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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a
stipulation filed pursuant to SCR 22.12 by
the Office of Lawyer Regulation (OLR) and
Attorney Geneva E. McKinley. In the
stipulation, Attorney McKinley admits that
she pled no contest to and was convicted of
two misdemeanor counts of filing a tax
return that she believed was not true and
correct, in violation of Wis. Stat. § 71.83
(2)(a)2. She further admits that the
conduct underlying these two convictions
constituted violations of SCR 20:8.4(b).
The stipulation requests this court to
impose a 60-day suspension of Attorney
McKinley's license to practice law in
Wisconsin as discipline for the admitted
misconduct. There is no request for a
restitution award or the imposition of any
conditions on the reinstatement of Attorney
McKinley's license.
¶2 After closely reviewing this matter,
we approve the stipulation and suspend
Attorney McKinley's license to practice law
in this state for a period of 60 days. We
do not impose any restitution obligation.
Because this matter was resolved with a
stipulation under SCR 22.12, we do not
require Attorney McKinley to pay any of the
costs of this proceeding.
¶3 Attorney McKinley was admitted to
the practice of law in this state in April
1996. According to the transcript of the
plea and sentencing hearing in the criminal
action, which was filed in this matter in
connection with the stipulation, during much
of the time relevant to the acts at issue in
this matter she maintained a solo law
practice, in which she accepted appointments
from the Office of the State Public Defender
and represented private clients. In March
2007 she began employment as a full-time
court commissioner for the Milwaukee County
circuit court. As a result of the
convictions described in this opinion, she
is no longer a court commissioner. Attorney
McKinley has never before been the subject
of professional discipline.
¶4 The state initially filed a criminal
complaint against Attorney McKinley in June
2011, alleging that she had committed two
felony counts of filing false or fraudulent
tax returns, in violation of Wis. Stat. §
71.83(2)(b)1. Those charges required proof
that the filing of the false tax returns had
been done "with intent to defeat or evade"
the payment of state income taxes. The
criminal complaint alleged that Attorney
McKinley had underreported her income on her
2006 and 2007 state income tax returns by a
total of more than $117,000 and that the
estimated benefit of the underreporting on
both her federal and state tax returns had
been slightly less than $33,000. The
prosecutor representing the state explained
at the sentencing hearing that Attorney
McKinley had failed to report income from
certain private pay clients and from the
rental of a commercial building she owned.
She also carried forward improper net
business losses from her 2006 return that
resulted in the underreporting of income on
her 2007 state income tax return.
¶5 After a lengthy pretrial stage,
Attorney McKinley reached a plea agreement
with the state. According to the prosecutor
representing the state, because of some
issues regarding a couple of the state's
witnesses that were unrelated to the
substance of their testimony but might
impact their credibility, the state agreed
to file an amended information. The amended
information changed the applicable tax years
for the charges from 2006 and 2007 to 2005
and 2006. The prosecutor explained that the
income not reported on the 2005 state income
tax return was, as in 2006, attorney fees
paid to Attorney McKinley by a number of
private pay clients. Although the
prosecutor did not indicate that the
original charge for the 2007 tax return had
been inaccurate in any regard, the amended
information no longer contained a charge
regarding that tax year.
¶6 The other substantial change in the
amended information was that the charges
were reduced from felony offenses to
misdemeanors. Instead of charging Attorney
McKinley with filing false or fraudulent tax
returns with the intent to evade or defeat
the assessment of state income taxes, in
violation of Wis. Stat. § 71.83(2)(b)1, the
state now charged Attorney McKinley with
simply making and subscribing a tax return
that she did not believe to be true and
correct in every material matter, in
violation of Wis. Stat. § 71.83(2)(a)2. The
misdemeanor charges did not include the
element of intending to evade or defeat the
payment of state income taxes.
¶7 Attorney McKinley pled no contest to
the two misdemeanor counts alleged in the
amended information. The circuit court
accepted her pleas and found her guilty of
those two offenses. Prior to sentencing,
Attorney McKinley was allowed an opportunity
to address the court. She expressed shame
and remorse for her conduct, as well as a
willingness to seek treatment/counseling.
¶8 The circuit court agreed with the
state's recommendation to withhold sentence
and place Attorney McKinley on probation.
It did not follow, however, the state's
recommendation for two years of probation,
with six months of jail time as a condition
of probation. Instead, the circuit court
required Attorney McKinley to spend only
five days in the county jail over the 2013
Thanksgiving weekend as a condition of her
probation. It also set the period of
probation at 18 months, which could be
reduced to one year if Attorney McKinley
underwent eight sessions of grief counseling
or individual counseling. Finally, the
circuit court required as a condition of
probation that Attorney McKinley obtain a
mental health assessment and follow up with
any treatment recommendations that resulted
from that assessment.
