Overview

In the Matter of Bouyer addresses discipline arising from an attorney’s misdemeanor conviction for failing to timely file employment tax reports with the Employment Development Department (EDD). The Review Department held that the misconduct did not involve moral turpitude but warranted discipline due to violations of statutory duties and the respondent’s extensive prior disciplinary record. The court reduced the hearing judge’s recommended discipline.

Facts

Respondent operated a solo law practice and was required to withhold unemployment insurance taxes from employee wages and submit reports and payments to the EDD. For one quarterly period in 1993, respondent failed to timely file required contribution returns and wage reports.

Respondent later submitted the missing reports along with a payment proposal covering approximately $2,250 in back taxes, penalties, and costs. Although he did not fully comply with the payment schedule initially, he completed payment obligations before criminal charges were filed.

Respondent ultimately pled nolo contendere to a misdemeanor violation of Unemployment Insurance Code section 2106. The criminal court placed him on probation, imposed a fine, and ordered payment of outstanding taxes and interest.

Misconduct Findings

• Criminal conviction for failure to file employment tax reports
• Other misconduct warranting discipline
• No moral turpitude found

Key Legal Principles

1) Tax reporting violations may warrant discipline

Even when tax violations do not involve intentional fraud or moral turpitude, failure to comply with statutory duties can still constitute professional misconduct.

2) Moral turpitude depends on intent and conduct

Failure to file employment tax reports, without evidence of intentional misuse of withheld funds, does not automatically constitute moral turpitude.

3) Prior discipline is a major aggravating factor

Multiple prior disciplinary records significantly increase the level of discipline imposed, even where current misconduct is relatively minor.

4) Cooperation is mitigating but limited

Cooperation with the State Bar and stipulations of fact constitute mitigation, but only nominal weight is given where the facts are easily provable.

5) Hearing judges must rely on the evidentiary record

A hearing judge’s role is to decide discipline based on the evidence presented and not to independently seek additional evidence absent extraordinary circumstances.

6) Discipline is based on balanced factors

Appropriate discipline results from weighing misconduct severity, aggravation, mitigation, and comparable case law rather than applying a fixed formula.

Aggravation

• Three prior disciplinary actions
• Misconduct occurred while on probation

Mitigation

• Cooperation with State Bar
• Character references
• Substantial pro bono work

Outcome

The Review Department concluded that the hearing judge’s recommended discipline was excessive. It recommended an eighteen-month stayed suspension with two years of probation, including a ninety-day period of actual suspension.

Sanctions Table