Attorney Grievance Commission v. Tayback

⁵⁸¹ CATHELL, Judge. On March 3, 2001, an Inquiry Panel, at the direction of the Attorney Grievance Commission of Maryland, petitioner, commenced an investigation of Matthew G. Tayback, respondent. On June 12, 2002, the petitioner, by Melvin Hirshman, Bar Counsel, and Glenn M. Grossman, Deputy Bar Counsel, filed, pursuant to Maryland Rule 16-709, 1 a petition for disciplinary action against respondent for violating the Maryland Rules of Professional Conduct (MRPC). Specifically, petitioner alleged that respondent, based upon his failure to timely file both his federal and state income tax returns over many years, 2 violated MRPC 8.4(a),(b),(c) and (d). 3 ⁵⁸² On June 17, 2002, pursuant to Maryland Rule 16-709(b), 4 this Court transmitted the matter to The Honorable Allen L. Schwait of the Circuit Court for Baltimore City, the hearing judge, to conduct a hearing and to make findings of fact and conclusions of law.

On October 29, 2002, February 13, 2003, and April 25, 2003, evidentiary hearings were held before the hearing judge. On May 6, 2003, Judge Schwait issued his Findings of Fact and Conclusions of Law and found by clear and convincing evidence that respondent violated MRPC 8.4(b). The record was transferred from the hearing judge to this Court for oral argument. Pursuant to Maryland Rule 16-758(b), 5 both parties filed with this Court exceptions to Judge Schwait’s Findings of Fact and Conclusions of Law.

I. Facts Following an evidentiary hearing, Judge Schwait found by clear and convincing evidence the following facts and conclusions of law: ⁵⁸³ “FINDINGS OF FACT “Respondent was admitted as a member of the Bar on May 24,1979. He is actively practicing law and maintains an office at 22 East Fayette Street, Suite 600, Baltimore, Maryland, 21202. “Respondent failed to timely file his federal (or state) income tax returns for the years 1987 through 1989. After being contacted by the Internal Revenue Service, Respondent filed the federal returns for those years and paid the taxes, interest, and penalties owed. Respondent did not file his Maryland income tax returns for those years (1987-1989). “For the years 1990 through 1993, the Respondent again failed to file Federal (and State) income tax returns and as a result he owed $118,000 in unpaid federal income taxes. “On September 3, 1999, the Respondent entered a guilty plea in the United States Court for the District of Maryland to willfully failing to file a timely federal income tax return for 1993.[ 6 ] On February 18, 2000, the Respondent was sentenced to probation for one year, a $10,000 fine, and 200 hours of community service. ⁵⁸⁴ “Respondent submitted the report of Dr. Neil Blum-berg into evidence.

In this report, Dr. Blumberg outlines Respondent’s family, medical, and psychiatric history, including the findings of Dr. Larry Raifman, a doctor that evaluated Respondent in 1998. Dr. Blumberg states that Respondent suffers from Obsessive-Compulsive Disorder with Passive Aggressive Features. This report concludes that Respondent has (1) a preoccupation with details, rules, and lists; (2) a need to be perfect; (3) excessive devotion to work; (4) over-conscientiousness; (5) reluctance to delegate tasks or to work with others; and (6) rigidity and stubbornness. “The Attorney Grievance Commission submitted the report of Dr. Christiane Tellefsen into evidence. Dr. Tellef-sen’s opinion indicates that ‘Tayback’s failure to file his income taxes did not stem from any primary psychiatric condition.

His ongoing problems with taxes and other money issues come from his personality problems. He acknowledged that if he had been aware that there was a criminal penalty he would have filed.’ (Report of Christiane Tellefsen, M.D. States Exhibit 1, p. 8) “CONCLUSIONS OF LAW “1. Based on the Respondent’s voluntary guilty plea, there is clear and convincing evidence that Respondent willfully failed to file his federal income tax return for 1993. “2. Respondent has not established mitigating or factual circumstances by a preponderance of the evidence that his actions were not willful. “3.

Respondent has violated Maryland Rules of Professional Conduct 8.4 by: (a) Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”[ 7 ] [Citations omitted.] [Footnotes added.] ⁵⁸⁵ II. Standard of Review This Court has original and complete jurisdiction over attorney disciplinary proceedings. Attorney Grievance Comm’n v. Blum, 373 Md. 275, 293 , 818 A.2d 219, 230 (2003); Attorney Grievance Comm’n v. Harris, 371 Md. 510, 539-40 , 810 A.2d 457, 474-75 (2002); Attorney Grievance Comm’n v. Gavin, 350 Md. 176, 189 , 711 A.2d 193, 200 (1998); Attorney Grievance Comm’n v. Adams, 349 Md. 86, 93 , 706 A.2d 1080, 1083 (1998); Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 470 , 671 A.2d 463, 473 (1996); Attorney Grievance Comm’n v. Kent, 337 Md. 361, 371 , 653 A.2d 909, 914 (1995); Attorney Grievance Comm’n v. Powell, 328 Md. 276, 287 , 614 A.2d 102, 108 (1992). Under our independent review of the record, we must determine whether the findings of the hearing judge are based on clear and convincing evidence.

