Case Number(s): 12-C-16206-
In the Matter of: KEVIN JOHN MIRECKI, Bar # 143753, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Ashod Mooradian, Bar #194283, 261592,
Counsel for Respondent: Kevin Gerry, Bar #129690,
Submitted to: Settlement Judge.
Filed: June 17, 2013.
<<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 December 11, 1989.
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):
<<not>> checked. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: Costs to be paid in equal amounts prior to February 1 for the following two billing cycles beginning from the 2014 membership year. (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.
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: KEVIN JOHN MIRECKI, State Bar No. 143753
STATE BAR COURT CASE NUMBER: 12-C-16206
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of engaging in misconduct warranting discipline.
Case No. 12-C-16206-LMA (Conviction Proceeding)
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDINGS:
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 9.10 of the California Rules of Court.
2. On July 15, 2008, the United States Attorney’s Office filed a criminal complaint charging Respondent with committing three criminal offenses for misdemeanor violations of Title 26 United States Code, section 7203, for failing to file federal income tax returns in 2001.
3. On February 9, 2009, Respondent pled guilty to and was convicted of all three misdemeanor counts of violating Title 26 United States Code, section 7203, by the United States District Court, Central District of California.
4, On November 26, 2012, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department for a hearing and decision recommending discipline to be imposed in the event that the Hearing Department determines that the facts and circumstances surrounding the convictions involve moral turpitude or other misconduct warranting discipline.
FACTS:
5. Between 2000 and 2003, Respondent owned and operated a law office through the professional corporation, Kevin J. Mirecki, Inc. ("KJMI").
6. Between 1996 and 2003, Respondent also owned and was president of American & International Corporate Services ("AICS").
7. Respondent failed to file federal tax returns for KJMI, AICS and his personal tax return for years 2000, 2001, 2002 and 2003.
8. With regard to his personal gross income, Respondent owed taxes of $47,991.00 for 2000, $96,909.00 for 2001, $59,065.00 for 2002, and $55,862.00 for 2003, exclusive of interest and penalties. The total criminal tax loss for Respondent’s personal tax returns from 2000 to 2003 was $259,827.00.
9. For the gross income of KJMI, Respondent owed taxes of $749.00 for 2000 and owed no taxes on behalf of KJMI for 2001 through 2003. The total criminal tax loss for KJMI from 2000 to 2003 was $749.00.
10. For the gross income of AICS, Respondent owed taxes of $3,446.00 for 2001, and owed no taxes on behalf of AICS for 2000, 2002 or 2003. The total criminal tax loss for AICS from 2000 to 2003 was $3,446.00.
11. Respondent’s total estimated criminal tax loss from the years 2000 to 2003 was $264,022.00, excluding interest and penalties.
12. On July 15, 2008, the United States Attorney’s Office filed a criminal complaint charging Respondent with committing three criminal offenses for misdemeanor violations of Title 26 United States Code, section 7203, for failing to file federal income tax returns in 2001.
13. On February 9, 2009, Respondent pled guilty to and was convicted of all three misdemeanor counts of violating Title 26 United States Code, section 7203, by the United States District Court, Central District of California.
14. After making payments to the Internal Revenue Service ("IRS") towards his outstanding criminal tax liability, as of August 27, 2012, Respondent still owed $206,419.00 to the IRS.
15. On August 27, 2012, Respondent was sentenced for his failures to file tax returns in violation of Title 26 United States Code, section 7203.
16. Respondent’s sentence included a prison term of six (6) months, and he was ordered to be placed on supervised release for a term of one (1) year upon release from imprisonment. Respondent was also ordered to pay restitution of $206,419.00 to the IRS due immediately, a fine of $20,000.00 to the United States as well as other fines and special assessments.
17. In September 2012, Respondent made the restitution payment of $206,419,00 to the IRS and also paid the fine of $20,000.00 to the United States. Additionally, Respondent served his prison sentence and was placed in custody from October 15, 2012 to April 12, 2013.
