Legal Ethics v. Boettner
Annotate this CaseSeptember 1991 Term
___________
No. 19211
___________
THE COMMITTEE ON LEGAL ETHICS
OF THE WEST VIRGINIA STATE BAR,
Complainant
v.
JOHN L. BOETTNER, JR., AN ACTIVE MEMBER
OF THE WEST VIRGINIA STATE BAR,
Respondent
_______________________________________________________
Recommendation of the Committee on Legal Ethics
I.D. No. 89-298
Three-Year Suspension and Costs
________________________________________________________
Submitted: November 6, 1991
Filed: March 24, 1992
Maria Marino Potter
The West Virginia State Bar
Charleston, West Virginia
Attorney for the Complainant
James T. Cooper
Lovett, Cooper & Glass
Charleston, West Virginia
Attorney for the Respondent
JUSTICE MILLER delivered the opinion of the Court.
JUSTICE BROTHERTON dissents and reserves the right to file a
dissenting opinion.
CHIEF JUSTICE MCHUGH concurs and reserves the right to file a
concurring opinion.
SYLLABUS BY THE COURT
1. "Where annulment of an attorney's license is sought
based on a felony conviction under Article VI, Section 23 of the
Constitution, By-Laws, and Rules and Regulations of the West
Virginia State Bar, due process requires the attorney be given the
right to request an evidentiary hearing[.]" Syllabus Point 2, in
part, Committee on Legal Ethics v. Boettner, 183 W. Va. 136, 394 S.E.2d 735 (1990).
2. Under Article VI, Section 35 of the Constitution,
By-Laws, and Rules and Regulations of the West Virginia State Bar,
disbarment of an attorney and annulment of his license are two ways
of expressing the same form of punishment. The annulment of a
license to practice law constitutes a disbarment. Annulment
relates to the license and disbarment refers to the individual.
3. "The right to an evidentiary mitigation hearing is
not automatic. In order to obtain such a hearing, the attorney
must make a request therefor after the Committee on Legal Ethics
files its petition with this Court under Article VI, Section 25 of
the Constitution, By-Laws, and Rules and Regulations of the West
Virginia State Bar." Syllabus Point 3, Committee on Legal Ethics
v. Boettner, 183 W. Va. 136, 394 S.E.2d 735 (1990).
4. "The cases in which a mitigation hearing will be
appropriate are the exception rather than the rule. Whether a
mitigation hearing is appropriate in a particular instance will
depend upon a variety of factors, including but not limited to, the
nature of the attorney's misconduct, surrounding facts and
circumstances, previous ethical violations, the wilfulness of the
conduct, and the adequacy of the attorney's previous opportunity to
present evidence sufficient for a determination of appropriate
sanctions." Syllabus Point 3, Committee on Legal Ethics v. Folio,
184 W. Va. 503, 401 S.E.2d 248 (1990).
5. "'"In disciplinary proceedings, this Court, rather
than endeavoring to establish a uniform standard of disciplinary
action, will consider the facts and circumstances [in each case],
including mitigating facts and circumstances, in determining what
disciplinary action, if any, is appropriate, and when the committee
on legal ethics initiates proceedings before this Court, it has a
duty to advise this Court of all pertinent facts with reference to
the charges and the recommended disciplinary action." Syl. pt. 2,
Committee on Legal Ethics v. Mullins, 159 W. Va. 647, 226 S.E.2d 427 (1976).' Syllabus Point 2, Committee on Legal Ethics v.
Higinbotham, [176 W. Va. 186], 342 S.E.2d 152 (1986)." Syllabus
Point 4, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).
6. "Ethical violations by a lawyer holding a public office are viewed as more egregious because of the betrayal of the public trust attached to the office." Syllabus Point 3, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).
Miller, Justice:
This disciplinary case involves a conviction of the
respondent attorney by guilty plea in the federal district court
for willfully evading the payment of federal income taxes under 26
U.S.C. § 7201.See footnote 1 This violation occurred when two individuals made
interest payments totaling approximately $4,000 due on a bank loan
obtained by the respondent.
In our earlier opinion, Committee on Legal Ethics v.
Boettner, 183 W. Va. 136, 394 S.E.2d 735 (1990), we remanded this
case for a mitigation hearing in accordance with Syllabus Point 2,
in part:
"Where annulment of an attorney's license is
sought based on a felony conviction under
Article VI, Section 23 of the Constitution,
By-Laws, and Rules and Regulations of the West
Virginia State Bar, due process requires the
attorney be given the right to request an
evidentiary hearing[.]"
We gave several explanations for adopting this rule.
