Toledo Bar Assn. v. Abood

2004 Ohio 7015, 104 Ohio St. 3d 655
CourtOhio Supreme Court
DecidedDecember 29, 2004
Docket2004-1066
StatusPublished
Cited by8 cases

This text of 2004 Ohio 7015 (Toledo Bar Assn. v. Abood) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toledo Bar Assn. v. Abood, 2004 Ohio 7015, 104 Ohio St. 3d 655 (Ohio 2004).

Opinions

Per Curiam.

{¶ 1} On April 14, 2003, relator, Toledo Bar Association, filed a complaint charging respondent, Norman Abood, of Oregon, Ohio, Attorney Registration No. 0029004, in three counts with violations of the Code of Professional Responsibility. Respondent answered, admitting some facts and disputing others. On January 27, 2004, a panel of the Board of Commissioners on Grievances and Discipline conducted a hearing. Before the hearing, the parties submitted an [656]*656agreed stipulation of facts. The parties also stipulated that respondent had violated DR 1-102(A)(6) (prohibiting conduct that adversely reflects on an attorney’s fitness to practice law) and 9-102(A) (requiring an attorney to keep client funds separate from attorney funds and to deposit only client funds in an attorney’s trust account). Additionally, respondent testified and submitted exhibits at the hearing and submitted numerous character-reference letters written in his behalf.

{¶ 2} The stipulations and evidence before the panel established that respondent was born in June 1953 and was admitted to the practice of law in Ohio in May 1979. By the late 1980s, respondent had developed a successful practice in business-contract negotiations and litigation. During the same period, however, respondent also suffered various financial problems, some resulting from the failure of two principal clients to pay over $220,000 in legal bills.

{¶ 3} With respect to Count One, the evidence established that as a result of financial difficulties, respondent failed to pay his federal income taxes as the taxes became due on April 15 each year for the years 1987,1988,1990,1991,1993, 1996, 1997, and 1999. But in October 1994, respondent did pay over $118,000 in taxes, including penalties and interest for tax years 1987 through 1992. Respondent filed his federal income-tax returns for 1993 and 1994 in August 2002.

{¶ 4} At some point, the Internal Revenue Service (“IRS”) commenced a criminal investigation into respondent’s federal-tax situation. According to respondent, he asked the IRS for a payment plan to satisfy his obligations, but the IRS indicated that it would not work out a payment plan with him until he had liquidated all his assets, including his home, borrowed the maximum on his credit cards, and exhausted all of his resources. Respondent declined to comply and tried to satisfy his obligations without a payment plan with the IRS. The IRS responded with intense collection procedures. In May 1993, respondent believed that the IRS had agreed to a payment plan that required respondent to make a down payment of $10,000 and monthly installments of $2,500. In July 1993, however, the IRS seized respondent’s home and sold it at auction.

{¶ 5} On May 16, 2002, respondent pleaded guilty in the United States District Court for the Northern District of Ohio, Western Division, to two misdemeanor counts of failure to pay income taxes for 1994 and 1995. On September 3, 2002, the federal district judge sentenced respondent to consecutive terms of eight months for each offense. Respondent was incarcerated from October 28, 2002, until his release, on November 12, 2003, to a halfway house. His term of imprisonment ended on December 22, 2003.

{¶ 6} As to Count Three, the evidence established that respondent received $63,657 in April 1994, after a residential real-estate closing. The home in question was the one that respondent and his wife had owned until the IRS [657]*657seizure. His mother had purchased it at the IRS auction, and respondent and his wife bought it back. After the sale, respondent deposited the net sale proceeds in his IOLTA account because he feared that the IRS would seize the funds if they were placed in his personal account.

{¶ 7} Based on the evidence and the stipulated violations, the panel found that respondent’s conduct as to Count One violated DR 1-102(A)(6) and as to Count Three violated DR 9-102(A). On relator’s motion, the panel dismissed other allegations of disciplinary violations contained in Counts One and Three. The panel also dismissed a second count as unproven.

{¶ 8} At the hearing, relator urged that respondent’s license to practice law in Ohio be suspended for two years with one year stayed. In contrast, respondent requested a public reprimand as the sanction.

{¶ 9} In recommending a sanction for this misconduct, the panel found no aggravating circumstances. See Section 10 (Guidelines for Imposing Lawyer Sanctions) of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline (“BCGD.Proc.Reg.”). As to mitigating features, the panel noted that respondent had no prior disciplinary record and had “fully cooperated with the Internal Revenue Service during [its] entire investigation of him.” Moreover, the panel found that respondent had fully cooperated with relator’s investigation and had informed relator immediately when he realized that he was under investigation and was going to be charged by the IRS.

{¶ 10} The panel also considered in mitigation 16 character-reference letters from respondent’s clients and fellow lawyers “praising [respondent’s] legal abilities, his integrity, his honesty, [and] his work ethic.” The panel additionally noted that respondent had no problems with his clients, lawyers, or judges and that his problems were “of a financial nature, and deal exclusively with the IRS, not with his practice, or his capacity as an attorney.”

{¶ 11} Further, the panel noted that respondent had “presented himself in exemplary fashion” and “was incredibly remorseful.” The panel was also convinced that his misconduct would never be repeated. Finally, the panel noted that respondent had already been punished, “having served fourteen (14) months of incarceration for his late payment of income tax.”

{¶ 12} The panel recommended that respondent receive a public reprimand. The board adopted the findings and conclusions of the panel; however, because of respondent’s “continuing difficulties with tax matters,” the board recommended that he be suspended from the practice of law for one year with six months of that suspension stayed on conditions. The board further recommended that the costs of the proceeding be taxed to respondent.

[658]*658{¶ 13} Respondent objects to the board’s recommendation. He argues that a public reprimand is the appropriate sanction given the lack of aggravating factors, his jail sentence, and his deep remorse. Relator responds that an actual suspension of respondent’s license to practice law is warranted in view of respondent’s criminal convictions for failure to pay his personal-income taxes.

{¶ 14} Upon review, we agree that respondent violated DR 1-102(A)(6) and 9-102(A), as found by the board. We also agree that an actual suspension is appropriate for respondent’s long history of default on his income-tax obligations. We therefore adopt the board’s recommendation and order a one-year suspension, staying only the last six months of that suspension on conditions.

{¶ 15} “Each disciplinary case involves unique facts and circumstances.” BCGD Proc.Reg. 10(A). But as relator argues, we generally impose a one-year suspension for a lawyer’s failure to comply with income-tax laws. See, e.g., Disciplinary Counsel v. Baker (1992), 65 Ohio St.3d 302, 603 N.E.2d 990; and Disciplinary Counsel v. Bowen

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2004 Ohio 7015, 104 Ohio St. 3d 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toledo-bar-assn-v-abood-ohio-2004.