CONCLUSION OF LAW:
18. The facts and circumstances surrounding Respondent’s misdemeanor convictions for violating Title 26 United States Code, section 7203 do not involve moral turpitude, but do constitute other misconduct warranting discipline.
ADDITIONAL FACTS RE AGGRAVATING CIRCUMSTANCES.
Multiple Acts: Respondent’s misconduct evidences multiple acts of wrongdoing. Standard 1.2(b)(ii). Respondent’s misconduct herein involved Respondent’s failure to timely file his personal and his corporate tax returns, for at least four consecutive years from 2000 to 2003 resulting in three misdemeanor counts of violating Title 26 United States Code, section 7203. (In the Matter of Elkins (Review Dept. 2010) 5 Cal. State Bar Ct. Rptr. 160, 168 [multiple acts of misconduct are an aggravating factor].)
ADDITIONAL FACTS RE MITIGATING CIRCUMSTANCES.
Pre-trial stipulation: While the facts here are easily provable, Respondent has cooperated with the State Bar by entering, into a stipulated settlement at an early stage and thereby saving State Bar Court time and resources. (Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigation credit was given for entering into a stipulation as to facts and culpability].)
No prior record of discipline: Respondent’s misconduct in this matter began in 2001 (which was twelve years after his admission in 1989) when he failed to file his personal and corporate tax returns for the calendar year of 2000. While the current misconduct is serious as it concerns three convictions for failing to file federal income tax returns, Respondent’s twelve-year discipline-free record is entitled to mitigating credit. (Hawes v. State Bar (1990) 51 Cal.3d 587, 596 [more than 10 years of discipline-free entitled to mitigation]; In the Matter of Riordan (Rev. Dept. 2007) 5 Cal. State Bar Ct. Rptr 41, 49.)
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a "process of fixing discipline" pursuant to a set of written principles to "better discharge the purposes of attorney discipline as announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, Introduction (all further references to standards are to this source).) The primary purposes of disciplinary proceedings and of the sanctions imposed are "the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession." (In re Morse (1995) 11 Cal.4th 184, 205; std 1.3.)
Although not binding, the standards are entitled to "great weight" and should be followed "whenever possible" in determining level of discipline. (ln re Silverton (2005) 36 Cal.4th 81, 92, quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d 257, 267, fn. 11.) Adherence to the standards in the great majority of cases serves the valuable purpose of eliminating disparity and assuring consistency, that is, the imposition of similar attorney discipline for instances of similar attorney misconduct. (In re Naney (1990) 51 Cal.3d 186, 190.) Any discipline recommendation different from that set forth in the applicable standards should clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5.)
Here, Respondent admits to three separate convictions of failing to file tax returns. Standard 3.4 provides that a final conviction of a member which does not involve moral turpitude, but does involve other misconduct warranting discipline shall result in a sanction as prescribed under part B of the Standards. The applicable standard under part B is standard 2.10, which provides that culpability of a member of a violation of any provision of the Business and Professions Code or Rule of Professional Conduct not specified in the standards shall result in reproval or suspension according to the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
Although there is no client victim in this matter, the gravity of the offense here, the multiple failures to file income tax returns is serious misconduct by a lawyer who is sworn to uphold the law. Discipline for Respondent’s misconduct is consistent with the purposes of imposing discipline, namely, protection of the public, maintenance of high professional standards and the preservation of public confidence in the legal profession. "Governments cannot operate effectively unless their revenue laws are obeyed. Such a violation of the tax laws by an attorney is a matter of serious concern because the attorney necessarily must advise clients with respect to their compliance with such laws. Furthermore, the legal profession is one which is peculiarly charged with the administration of our laws and therefore it is incumbent upon lawyers to set an example for others in observing the law. The intentional failure to file income tax return services an attitude on the part of the attorney of placing himself above the law." (ln re Rohan (1978) 21 Cal.3d 195, 203.) In this matter, Respondent has placed himself above the law when he failed to timely file his personal and his corporate tax returns, for at least four consecutive years from 2000 to 2003. Respondent, as an attorney and officer of the court, is peculiarly charged with the administration of law and therefore it is incumbent upon Respondent to set an example for others in observing the law. Thus, Respondent’s criminal misconduct herein is serious.