¶9 The circuit court commented during
its sentencing statement that it did not
believe that Attorney McKinley would have
intentionally endangered her job, her law
license, and her reputation to save a few
thousand dollars in taxes. The court
indicated that it believed there were other
factors that had led Attorney McKinley to
fail to report certain amounts of income—the
illness and death of her mother and a
serious depression that corresponded with
the time period of her misconduct.
¶10 By the time of Attorney McKinley's
sentencing, she had already made a $9,000
payment to the Wisconsin Department of
Revenue, which was equal to or near the
amount of back taxes owed for the 2005, 2006
and 2007 tax years. Following her
sentencing, Attorney McKinley timely self-
reported her convictions to the OLR.
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¶11 As noted at the beginning of this
opinion, Attorney McKinley has stipulated
with the OLR that she has been convicted of
the two misdemeanors described above, and
that her conduct leading to those
convictions constituted violations of SCR
20:8.4(b). In the stipulation, Attorney
McKinley agrees with the OLR's position that
a 60-day suspension of her license to
practice law in Wisconsin would be an
appropriate level of discipline to impose in
response to her misconduct. The stipulation
clearly states that it was not the result of
plea bargaining, and that Attorney McKinley
has acceded to the factual allegations,
legal conclusions, and level of discipline
sought by the OLR.
¶12 The stipulation contains a number of
representations by Attorney McKinley. She
states that she fully understands the
misconduct allegations against her and her
right to contest those allegations. She
nonetheless admits her misconduct and
assents to the discipline sought by the
OLR. She further states that she fully
understands the ramifications that will
follow if this court accepts the stipulation
and imposes the requested level of
discipline. Attorney McKinley also
represents that she understands her right to
consult with counsel in this matter.
Finally, she asserts that her entry into the
stipulation is made knowingly and
voluntarily.
¶13 There is no dispute that Attorney
McKinley's state income tax returns for the
relevant years contained information that
was not true and that Attorney McKinley did
not believe to be true. That is clearly
sufficient for this court to find a
violation of SCR 20:8.4(b).
¶14 The only real issue here is whether
the stipulated level of discipline (a 60-day
suspension) is an appropriate level of
discipline. In its memorandum in support of
the stipulation, the OLR states that it most
closely considered four precedents in
analyzing what level of discipline it would
seek in this matter: Public Reprimand of
William J. Grogan, No. 2007-6 (consensual
public reprimand for conduct including
failing to file timely state and federal tax
returns over several years and failing to
cooperate with the OLR's investigation);
In re Disciplinary Proceeding Against
Lex, 2000 WI 49, 235 Wis. 2d 381, 611
N.W.2d 456 (public reprimand imposed on
attorney with prior public reprimand for his
intentional failure to file income tax
returns for several years; attorney had
experienced financial and professional
hardships at time of misconduct and had
completed agreement to pay all taxes,
penalties, and interest); In re
Disciplinary Proceedings Against May, 215
Wis. 2d 456, 576 N.W.2d 544 (1998) (60-day
suspension imposed on attorney with previous
private reprimand who was criminally charged
with failing to file timely state income tax
returns for 13 years, ultimately pled no
contest to two misdemeanor counts, and
received probation); In re Disciplinary
Proceedings Against Thomas, 187 Wis. 2d
332, 522 N.W.2d 781 (1994) (60-day
suspension imposed on attorney for
intentionally and repeatedly failing to file
state and federal tax returns). The OLR
acknowledges that these four matters
involved the failure to file tax returns,
either at all or on a timely basis, while
Attorney McKinley's conduct consisted of
filing a false tax return. Nonetheless, it
asserts that Attorney McKinley's misconduct
was similar to that of Attorney Thomas and
Attorney May. In particular, it emphasizes
that both Attorney May and Attorney McKinley
were convicted of two misdemeanors for their
tax-related misconduct.
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¶15 In addition to prior precedent, the
OLR states that it took into consideration a
number of mitigating factors, including the
lack of any prior discipline, Attorney
McKinley's depression and personal problems,
her timely effort to pay the back taxes, her
timely report of her conviction, her
complete disclosure of her conduct to the
OLR, and her expressions of remorse for her
conduct. On the other hand, the OLR also
acknowledged the financial benefit to
Attorney McKinley of underreporting her
income as an aggravating factor.
