IN RE GERALD I. KATZ ( 2016 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-BG-566 12/22/16
IN RE GERALD I. KATZ, RESPONDENT.
A Suspended Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 237925)
On Report and Recommendation
of the Board on Professional Responsibility
(BDN-D143-15)
(Submitted April 22, 2016 Decided December 22, 2016)
Peter F. Axelrad for respondent.
Wallace E. Shipp, Jr., Disciplinary Counsel, and William R. Ross, Assistant
Disciplinary Counsel, for the Office of Disciplinary Counsel.
Before THOMPSON and EASTERLY, Associate Judges, and REID, Senior Judge.
PER CURIAM: The Maryland Court of Appeals disbarred respondent Gerald
Katz after it determined that he had violated Maryland’s Lawyers’ Rules of
Professional Conduct by willfully failing to timely file and pay his federal income
taxes for over a decade. Att’y Grievance Comm’n of Md. v. Katz, 116 A.3d 999,
1007, 1013 (Md. 2015). Because D.C. Bar Rule XI, § 11 (c) establishes a default
2
rule that this court should impose the same discipline as the original disciplining
jurisdiction, this court ordered Mr. Katz to show cause why reciprocal discipline
should not be imposed. Mr. Katz bears the burden to show by clear and
convincing evidence that an exception to the default rule applies. We conclude
that Mr. Katz has failed to carry his burden and order that he be disbarred.
I. Factual and Procedural History
The Maryland Court of Appeals directed a trial court to hold an evidentiary
hearing on the Maryland Bar Counsel’s Petition for Disciplinary or Remedial
Action against Mr. Katz. Katz, 116 A.3d at 1002. Thereafter the Maryland Court
of Appeals adopted the trial court’s findings (which Mr. Katz had not disputed, id.
at 1005) that Mr. Katz filed his federal tax returns late for “tax years 1996 through
2005 and 2007 through 2010, and ‘grossly underpaid’ his income taxes for tax
years 1996 through 2010,” in the amount of $2,503,757.1 Id. at 1002–03.
1
Mr. Katz settled a civil tax action brought by the federal government by
“consent[ing] to entry of a tax judgment . . . in the amount of $5,462,935.25, which
represented the amount of federal income tax owed . . . plus interest and penalties.”
Katz, 116 A.3d at 1002. Though Mr. Katz agreed to fulfill this judgment by
making one lump sum payment of several hundred thousand dollars, and monthly
payments thereafter, he had not fulfilled the former commitment as of the time of
his disciplinary proceedings in Maryland. Id.
3
Based on these findings, the Maryland Court of Appeals determined that Mr.
Katz had violated Maryland Lawyers’ Rules of Professional Conduct (MLRPC)
8.4 (a)–(d) (2015).2 Specifically, the Maryland court held that Mr. Katz’s
“repeated, willful failure to pay his federal income taxes and timely file his federal
income tax returns represent[ed] dishonest conduct that violated MLRPC 8.4 (c),”
Katz, 116 A.3d at 1007, as well as criminal conduct “reflect[ing] adversely on his
fitness to practice law” that violated MLRPC 8.4 (b), id. at 1007–09, and conduct
“prejudicial to the administration of justice” under MLPRC 8.4 (d), id. at 1010.
The Maryland court further concluded that “because [Mr.] Katz violated MLRPC
8.4 (b), (c), and (d), he also violated MLRPC 8.4 (a).” Id.
2
These Rules are virtually identical to the D.C. Rules of Professional
Conduct, see D.C. R. Prof’l Conduct 8.4, and state that:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’
Rules of Professional Conduct . . . ;
(b) commit a criminal act that reflects adversely on the
attorney’s honesty, trustworthiness or fitness as an
attorney in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; [or]
(d) engage in conduct that is prejudicial to the
administration of justice. . . .
MLRPC 8.4 (a)–(d) (2015).
