Board of Professional Responsibility of the Supreme Court of Tennessee v. Thomas Ewing Cowan

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 5, 2012 Session
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME
COURT OF TENNESSEE v. THOMAS EWING COWAN
Direct Appeal from the Chancery Court for Carter County
No. 27783 Walter C. Kurtz, Senior Judge
No. E2012-00377-SC-R3-BP - Filed November 19, 2012
This appeal involves a determination of the proper final discipline for an attorney who
pleaded guilty to willful tax evasion. We hold that because ABA Standard for Imposing
Lawyer Sanctions 5.11(b) applies to criminal acts such as those admitted by the attorney here,
the trial court’s order of disbarment is affirmed.
Tenn. Sup. Ct. R. 9, § 1.3; Judgment of the Trial Court Affirmed
C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,
and J ANICE M. H OLDER, W ILLIAM C. K OCH, JR., and S HARON G. L EE, JJ., joined.
Thomas E. Cowan, Jr., Elizabethton, Tennessee, pro se.
Nancy S. Jones, Chief Disciplinary Counsel, and Krisann Hodges, Brentwood, Tennessee,
for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.
OPINION
Factual and Procedural History
Mr. Thomas Ewing Cowan is an attorney originally licensed to practice law in
Tennessee in 1968. On September 25, 2009, Mr. Cowan pleaded guilty in federal district
court to one count of the felony offense of willful attempt to defeat or evade the payment of
taxes in violation of 26 U.S.C. § 7201 (2006).1 The court subsequently sentenced Mr. Cowan
1
“Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title
(continued...)
to a term of imprisonment of twelve months and one day, a term of supervised release of
three years, and restitution in the amount of $270,169.
On March 1, 2010, this Court suspended Mr. Cowan’s license to practice law and
referred the matter to the Board of Professional Responsibility (“Board”) for determination
of final discipline to be imposed pursuant to Tennessee Supreme Court Rule 9, section 14.
On March 4, 2010, the Board filed a Petition for Final Discipline.
The matter came before a Hearing Panel on October 14, 2010. The only issue before
the Panel was the extent of final discipline to be imposed as a result of the admitted criminal
act. See Tenn. Sup. Ct. R. 9, § 14.4. In reaching its decision, the Panel considered the ABA
Standards for Imposing Lawyer Sanctions (“Standards”), see Tenn. Sup. Ct. R. 9, § 8.4,
including Standards 5.11 and 5.12:
5.11 Disbarment is generally appropriate when: (a) a lawyer engages in
serious criminal conduct a necessary element of which includes intentional
interference with the administration of justice, false swearing,
misrepresentation, fraud, extortion, misappropriation, or theft; or the sale,
distribution or importation of controlled substances; or the intentional killing
of another; or an attempt or conspiracy or solicitation of another to commit any
of these offenses; or (b) a lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation that seriously
adversely reflects on the lawyer’s fitness to practice.
5.12 Suspension is generally appropriate when a lawyer knowingly engages
in criminal conduct which does not contain the elements listed in Standard
5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
A majority of the Panel decided that Mr. Cowan should not be disbarred from the
practice of law based upon the following findings:
After hearing arguments from the Board and Respondent, the Panel
concludes that ABA Standard 5.11(a) is not applicable, since it recommends
1
(...continued)
or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony . . . .” 26
U.S.C. § 7201. Mr. Cowan was originally charged with three additional counts of willful failure to file an
income tax return in violation of 26 U.S.C. § 7203 (2006) (“Any person required under this title to pay any
. . . tax, . . . who willfully fails to pay such . . . tax, . . . shall, in addition to other penalties provided by law,
be guilty of a misdemeanor . . . .”).
-2-
disbarment for attorneys who engage in serious criminal conduct only if the
crime contains [particular elements]. The elements of the crime of tax evasion
are a tax deficiency, an evasive act, and a willful act, none of which are
included in the list of elements in Standard 5.11(a), rendering that Standard
inapplicable.
