In Re Duncan
844 S.W.2d 443
Mo.
1992
Check Treatment

*1 ORIGINAL DISCIPLINARY DUNCAN, PROCEEDING Respondent. In re Robert G. BENTON, Judge.

No. 75162. 1992, Respondent G. July Robert On Missouri, Supreme Court of pleaded guilty Duncan to two misdemean- En Banc. pay federal income tax ors of failure to By the 1988 and 1989. 26 U.S.C. 7203. § Dec. 1992. dis- plea agreement, the United States Rehearing Denied Feb. remaining two counts of failure- missed the agreed not to to-pay for 1986 and him for tax offense. Re- prosecute another if agreed his counsel that spondent trial, case had reached the United States proven least:” “would have through That Duncan from 1986 law, engaged he derived taxable income from that that activity reported he to the Internal which Service, and on which he as- Revenue applicable himself the tax on Unit- sessed Returns, Income Tax ed States Individual willfully Forms but that he failed taxes, although pos- to those sessed the funds to do so. Duncan and agree specifically his counsel further and trial, proceeded that if this case had proven have the United States would owing the tax due and for the calen- $36,235.84 years dar 1988 and 1989 is $32,140.94, respectively. years Respondent was sentenced to three probation; halfway to reside in a house for (followed home months four months two release); confinement, per- all with work service; community form 400 hours disposa- “all the Internal Revenue Service $157,887.14. eventually ble income” and imposed; Re- imprisonment or fine was No spondent paid costs. $50 5.20, Disciplin- Citing only Rule the Chief with this ary filed an information Counsel Court, an order to show issued original jurisdiction. cause. This Court Rule

I. argues Disciplinary Counsel The Chief Sedalia, Howe, Phillips, E. Sam S. John subject is be- Respondent

for informant. pay income tax is “a misde- cause turpitude” within Gunn, O’Connor, Kan- meanor R. Michael John P. meaning Rule 5.20. The City, respondent. sas *2 444 precedents (1973).

Counsel invokes six that failure Most crimes the Internal Reve- federal income tax returns — also nue Code—whether misdemeanor or felo- file violating 26 U.S.C. 7203 — constitutes ny § this same mental state. Id. at —have Burrus, turpitude. moral In re 258 356, “Willfully” requires 93 S.Ct. at 2015. 625, (Mo. 1953); 627 S.W.2d banc In re showing disregard “more than a of careless Moon, 935, (Mo. 1958); 310 S.W.2d 936 banc voluntary, for the truth” and “means a McMullin, 151, (Mo. In re 370 S.W.2d 155 legal of a intentional violation known 1963); Lurkins, 67, banc In re 374 S.W.2d duty.” Pomponio, United States v. 429 (Mo. 1964); MacLeod, 68 banc In re 479 10, 12, 22, 23, 12 U.S. 97 S.Ct. 50 L.Ed.2d 443, (Mo. banc), denied, S.W.2d 445 cert. (1976).1 Moreover, good faith misunder- 979, 312, 409 U.S. 93 34 S.Ct. L.Ed.2d 243 standing good of the or a law faith belief (1972); Kueter, 486, In re 501 S.W.2d 487 violating one is not the if that law—even (Mo. banc objectively or irrational —ne- unreasonable Respondent prece- counters that these gates willfulness in tax cases. Cheek v. apply dents do not because he did file fed- 192, States, 604, 498 111 United U.S. S.Ct. returns, eral income tax and because fail- 611, (1991). 112 L.Ed.2d 617 ure-to-pay Spe- differs from failure-to-file. parties present The the issue as whether cifically, Respondent contends that failure- such pay willful failure to income tax is a concealment, fraud, may impute to-file turpitude. crime of moral This Court has turpitude, failure-to-pay thus moral but “baseness, long defined moral as does not. vileness, depravity” “contrary or acts Respondent emphasizes that the Ala- justice, honesty, good modesty or morals.” Supreme bama Court held that failure to Frick, 473, In re 694 S.W.2d pay income taxes violation of 26 U.S.C. 1985); 626; Burrus, supra In re turpitude, 7203 is not a crime of moral § McNeese, 425, 33, 346 Mo. 142 S.W.2d 33- negating any attorney discipline. Clark v. (1940); Wallace, 323 Mo. Bar, Alabama State 547 So.2d (1929). S.W.2d (Ala.1989). The Alabama court states that necessarily even failure-to-file in- does not pay federal Willful income tax- turpitude. volve 463. The Id. at turpitude. Respon- es is a crime of moral decision thus contradicts the Mis- Clark dent’s means he more than care- precedents, majority souri and the of states less, voluntarily intentionally vio- Annot., actually deciding the issue. See legal duty pay Respon- lated the taxes. “Federal Income Tax Conviction as In- “willfully dent failed to those [federal Turpitude volving Warranting Moral taxes, although possessed he income] Against Attorney,” Action funds to do so.” It is dishonest not to (1975), 63 A.L.R.3d 495-500 66-67 Respondent taxes when knows he owes (Supp.1992). capacity pay. them and It re- adversely Respondent’s flects on trustwor- Respondent’s argument— main disposable in- thiness that owes “all failure-to-pay is less venal than fail (at least) $157,887.14 come” and to the language of ure-to-file—is refuted government, United States under these cir- statute, interpreted by the federal as oft in the Bar cumstances. Public confidence Supreme the United States Court. attorneys may cannot be maintained if required by mental state the statute for practice, impunity, after tax convic- failure-to-pay is identical to that for failure- exception, tions. “Almost without “willfully.” to-file: 26 U.S.C. § recognized held or Bishop, 412 354- cases United States v. U.S. [across America] 2008, 2014-15, attorney’s of a federal 36 L.Ed.2d 941 that an conviction 93 S.Ct. much, failure-to-pay, Respondent emphasizes Pomponio’s corollary because all tax offenses— failure-to-file, misdemeanors, point are other and felo- that ‘bad faith or evil intent” not offenses; Respon- nies—have the same mental This Court’s elements of willfulness in tax state. clearly failure-to-pay precedents dent deduces that is not an act of hold tax offenses to be turpitude. Respondent’s point proves too crimes of moral PRICE, Judge, concurring part non-profession tax offense involved income dissenting part. warranting imposition of al misconduct Annot., type disciplinary action.” some opinion majority I concur with the Tax as Con “Federal Income Conviction against an discipline is warranted stituting Unprofessional Misconduct *3 he “will- conviction because who suffered Against Action Warranting taxes, pay to fully failed [federal income] (1975, Attorney,” A.L.R.3d I funds to do so.” although possessed Supp.1992). however, im- discipline disagree, with the of holds that a conviction This Court posed. income tax is a “misdemean- pay