4
In considering the appropriate sanction for these Rule violations, the
Maryland Court of Appeals weighed the severity of Mr. Katz’s misconduct—the
failure “to timely file his income tax returns for 14 years,” and the underpayment
of “his taxes for 15 years to the tune of approximately $2.5 million”—noting that it
was “far more egregious than that of other attorneys [the Maryland court] ha[d]
suspended for failure to file and pay their income taxes.” Id. at 1011. The court
also noted that a “critical consideration” was Mr. Katz’s “intentional dishonest
conduct for personal gain,” again contrasting cases in which the court had
determined that the lesser sanction of suspension was appropriate because “the
willful failure to file [wa]s not the result of fraudulent or dishonest intent.” Id. at
1012. “In light of the severity of [Mr.] Katz’s intentional dishonest conduct, and
finding no mitigating factors,” the Maryland court “concluded that disbarment
[wa]s the appropriate sanction.” Id. at 1013.
II. Whether Reciprocal Discipline Should Be Imposed
D.C. Bar Rule XI, § 11 (c) establishes a default rule that this court should
impose the same discipline as the original disciplining jurisdiction. See In re
Chaganti, 144 A.3d 20, 23 n.3 (D.C. 2016). An attorney may escape reciprocal
discipline only if he can show, by clear and convincing evidence, that:
5
(1) The procedure elsewhere was so lacking in notice or
opportunity to be heard as to constitute a deprivation of
due process; or
(2) There was such infirmity of proof establishing the
misconduct as to give rise to the clear conviction that the
Court could not, consistently with its duty, accept as final
the conclusion on that subject; or
(3) The imposition of the same discipline by the Court
would result in grave injustice; or
(4) The misconduct established warrants substantially
different discipline in the District of Columbia; or
(5) The misconduct elsewhere does not constitute
misconduct in the District of Columbia.
D.C. Bar R. XI, § 11 (c). These exceptions are narrowly interpreted. In re
Chaganti, 144 A.3d at 23. As this court has previously stated, “reciprocal
discipline proceedings are not a forum to reargue the foreign discipline.” In re
Zdravkovich, 831 A.2d 964, 969 (D.C. 2003).
Mr. Katz invokes Rule XI, § 11 (c)(3) and (4), but does not separately
develop arguments under these distinct exceptions as to why this court should not
reciprocally disbar him. Instead, he presents a jumble of arguments seemingly
aimed at demonstrating that this court would not have disbarred him for his
6
misconduct had it come before us as an original matter.3 We rather think we would
have, see infra notes 8 & 9, but that is not the question. As we explained in In re
Zdravkovich:
Underlying our strict standard in reciprocal bar discipline
cases is not only the notion that another jurisdiction has
already afforded the attorney a full disciplinary
proceeding, but also the idea that there is merit in
according deference, for its own sake, to the actions of
other jurisdictions with respect to the attorneys over
whom we share supervisory authority. Our standard in
reciprocal bar discipline proceedings comports with
constitutional due process requirements because the
attorney either has had an evidentiary hearing or had the
right to one. It also is firmly established that principles
of collateral estoppel apply in reciprocal discipline cases.
831 A.2d at 969 (citations omitted).
Thus, although the “contours” of our grave injustice exception, contained in
D.C. Bar Rule XI, § 11 (c)(3), “are not clearly defined,” In re Chaganti, 144 A.3d
at 26, we have never indicated that a mere departure from the discipline this court
3
Mr. Katz also argues that the Maryland court’s decision to disbar him was
inconsistent with other Maryland disciplinary decisions. The internal consistency
of a foreign jurisdiction’s discipline has no independent bearing on our decision to
impose reciprocal discipline. See D.C. Bar R. XI, § 11 (c).
7
would have imposed satisfies that exception to the default rule. Similarly,
although we consider what discipline this Court likely would have imposed as part
of our analysis under Rule XI, § 11 (c)(4), we have made clear that the sanction
from the foreign jurisdiction “need not be one that [Disciplinary] Counsel would
have sought had it been an original proceeding in the District; the sanction need
only fall within the range of sanctions possible here in the District.” In re Jacoby,
945 A.2d 1193, 1200 (D.C. 2008). Moreover, even where the discipline imposed
in this jurisdiction would have been different from that of the disciplining court,
we depart from reciprocal discipline only if “the difference is substantial.” In re
Garner, 576 A.2d 1356, 1357 (D.C. 1990).
Reviewing the arguments made by Mr. Katz as to why he would have been
disciplined differently in this jurisdiction, we are not persuaded that he is entitled
to relief under either Rule XI, § 11 (c)(3) or (4).
