Committee on Legal Ethics of the West Virginia State Bar v. Boettner , 183 W. Va. 136 ( 1990 )

MILLER, Justice:

In this disciplinary proceeding, the Committee on Legal Ethics of the West Virginia State Bar (Committee) asks us to annul the license to practice law of John L. Boettner, Jr. Mr. Boettner pled guilty in the United States District Court for the Southern District of West Virginia to violating 26 U.S.C. § 7201, which makes it a felony willfully to evade the payment of federal taxes.¹ The Committee maintains that this is a violation of Rule 8.4 of the Rules of Professional Conduct for lawyers.²

The respondent attorney first asserts that the facts surrounding his violation of 26 U.S.C. § 7201 do not warrant an annulment. He also requests that we remand the case to the Committee to enable him to have an evidentiary hearing to develop mitigating facts. In lieu of having his license annulled, the respondent asks that consideration be given to allowing him to serve without remuneration in a legal services corporation.

The director of the West Virginia Legal Services Plan, Inc. (Legal Services), joins in this request and asserts that there is a substantial need for the respondent’s services. Attached to the brief of Legal Services is a letter from the United States Probation Office for the Southern District of West Virginia. This letter indicates that the probation office will accept the respondent’s work for Legal Services as approved community service work which is required by his federal sentence.

This disciplinary proceeding was conducted pursuant to Article VI, Section 25 of the Constitution, By-Laws, and Rules and Regulations of the West Virginia State Bar (Bar By-Laws), which states that “a certified copy of the order or judgment of conviction shall be conclusive evidence of guilt of the crime or crimes of which the attorney has been convicted.”³ Under this section, the certified order is filed with this Court, thus bypassing the usual hearing before a panel required by Article VI, Section 14 of the Bar By-Laws.⁴

In addition to the certified order, we have the criminal information to which the guilty plea was made and the plea agreement. There is also a transcript of the guilty plea hearing before the federal judge and the attorney’s trial testimony in an unrelated case.⁵ Prom these documents, the following facts can be established.

The respondent was a member of the West Virginia Senate and was its majority leader during the time involved. He obtained, through the help of a lobbyist, a bank loan. During the year 1985, the lobbyist and another person made several interest payments on Mr. Boettner’s loan directly to the bank. Under the Internal Revenue Code, such payments constitute constructive income,⁶ which the respondent failed to report on his federal income tax return. These payments would have increased the respondent’s taxable income of $25,046 by approximately $4,000. In turn, this would have increased his income tax liability from $8,456 to $10,033.

Upon his plea of guilty to the income tax evasion charge, the respondent was required to resign from the Senate. He was sentenced to four years of supervised probation and was required to perform 1,600 hours of community service work. He agreed to work with representatives of the Internal Revenue Service to determine his correct tax liability for calendar years 1985 to the present. The plea agreement also indicates that two other charges, which had been investigated by the United States Attorney, would not be pursued.⁷

While the Committee initially based its disciplinary proceeding on Rule 8.4, it also refers us to Article VI, Section 23 of the Bar By-Laws, which relates to the disbarment of an attorney “upon proof that he has been convicted — (a) of any crime involving moral turpitude[.]”⁸ The Committee relies on several earlier cases where we held that the willful failure to pay income taxes under 26 U.S.C. § 7201 is a crime of moral turpitude. E.g., In re Trent, 154 W.Va. 333, 175 S.E.2d 461 (1970); In re West, 155 W.Va. 648, 186 S.E.2d 776 (1972); In the Matter of Mann, 151 W.Va. 644, 154 S.E.2d 860 (1967). The applicable law is summarized in Syllabus Point 2 of In the Matter of Mann, supra:

“Section 23, Part E., Article VI of the By-Laws of the West Virginia State Bar imposes upon any court before which an attorney has been qualified a mandatory duty to annul the license of such attorney to practice law upon proof that he has been convicted of any crime involving moral turpitude.”

While Syllabus Point 2 of Mann authorizes “any court before which an attorney has been qualified” to annul the license, this was based on an older version of Article VI, Sections 23 and 24 of the Bar ByLaws. The present Article VI, Section 25 of the Bar By-Laws explicitly requires that a certified copy of the order of conviction be filed with this Court.⁹ As we have already pointed out, once this procedure is invoked, the customary evidentiary hearing under Article VI, Section 14 is bypassed.