Further, the Panel has determined that ABA Standard 5.11(b) is also
inapplicable because “any other intentional conduct” applies to conduct other
than “criminal offenses,” since Standard 5.11(a) refers to criminal offenses.
Instead, the Panel found that Standard 5.12, calling for a suspension, was applicable “because
it specifically refers to ‘criminal conduct’ and because the Panel finds that Respondent’s
conduct seriously adversely reflects on his fitness to practice law.” The Panel also found the
existence of several aggravating factors—prior disciplinary history, a pattern of misconduct,
multiple offenses, and substantial experience in the practice of law—and only one mitigating
factor—imposition of other penalties or sanctions. On balance, the Panel concluded that the
aggravating factors outweighed the lone mitigating factor and imposed a suspension of two
years.
The Panel Chair dissented from the findings and judgment of the majority, opining
that both subdivisions of Standard 5.11, as well as Standard 7.1,2 applied to the case and
warranted disbarment of Mr. Cowan.
The Board filed an appeal in the Chancery Court for Carter County; further
proceedings were stayed until Mr. Cowan was released from federal custody. The chancellor
ultimately modified the decision of the Panel and disbarred Mr. Cowan, finding that willful
tax evasion “clearly involved misrepresentation, fraud or deceit, and therefore ABA Standard
5.11(a) applies.”
In reaching this conclusion, the chancellor noted that Mr. Cowan pleaded guilty, in
count one of the indictment—not merely to tax evasion—“but willful tax evasion involving
affirmative acts.” The chancellor considered the affirmative acts admitted by Mr. Cowan in
the plea agreement, namely the “use of nominee entities,” as well as additional affirmative
acts listed in count one of the indictment, including:
2
Standard 7.1 provides: “Disbarment is generally appropriate when a lawyer knowingly engages in
conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer
or another, and causes serious or potentially serious injury to a client, the public, or the legal system.”
-3-
concealing his true income and assets by diverting checks that had the inherent
appearance of income into the checking account of a family member, cashing
checks that had the inherent appearance of income, depositing earned income
into his law firm trust accounts, and making personal payments from his law
firm trust account, and by otherwise using his attorney trust account to conceal
income and nominees to conceal the ownership of assets from the United
States.
From this, the chancery court determined that “Mr. Cowan engaged in affirmative acts to
hide income from the government, and this is conduct of a fraudulent nature, deceitful, and
involving intentional misrepresentation.”
The chancellor noted that other state supreme courts had disbarred attorneys following
convictions for the same federal crime: Attorney Grievance Commission v. Gary, 452 A.2d
1221 (Md. 1982) (affirming disbarment for felony conviction of willful tax evasion and
noting that such conduct involves dishonesty, fraud, deceit, or misrepresentation); Maryland
State Bar Association v. Agnew, 318 A.2d 811, 815 (Md. 1974) (disbarring attorney for
felony conviction of willful tax evasion and noting that such conduct “is infested with fraud,
deceit, and dishonesty”); In re Grimes, 326 N.W.2d 380 (Mich. 1982) (disbarring attorney
for felony convictions of willful tax evasion and counseling client to lie to investigators in
tax fraud case).
As to the Standards, the chancery court found that Mr. Cowan’s conduct fell within
Standard 5.11:
The Court finds incorrect the Panel’s decision that [Standard] 5.11 is
not to be applied to willful tax evasion. Willful tax evasion, especially
involving affirmative acts to hide income is a crime of deceit and/or
misrepresentation and/or fraud, and it clearly reflects on the lawyer’s fitness
to practice. The finding by the Panel that [Standard] 5.11 does not apply is
unsupported by the evidence. [Standard] 5.11 does apply.
However, the chancery court did not specify at this point whether Standard 5.11(a) or (b)
applied, nor did the court address Standard 7.1.