¶16 The OLR's memorandum fails to
acknowledge that this court has also on a
substantial number of occasions imposed much
more severe discipline in cases involving
tax-related convictions. See, e.g.,
In re Disciplinary Proceedings Against
Phillips, 2007 WI 63, 301 Wis. 2d 33, 732
N.W.2d 17 (three-year suspension imposed on
attorney convicted of willful attempted
federal tax evasion for concealing the
proceeds of a loan so that it could not be
attached by the Internal Revenue Service);
In re Disciplinary Proceedings Against
Washington, 2007 WI 65, 301 Wis. 2d 47,
732 N.W.2d 24 (18-month suspension imposed
on attorney convicted of attempting to evade
and defeat the payment of a large portion of
her federal income taxes by not reporting
over $90,000 in income in one tax year;
evidence also showed similar conduct in two
other tax years).
¶17 We recognize, however, that the
convictions against Attorney Phillips and
Attorney Washington involved the element of
attempting to evade or defeat the payment of
income taxes. While the state originally
charged Attorney McKinley with offenses that
included this same element, it ultimately
agreed to lesser charges of filing tax
returns that Attorney McKinley knew to be
false or inaccurate. Consequently, we must
base our determination on the offenses that
have been admitted in the criminal case
because neither the state in the criminal
case nor the OLR in this disciplinary
proceeding has obtained a finding from a
trier of fact that Attorney McKinley
attempted to evade the payment of state
income taxes. Thus, the Phillips and
Washington matters are not directly
analogous with respect to the proper
sanction.
¶18 Of greater assistance in resolving
this case is our discussion of Attorney
Jeffrey Elverman's failure to report
$230,000 in income from co-trustee fees on
his state and federal income tax returns for
five years. In re Disciplinary Proceeding
Against Elverman, 2008 WI 28, 308 Wis. 2d
524, 746 N.W.2d 793. Importantly, in that
decision we divided our analysis of Attorney
Elverman's failure to report the trustee fee
income into two categories. In the first
three years, Attorney Elverman claimed that
he had simply forgotten to report the
trustee fees as income. We stated that if
this had been the only misconduct at issue,
we might have been more inclined to impose a
public reprimand, in line with Lex and
In re Disciplinary Proceedings Against
Young, 2006 WI 109, 296 Wis. 2d 36, 718
N.W.2d 717. Elverman, 308 Wis. 2d 524,
¶48. For the last two years at issue,
however, Attorney Elverman admitted that he
knew he was supposed to report the trustee
fees as income, but deliberately chose not
to do so in order to pay other personal
financial obligations. Id. We
concluded that this was a more serious level
of misconduct that moved the matter on the
continuum of culpability more toward what
had occurred in Phillips and
Washington. Consequently, we suspended
Attorney Elverman's license for a period of
nine months. Id., ¶¶49-50.
¶19 Similarly, Attorney McKinley did not
simply fail to file her tax returns, as was
the situation in the Grogan and Lex
matters cited by the OLR. She was convicted
of filing state income tax returns that she
believed were not true or correct, which
appears to be a more serious offense. On
the other hand, she was not convicted of
attempted tax evasion, as were Attorney
Phillips and Attorney Washington. Without
more, these facts would seem to call for a
suspension of more than a couple months.
¶20 There is more in this case,
however. Although the OLR could have
provided more information about the impact
of Attorney McKinley's depression on her
misconduct in the stipulation or in its
statement in support of the stipulation, the
OLR is clearly taking Attorney McKinley's
depression into account as a mitigating
factor in the level of discipline it is
seeking. There is some discussion of the
depth of Attorney McKinley's depression in
the transcript of the plea and sentencing
hearing in the criminal case that has been
filed in connection with the stipulation.
We factor that into our analysis. In
addition, Attorney McKinley has never before
been the subject of professional
discipline. When her failure to report all
of her income came to light, she made timely
efforts to pay the back taxes that she owed
and she expressed remorse for her misconduct.
¶21 In light of these mitigating
factors, we accept the stipulation and
impose the jointly requested sanction of a
60-day suspension of Attorney McKinley's
license to practice law in this state. We
are confident that Attorney McKinley
recognizes the seriousness of her
misconduct. Filing tax returns that a
person knows or believes are not true
because they do not include all of a
person's income is a grave matter. Attorney
McKinley's criminal convictions and the
resulting loss of her job have demonstrated
that fact. The suspension of her license to
practice law in this state, even though
tempered in this instance because of
mitigating factors, is a further indication
that such conduct carries serious
consequences.
¶22 We do not impose any restitution in
this matter. In addition, because this
matter was resolved with the filing of a
stipulation under SCR 22.12 and without the
appointment of a referee, we also do not
require Attorney McKinley to pay any costs.
¶23 IT IS ORDERED that the license of
Geneva E. McKinley to practice law in
Wisconsin is suspended for a period of 60
days, effective July 31, 2014.
¶24 IT IS FURTHER ORDERED that Geneva E.
McKinley shall comply with the provisions of
SCR 22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been suspended.
¶25 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.28(2).
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