave the firm in 2006, suspected that respondent had tax delinquencies. At the

partner’s urging, respondent finally went back to his accountant in early 2006. As

of March 7, 2006, the accountant had completed respondent’s federal tax returns

for the tax years 2002, 2003, and 2004, respectively listing $44,862, $22,923, and

$5,221 in taxes due. Respondent provided those returns and his returns for 2000

and 2001 to the IRS in the spring of 2006, but by that time, he was already the

target of an investigation.

{¶ 10} On June 14, 2007, respondent pleaded guilty to four counts of

violating Section 7203, Title 26, U.S.Code (willfully failing to file personal

income tax returns), misdemeanor offenses, for the years 2001, 2002, 2003, and

2004. He was sentenced to four years of probation. Respondent served the first

six months of probation in a community confinement center and then served six

months of electronically monitored home confinement, continuing his legal

practice in accordance with the conditions for his confinement.

{¶ 11} In addition to his probation, respondent has been ordered to pay

$88,077 in restitution to the IRS. As of the panel hearing, he had paid less than

$1,500. He has since offered $7,500 in compromise of the debt.

{¶ 12} Adopting the panel’s report, the board found respondent in

violation of DR 1-102(A)(4) and (6) by reason of his four convictions. For his

failure to timely file Ohio personal income tax returns for the tax years 2000

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through 2004, the board found another violation of DR 1-102(A)(6). We also

accept these findings of misconduct.

Respondent Failed to Report Employee Wages During the

Tax Years 2000 through 2004

{¶ 13} Throughout his time as a solo practitioner, respondent paid wages

to various employees by check without withholding any amounts for their income

taxes and Social Security contributions. Respondent also did not report his

employees’ wages to the IRS. Respondent explained that he and his employees

had agreed that he would not take out withholding.

{¶ 14} When he filed his tax returns for 2000, 2001, 2002, 2003, and

2004, respondent did not claim business-expense deductions for the wages he had

paid to his employees. At the request of the IRS, respondent amended his federal

tax returns for the years 2000, 2001, 2002, 2003, and 2004. The claimed

business-expense deductions in the amended returns reduced his tax liability from

$108,201 to $76,739.

{¶ 15} Respondent also violated DR 1-102(A)(6) by failing to timely

report to the IRS the amount of wages paid to his employees for the tax years

2000 through 2004.

Sanction

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

relevant factors, including the duties the lawyer violated 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 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

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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).

{¶ 17} In mitigation, the board found that respondent has no prior

disciplinary record, has established that he is a person of good character and

reputation, has pleaded guilty to federal criminal charges, acknowledging the

wrongful nature of his misconduct and showing contrition, has served the

sanctions imposed by the federal court with the exception of making restitution,

has reported his conviction to Disciplinary Counsel, has fully cooperated in the

disciplinary proceedings, and has not lied to a client or to a court in committing

his misconduct. In aggravation, the board found that respondent engaged in a

pattern of misconduct over a period of approximately five years, made a

conscious decision not to file his taxes and not to withhold taxes from his

employees’ wages, was motivated by a selfish desire to delay collection of his

taxes, and notwithstanding his criminal sentence, failed to diligently attempt to

make restitution. The board noted that respondent has paid less than $1,500 of the

court-ordered restitution of $88,077 and now proposes to settle with the IRS for

$7,500. Further, the board found that when respondent received the $72,000 fee

from settling the personal-injury claim, he bypassed an opportunity to rectify his

misconduct. We accept the board’s findings regarding mitigating and aggravating

factors.

{¶ 18} “[T]he responsibility for properly filing one’s tax returns is a

responsibility that should never be taken lightly by any citizen, especially one

who is licensed as an officer of the court.” Toledo Bar Assn. v. Stichter (1985),

17 Ohio St.3d 248, 249, 17 OBR 484, 478 N.E.2d 1322. For that reason, we

consider the failure to file income tax returns a serious offense and one that

typically warrants a one-year suspension from practice. See, e.g., Bar Assn. of

Greater Cleveland v. Litt (1983), 5 Ohio St.3d 98, 5 OBR 178, 449 N.E.2d 429;

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Ohio State Bar Assn. v. Loha (1983), 4 Ohio St.3d 190, 4 OBR 467, 447 N.E.2d

1306.

{¶ 19} Here, respondent has demonstrated a pattern of misconduct

motivated by his selfish desire to delay the payment of his tax obligation, and

notwithstanding the requirements of his criminal sentence and the commencement

of attorney-discipline proceedings, as of the hearing date, he has failed to

diligently attempt to make restitution. Despite the assistance of an accountant,

respondent consciously chose not to file his taxes, even after receiving

delinquency notices from the IRS. Although he has suggested that he failed to

pay his taxes because he lacked sufficient funds, at about the time he received his

$72,000 fee, respondent purchased a used Jaguar and a used boat. Further, the

misconduct in this case spanned almost five years, and his failure to report the

wages of his employees has affected them and caused them harm, further

aggravating the conduct at issue. We therefore conclude that respondent’s

misconduct warrants a suspension from the practice of law for a period of one

year, none stayed.

{¶ 20} We are not unmindful of our recent decision in Toledo Bar Assn. v.

Abood, 104 Ohio St.3d 655, 2004-Ohio-7015, 821 N.E.2d 560, in which we

imposed a one-year suspension, staying six months on conditions. Abood pleaded

guilty to two misdemeanor counts of failure to pay income taxes and received a

sentence of two consecutive terms of eight months. Id. at ¶ 5. Unlike respondent,

who received four years of probation, six months of which he served at a

community confinement center, with another six months on electrically monitored

home confinement, and who continued his law practice during his periods of

confinement, Abood was incarcerated from October 2002 to November 2003. Id.

Also, there is no indication that Abood’s misconduct affected any third parties,

while respondent’s failure to report the wages of his employees has affected them.

Finally, following his incarceration and the commencement of disciplinary

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proceedings, but before we issued our decision in his case, Abood paid more than

$118,000 in taxes, penalties, and interest for prior tax years. Respondent, on the

other hand, has paid less than $1,500.

{¶ 21} Accordingly, respondent is hereby suspended from the practice of

law in Ohio for a period of one year. Costs are taxed to respondent.

Judgment accordingly.

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

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

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger,

Assistant Disciplinary Counsel, for relator.

Charles L. Richards, for respondent.

______________________

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