In addition to Respondent’s convictions for failing to file tax returns for 2001, the surrounding facts and circumstances evidence Respondent’s failure to file returns and/or pay taxes in three additional years as Respondent admitted in his criminal plea agreement to also failing to file his personal and corporate tax returns for 2000 through 2003. His failure to file the corporate tax returns for KJMI during that period clearly relates to his practice of law as KJMI is his law practice. Due to the significant amounts of funds involved--$264,022.00--and lengthy time period over which Respondents misconduct occurred, together with the time which elapsed before Respondent finally made restitution of the monies owed to the IRS, the gravity of his misconduct is significant. Accordingly, considering all of the surrounding facts and circumstances involved here, a one-year stayed suspension and a two-year probation with conditions including a 90-day actual suspension, is an appropriate level of discipline to effectuate the primary purposes of attorney discipline under standard 1.3.
Case law also supports the discipline recommended here. While neither In re Brown (1995) 12 Cal.4th 205 nor In re Grimes (1990) 51 Cal.3d 199 concerned violations of Title 26 United States Code, section 7203, they offer some additional perspective with regard to level of discipline in the instant matter. In Brown, an attorney was convicted of misdemeanor violations of failing to remit employee withholdings totaling approximately $36,000.00 to the state. In mitigation, the Court considered the fact that Brown had 20 years of discipline free practice and had demonstrated good character. Nonetheless, the Supreme Court imposed a 60-day actual suspension. In Grimes, the Supreme Court imposed a 60-day actual suspension on an attorney who was convicted of failing to file three tax returns. In this matter, Respondent’s misconduct is more extensive and more aggravated than described in the above-mentioned cases. Respondent’s misconduct resulting in a $264,022.00 criminal tax loss for the United States, an amount significantly greater than in the cases cited above. Therefore, pursuant to Standard 2.10 and 3.4, a higher level of discipline in the instant matter is warranted.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was May 17, 2013.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed Respondent that as of May 17, 2013, the prosecution costs in this matter are approximately $5,026.00. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
EXCLUSION FROM MCLE CREDIT
Pursuant to rule 3201, Respondent may not receive MCLE credit for completion of State Bar Ethics School, ordered as a condition of suspension here. (Rules Proc. of State Bar, rule 3201.)
SIGNATURE OF THE PARTIES
Case Number(s): 12-C-16206-LMA
In the Matter of: Kevin John Mirecki
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.
Signed by:
Respondent: Kevin John Mirecki
Date: 5/23/13
Respondent’s Counsel: Kevin Gerry
Date: 5/31/13
Deputy Trial Counsel: Ashod Mooradian
Date: 6/5/13
Deputy Trial Counsel: Anand Kumar
Date: 5/21/13
ACTUAL SUSPENSION ORDER
Case Number(s): 12-C-16206-LMA
In the Matter of: KEVIN JOHN MIRECKI
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:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
On page one of the stipulation, in the bottom-left box, "KEVIIN JOHN MIRECKI" is deleted and in its place is inserted "KEVIN JOHN MIRECKI".
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 5.58 (E) & (F), 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 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Honn
Date: 6/14/13
CERTIFICATE OF SERVICE
[Rules Proc. of State Bar; Rule 5.27(B); 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 June 17, 2013, 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:
KEVIN P. GERRY
711 N SOLEDAD ST
SANTA BARBARA, CA 93103
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
ASHOD MOORADIAN, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on June 17, 2013.
Signed by:
Bernadette Molina
Case Administrator
State Bar Court