Mr. Katz first argues that although the Maryland Court of Appeals
concluded that his failure to timely file and pay his taxes amounted to criminal
conduct, Katz, 116 A.3d at 1007–09; see also 26 U.S.C. § 7203 (2012), this court
has “no precedent” for characterizing attorney misconduct as criminal conduct,
8
absent a criminal conviction. This is incorrect,4 and, in any event, irrelevant, as we
defer to the Maryland court’s characterization of Mr. Katz’s misconduct.5 See In
re Pennington, 921 A.2d 135, 136, 142–44 (D.C. 2007) (rejecting a lenient
sentence in a reciprocal discipline case on the basis that this court must defer to
“nature of the misconduct” found by the Maryland court).
Next, Mr. Katz argues that “there has been no claim of a willful failure to
file tax returns; there has only been a claim of failure to timely file tax returns,” the
latter of which he contends has not resulted in disbarment in the District even in
4
See, e.g., In re Slattery, 767 A.2d 203, 207 (D.C. 2001) (“There is no
requirement . . . that an attorney actually have been convicted of a crime for the
rule to apply.”); In re Gil, 656 A.2d 303, 305 (D.C. 1995) (“In construing the
phrase ‘criminal act’ for purposes of Rule 8.4 (b), this court properly may look to
the law of any jurisdiction that could have prosecuted respondent for the
misconduct.” (emphasis added)). Seemingly conceding the point, Mr. Katz argues
in his Reply to Disciplinary Counsel’s Statement Regarding Reciprocal Discipline
that this court “has not yet directly addressed the question of failure to timely file
an income tax return or timely pay the requisite taxes absent a criminal
conviction.” But he fails to explain why we would make an exception to our
general rule for this particular subject matter.
5
Mr. Katz concedes that he “never denied” that the Maryland Court of
Appeals “found that his actions were willful,” and he makes no argument to this
court that the evidence did not support the Maryland court’s determination that he
willfully failed to timely file his taxes and grossly underpaid his taxes or that the
Maryland court misinterpreted 26 U.S.C. § 7203 as applied to his conduct.
9
cases where the attorney was convicted of a crime.6 Preliminarily, the Maryland
court determined that Mr. Katz had engaged in misconduct that amount to a
violation of 26 U.S.C. § 7203, which itself makes no distinction between the
failure to file at all and a failure to timely file. Instead, any person required to file
taxes “who willfully fails to . . . make such return . . . at the time or times required
by law or regulations” is guilty of willfully failing to file taxes. 26 U.S.C. § 7203.
Thus there is no legal distinction between willfully failing to file taxes until five
years after they are due, as Mr. Katz did, Katz, 116 A.3d at 1003, and willfully
failing to file taxes at all.
More to the point, Mr. Katz cites no cases from this jurisdiction where we
have declined to disbar someone for failing to timely pay, over a period of many
years, millions of dollars in taxes owed. Instead Mr. Katz relies on our decision in
In re Kerr, 611 A.2d 551 (D.C. 1992), arguing that the attorney’s conduct in that
case was more egregious because it resulted in a criminal conviction, and yet the
6
Mr. Katz confusingly cites to D.C. Bar Rule XI, § 10, and argues that it
only requires suspension of attorneys found guilty of “serious crimes”; but he
misunderstands the purpose of the rule, which is to suspend such attorneys during
the pendency of disciplinary proceedings (which may well result in disbarment).
10
attorney was only suspended.7 We disagree. That attorney “knowingly filed [one]
false federal income tax return” by failing to claim $8,000 of income, but he later
amended his return and paid taxes due. In re Kerr, 611 A.2d at 552. By contrast,
Mr. Katz filed his federal tax returns one to five years late for fourteen years,
during which period he “grossly underpaid” his federal taxes even though he “had
available to him large amounts of discretionary income” which could have been
used to fulfill his tax obligations. Katz, 116 A.3d at 1006, 1008–09 (noting that
“there is no indication that Katz used the money for anything other than personal,
excessive expenditures”). In the Maryland court’s view, Mr. Katz’s “willful[]
fail[ure] to file his federal income tax returns” amounted to fraud and “intentional
dishonest conduct for personal gain.” Id. at 1009, 1012. Thus, on the undisputed
facts and the Maryland court’s characterization of those facts, which Mr. Katz has
not contested, his misconduct was far more egregious than the misconduct of Mr.