We recognized that under Article VI, Section 23 of the
Constitution, By-Laws, and Rules and Regulations of the West
Virginia State Bar (Bar By-Laws), the annulment of any attorney's
license was mandatory on proof of a conviction of a crime involving
moral turpitude.See footnote 2 In prior cases we had determined that the
willful failure to pay income taxes under 26 U.S.C. § 7201 was a
crime involving moral turpitude. See, e.g., 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).See footnote 3 Consequently, upon conviction of such an
offense, an attorney's license would be automatically annulled. In
note 5 of Committee on Legal Ethics v. Six, 181 W. Va. 52, ___, 380 S.E.2d 219, 221 (1989), we recognized that "annulment" is
equivalent to "disbarment":
"[I]t is clear under Article VI, Section 35 of
the Bar By-Laws that disbarment of an attorney
and annulment of his license are two ways of
expressing the same form of punishment. 'The
annulment of a license to practice law . . .
shall constitute a disbarment.' Annulment
relates to the license and disbarment refers
to the individual."
We also recognized in Boettner, however, that the
American Bar Association's Model Rules of Professional Conduct,
which had become effective in this state on January 1, 1989, had
abolished the term "moral turpitude"; instead, Rule 8.4 defines
"professional misconduct" as "a criminal act that reflects
adversely on the lawyer's honesty, trustworthiness or fitness as a
lawyer[.]" The commentary to the Model Rules states:
"The Model Rules also eliminate the
troublesome 'moral turpitude' standard of DR
1-102(A)(3) of the Model Code [of Professional
Responsibility]. . . .
Commentators have criticized the
Model Code's reference to 'moral turpitude' as
inviting subjective judgments of diverse
lifestyles instead of focusing on the lawyer's
ability and fitness to practice law."
Annotated Model Rules of Professional Conduct
353-54 (American Bar Association 1984).
In view of this, we concluded in Boettner that there was a certain
harshness about the automatic disbarment standard in tax evasion
cases:
"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
reflects 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." 183 W. Va. at ___, 394 S.E.2d
at 738.
This is particularly true when we look to other jurisdictions where
tax evasion cases involving attorneys are dealt with by a
suspension for a period of time rather than a total disbarment.See footnote 4
Another factor leading to the creation of a mitigation
hearing in Boettner was a due process consideration. This arose by
virtue of the fact that under Article VI, Section 25 of the Bar By-Laws, "a certified copy of the order or conviction shall be
conclusive evidence of guilt of the crime or crimes of which the
attorney has been convicted."See footnote 5 Under this procedure, the attorney
had no right to any evidentiary hearing in regard to those charges
which would lead to disbarment. We stated in Boettner: "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." 183 W. Va. at ___, 394 S.E.2d at 738.
(Citations omitted).
Although we created the right to apply for a mitigation
hearing where annulment was sought, we surrounded it with several
safeguards, as illustrated by Syllabus Point 3 of Boettner:
"The right to an evidentiary
mitigation hearing is not automatic. In order
to obtain such a hearing, the attorney must
make a request therefor after the Committee on
Legal Ethics files its petition with this
Court under Article VI, Section 25 of the
Constitution, By-Laws, and Rules and
Regulations of the West Virginia State Bar."
Moreover, in Syllabus Point 2, in part, we identified the focus of
the mitigation 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."
Subsequently, in Committee on Legal Ethics v. Folio, 184
W. Va. 503, 401 S.E.2d 248 (1990), we explained in Syllabus Point 3
some additional factors that should be considered in determining
whether a mitigation hearing should be granted:
"The cases in which a mitigation
hearing will be appropriate are the exception
rather than the rule. Whether a mitigation
hearing is appropriate in a particular
instance will depend upon a variety of
factors, including but not limited to, the
nature of the attorney's misconduct,
surrounding facts and circumstances, previous
ethical violations, the wilfulness of the
conduct, and the adequacy of the attorney's
previous opportunity to present evidence
sufficient for a determination of appropriate
sanctions."
The factors considered in Folio are similar to those
listed by the American Bar Association in its "Standards for
Imposing Lawyer Sanctions" as being relevant mitigating
circumstances to justify a reduction in the degree of discipline to
be imposed. These factors are: (a) absence of a prior
disciplinary record; (b) absence of a dishonest or selfish motive;
(c) personal or emotional problems; (d) timely good faith effort to
make restitution or to rectify consequences of misconduct; (e) full
and free disclosure to disciplinary board or cooperative attitude
toward proceedings; (f) inexperience in the practice of law; (g)
character or reputation; (h) physical or mental disability or
impairment; (i) delay in disciplinary proceedings; (j) interim
rehabilitation; (k) imposition of other penalties or sanctions; (l)
remorse; and (m) remoteness of prior offenses.See footnote 6
With regard to what is an appropriate disciplinary
sentence for an attorney, we have traditionally recognized that it
is not possible to set a uniform standard, as we acknowledged in
Syllabus Point 4 of Committee on Legal Ethics v. Roark, 181 W. Va.
