[No. C. D. 2783. En Banc. Supreme Court January 31, 1963.]
In the Matter of the Disciplinary Proceeding Against
RICHARD R. GREINER, an Attorney at Law.«*»
[1] ATTORNEY AND CLIENT - OFFICE OF ATTORNEY - SUSPENSION AND DISBARMENT - AUTHORITY AND APPLICATION. The Supreme Court is authorized by the Rules for Discipline of Attorneys to censure, reprimand, suspend, or disbar an attorney for violation of the rules of professional conduct; however, the discipline to be imposed in a specific case rests within the sound discretion of the court, and is determined by the facts and circumstances of such case.
[2] SAME - DISHONEST CONDUCT - MITIGATING CIRCUMSTANCES - EFFECT. An attorney's conduct in intentionally failing to file income tax returns for a period of 3 years involved dishonesty and disregard for the law, notwithstanding that the failure to file was the result of inability to pay the tax and fear of the penalties involved rather than an intent to defraud the government; and although the facts that the attorney is respected in his community, and that he has co-operated with federal authorities and the bar association in regard to making restitution, are circumstances to be considered in determining the discipline to be imposed, they do not remove the stigma upon the legal profession resulting from his conduct.
[3] SAME - SUSPENSION - PURPOSE. Where a practicing attorney has been convicted and sentenced for wilfully failing to file federal income tax returns, a suspension of the attorney's privilege to practice law is not imposed primarily to punish the attorney, but to curb disrespect for the profession, to maintain its honor and dignity, and to assure those who seek the services of an attorney that conduct of dishonesty and lawlessness will not be tolerated.
[4] SAME - GROUNDS. Where the record in a disciplinary proceeding disclosed that an attorney had intentionally failed to file federal income tax returns for a period of 8 years, held that, in view of the facts and circumstances of the case, and in order to maintain the honor and respect of the profession, the attorney should be suspended from the practice of law in this state for a period of 90 days.
ROSELLINI, HAMILTON, and HUNTER, JJ., dissent.
Proceedings filed in the Supreme Court August 23, 1962, for the discipline of an attorney. Judgment of suspension.
T. M. Royce, for Board of Governors.
* Reported in 378 P. (2d) 456.
[1] See Am. Jur. (2d), Attorneys at Law § 18.
Jan. 1963] IN RE GREINER. 307
OTT, C. J. -
HILL, DONWORTH, FINLEY, and WEAVER, JJ., concur.
ROSELLINI, J. (dissenting) - This case involves the question: What discipline should be imposed for an attorney
314 IN RE GREINER. [61 Wn. (2d)
who has been convicted of failure to file income tax returns?
Whenever a court is called upon to take disciplinary action, there are divergent opinions as to what that action should be.
In 10 states where courts have considered the question of discipline for attorneys who failed to file federal income tax returns, the results vary from censure to disbarment.
It has been held that where an attorney fails to file a return and is convicted of this offense, moral turpitude is involved; that moral turpitude is not involved; and that it makes no difference whether it is involved or not.
This case reveals a similar diversity of opinion. The administrative committee is composed of three members; two members concluded that moral turpitude was not in fact an element of the crime, while one member was of the opinion that it was.
The Board of Governors is composed of seven members. The majority concluded that "moral turpitude was not in fact an element of the above stated crime committed by said Richard R. Greiner."
The majority of the board recommended to the Supreme Court that Mr. Greiner be suspended from the practice of law for a period of 30 days; two members of the board recommend that the proceeding should be dismissed.
The majority of this court has arrived at a different conclusion, and decrees that Mr. Greiner shall be suspended for a period of 90 days.
A portion of the dissenting opinion of two members of the Board of Governors is illuminating:
"The majority of the Board of Governors felt that they were bound by the decision of the Supreme Court in the matter of the disciplinary proceeding against Edson M. Case, an attorney at law, 159 Wash. Dec. 193, which involved a similar situation and in which the suspension of Mr. Case for a period of six months was approved by the Supreme Court. The undersigned disagree with this conclusion and do not believe that it was the intention of the Supreme Court to hold that an attorney must be suspended from
Jan. 1963] IN RE GREINER. 315
the practice of law in the event he fails to file an income tax return and is subsequently found guilty thereof by a court of competent jurisdiction. Were this to be the rule, the undersigned believe that it should be clearly so stated and that the Rules of Discipline should be changed so that the formality of the trial would be obviated. It seems apparent that if the Case decision is to be so interpreted, automatic suspension follows and a trial serves no useful purpose.
"The undersigned believe that the decision in the Edson Case matter turns, to a large extent, upon the conclusion cited therein (which is amply supported by the record) that `Respondent's explanation of his failure to file income tax returns is incredible . . ."
"Under the Rules of Discipline (Rule 1), discipline is appropriate where an attorney commits an act `involving moral turpitude, dishonesty or corruption . . .' In the decision in the Edson Case matter, the Supreme Court by italicizing the word `dishonesty' clearly indicates that `Respondent's explanation of his failure to file income tax returns is incredible' is a factor in the final determination. In other words, where an attorney commits a criminal offense which does not involve moral turpitude but, thereafter, gives an incredible explanation of his commission of the crime there is necessarily dishonesty involved and under the rule the attorney should be disciplined. There are, of course, other cases where the same factual situation should result in disciplinary action as where the attorney's explanation is at least not wholly honest and he has previously been disciplined for unethical conduct.
"The undersigned believe that each case must properly stand on its own feet and that the Greiner case is distinguishable from the Edson Case matter.