Finally, the chancery court considered the aggravating and mitigating factors proffered
by the parties. The chancellor found that “the aggravating circumstances are extremely
strong,” citing Mr. Cowan’s disciplinary record of two suspensions, three public censures,
and fifteen private admonishments. The court further noted, “Mr. Cowan is presently serving
a three-year suspension due to misconduct involving pervasive neglect, misrepresentation,
-4-
and failure to communicate with clients and the Board.” The chancellor concluded that this
disciplinary record carried “substantial negative weight.” Citing Standard 9.22, the
chancellor found the existence of four additional aggravating factors: Mr. Cowan’s pattern
of misconduct, multiple offenses, refusal to acknowledge the wrongfulness of his conduct,
and substantial experience in the practice of law.
Mr. Cowan offered as mitigating factors his service as a lawyer in the military during
the Vietnam War, his representation of indigent defendants, and his leadership roles with
Legal Services of Upper-East Tennessee.3 The chancellor ruled that Mr. Cowan’s service
to his country and his community could “in no way mitigate his substantial history of
disciplinary violations,” and that considering the aggravating and mitigating factors did not
change the presumptive sanction of disbarment. He therefore modified the Panel’s judgment
and disbarred Mr. Cowan. Mr. Cowan has appealed.
Standard of Review
As part of our inherent duty to regulate the practice of law in Tennessee, this Court
bears the ultimate responsibility for sanctioning attorneys who violate ethical rules. Talley
v. Bd. of Prof’l Responsibility, 358 S.W.3d 185, 190 (Tenn. 2011). In furtherance of this
duty, we have established a system where attorneys charged with disciplinary violations have
a right to an evidentiary hearing before a hearing panel, which must determine the
disciplinary penalty. See Tenn. Sup. Ct. R. 9, § 8.2. An attorney dissatisfied with a
disciplinary decree from a hearing panel may prosecute an appeal to the circuit or chancery
court and then directly to this Court where our review is upon the transcript of the record
from the trial court, including that of the evidence before the hearing panel. Tenn. Sup. Ct.
R. 9, § 1.3. We observe the same standard of review as that followed by the circuit or
chancery court. Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d 603, 612 (Tenn. 2010).
Like the chancery court, we will not disturb the hearing panel’s decision unless
the rights of the petitioner have been prejudiced because the panel’s findings,
inferences, conclusions or decisions are: (1) in violation of constitutional or
statutory provisions; (2) in excess of the panel’s jurisdiction; (3) made upon
unlawful procedure; (4) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion; or (5) unsupported by
evidence which is both substantial and material in the light of the entire record.
Tenn. Sup. Ct. R. 9, § 1.3. Moreover, we do not substitute our judgment for that of the
hearing panel as to the weight of the evidence on questions of facts, but we review questions
3
Legal Services of Upper-East Tennessee is now part of Legal Aid of East Tennessee.
-5-
of law de novo without a presumption of correctness. Sneed, 301 S.W.3d at 612; see also
Tenn. Sup. Ct. R. 9, § 1.3.
Analysis
The primary issue in this case is whether disbarment or suspension is the more
appropriate sanction. To answer this question we must review the process by which a
hearing panel makes that initial determination.
As a guidepost in determining appropriate, consistent sanctions for attorney
misconduct, we consult the ABA Standards for Imposing Lawyer Sanctions. Lockett v. Bd.
of Prof’l Responsibility, ___ S.W.3d ___, ___ (Tenn. 2012); Rayburn v. Bd. of Prof’l
Responsibility, 300 S.W.3d 654, 664 (Tenn. 2009); Bd. of Prof’l Responsibility v. Allison,
284 S.W.3d 316, 327 (Tenn. 2009). The Standards recommend the type of sanction—such
as disbarment or suspension—that the ABA Sanctions Committee deems generally
appropriate for various kinds of misconduct. As the Preface explains, the ABA model does
not consider the intent of the attorney but looks instead to the duty violated, the attorney’s
mental state, and any actual or potential injury. Standards 4, 5, and 6 classify conduct
according to whom a duty is owed—whether clients, the public, or the legal system—while
Standard 7 addresses violations of other duties owed as a professional.