failure to that Mr. The record contains no evidence turpitude” under Rule involving moral or any of represent failed to Duncan has ever 5.20. professional proper in a and his clients any does the record show manner. Neither II. resulting his fail- his clients from harm to nature, always “In cases of this it is taxes, suf- other than the harm pay ure to problem to determine the extent a difficult public a when one by fered the as whole disciplined.” attorney should be to which an carry his share of the tax fails to individual Moon, supra at 938. Suspension In re is burden. for failure-to-file. the consistent sanction opinion equates the majority the While Moon, Burrus, In re 627; supra In re at file, pay taxes with the failure to McMullin, supra at supra at In re 939; to file involves an I would not. Failure Durkins, supra at 69; 156; intentional concealment element of Kueter, MacLeod, re supra In in the case of an individual does not exist supra at 487. liability, his but has not who has declared Respondent graduated law school with in Mr. Duncan’s admission paid. But for distinction, practiced years and has for 33 possessed that “he plea agreement prior discipline. Respondent has without so”, be so funds to do this element would attorney, reputation excellent as an hav an nearly impossible to be subjective as local, state, organi ing and national led bar opinion, Mr. Duncan’s of- prove. my In having lectured and written and zations turpitude” barely meets the “moral fense InCf. widely, particularly on criminal law. standard, normally is more associat- Miller, re 568 S.W.2d baseness, vileness or ed crimes of full- Respondent, years after 21 of depravity. gone deep in practice, claims to have time discipline upon purpose imposing of The failure, con a result of business debt as protect primarily the Bar is members of divorce, and various tax temporaneous practitioners, from unsuitable public Respondent apparently cooperated liens. In re Fa punish practitioner. not to delinquencies. agents computing in his with federal Cal.Rptr. hey, 8 Cal.3d Burrus, supra re In at 626. . Cf (1973). discipline assessed P.2d 1369 facts, Respondent is In of these view purpose. tailored to that here should be indefinitely from the hereby suspended plea agree- entered into a Mr. Duncan law, apply practice of with leave that allowed ment with the United States of months after the date reinstatement six pay the to work and to him to continue in this case. the mandate disposable “all Revenue Service Internal $157,887.14. Rath- eventually income” and HOLSTEIN, COVINGTON, THOMAS Mr. Dun- immediately suspending er than LIMBAUGH, JJ., concur. license, thereby jeopardizing his can’s PRICE, J., dissents part concurs himself and to his tax ability support filed. separate opinion part any of imposition I defer liability, would fulfills his long as Mr. Duncan ROBERTSON, C.J., discipline so separate dissents plea agreement. obligations pursuant to the opinion filed. vile, base, Should Mr. Duncan promptly faithfully depraved act. There is no obligation, might purpose his tax we then deter- to deceive or defraud. It is the act mine spends improvi- what is of a man his warranted. Per- who resources haps dently. suspension ap- six-month would Such an act does not constitute pear too harsh in that circumstance. Alter-