Attorney Grievance Comm’n v. Monfried, 368 Md. 373, 388 , 794 A.2d 92, 100 (2002); Attorney Grievance Comm’n v. Alison, 349 Md. 623, 629 , 709 A.2d 1212, 1214-15 (1998) (quoting Attorney Grievance Comm’n v. Kemp, 335 Md. 1, 9 , 641 A.2d 510, 514 (1994)). We conduct an independent review of the record, accepting the hearing judge’s findings of fact unless clearly erroneous. Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 97 , 797 A.2d 757, 763 (2002); Attorney Grievance Comm’n v. Wallace, 368 Md. 277, 288 , 793 A.2d 535, 542 (2002); Attorney Grievance Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997). We review the conclusions of law essentially de novo.

See Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 493 , 813 A.2d 1145, 1160 (2002); Attorney Grievance Comm’n v. Dunietz, 368 Md. 419, 428 , 795 A.2d 706, 711 (2002). Accordingly, this Court has the ultimate authority to decide whether a lawyer has violated the professional rules. Garland, 345 Md. at 392 , 692 A.2d at 469 ; Attorney Grievance Comm’n v. Breschi, 340 Md. 590, 599 , 667 A.2d 659, 663 (1995). Respondent has filed two exceptions to the hearing judge’s findings of fact and conclusions of law.

We shall sustain one of respondent’s exceptions and shall overrule the other. Petitioner has also filed in this Court exceptions to the hearing ⁵⁸⁶ judge’s findings of fact and conclusions of law. We sustain all of petitioner’s exceptions.

III

Discussion A. Respondent’s Exceptions Respondent has filed two exceptions to the hearing judge’s findings of fact and conclusions of law. Respondent’s first exception states that the hearing judge erred in “finding that [respondent] did not file his Maryland income tax returns for 1987, 1988 and 1989. In fact, [respondent] did file these returns.” Upon review of the record of this case, we determine that the correct finding should have been that the respondent failed to timely file returns and timely pay those taxes, not that he completely failed to file and pay. Respondent admitted in his “ANSWER TO PETITION FOR DISCIPLINARY ACTION” that “The Respondent failed to timely pay federal or state income taxes as required by law for calendar years 1987 through 1989.” We, therefore, grant this exception, and in doing so hold that the correct finding on this point was that respondent failed to timely file returns for and timely pay the 1987 through 1989 taxes.

Respondent’s second exception states that the hearing judge’s “finding that [respondent] ‘has not established mitigating or factual circumstances by a preponderance of the evidence that his actions were not willful,’ ” was “contrary to the evidence in this case and is the incorrect legal standard.” Respondent argues that the hearing judge “erroneously failed to credit as a mitigating circumstance the finding by United States District Court Judge Andre Davis, who sentenced [respondent] for the underlying criminal charge in this case, that [respondent] was suffering from an obsessive compulsive mental disorder which prevented him from timely filing his state and federal income tax returns.” Respondent also asserts that the hearing judge failed to credit as mitigating circumstances respondent’s many years of practicing law without a single complaint, respondent’s having filed all of his state and federal tax returns to the present and having paid all ⁵⁸⁷ taxes due and owed, and respondent’s taking of medication prescribed for his condition that supposedly has relieved respondent of the symptoms of his obsessive compulsive mental disorder. As indicated, supra, we accept the hearing judge’s findings of facts if they are not clearly erroneous. In regard to respondent’s second exception, we do not find that the hearing judge was in error when he did not accept the mitigating circumstances attested to by respondent. Concerning the discretion of a hearing judge, we have stated that “it is elementary that the [hearing] judge ‘may elect to pick and choose which evidence to rely upon.’ ” Attorney Grievance Commission of Maryland v. Sheridan, 357 Md. 1, 17 , 741 A.2d 1143, 1152 (1999)(alteration added)(quoting Attorney Grievance Comm’n v. Kemp, 303 Md. 664, 675 , 496 A.2d 672, 677 (1985)).

Here, the hearing judge, in his discretion, chose to accept Dr. Tellefsen’s medical opinion concerning the lack of a cause and effect relationship between respondent’s obsessive compulsive disorder and the non-filing of his tax returns and non-payment of taxes over the medical opinion of Dr. Blumberg. As mentioned in the findings by the hearing judge, Dr. Tellefsen concluded that “[respondent’s] failure to file his income taxes did not stem from any primary psychiatric condition.” We find no error in the hearing judge’s decision to afford Dr. Tellefsen’s opinion greater weight. Accordingly, those findings were not clearly erroneous and are based on clear and convincing evidence. As a result, we overrule this factual exception.