Once a presumptive sanction is determined, Standard 9 then provides that a greater
or lesser sanction may be appropriate due to the existence of aggravating or mitigating
factors. We have recently held that the factors enumerated in Standard 9 are “illustrative
rather than exclusive.” Lockett, ___ S.W.3d at ___ (overruling Threadgill v. Bd. of Prof’l
Responsibility, 299 S.W.3d 792 (Tenn. 2009)). Other factors may also be considered.
Thus, any analysis of the proper discipline involves two steps: first, identify the
presumptively appropriate sanction applicable to the established misconduct, and then
consider whether that sanction should be increased or decreased due to aggravating and
mitigating circumstances, if any.
Presumptive Sanctions
At the outset, we consider the ABA Standards for Imposing Lawyer Sanctions that
most plausibly apply to Mr. Cowan:
5.11 Disbarment is generally appropriate when: (a) a lawyer engages in
serious criminal conduct a necessary element of which includes intentional
interference with the administration of justice, false swearing,
-6-
misrepresentation, fraud, extortion, misappropriation, or theft; or the sale,
distribution or importation of controlled substances; or the intentional killing
of another; or an attempt or conspiracy or solicitation of another to commit any
of these offenses; or (b) a lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation that seriously
adversely reflects on the lawyer’s fitness to practice.
5.12 Suspension is generally appropriate when a lawyer knowingly engages
in criminal conduct which does not contain the elements listed in Standard
5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
The question before us is which standard more closely fits the facts of this case.
The plain language of Standard 5.11(a) recommends disbarment for certain kinds of
“serious criminal conduct.” Disbarment is also the presumptive sanction under Standard
5.11(b) for “any other intentional conduct involving dishonesty, fraud, deceit, or
misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.” We
have little difficulty concluding that a “person who willfully attempts in any manner to defeat
or evade any tax,” 26 U.S.C. § 7201, necessarily engages in “intentional conduct involving
dishonesty . . . that seriously adversely reflects on a lawyer’s fitness to practice law.” 4
However, Mr. Cowan argues that because Standard 5.11(a) explicitly applies to
“serious criminal conduct,” while Standard 5.11(b) references “other intentional conduct,”
Standard 5.11(b) does not apply to any criminal conduct. Moreover, Mr. Cowan notes that
Standard 5.12 explicitly applies to “criminal conduct” in support of his position that Standard
5.12—not Standard 5.11(b)—covers criminal conduct that does not lie within the purview
of Standard 5.11(a).
This appeal hinges upon the following question of first impression: given that
Standard 5.11(b) does not specifically refer to criminal conduct, does that standard
encompass criminal conduct? Based on the Comment to Standard 5.11, the context provided
by Standards 5.1 through 5.14, and the application of Standard 5.11(b) to criminal conduct
by the highest courts of several states, we answer that question in the affirmative.
The Comment to Standard 5.11 provides: “A lawyer who engages in any of the illegal
acts listed above has violated one of the most basic professional obligations to the public, the
pledge to maintain personal honesty and integrity.” Because this statement appears directly
4
We need not decide whether willful tax evasion implicates “fraud, deceit, or misrepresentation,”
in addition to “dishonesty.”
-7-
below Standard 5.11, the “illegal acts listed above” must not refer solely to the crimes
specified in Standard 5.11(a). Indeed, as an example of conduct warranting disbarment, the
Comment cites In re Grimes as “a case where a lawyer was convicted of two counts of
federal income tax evasion and one count of subornation of perjury.” Although subornation
of perjury presumably falls within Standard 5.11(a), the Michigan Supreme Court stressed
what would become the three elements of Standard 5.11(b): intentionality,5 dishonesty,6 and
a lack of fitness to practice law.7
The idea that criminal conduct must be pigeonholed into Standard 5.11(a) or 5.12, if
anywhere, is also belied by Standard 5.1:
Absent aggravating or mitigating circumstances, upon application of the
factors set out in Standard 3.0, the following sanctions are generally
appropriate in cases involving commission of a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in
other respects, or in cases with conduct involving dishonesty, fraud, deceit, or
misrepresentation.
