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In Re Teitelbaum

OPINION FILED MAY 21, 1958.

IN RE ABRAHAM TEITELBAUM, ATTORNEY, RESPONDENT.


PROCEEDING TO DISBAR. MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 18, 1958.

The Committee on Inquiry of the Chicago Bar Association filed a complaint against the respondent, Abraham Teitelbaum, with the Committee on Grievances, sitting as commissioners of this court. The charges arose out of his conviction by a jury of income tax evasion in one case and his conviction upon a plea of nolo contendere in another. The commissioners recommended that respondent be disbarred. He has filed exceptions to their report and has brought the record here for review.

The first indictment was returned in the United States District Court for the Northern District of Illinois, Eastern Division, on January 22, 1953. It charged the respondent in six counts with violating section 145(b) of the Internal Revenue Code of 1939, (26 U.S.C. § 145(b),) by wilfully and knowingly attempting to defeat and evade a large part of the income taxes due from a corporation of which he was president, and individual taxes due from him and his wife for the years 1946 and 1947. Respondent was tried before a jury on January 25, 1956, and found guilty as charged. On October 4, 1956, Judge J.S. Perry adjudged him guilty but suspended the imposition of sentence and placed him on probation for twelve months.

The second indictment in two counts was returned against respondent in the same court on September 27, 1955, for the evasion of income taxes allegedly due from him and his wife for the years 1950 and 1951. On August 29, 1956, respondent withdrew his prior plea of not guilty and filed a plea of nolo contendere, whereupon he was committed to the custody of the Attorney General for imprisonment for a period of twelve months, but the execution of sentence was suspended and he was placed on probation for twelve months.

The Committee introduced certified copies of the indictments and convictions and rested its case. It charged that by reason of the conviction respondent was guilty of misconduct involving moral turpitude, conduct which tends to bring the legal profession into disrepute and conduct unbecoming a member of the legal profession.

Respondent testified that prior to his trial on the first indictment he received an assessment notice setting forth that he owed $340,000 in taxes, interest and penalties, and that he paid that amount in full. He stated his reason for the nolo contendere plea to the second indictment was that he was impoverished by his payment of the first assessment and was not financially able to defend. A number of character witnesses testified on respondent's behalf. He then tendered certain documentary proof and made offers of testimony which were denied. The proffered evidence dealt largely with the facts leading up to the indictments and the Committee refused them in evidence on the ground that they tended to go into the merits of the convictions which were conclusive. Respondent asserts that they should have been admitted since they establish that moral turpitude was not involved. The Board of Managers of the Chicago Bar Association did, according to its order, consider the refused evidence only on the question of possible mitigation of the discipline to be recommended. The evidence so offered is in the record and available to this court.

We have adopted and adhered to the rule in disbarrment proceedings, that conviction of a crime involving moral turpitude is conclusive evidence of an attorney's guilt and is ground for disbarrment. (In re Needham, 364 Ill. 65; In re Carr, 377 Ill. 140; In re Pontarelli, 393 Ill. 310.) Therefore, the primary issue before us is whether moral turpitude is involved in respondent's convictions under section 145(b).

Our attention is directed to the fact that section 145(b) of the Code defined wilful violation thereof as a felony, while wilful violation of section 145(a) is classified as a misdemeanor. The fact that the convictions were for mala prohibita rather than mala in se offenses is commented upon, leaving the inference that moral turpitude is involved only in the latter. Whether a conviction is for a felony or a misdemeanor, (see In re Alschuler, 388 Ill. 492,) or whether the offense was malum prohibitum rather than malum in se (as in the Needham and Carr cases), is not the basis for disciplinary action in this State. Rather, the conviction of any crime which involves moral turpitude is per se ground for disbarrment or other disciplinary action under our rule.

Moral turpitude has often been set up as a test. It can be applied in an infinite variety of situations by legislative enactment as well as judicial decision. It is for this reason that it eludes a precise definition which will cover all cases. Without attempting to limit the meaning of the phrase, we think it elementary that fraud or fraudulent conduct on the part of an attorney resulting in his conviction necessarily carries the connotation of moral turpitude. The case of In re Needham, 364 Ill. 65, involved a disbarrment proceeding following a conviction for use of the United States mails for the purpose of obtaining money and property of others by means of fraud and false pretenses. We there said, at page 70: "Attempting to obtain the money or property of others by fraud or false pretenses, whether through the use of the mails or otherwise, involves moral turpitude." The Supreme Court of the United States in Jordan v. De George, 341 U.S. 223, 95 L.ed. 886, used the following language in regard to this question, at page 227: "Without exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude." And again, at page 228 it was said: "In the state courts, crimes involving fraud have universally been held to involve moral turpitude," and the Needham case was cited in the footnotes. (L.ed. p. 890.)

