This case is here upon petition of James L. Means, an attorney at law, for review and modification of the recommendation of the board of governors of the Oregon State Bar that he be suspended from the practice of law in the state of Oregon for the period of one year.
The petitioner was charged by the board of governors with unprofessional conduct as follows:
The facts alleged in the complaint are not disputed except that the petitioner denies that his failure to file federal income tax returns was willful or intentional. The acts charged constitute a violation of § 145 (a), USC, which provides that any person required by law to make an income tax return shall be guilty of a misdemeanor, and, upon conviction thereof, be fined
Among the statutory causes for disbarment or suspension of an attorney are conviction of a misdemeanor involving moral turpitude (ORS 9.480 (1)) and violation of the duty to support the constitution and laws of the United States and of this state (ORS 9.480 (4) and 9.460 (1)).
1-3. On the argument in this court it was contended by counsel for the Oregon State Bar that the misdemeanor of which the petitioner was convicted involves moral turpitude. There are authorities both ways on that question. Rheb v. Bar Association of Baltimore City, 186 Md. 200, 45 A.2d 289, supports the bar's view. Bartos v. United States District Court, 19 F.2d 722, is contra. The reasoning in Hargrove v. United States, 67 F.2d 821, seems to be in harmony with the Bartos case, but we deem it unnecessary to decide the question. Petitioner's offense was undoubtedly a violation of his duty to support the laws of the United States. "He violated the law that it was his duty to uphold." State v. Woerndle, 109 Or. 461, 477, 209 P 604, 220 P 744. Not every violation of law by an attorney, of course, is cause for disciplinary action by the court. But, if it be true, as held by the Circuit Court of Appeals for the Fifth Circuit in Hargrove v. United States, supra, (opinion by Hutcheson, circuit judge) that under the federal statute, not "the act itself," but "the corrupt and criminal motive with which the act was done," makes the offense, then commission of the offense by a member of the bar is not to be overlooked or condoned
There are mitigating circumstances, however. It is not disputed that the petitioner committed the offense under the stress of financial difficulties due to serious and protracted illnesses of himself and members of his family. He kept and preserved over the entire period involved in the charges complete and accurate books of account of his income and expenditures — a fact which tends to negative an actual corrupt intent to defraud the government of its revenues. He kept a duplicate receipt book, and more than half of the original receipts were still in the book — many of them for cash paid over the desk — at the time that the agents of the Internal Revenue Department commenced an investigation of his income. He withheld nothing from the agents and gave them the utmost cooperation. He appears to have dealt at all times honestly with his clients and in all his professional activities.
We have concluded that the ends of justice and the purposes of a proceeding of this kind will be sufficiently served by suspending the petitioner from the practice of law for a period of six months. It is so ordered.