Case Number(s): 05-C-01374
In the Matter of: J. Tony Serra, Bar # 32639, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Donald R. Steedman, Bar # 104927,
Counsel for Respondent: Ephraim Margolin, Bar # 32582; Co-Counsel for Respondent: Douglas L. Rappaport, Bar # 136194
Submitted to: Assigned Judge – State Bar Court Clerk’s Office San Francisco.
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted January 16, 1962.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 12 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
checked. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 284, Rules of Procedure.
<<not>> checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: . (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
IN THE MATTER OF: J. Tony Serra, State Bar No. 32639
STATE BAR COURT CASE NUMBER: 05-C-01374
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 951 of the California Rules of Court.
2. On April 5, 2005, respondent pleaded guilty to misdemeanor violations of wilfully failing to pay taxes for the years 1998 and 1999 (26 U.S.C. § 7203, misdemeanors).
3. On July 29, 2005, the federal court sentenced respondent to ten months of custody and to pay $100,000 toward his obligation to pay back taxes.
4. By means of orders filed on October 3 I, 2005 and November 2, 2005, the Review Department of the State Bar Court issued an order referring the matter to the Heating Department for a determination of whether the facts and circumstances of the offense involve moral turpitude or other misconduct warranting discipline and, if so, the discipline to be imposed.
Respondent admits that the following facts are true and that he/she is culpable of violations of the specified statutes:
The facts and circumstances underlying the convictions indicate that this conduct occurred for many additional years. For the tax years 1993 to 2001, respondent always filed his tax returns but to date has never paid any of the taxes owed. Respondent’s tax returns overstated the amount of taxes owing because they did not set forth allowable business expense deductions. The figures are as follows:
TAX YEAR: 1992, DATE RETURN FILED: May 27, 1993, GROSS RECEIPTS: $121,322, TAXES DUE PER TAX RETURN: $21,114, ACTUAL TAXES DUE: ?
TAX YEAR: 1993, DATE RETURN FILED: October 11, 1994, GROSS RECEIPTS: $135,322, TAXES DUE PER TAX RETURN: $25,807, ACTUAL TAXES DUE: ?
TAX YEAR: 1994, DATE RETURN FILED: June 22, 1995, GROSS RECEIPTS: $146,385, TAXES DUE PER TAX RETURN: $30,189, ACTUAL TAXES DUE: ?
TAX YEAR: 1995, DATE RETURN FILED: August 30, 1996, GROSS RECEIPTS: $86,074, TAXES DUE PER TAX RETURN: $7,669, ACTUAL TAXES DUE: ?
TAX YEAR: 1996, DATE RETURN FILED: April 15, 1997, GROSS RECEIPTS: $112,089, TAXES DUE PER TAX RETURN: $18,481, ACTUAL TAXES DUE: ?
TAX YEAR: 1997, DATE RETURN FILED: August 16, 1998, GROSS RECEIPTS: $154,425, TAXES DUE PER TAX RETURN: $32,147, ACTUAL TAXES DUE: $22,655.
TAX YEAR: 1998, DATE RETURN FILED: October 6, 1999, GROSS RECEIPTS: $128,425, TAXES DUE PER TAX RETURN: $27,038, ACTUAL TAXES DUE: $18,037.
TAX YEAR: 1999, DATE RETURN FILED: September 21, 2000, GROSS RECEIPTS: $152,425, TAXES DUE PER TAX RETURN: $37,335, ACTUAL TAXES DUE: $26,495.
TAX YEAR: 2000, DATE RETURN FILED: December 3, 2001, GROSS RECEIPTS: $132,705, TAXES DUE PER TAX RETURN: $25,631, ACTUAL TAXES DUE: $16,362.
TAX YEAR: 2001, DATE RETURN FILED: October 11, 2002, GROSS RECEIPTS: $149,590, TAXES DUE PER TAX RETURN: $22,547, ACTUAL TAXES DUE: $14,415.
The IRS has written off much of respondent’s tax liability as non-collectable. As mentioned above, respondent was ordered to pay $100,000 toward his tax obligation as a condition of probation. This represents his approximate tax liability for the years 1997 to 2001.
The disclosure date referred to, on page one, paragraph A.(7), was November 28, 2005.
State Bar Case No. 00-O-14826
Date prior discipline effective: January 3, 2002
Violations: Rule of Professional Conduct 3-110(A) (respondent failed to supervise his staff resulting in the release of confidential victim identification information in violation of statute).
Degree of Discipline: Public Reproval
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCES.
Multiple/Pattern of Misconduct. For almost every year since-1969, respondent has failed to pay his taxes. During the initial period, respondent refused to pay taxes as a protest against the Vietnam war. However, respondent’s later violations were not based upon a political or moral motivation, but rather his self-described "disfunctional relationship with money." This disciplinary proceeding arises from respondent’s third tax conviction.