This overview paragraph precedes, not only Standards 5.11 and 5.12, but also 5.13 and 5.14:
5.13 Reprimand is generally appropriate when a lawyer knowingly engages
in any other conduct that involves dishonesty, fraud, deceit, or
misrepresentation and that adversely reflects on the lawyer’s fitness to practice
law.
5.14 Admonition is generally appropriate when a lawyer engages in any
other conduct that reflects adversely on the lawyer’s fitness to practice law.
Standards 5.13 and 5.14, like Standard 5.11(b), do not explicitly reference criminal conduct,
but the structure of Standards 5.1 through 5.14 implies that “other conduct” may include
5
In re Grimes, 326 N.W.2d at 383 (“Grimes was convicted of willful evasion of taxes under 26
U.S.C. § 7201, not of misdemeanor failure to file income tax returns under 26 U.S.C. § 7203. Jurors in the
criminal prosecution disbelieved Grimes’ . . . assertion that there had been no deliberate attempt to avoid
paying taxes.” (second emphasis added)).
6
Id. (finding proper the hearing panel’s conclusion that tax evasion was “conduct involving
dishonesty, fraud, deceit, or misrepresentation”).
7
Id. (“We cannot ask the public to voluntarily comply with the legal system if we, as lawyers, reject
its fairness and application to ourselves.” (internal quotation marks omitted)).
-8-
“criminal conduct.” Indeed, a contrary interpretation would imply that the Standards fail to
provide any sanction less serious than suspension for criminal conduct precisely because the
conduct was criminal. We decline to interpret the Standards in such a way that much
criminal conduct would lie entirely outside of this framework.
In addition to the plain language of the Standards, we note that courts in other states
have disbarred attorneys by applying Standard 5.11(b) to criminal conduct. E.g., In re
DeRose, 55 P.3d 126 (Colo. 2002) (conviction for aiding and abetting structuring of
transactions to evade federal financial reporting requirements, 31 U.S.C. §§ 5322(a),
5324(a)(3)); Att’y Grievance Comm’n v. Bereano, 744 A.2d 35 (Md. 2000) (convictions for
seven counts of mail fraud, 18 U.S.C. §§ 1341, 1346); In re Cramer, 225 P.3d 881 (Wash.
2010) (en banc) (uncharged criminal conduct); In re Vanderveen, 211 P.3d 1008 (Wash.
2009) (en banc) (conviction for willful failure to file a currency report, 31 U.S.C. §§ 5331(a),
5322(a)); cf. Gary, 452 A.2d at 1222 (“The crime of willful tax evasion constitutes conduct
involving dishonesty, fraud, deceit or misrepresentation.”); Agnew, 318 A.2d at 815
(characterizing the crime of willful tax evasion as “infested with fraud, deceit, and
dishonesty”).
We agree with those states that deem Standard 5.11(b) applicable to criminal conduct.
Because Mr. Cowan’s willful attempt to defeat or evade taxes constitutes (1) intentional
conduct (2) involving dishonesty that (3) seriously adversely reflects on his ability to practice
law, Standard 5.11(b) applies to create a presumption that disbarment is the correct sanction.
Because the Hearing Panel’s decision otherwise is in violation of the rules applicable
to this determination, its judgment on this issue is reversed.8
8
Because we find that the crime of willful tax evasion is intentional conduct involving dishonesty
that seriously adversely reflects on the lawyer’s fitness to practice, see Standard 5.11(b), we need not decide
whether willful tax evasion constitutes “serious criminal conduct a necessary element of which includes
intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion,
misappropriation, or theft,” as described in Standard 5.11(a). Similarly, because Standard 5.11(b) applies,
Standard 5.12 (encompassing “conduct which does not contain the elements listed in Standard 5.11”) does
not. Finally, we need not determine whether willful tax evasion violates the duty an attorney owes as a
professional or whether it “causes serious or potentially serious injury to a client, the public, or the legal
system” as required by Standard 7.1.