In re Tinkoff, No. 23356, involved a disbarrment proceeding arising out of the conviction of Paysoff Tinkoff for wilfully attempting to defeat and evade the payment of taxes due the government from persons for whom he acted as attorney. He was disbarred by the order of this court, entered without opinion, on June 9, 1937. Respondent argues that there is a distinction in that there Tinkoff acted as counsel for others and here Teitelbaum was acting on his own behalf. This is a distinction without a difference. The fraudulent act of an attorney in his own behalf is no less reprehensible than acting on behalf of a client. In each case he seeks personal gain, directly or indirectly, to the detriment of honesty. (It is interesting to note that the Federal court, while holding that our disbarrment order was not conclusive in a proceeding for disbarrment in a Federal district court, disbarred him because of his conviction. See In re Tinkoff, 101 F.2d 341.)

The record of conviction of respondent is conclusive of his guilt and it has been established in this State that we cannot go behind such record. (In re Needham, 364 Ill. 65; In re Pontarelli, 393 Ill. 310.) We therefore turn to the record of his convictions to ascertain whether fraudulent conduct was involved.

Section 145(b) reads in part: "Any person * * * who willfully attempts in any manner to evade or defeat any tax imposed by this chapter, or the payment thereof, shall * * * be guilty of a felony * * *." It will be noted that section 145(b) is not specifically couched in terms of fraud but speaks in terms of willful intent to evade. A conviction under the section necessitates a finding that the willful-intent-to-evade element therein was proved. In our view such a finding tends strongly to import fraud in a prosecution thereunder. Furthermore, each of the six counts of the indictment of January 22, 1953, charged that the respondent "did wilfully and knowingly attempt to defeat and evade a large part of the taxes due" by filing a "false and fraudulent" tax return (or income tax return) in violation of section 145(b) of the Internal Revenue Code. The verdict read, "We, the Jury, find that defendant, Abraham Teitelbaum guilty as charged in the indictment." The judgment read, in part: "It is adjudged that the defendant is guilty as charged and convicted." Both counts of the indictment returned on September 27, 1955, made charges in substantially identical language. The judgment on this indictment reads in part: "It is adjudged that the defendant has been convicted upon his plea of nolo contendere * * * (and) it is adjudged that the defendant is guilty as charged and convicted."

Despite the charge of fraud in each of the indictments, respondent did not move to quash but went to trial on one indictment and pleaded nolo contendere to another. He now, in effect, seeks to attack the indictments collaterally and have us go behind the convictions. If actual fraud in the commission of an offense involves moral turpitude, and we so hold, then respondent's convictions under unchallenged indictments charging fraud establishes moral turpitude and summary disciplinary action was properly invoked on the records of the convicting court. In order to avoid seeming harshness in this particular case, since we disbarred in the Needham disciplinary action where fraud was both an element of the crime and charged in the indictment, we have examined the proof tendered by respondent to ascertain if it disproves fraud. Actually it confirms a continued course of evasive conduct. The evasion of taxes was not confined to a single instance but was in four separate years, 1946, 1947, 1950 and 1951, and was in substantial amounts. For example, the amount of taxes, exclusive of interest and penalties, due from respondent in the years 1946 and 1947 was in excess of $24,000 and $45,000, respectively, and substantially similar amounts were due from his wife in the same years. The evidence offered wholly fails to show an absence of fraud.

Respondent cites several cases from foreign jurisdictions in support of his contention that moral turpitude is not involved. The case of Kentucky State Bar Association v. McAfee, (Ky.) 301 S.W.2d 899, reveals that a copy of the brief filed in the Supreme Court of California in the case of In re Hallinan, 43 Cal.2d 243, 272 P.2d 768, was attached to the respondent's brief and the Kentucky court stated that it "fully covers the question of whether a conviction for failure to file a Federal Income Tax return involves moral turpitude. A reading ...


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