natively, should he not fulfill his I dissent for a second reason. Rule agreement, perhaps a suspension six-month 5.20(a) provides where is short, appear would too lenient. In I be- “convicted of a misdemeanor public lieve the would be served best any felony,” or of the law- crafting discipline for Mr. Duncan that fa- yer why lawyer must “show cause payment debt, cilitates the of his tax rather suspended should not be from the obstructing than it. pending disposition any law the final *4 disciplinary proceeding upon based such ROBERTSON, Justice, dissenting. Chief Thus, provides conviction.” the rule for a long

This Court has turpi- defined moral temporary suspension pending further dis- baseness, vileness, tude as “an act of or ciplinary proceedings. depravity private in the and social duties 5.20(b) exception Rule creates an to the a man owes to his fellowmen or to general temporary suspension pend- rule of Frick, society general.” 694 ing disciplinary actions there is an where 479 S.W.2d Rule appeal. 5.20, the basis for the Chief appeal, affirmed on If the conviction is information, places responsibili- Counsel’s a ... disciplinary the chief counsel shall ty impose on this temporary Court a discipline, file this with Court a motion to suspension where an licensed whereupon lawyer ... shall be sub- this state is convicted of a “misdemeanor ject discipline by this Court without involving turpitude.” moral I do not be- requirement any proceeding. other lieve that failure to federal income tax 5.20(b) [Emphasis Rule does not added.] involving turpi- is a misdemeanor contemplate summary procedure I respectfully tude. dissent. guilty pleas. Noticeably absent is the lan- Courts across the nation have handled guage “when the conviction fi- becomes interplay federal tax between law viola- nal.” turpitude unevenly.1

tions and moral How- my disagreement Aside from ever, it while is true that all acts of moral majority’s legal turpi- conclusion of moral turpitude bring question into the actor’s tude, I do not believe Rule 5.20 can form honesty, trustworthiness or fitness as a the basis for there where lawyer, it is not true that all misdemeanors guilty plea. hardly argue been a One can rise to the level of moral wording that the of Rule 5.20 is a model of Mr. Duncan’s crime is not that he evaded Nevertheless, clarity. if one focuses on his income tax. did fail federal He not 5.20, the words of Rule it is that it obvious return, file his tax an that demon- act temporary suspension creates a from the liability strates an intent to hide one’s tax (a) pending: completion of law government; from the nor did he file a separate disciplinary proceeding of a under Instead, Mr. (b) false tax return. Duncan Rule affirmance of a conviction and, effect, following filed his tax return told the appeal summary disciplin- government proceeding. that he owed them their trib- ary sepa- Where there is no simply pay. proceeding ute. He did not This is not a rate 4 possi- under Rule and no Pohlman, e.g., Compare Fahey, Cal.Rptr. e.g., Grievance Comm’n v. N.W.2d (1973) (willful (N.D.1976) (willful 505 P.2d 1369 failure to file does failure to file feder- per turpitude); Attorney turpi- not constitute se moral al income tax is crime Walman, tude); Wolfe, v. Grievance Comm'n 280 Md. Columbus Bar Ass'n v. 70 Ohio (1977) (failure (1982) (conviction A.2d 354 to file tax does not St.2d 434 N.E.2d per constitute se moral unless sur- willful failure to file tax return in indefi- results otherwise) rounding suspension). facts demonstrate nite with. appeal, guilty plea, Rule bility of as with a permit to trans-

5.20 does not this Court designed suspen- temporary form a rule discipline. permitting sion into one final respectfully I dissent. HARROLD, Appellant,

Willie

v. Missouri, Respondent. STATE of

No. *5 Appeals, Missouri Court District, Eastern Division Seven.

Sept. Rehearing Motion for and/or Transfer to Supreme Court Denied

Dec. Application to Transfer Denied 26, 1993.

Jan. Louis, Skoglund, appellant.

Jeff St. for Webster, Gen., Atty. L. Joan F. William Edwards, Gen., Atty. City, Jefferson Asst. respondent. for KAROHL, Judge. Chief appeals Defendant the denial of a Motion Judgment to Vacate and Sentence under evidentiary hearing. Rule 24.035without request post conviction relief fol- guilty plea burglary lowed a in the degree. second Section 569.170 RSMo charged as a 1986. He was and convicted prior persistent offender. We affirm. contends ineffective assis- Defendant tance of counsel in that counsel failed to contact alibi witnesses. He claims his involuntary plea attorney because his stating misled him un- witnesses were willing or unavailable. Defendant also al-