260, 382 S.E.2d 313 (1989):
"'"In disciplinary proceedings, this
Court, rather than endeavoring to establish a
uniform standard of disciplinary action, will
consider the facts and circumstances [in each
case], including mitigating facts and
circumstances, in determining what
disciplinary action, if any, is appropriate,
and when the committee on legal ethics
initiates proceedings before this Court, it
has a duty to advise this Court of all
pertinent facts with reference to the charges
and the recommended disciplinary action."
Syl. pt. 2, Committee on Legal Ethics v.
Mullins, 159 W. Va. 647, 226 S.E.2d 427
(1976).' Syllabus Point 2, Committee on Legal
Ethics v. Higinbotham, [176 W. Va. 186], 342 S.E.2d 152 (1986)."
Roark is also instructive on the proposition that where an attorney
holds a public office his or her ethical violations are viewed more
seriously, as we explained in Syllabus Point 3:
"Ethical violations by a lawyer
holding a public office are viewed as more
egregious because of the betrayal of the
public trust attached to the office."
In this case, the respondent was a member and majority
leader of the State Senate and chairman of the Senate Judiciary
Committee at the time of the offenses. The loan in question was
obtained to pay off the respondent's back campaign expenses. At
the mitigation hearing, much of the testimony was devoted to
showing that the respondent was guilty of only a "technical"
violation of the Internal Revenue Code. The respondent, along with
an independent witness, sought to explain that the interest
payments were not made at the respondent's request.
One of the payors, Mr. D'Annunzio, was a director of the
bank where the loan was obtained.See footnote 7 He apparently had been active
in securing the loan for the respondent. According to the record,
Mr. D'Annunzio was aware of the bank's concern over the loan's
delinquency. He made two payments totaling $3,619.55. The other
payor made a payment in the amount of $500.
Testimony was also introduced on the respondent's behalf
through a tax attorney, a Mr. Ricardi, as to the civil liability
for income taxes owed as a result of the foregoing payments.See footnote 8 It
was Mr. Ricardi's view that because the third-party payments were
for interest owed the bank and because the interest was a
deductible expense, any income to discharge it would be a "wash"
for tax purposes.See footnote 9
Other mitigating factors that can be gleaned from the
record include the fact that the respondent has not received any
other disciplinary punishment. He devoted some five years at the
beginning of his law practice to legal services and public interest
law groups. He also testified that even in his private practice,
he has devoted a considerable amount of time to public interest
work. Moreover, until this event, the respondent enjoyed a good
character and reputation and was regarded as a conscientious public
servant.See footnote 10 Finally, we consider the offense itself. The
respondent did express remorse, although this was tempered to some
degree by his insistence that he was unaware of the tax
consequences of the interest payments. It was apparent that the
respondent was inexperienced in the federal income tax law.
Of some importance is the fact that the interest payments
the respondent failed to report would have increased his taxable
income of $25,046 by approximately $4,000, and increased his income
tax liability $8,456 to $10,033. This is not a substantial amount.
We believe some distinction can be made between an individual who
directly receives income payments and an individual who is unaware
of unsolicited payments made by others to third parties.
In considering an appropriate punishment in light of the
foregoing, we recognize that the Committee's recommendation of
disbarment is analogous to a five-year suspension because Article
VI, Section 35 of the Bar By-Laws permits a disbarred attorney to
apply for reinstatement of his license to practice after five
years.See footnote 11 In Committee on Legal Ethics v. Roark, supra, the
respondent entered a guilty plea in federal district court to six
misdemeanor counts of possession of cocaine. Pursuant to the plea
agreement, twenty-four other counts in the indictment were
dismissed. The attorney had held the offices of prosecuting
attorney and Mayor of the City of Charleston during the period when
the crimes were committed. Prior to the commission of these
offenses, the respondent had enjoyed an excellent reputation and
good character in the community. We imposed a three-year
suspension.
In Committee on Legal Ethics v. Folio, supra, the
attorney had been convicted by a jury in the federal district court
on one felony count of conspiracy to obstruct justice. We refused
to grant a mitigation hearing and affirmed the annulment of the
attorney's license.