Despite his failure to pay taxes and his celebrity and competence as a lawyer, respondent is not wealthy. Rather, he has virtually no assets and lives a very simple non-materialistic lifestyle.
Respondent has many supporters within the community who attest to his character and reputation. Respondent has been a trial lawyer, primarily criminal defense and civil rights, for over 40 years. His work has resulted in numerous awards, including in 1982, runner-up "Best Lawyer in America" by American Lawyer Magazine, 1992, Drug Policy Foundation (Washington, D.C.) Achievement in the Field of Law, 1993 Boalt Hall Law Review "Alumnus of the Year," 1994 Charles Gary Award, 1997 American Civil Liberties Union Benjamin Dreyfus Civil Liberties Award, 2003 Lifetime Achievement Award by McFetridge-American Inn of Court, and co-recipient of the ’~2003 Trial Lawyer of the Year" by Trial Lawyers for Public Justice. In addition, Respondent has been a speaker at hundreds of legal professional organizations, addressing many legal and social issues. His work load is enormous, often resulting in actual trial work as much as 11 months out of the year.
Respondent’s success as a trial lawyer and advocate has not translated, intentionally, into material aggrandizement. At the beginning of his career, respondent eschewed the material benefits of a successful law practice. In his own words:
I took an informal vow of poverty. I vowed that I would never take profit from the practice of law, that I would not buy anything new, that I would recycle everything, that I would own no properties - no stocks or bonds, no images of prosperity. I still drive an old junk of a car. I still barely make the rent each month; I have accumulated nothing by way of savings, and I live from hand to mouth.
Respondent has never abandoned his vow and all who know him can attest to his lifestyle as one who does not seek, nor value, material possessions of success. Indeed, at any given time one half, and often more, of his case load is comprised of pro bono cases, the costs of which he often pays out of his own pocket. He has so little money, his children have been educated by the generosity of their famous sculptor uncle.
The present prosecution occurs in the context of Respondent’s relationship to money. He has failed to pay taxes. He has not failed to file taxes. He has entered into discussions with the government to endeavor to pay taxes that are owing. Respondent’s "dysfunctional relationship to money" that lies at the root of his offense behavior and not greed of self-aggrandizement.
CONCLUSIONS OF LAW
The facts and circumstances surrounding respondent do not involve moral turpitude but do involve other misconduct warranting discipline.
AUTHORITIES SUPPORTING DISCIPLINE
At one point in time, the Supreme Court declined to impose discipline for tax crimes in the absence of evidence of concealment or other indicia of moral turpitude (ln re Fahy (1973) 8 Cal.3d 842). More recently, the Supreme Court has generally a sixty-day actual suspension for non-moral turpitude tax crimes (In re Rohan (1978) 21 Cal.3d 195 (60-day actual suspension for failing to file tax returns); In re Hawk (1978) 21 Cal.3d 593 (same); In re Grimes (1990) 51 Cal.3d 199 (same); In re Brown (1995) 12 Cal.4th 205 (60-day actual suspension for failing to pay payroll taxes)).
Respondent must receive increased discipline because of two prior records of discipline (Standard 1.7, Standards Governing Attorney Sanctions for Professional Misconduct; see In the Matter of Cart (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 108 (six month suspension imposed for attorney receiving successive convictions for non-moral turpitude offenses)).
SIGNATURE OF THE PARTIES
Case Number(s): 05-C-01374
In the Matter of: J. Tony Serra
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Respondent: J. Tony Serra
Date: December 1, 2005
Respondent’s Counsel: Douglas Rappaport
Date: December 2, 2005
Respondent’s Counsel: Ephraim Margolin
Date: November 30, 2005
Deputy Trial Counsel: Donald R. Steedman
Date: December 5, 2005
Case Number(s): 05-C-01374
In the Matter of: J. Tony Serra
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
checked. All Hearing dates are vacated.
Pursuant to the joint request filed by the parties on December 12, 2005, the clerk of the State Bar Court is hereby directed to transmit this matter to the California Supreme Court on an expedited basis.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 135(b), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 953(a), California Rules of Court.)
Judge of the State Bar Court: Joann M. Remke
Date: December 21, 2005
[Rule 62(b); Rules Proc.; Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of San Francisco, on December 21, 2005, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at San Francisco, California, addressed as follows:
DOUGLAS L. RAPPAPORT
LAW OFC DOUGLAS L RAPPAPORT
260 CALIFORNIA ST #1002
SAN FRANCISCO, CA 94111
LAW OFFICE OF EPHRAIM MARGOLIN
240 STOCKTON STREET, 4TH FL.
SAN FRANCISCO, CA 94108-5318
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DONALD R. STEEDMAN, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on December 21, 2005.
Bernadette C.O. Molina
State Bar Court