-9-
Aggravating and Mitigating Factors
Having determined that disbarment is the presumptively correct sanction for the
misconduct established by the criminal plea agreement, we move on to consider the existence
and effect of any factors in aggravation or mitigation. Though we do not restrict this
balancing to the factors enumerated in Standard 9, Lockett, ___ S.W.3d at ___, we begin
there.
The Panel found four aggravating factors: prior disciplinary history, a pattern of
misconduct, multiple offenses, and substantial experience in the practice of law.9 Mr. Cowan
does not challenge the applicability of these factors. He does dispute the significance of his
disciplinary record, however, and suggests that attorneys long in practice inevitably
encounter a few disgruntled clients. This rationalization is not persuasive because of the
frequency and increasing severity of Mr. Cowan’s prior punishments: fifteen private
admonishments, most of which arose from Mr. Cowan’s repeated failure to communicate
with clients or respond to disciplinary complaints; three public reprimands; and two
suspensions. As aptly summarized by the chancery court:
Mr. Cowan was publicly censured on November 28, 1991, for charging
an excessive fee, neglecting a child support case, and failing to pay two
doctors’ deposition fees from settlement proceeds. He was publicly censured
on June 22, 1995, for contempt of court. He was publicly censured a third
time on February 12, 2000, for neglecting a client’s case and for failing to
respond timely to the disciplinary complaint. Mr. Cowan was suspended from
the practice of law for 30 days on December 15, 2002, for a pattern of failing
to timely submit divorce judgments for signature and of failing to timely file
said judgments in divorce matters. Finally, Mr. Cowan is presently serving a
three-year suspension due to misconduct involving pervasive neglect,
misrepresentation, and failure to communicate with clients and the Board.
We agree with the chancery court that Mr. Cowan’s disciplinary record “involving pervasive
neglect, misrepresentation, and failure to communicate with clients and the Board,” carries
substantial negative weight. Even a three-year suspension did not improve Mr. Cowan’s
understanding of his ethical obligations.
Mr. Cowan suggested many facts to be considered in mitigation, but the Panel found
applicable only one ABA mitigating factor—the imposition of other penalties or sanctions,
as enumerated in Standard 9.32(k). Although Mr. Cowan has suffered penalties (including
9
See Standard 9.22(a), (c), (d), (i).
-10-
imprisonment) for his conviction, this factor is inapplicable here because the criminal
penalties were imposed as punishment. “The consideration of other penalties or sanctions
imposed on a respondent attorney is appropriate when those penalties or sanctions arise out
of the disciplinary proceedings themselves or have been imposed by another jurisdiction’s
disciplinary board for the same conduct.” Lockett, ___ S.W.3d at ___. Because Mr.
Cowan’s previous penalties arose out of his criminal prosecution in federal court, they do not
constitute mitigation. The need to protect the public from attorneys unfit to practice law is
not abated merely because criminal penalties have already been imposed. See In re Rivkind,
791 P.2d 1037, 1042 (Ariz. 1990) (“The goal in disciplinary proceedings is to protect the
public in the future, not to punish the offender.”); Fred C. Zacharias, The Purposes of Lawyer
Discipline, 45 Wm. & Mary L. Rev. 675, 688 & n.45 (2003) (collecting cases).
In his brief before this Court, as well as during his testimony before the Panel, Mr.
Cowan raises several other circumstances that he contends should be considered in mitigation
of his presumptive punishment. Specifically, Mr. Cowan argues that his voluntary service
in the Judge Advocate General’s Corps for four years during the Vietnam War (during which
he suffered a service-related disability), his pro bono representation of indigent defendants
by appointment (including a $2,000,000 theft case), and his service as a founding director
and board member of Legal Services of Upper-East Tennessee weigh against his disbarment.