7
Relying on In re Kerr, Mr. Katz also argues that the failure to pay taxes or
timely file tax returns is not a crime of moral turpitude per se in the District. But
whether a crime is one of moral turpitude per se and thus requires disbarment
under D.C. Code § 11-2503 (a) (2016 Repl.), is not our concern in a reciprocal
discipline case where, as we explained above, the pertinent inquiry is whether this
court would have imposed the same sanction or something sufficiently close to it.
See In re Garner, 576 A.2d at 1357.
11
Kerr. The mere fact that Mr. Katz was never criminally prosecuted does not alter
our conclusion on this point.8
Lastly, Mr. Katz seems to make a mitigation argument. He argues that,
other than this case and one prior reciprocal discipline matter, see supra note 8, he
has never had “any other disciplinary or criminal problems”; that “[n]o evidence
was adduced in the Maryland proceeding to question [his] work ethic, professional
integrity, client satisfaction, timeliness, or competency to perform his professional
tasks”; and that his “personal issue regarding his income tax responsibilities is
unrelated to his professional competence and performance as an attorney.” But
Mr. Katz made virtually the same arguments to the Maryland Court of Appeals,
and that court found “no mitigating factors” in his case. See Katz, 116 A.3d at
8
We agree with Disciplinary Counsel that Mr. Katz’s case is more
analogous to In re Shorter, 570 A.2d 760, 761–63 (D.C. 1990) (holding that
disbarment was an appropriate sanction for an attorney who failed to pay
“$134,866.40 in federal taxes” over an eleven year period, was convicted of “one
felony count of willful tax evasion” and “six misdemeanor counts of willful failure
to pay taxes” under 26 U.S.C. § 7203, was found to have violated the precursor to
Rule 8.4 (c), and had been disciplined for similar misconduct previously). This is
especially true in light of the fact that this court previously reciprocally disciplined
Mr. Katz for willful failure to file state income tax returns in Maryland in 2004 and
2005. See In re Katz, 45 A.3d 161, 161 (D.C. 2012); see also Att’y Grievance
Comm’n of Md. v. Katz, 55 A.3d 909, 910 (Md. 2012); accord In re Shorter, 570
A.2d at 762 (noting that “this is not the first time that our court has been called
upon to discipline respondent for tax-related offenses”).
12
1011–13. Absent any argument that the Maryland court’s procedures did not fulfill
due process requirements or that its findings were factually unsubstantiated, we
will not entertain these arguments anew. See D.C. Bar R. XI, § 11 (c); In re
Pennington, 921 A.2d at 136, 142–44; cf. In re Gilbert, 538 A.2d 742, 746 (D.C.
1988) (“[W]e note that the Maryland court, in considering sanction, found ‘the
absence of any compelling extenuating circumstances.’ We believe the
misconduct does not warrant substantially different discipline from that imposed in
Maryland.” (citation omitted)).9
III. Conclusion
We conclude that Gerald Katz has failed to demonstrate that he is entitled to
relief from reciprocal discipline under either Rule XI, § 11 (c)(3) or (4). For the
foregoing reasons, Mr. Katz is hereby disbarred from the practice of law in the
District of Columbia and may petition this court for reinstatement five years from
9
That said, had we confronted these facts as an original matter we may very
well have found that such an extended failure to pay taxes owed, where there was
no impediment to making full payment, would amount to “a pattern of dishonest
dealing” with the federal government, In re Shorter, 570 A.2d at 771, which is
“equally as reprehensible as cheating a client,” Katz, 116 A.3d at 1012–13; id. at
1010 (observing that “[a]n attorney’s willful failure to file income tax returns”
indicates that he is “placing himself above th[e] law” and “may seriously impair
public confidence in the entire profession”).
13
the effective date of his disbarment, In re McBride, 602 A.2d 626, 641 (D.C.
1992), which shall be imposed nunc pro tunc to July 27, 2015, pursuant to D.C.
Bar Rule XI, § 14 (g).
So ordered.