The willful failure to file returns and/or to pay personal income taxes is a crime under both federal and Maryland law. See 26 U.S.C. § 7203 (2003); Md.Code (1997, 2003 Repl.Vol.), § 13-1007 of the Tax-General Article. 8 While respondent ⁵⁸⁸ may have “been ethically and competently practicing law at an extraordinary high level ... during his many years of practicing law without a single complaint to a professional disciplinary body,” this does not diminish the severity of the offense to which respondent pled guilty in the United States Court for the District of Maryland; the “Willful Failure to File Income Tax Returns.” Maryland Rule 16-771(g) states, in pertinent part: “(g) Conclusive effect of final conviction of a crime. In any proceeding under this Chapter, a final judgment of any court of record convicting an attorney of a crime, whether the conviction resulted from a plea of guilty, nolo contendere, or a verdict after trial, is conclusive evidence of the guilt of the attorney of that crime.” The repeated failure to timely file tax returns is a serious violation of the MRPC. With respect to failure to file an income tax return, the Comment to MRPC 8.4 begins: “Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return.” There was a contention at the hearing as to whether respondent’s actions of not filing his taxes was to be considered “willful” conduct on account of his obsessive compulsive mental disorder.

Respondent argues that because of his disorder, he cannot be said to have willfully failed to file his taxes. We must therefore examine what precisely is meant by “willful” in regard to failure to file cases. In Deibler v. State, 365 Md. 185 , 776 A.2d 657 (2001), in a case involving wiretapping and telephone abuse, Judge Wilner, writing for the Court, discussed, in general terms, the various meanings which courts have ascribed to the term “willful”: 9 ⁵⁸⁹ “ ‘Willful’ has received four different constructions from the courts. The first, and most restrictive, is that an act is willful only if it is done with a bad purpose or evil motive-deliberately to violate the law.

A second interpretation considers an act to be willful ‘if it is done with the intent to commit the act and with a knowledge that the act is in violation of the law.’ That construction does not require that the defendant possess a sinister motivation, but, like the first interpretation, it does require knowledge that the act is unlawful. The third interpretation ‘requires only that the act be committed voluntarily and intentionally as opposed to one that is committed through inadvertence, accident, or ordinary negligence.’ Under that approach, ‘[a]s long as there is an intent to commit the act, there can be a finding of willfulness even though the actor was consciously attempting to comply with the law and was acting with the good faith belief that the action was lawful.’ What is required is ‘an objective intent to commit the act but not necessarily a knowledge that the act will bring about the illegal result.’ Finally ... some courts have gone so far as to find an act willful even though it was not committed intentionally, but through oversight, inadvertence, or negligence.” Id. at 192-93 , 776 A.2d at 661 (quoting S. Brogan, An Analysis of the Term “Willful” in Federal Criminal Statutes, 51 Notre Dame Lawyer 786 (1976)). Judge Wilner noted that in the majority of applications, the third definition was accepted, i.e., that the act be committed voluntarily and intentionally, not accidentally. In attorney grievance matters based on the willful failure to file tax returns, this Court has consistently defined willfulness as the “ ‘voluntary, intentional violation of a known legal duty not requiring a deceitful or fraudulent motive.’ ” Attorney Grievance Comm’n v. Thompson, 376 Md. 500 , 514-15 n. 6, 830 A.2d 474 , 483 n. 6 (2003) (citing Attorney Grievance Comm’n v. Boyd, 333 Md. 298, 309 , 635 A.2d 382, 387 (1994); Attorney Grievance Comm’n v. Walman, 280 Md. 453, 460 , 374 A.2d 354, 359 (1977)). ⁵⁹⁰ Here, respondent’s “defense” that his claimed obsessive compulsive mental disorder caused him to be unable to file his tax returns, and therefore his actions were not “willful,” is of little merit.

The hearing judge found that respondent had been notified of his obligation; in fact, he had been contacted directly by the Internal Revenue Service in regard to his lack of filing- his federal tax returns. Subsequent to this contact with the Internal Revenue Service, respondent did file his federal returns and paid the taxes, interest, and penalties owed for the years 1987 through 1989. At this time and thereafter, respondent was cognizant of the inappropriateness of his failure to file tax returns and timely pay taxes and temporarily corrected his behavior by actually filing his income tax forms, yet he continued to fail to file various other tax returns. This Court has also held that an attorney who is convicted pursuant to a guilty plea for willful failure to file federal income tax returns cannot