"The hearing panel (whose Findings are approved unanimously by the Board of Governors) noted that there was no evidence or inference from the evidence that Mr. Greiner intended to defraud the government or ever formed an intent, in the malevolent sense, to defraud the United States. The record is replete with evidence that Mr. Greiner is a person of excellent character and that his continued practice of the law will not be detrimental to the public or the reputation of the Bar.
"The purpose of a disciplinary proceeding is not to punish an offender for the commission of a criminal offense since that is properly left to the appropriate authorities. The punitive effect of discipline is a necessary consequence but
316 IN RE GREINER. [61 Wn. (2d)
is not the purpose. The undersigned believe that since there was no moral turpitude involved, no dishonesty and no corruption, the above entitled proceeding should be dismissed and further believes that if the pure unadorned fact that an attorney has been convicted of failing to file an income tax return requires suspension the Rules of Discipline should be changed so to provide and to avoid the extensive waste of time and energy involved in a trial in a disciplinary proceeding."
The failure to file an income tax return is a misdemeanor. U.S.C., title 26, § 7203. The record shows that Mr. Greiner believed that his tax liability, with interest and penalties, would be approximately $11,000. He has offered to sell his home and pay the tax. His home would realize $15,000 to $16,000. He owes approximately $6,000 on it.
The findings of fact disclose that Richard Greiner is 44 years old, is married, and has four minor children. He appears to be well-regarded in Yakima County, both as a man and as a lawyer, as evidenced by 15 letters received in evidence as exhibit No. 5. He was frank and open with the hearing panel, and has an excellent attitude about the past and future and his duty to the public.
Upon his return to Yakima after having paid the fine and served the sentence, he did not immediately resume the practice of law, but called the Bar Association office in Seattle to ascertain what he might expect in the way of any disciplinary procedures or action. He was advised that there was nothing "over there" and that nothing would be done unless some complaint was made on the local level, meaning the local bar at Yakima or the board member from the Fourth Congressional District. Local inquiries along this lane were made on his behalf, and only after receiving information which indicated that no local action would be taken did he lease a new office and begin his practice anew. He did not seek to evade disciplinary proceedings, but voluntarily approached the Washington State Bar Association with reference thereto prior to the institution of any proceedings against him. He thus voluntarily abstained from practice from the end of May to July 15, 1961.
Jan. 1963] IN RE GREINER. 317
Under these circumstances, the cogency of the recommendation of the dissenting members of the Board of Governors becomes apparent. Each case should be decided upon its own merits. In In re Molthan, 52 Wn. (2d) 560, 327 P. (2d) 427, where the respondent was convicted of violating the same federal statute, this court reprimanded the attorney, stating:
"Respondent has represented himself well and ably before this court. His attitude was that of a man who realizes the seriousness of his offense. He admits the foolishness of his conduct. In no manner do we condone it. We censure and reprimand him for it . . ."
In In re Mahon, 15 App. Div. (2d) 232, 223 N. Y. S. (2d) 338, because of a delay in the disciplinary proceedings, the court censured the lawyer, who was convicted of failing to file an income tax return.
There is a more compelling reason why the relator should not be suspended. The purposes of all disciplinary actions are to protect the public and to deter lawyers from engaging in unprofessional conduct. Of the two, protection of the public is of the highest consideration. When the Bar Association informed the respondent that there would be no disciplinary action taken against him, it in fact permitted him to engage in the practice of law and made it possible for him to represent to the public that his legal services would be obtainable in the future.
His clients now must seek a new lawyer to represent them. All of the litigants who are involved with the respondent's clients will be affected, and in many cases delayed in settling their legal problems with respondent's clients.
In a situation such as this, respondent's clients may well suffer pecuniary losses because of the fact that they must hire a new attorney.
The innocent client caught in such a web certainly will lose confidence in a legal profession that permits such a situation to develop. The image of the legal profession thus becomes unnecessarily tarnished. To permit an attorney
318 IN RE GREINER. [61 Wn. (2d)
to become re-established and to hold out to the public that he may represent clients, and then to suspend him, imposes upon his clients such a detriment as to bring disrespect upon the profession.
There appears to be no relation between the act of discipline and the evil which is attempted to be prevented. It seems to be a blind desire to obtain a pound of flesh for a wrong committed. It gives credence to the line found in Oliver Twist: "If the law supposes that," said Mr. Bumble ". . . the law is a ass - a idiot."
If the rule is to be that adopted by the majority, that the conviction of an attorney for a failure to file an income tax return results in automatic suspension, then it behooves the state bar and this court to adopt a further rule that upon the lawyer's release from prison, he will be immediately suspended and will not be permitted to re-engage in the practice of law until his suspension has been served. This would protect innocent members of the public from the inconvenience, delay, and expense occasioned when the attorney they have hired has his right to practice law suspended. Such a rule would prevent the present girlish psychasthenia in approaching disciplinary matters.
The rule which I propose would aid in obtaining for the profession the respect, honor, and dignity which it deserves, and at the same time protect the welfare of the public who must deal with members of the bar.
To suspend the respondent after a year and a half of practice and after he has established himself, does not protect the public nor uphold the honor and dignity of the profession. The image of the legal profession is better served if equality of justice becomes its standard. Thus, I would follow the case of In re Molthan, supra, and reprimand the respondent.
HAMILTON, J. (dissenting) - Under the circumstances revealed in this record, I would adopt the majority recommendation of the Board of Governors.
HUNTER, J., concurs with HAMILTON, J.