With respect to the conduct for which Mr. Cowan was convicted, he asks that we consider
as mitigation that he (1) lost the services of his secretary, who handled tax matters, in 2000;
(2) diverted much of the income for which he avoided taxes to his daughter’s medical
expenses related to her cancer treatment; (3) received no notice from the IRS regarding his
delinquent taxes until 2005; and (4) underwent an audit by the IRS in 2001—a year in which
he paid $78,000 in taxes. Finally, Mr. Cowan emphasizes that his wife and daughter, both
attorneys, have chosen to pursue careers in public service.
As to these circumstances, we agree with the chancery court that Mr. Cowan’s service
to his country and his community “in no way mitigate his substantial history of disciplinary
violations.” It is disturbing that an attorney with a long disciplinary history is entrusted to
represent indigent defendants. The circumstances proffered by Mr. Cowan as to his tax
situation are self-serving and simply irrelevant for mitigation purposes, because the
conviction from which this disciplinary action arose stemmed from his conduct between 1993
and 1997, not for actions after 2000. And although Mr. Cowan is understandably proud of
the service and distinction achieved by his wife and daughter, we cannot consider their
conduct in mitigation of Mr. Cowan’s. Each attorney is independently required to follow the
Rules of Professional Conduct.
In addition, we are very troubled by Mr. Cowan’s attempt in his brief to minimize the
seriousness of his criminal offense: “The very sentence imposed in this case reflects
-11-
favorably upon Appellant and indicates that in the federal court system, tax evasion cases are
not considered serious crimes; the sentence imposed involved time at a minimal community
security facility, without fences, guards, or any restraints upon a person leaving.” Suffice it
to say, we do consider tax evasion a “serious crime” and have so indicated in our Rules. See
Tenn. Sup. Ct. R. 9, § 14.2 (defining “serious crime” to include “willful failure to file income
tax returns” for purposes of interim suspension).
“The license to practice law in this State is a continuing proclamation by the Court
that the holder is fit to be entrusted with professional and judicial matters, and to aid in the
administration of justice as an attorney and as an officer of the Court.” Tenn. Sup. Ct. R. 9,
§ 3.1. A law license, in short, is a privilege and not a right. Sneed, 301 S.W.3d at 618. “It
is the duty of every recipient of that privilege to act at all times, both professionally and
personally, in conformity with the standards imposed upon members of the bar as conditions
for the privilege to practice law.” Tenn. Sup. Ct. R. 9, § 3.1. Where this duty is not met, we
must act to protect the public. Sneed, 301 S.W.3d at 618. While we do not lightly disbar an
attorney, whose livelihood may depend on his practice, we take seriously our obligation to
supervise and regulate the profession. Id. On the facts of this case, we agree with the
chancery court that disbarment is the appropriate sanction.10
Conclusion
Because ABA Standard 5.11(b) applies to the criminal acts committed by Mr. Cowan,
and the aggravating circumstances substantially outweigh any mitigating factors in this case,
we affirm the chancery court’s judgment in all respects, including the disbarment of Mr.
Cowan. The costs of this appeal are taxed to Mr. Cowan and his surety, for which execution
may issue, if necessary.
_________________________________
CORNELIA A. CLARK, JUSTICE
10
We note that Mr. Cowan’s conviction for willful tax evasion, 26 U.S.C. § 7201, is distinguishable
from the conviction in Lockett, ___ S.W.3d at ___, for willful failure to file tax returns, 26 U.S.C. § 7203
(“Any person required under this title to pay any . . . tax, . . . who willfully fails to pay such . . . tax, . . . shall,
in addition to other penalties provided by law, be guilty of a misdemeanor . . . .”). In Lockett, we held that
“willful failure to file income tax returns meets the requirements of ABA Standard 5.12.” ___ S.W.3d at
___. Both crimes entail “willful” conduct, but federal courts have held that willful tax evasion, a felony,
requires “an affirmative step to elude or defeat the payment of taxes,” e.g., United States v. Collins, 685 F.3d
651, 656 (7th Cir. 2012), whereas willful failure to file tax returns, a misdemeanor, requires no affirmative
action, e.g., United States v. Hassebrock, 663 F.3d 906, 917 (7th Cir. 2011).
-12-