disciplinary handbook: volume v - Supreme Court - State of Ohio

Veneziano, Cuyahoga Cty. Bar Assn. v.120 Ohio St.3d 451, 2008-Ohio-6789. Decided 12/30/2008.Case Summaries- 342Respondent failed to pay federal and state employee tax withholdings for the employees of her lawoffice for seven years and has been subject to 17 tax liens for failing to timely file returns and pay herown federal and state income taxes. Relator initially charged respondent with seven counts, numbered 1through 8, inadvertently omitting number 4. At the hearing the panel chair granted relator‘s motion todismiss Counts 2, 3, 6, and 8 were dismissed. The panel found violations in Counts 1, 5, and 7,recommending a one-year stayed suspension on conditions. The board adopted the panel‘s findings as toCounts 1 and 7 and the recommended sanction, but dismissed as unfounded Count 5 which charged aviolation of DR 9-102(A). Respondent objected to the board‘s report, arguing her misconduct was notdeliberate and warrants no more than a public reprimand and that the panel erred in rejecting the parties‘stipulations and her testimony of excusable ignorance. Respondent urged the court to rely on theparties‘ stipulation that she did not deliberately fail to pay withholding. But, relator observed that thecourt is the final arbiter in disciplinary cases [Reid (1999)] and is not bound by parties‘ stipulation tofacts or misconduct [Donlin (1996)]. The Supreme Court rejected respondent‘s explanation andoverruled her objection. In Count 1, respondent did not report income or pay required withholding taxesfor employees of her law office for tax years 1995 through 2001. Since her 1995 bar admission,respondent practiced primarily on her own. She testified that she had no knowledge of an employer‘sobligation to withhold employee compensation for income tax purposes prior to 2002 when she consulteda tax attorney. She had left the financial affairs of her law office to her husband, a certified publicaccountant. Respondent has a bachelor‘s degree in psychology, a master‘s degree in social work, wasbriefly enrolled in a master‘s degree program in tax law, spent four years in medical school, and iscurrently pursuing a doctorate in clinical psychology, in addition to her law degree. Therefore, herprofessed obliviousness to laws requiring employer withholding carried little weight. The court adoptedthe board‘s finding that respondent violated DR 1-102(A)(6). In Count 7, respondent had 17 tax liensfiled against her for her failure to timely file federal and state income tax returns and pay taxes owedfor the years 2001 through 2005. The court adopted the board‘s finding that she violated DR 1-102(A)(6) for failure to withhold federal payroll taxes from her employer‘s earnings for seven years. Inmitigation, respondent voluntarily reported to tax authorities and has been negotiating a payment scheduleto satisfy her federal and state tax delinquency. Further, respondent has no prior disciplinary record anddemonstrated her overall good character and reputation. BCGD Proc.Reg. 10(B)(2)(a) and (e). Thecourt noted that the parties agreed that respondent‘s deficiencies were not willful, but that respondent‘sclaim of complete ignorance does not, as respondent seems to assert, have the mitigating effect of acausally related mental disability or chemical dependence on her misconduct. The court noted thepurpose of discipline process is to protect the public and allow the court to assess the lawyer‘s fitness topractice. The Supreme Court agreed with the board‘s recommended sanction and so ordered a oneyearsuspension stayed on conditions that respondent successfully complete a two-year term ofprobation, during which she must complete at least 12 hours of continuing legal education relating to lawofficemanagement, allow a monitoring attorney to oversee the office management of her practice, andengage in no further professional misconduct.Rules Violated: DR 1-102(A)(6), 9-102(A)Aggravation: (a), (e)Mitigation: NONEPrior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NOPublic Official: NO Sanction: One-year suspension, stayed