More recently, in Committee on Legal Ethics v. Craig, ___
W. Va. ___, ___ S.E.2d ___ (No. 20612 2/7/92), we imposed a three-year suspension on an attorney who had worked as an administrative
assistant to the governor and illegally distributed $100,000 in
campaign funds. He had also received from the governor a $5,000
cash payment, which he did not initially declare on his income tax
return, and admitted lying to a federal grand jury about the
distribution of campaign funds. Upon becoming aware of the
governor's attempt to cover up the transaction, however, the
attorney had his attorney contact the federal prosecutor's office
to report that he had lied to the grand jury. He subsequently
testified truthfully to the grand jury and was not criminally
indicted. He also filed an amended tax return to report the $5,000
payment.
In the present case, while the funds involved are not
substantial and there are some mitigating factors, as earlier
noted, the crime does involve a felony. The plea bargain which
accompanied the guilty plea resulted in the Government's agreement
not to pursue two other charges that had been investigated. See footnote 12
Under all the circumstances, we find that a three-year suspension
and the payment of the costs incurred by the Committee is an
appropriate sanction.
Three-year suspension
and costs.
Footnote: 126 U.S.C. § 7201 states:
"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."
Footnote: 2The relevant language 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[.]"
Footnote: 3Syllabus Point 1 of In the Matter of Mann, supra,
states: "A conviction of a charge of willfully attempting to
evade and defeat income taxes in violation of the provision of
Section 7201, Internal Revenue Code, (26 U.S.C., Section 7201),
is a conviction involving moral turpitude."
Footnote: 4See, e.g., Supreme Court Comm. on Professional Conduct
v. Jones, 256 Ark. 1106, 509 S.W.2d 294 (1974); Florida Bar v.
Ryan, 352 So. 2d 1174 (Fla. 1977); In re Walker, 67 Ill. 2d 48, 7
Ill. Dec. 89, 364 N.E.2d 76 (1977); Committee on Professional
Ethics & Conduct v. Ulstad, 376 N.W.2d 612 (Iowa 1985); Louisiana
State Bar Ass'n v. Ponder, 340 So. 2d 134 (La. 1976), appeal
dism'd, 431 U.S. 934, 97 S. Ct. 2643, 53 L. Ed. 2d 251 (1977); In
re Barta, 461 N.W.2d 382 (Minn. 1990); In re Del Mauro, 67 N.J.
400, 341 A.2d 325 (1975); Matter of Brown, 75 A.D.2d 398, 429 N.Y.S.2d 810 (1980); Allen County Bar Ass'n v. King, 48 Ohio St.
3d 8, 548 N.E.2d 238 (1990); Matter of Eisenberg, 81 Wis. 2d 175,
259 N.W.2d 745 (1977), cert. denied, 436 U.S. 946, 98 S. Ct. 2850, 56 L. Ed. 2d 788 (1978). See generally Annot., 63 A.L.R.3d
512 (1975).
Footnote: 5The relevant text of Article VI, Section 25 of the Bar
By-Laws reads:
"In any proceeding to suspend or
annul the license of any such attorney
because of his conviction of any crime or
crimes mentioned in sections twenty-three or
twenty-four, 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."
Footnote: 6"Standards for Imposing Lawyer Discipline," 50
(American Bar Ass'n, Center for Professional Responsibility 1991
ed.).
Footnote: 7Mr. D'Annunzio was deceased at the time of the
mitigation hearing. The record reflects that he had acted as a
lobbyist.
Footnote: 8The respondent's plea agreement in connection with the
criminal violation allowed him to contest his civil tax liability
with the Internal Revenue Service.
Footnote: 9There was also evidence introduced by the respondent
that he had not been able to obtain the cooperation of the
Internal Revenue Service to settle the civil tax obligation
question.
Footnote: 10The federal judge who handled the criminal
prosecution of the respondent had this to say about the
respondent at the sentencing hearing:
"Both your career and your
financial history satisfy the court that you
are not an individual motivated by greed, for
6 of your 21 years of practicing law were
largely sacrifice[d] to the benefit of needy
clientele of the Legal Aid Society and the
Appalachian Research and Defense Fund. That
was followed by these last 15 years in the
legislature where you pursued a political
career which has simply consumed your
intention and attention, and proved costly to
your efforts to establish a remunerative law
practice."
Footnote: 11Article VI, Section 35 of the Bar By-Laws provides,
in relevant part:
"The annulment of a license to
practice law by any court of competent
jurisdiction shall revoke and terminate such
license, and shall constitute a disbarment;
provided, however, after the expiration of
five (5) years from the date of such
disbarment, a person, whose license to
practice law has been or shall be annulled in
this State and who shall desire reinstatement
of such license, may file a verified petition
[in this Court for reinstatement]."
Footnote: 12It appears that the Government had brought charges of
a Hobb's Act violation under 18 U.S.C. § 1951 and conspiracy
under 18 U.S.C. § 371.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.