Rule 8.4, under which the Committee has proceeded and which became effective on January 1, 1989, concentrates on “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Our prior professional code provided that “a lawyer shall not ... engage in illegal conduct involving moral turpitude.” Model Code of Professional Responsibility, DR 1-102(A)(3). The American Bar Association, which developed and approved the present rules, has prepared a book, entitled Annotated Model Rules of Professional Conduct,” which describes the difference between these rules:

“The Model Rules also eliminate the troublesome ‘moral turpitude’ standard of DR 1-102(A)(3) of the Model Code. This standard has been broadly defined as ‘an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.’ ” Annotated Model Rules of Professional Conduct, Rule 8.4 comment at 353 (1984). (Citation omitted).¹⁰

In Committee on Legal Ethics v. Six, 181 W.Va. 52, 54, 380 S.E.2d 219, 221 (1989), we observed that “ ‘moral turpitude’ is an elusive concept incapable of precise definition^]” See also Committee on Legal Ethics v. Scherr, 149 W.Va. 721, 726, 143 S.E.2d 141, 145 (1965) (“ ‘[M]oral turpitude’ ... has never been clearly defined because of the nature of the term.”). In Six, we found the crime of embezzlement was an offense involving moral turpitude.

We find merit in Rule 8.4’s abandonment of the term “moral turpitude” and the rule’s focus on the criminal act as it re-fleets on the attorney’s fitness to practice law. Moreover, we believe that there is a certain rigidity to the approach taken in our tax evasion cases. By categorizing all tax evasion convictions as involving “moral turpitude,” annulment of the license becomes automatic under Article VI, Section 23 of the Bar By-Laws.

We acknowledged in Syllabus Point 2 of Committee on Legal Ethics v. Six, supra, that proof of final conviction satisfies the Committee’s burden of proof:

“Where there has been a final criminal conviction, proof on the record of such conviction satisfies the Committee on Legal Ethics’ burden of proving an ethical violation arising from such conviction.”

From a procedural due process standpoint, we believe that the respondent should be able to make an evidentiary record to show mitigating factors bearing on the disciplinary sentence.

There is general agreement that a license to practice law is a valuable right, such that its withdrawal must be accompanied by appropriate due process procedures. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); In re Thies, 213 U.S.App.D.C. 256, 662 F.2d 771 (D.C.Cir.1980); In re Jones, 506 F.2d 527 (8th Cir.1974); The Florida Bar v. Cruz, 490 So.2d 48 (Fla.1986); The Florida Bar v. Fussell, 179 So.2d 852 (Fla.1965); In re Jones, 696 P.2d 1215 (Utah 1985). Several courts have determined that where annulment of an attorney’s license is sought based on a felony conviction under a provision similar to Article VI, Section 23 of the Bar By-Laws, due process requires the right to request an evidentiary hearing. The purpose of such a hearing is not to attack the conviction collaterally, but to introduce mitigating factors which may bear on the disciplinary punishment to be imposed. In re Thies, supra; In re Jones, 506 F.2d at 529; The Florida Bar v. Cruz, supra; The Florida Bar v. Fussell, supra; In re Jones, 696 P.2d at 1216. Contra Mitchell v. Association of Bar of City of New York, 40 N.Y.2d 153, 386 N.Y.S.2d 95, 351 N.E.2d 743 (1976).

This due process issue was not discussed in our earlier cases involving automatic disbarment under Article IV, Section 23 of the Bar By-Laws.¹¹ We recognized in In re Brown, 164 W.Va. 234, 262 S.E.2d 444 (1980), the necessity of a developed factual record in order to determine whether a disbarred attorney should be readmitted to the practice of law. Even though the Bar By-Laws did not provide for such a hearing, we held under our supervisory powers that the Committee should provide such a hearing.¹²

We believe that an evidentiary mitigation hearing should be permitted where the annulment of a license is sought under Article VI, Section 23 of the Bar By-Laws. The right to such an evidentiary hearing is not automatic. In order to obtain such a hearing, the attorney must make a request therefor, as the respondent did here, after the Committee files its petition with this Court under Article VI, Section 25 of the Bar By-Laws.¹³

The hearing should be expeditiously held before the Committee, as we ordered in In re Brown. The Committee, after hearing the evidence of the respondent, who carries the burden of proving mitigation, and such countervailing evidence as the counsel for the Bar may offer, will make a disciplinary recommendation. This Court will then review the recommendation in light of the record made.

