Logged In

An attorney who was convicted of misdemeanor failure to pay employee withholding taxes has been reinstated from the resulting October 2014 interim suspension by the Oklahoma Supreme Court.

The court considered mitigation

The Respondent’s first main mitigating factor concerned his CPA. In 1988, Respondent hired a CPA, Judy Poltera. Poltera’s duties included paying all the office bills and preparing as well as paying taxes including payroll taxes. She had the final decision making authority as to when and if employment taxes would be paid to the IRS. In 1998, Poltera was involved in a serious car accident which enhanced an existing medical condition. She began taking prescription pain killers and had many doctor appointments. She subsequently lost another job where she had health insurance and eventually lost that health insurance. She testified she embezzled money from the Respondent’s operating account and even took out a mortgage on the Respondent’s home without his knowledge to pay for her medical treatment and medication. Poltera was also authorized to accept correspondence and phone calls from the IRS and to meet with them as needed. She testified she told the Respondent she would take care of any problems and “it would be okay.” She also testified she did not believe the Respondent knew of the details of her meetings with the IRS. In 2005, when Poltera realized she could no longer hide her embezzlement she quickly left the law firm.

After Poltera left, the Respondent went to her office and discovered she had not paid all the federal and state taxes owed from 1998 to 2005 and she had not been paying office bills. The amount of unpaid office bills alone amounted to approximately $150,000.00. In addition, he discovered she had taken out a mortgage in excess of $100,000.00 on his residence, which he eventually lost in foreclosure.

Then there was a federal criminal indictment on weapons charges

The ATF discovered a World War II English Sten fully-automatic submachine gun the Respondent had legally purchased. The submachine gun had been shipped from England but apparently a wrong serial number had been recorded when it was shipped. In 2004, a search warrant was issued and the ATF searched the Respondent’s house and office and confiscated the submachine gun. In 2007, the case against him “started gearing up” and in 2008, the Respondent was indicted for this recording error. He went to trial which resulted in a mistrial and afterwards the government tried to negotiate a plea. The Respondent testified the government discovered he had also failed to properly record a gun he legally purchased from a local gun dealer. Because the Respondent had been a gun dealer he was required to keep a separate log of guns he owned personally from the ones his business owned. He stated he failed to note the gun purchase on his individual registry. The government agreed to drop the felony charges concerning the submachine gun in exchange for a plea of guilty to a misdemeanor improper recordkeeping charge on the gun he purchased locally. The Respondent accepted and pled guilty in 2009. The Respondent testified he spent approximately $250,000.00 on legal representation and experts during the period between 2007 through 2009. In 2009, he also received a private reprimand from the Professional Responsibility Commission of the Oklahoma Bar Association for his plea of guilty to the misdemeanor charge.

The court found him fit to practice

Here we are confronted with multiple misdemeanor counts for failure to pay taxes in violation of federal tax laws. The Respondent was not convicted of any other offenses nor is there any evidence that his clients were harmed by his actions. The Respondent has taken important remedial steps to improve his law office management, especially concerning its finances. He has already paid nearly a quarter of a million dollars in back taxes. The United States Magistrate Judge tailored the Respondent’s sentence so that even on house arrest he could practice law if his suspension was lifted. The judge understood that allowing the Respondent to practice would greatly increase his chance of paying the restitution. Many testified concerning the Respondent’s practice of law including several judges. All gave favorable testimony. The record also reflects the many services he has provided to the legal profession above and beyond his daily practice. In addition, the Respondent has complied with Rule 9.1, RGDP and has also refrained from the practice of law since his interim suspension. Although the record reflects the Respondent received a private reprimand in 2009 for his plea to a federal misdemeanor, we find no value in enhancing his discipline for the mistake of incorrectly recording a gun he purchased in the wrong log.

Justice Taylor dissented

“The Respondent should not be allowed to practice law while he is on federal criminal probation.”

The court reserved the right to impose further discipline if he violates his criminal probation. (Mike Frisch)