To the extent that In the Matter of Mann, supra, and like cases fail to provide for a mitigation hearing, they are overruled. Finally, pending the outcome of the mitigation hearing, we retain the right to suspend temporarily the license of an attorney who has been convicted of a felony. In the case of In re Berzito, 156 W.Va. 201, 192 S.E.2d 227 (1972), we recognized that under Article VI, Section 24, a temporary suspension could be ordered after conviction of a felony during the pend-ency of the appeal.¹⁴ We do not believe that such a temporary suspension pending a prompt mitigation hearing violates due process.¹⁵ See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); North v. West Virginia Bd. of Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977). We decline to order a temporary suspension in this case.

In creating this additional procedure, we make no intimation as to the appropriateness of the present disciplinary recommendation. Nor do we wish to be thought to endorse any of the alternatives being offered by the respondent. We do believe that a further hearing with a developed record will be beneficial in determining the appropriate disciplinary punishment.

Accordingly, we remand this case to the Committee on Legal Ethics of the West Virginia State Bar for a hearing in accordance with the principles enunciated in this opinion.

Remanded.

1 . 26 U.S.C. § 7201 provides:

"Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.”

2 . Rule 8.4 of the Rules of Professional Conduct states, in pertinent part:

“It is professional misconduct for a lawyer to:

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"(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

"(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

"(d) engage in conduct that is prejudicial to the administration of justice[.]”

3 .The relevant text of Article VI, Section 25 of the Bar By-Laws reads:

"[A] certified copy of the order or judgment of conviction shall be conclusive evidence of guilt of the crime or crimes of which the attorney has been convicted. A plea or verdict of guilty or a conviction after a plea of nolo contendere shall be deemed to be a conviction within the meaning of this section. The committee on legal ethics, the president, or the board may procure and transmit a certified copy of the order or judgment of conviction to the supreme court of appeals. Upon the filing of such judgment order of conviction, the court shall issue an order addressed to the attorney to show cause why his license should not be suspended or annulled.”

4 . It is at this hearing that evidence is developed surrounding the alleged ethics violation. The charged attorney is afforded an opportunity to present defenses and offer matters in mitigation.

5 . This case, styled United States v. Tonkovich, Criminal No. 2:89-00104, was pending in the United States District Court for the Southern District of West Virginia. It involved crimes committed by Mr. Tonkovich when he was President of the West Virginia Senate.

6 . See 26 U.S.C. §§ 61(a)(12) & 102.

7 . These charges included a Hobbs Act violation under 18 U.S.C. § 1951, and a conspiracy offense under 18 U.S.C. § 371.

8 . The relevant portion of Article VI, Section 23 of the Bar By-Laws provides:

“The license of any attorney shall be annulled and such attorney shall be disbarred upon proof that he has been convicted — (a) of any crime involving moral turpitude or professional unfitness; or (b) of receiving money for his client as his attorney and failing to pay the same on demand, or within six months after receipt thereof, without good and sufficient reason for such failure, as in the statute provided.”

9 . For the relevant text of Article VI, Section 25 of the Bar By-Laws, see note 3, supra.

10 . At the time the Rules of Professional Conduct were presented to this Court for approval, there was no mention made of the potential conflict between Rule 8.4 and Article VI, Section 23 of the Bar By-Laws.

11 . A similar problem exists under Article VI, Section 24 of the Bar By-Laws, which provides that "the license of any attorney shall be suspended for such time as the court may prescribe upon proof that he has been convicted of a felony not involving moral turpitude or professional unfitness." Under Article VI, Section 25, the request to suspend the license is filed directly with this Court, and the normal hearing procedures set out in Article VI, Section 14 are bypassed. For the relevant text of Article VI, Section 25, see note 3, supra.

12 . Syllabus Point 2 of In re Brown, supra, states:

“In cases involving reinstatement proceedings, we require, under this Court's supervisory powers, that the Committee on Legal Ethics of The West Virginia State Bar shall hold an evidentiary hearing to enable a record to be made on the issues relating to the petitioner’s qualifications to have his license reinstated.”

13 . For the relevant provisions of Article VI, Section 25 of the Bar By-Laws, see note 3, supra.

14 . For the relevant text of Article VI, Section 24 of the Bar By-Laws, see note 11, supra.

15 . It must be remembered that the underlying ethical violation has already been established either by a jury finding or by a guilty or nolo contendere plea. Thus, there is no due process claim as to this finding, but only on the more minimal claim of mitigation.