Bishop v. Committee on Professional Ethics and Conduct of Iowa State Bar Ass'n
| Decision Date | 17 August 1982 |
| Docket Number | Nos. 81-2020,81-2021 and 82-1012,s. 81-2020 |
| Citation | 686 F.2d 1278 |
| Parties | Gary T. BISHOP, Appellant, v. COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION and its Chairman, James E. Cooney, in his official capacity, Appellees. Gary T. BISHOP, Appellee, v. COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION and its Chairman, James E. Cooney, in his official capacity, Appellants. (Two cases) |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lee H. Gaudineer, Carlton G. Salmons, Hedo M. Zacherle, Des Moines, Iowa, for appellee.
Mark W. Bennett, Staff Atty., Des Moines, Iowa, for appellant.
Before ROSS and STEPHENSON, * Circuit Judges, and VAN PELT, ** Senior District Judge.
On January 22, 1981, the appellant, Gary T. Bishop, filed an action under 42 U.S.C. § 1983 (1976) and 28 U.S.C. § 1343 (1976) challenging the constitutionality of the Disciplinary Rules of the Iowa Code of Professional Responsibility limiting the means and content of lawyer advertising. Bishop, a licensed attorney practicing law in Iowa at the time the action was filed, alleged that he wished to use means of advertising and advertising content that were prohibited by the Iowa Disciplinary Rules but which were within the scope of the first amendment's protection relating to commercial speech. Consequently, he sought declaratory and injunctive relief against the appellee, the Committee on Professional Ethics and Conduct of the Iowa State Bar Association (hereinafter referred to as the Committee). Bishop did not seek class relief in his original complaint.
On August 20, 1981, the district court 1 entered judgment. See Bishop v. Committee on Professional Ethics and Conduct of the Iowa State Bar Association, 521 F.Supp. 1219 (S.D.Iowa 1981). The court held that several provisions of the Iowa Disciplinary Rules violated Bishop's first amendment rights relating to commercial speech and, therefore, the court enjoined the Committee from enforcing those provisions. The court upheld the constitutionality of the Iowa Disciplinary Rules relating to lawyer advertising in all other respects. 2 See id. at 1232-33. On September 18, 1981, Bishop filed a notice of appeal from the district court's decision. On appeal Bishop generally continues to challenge the constitutionality of those Iowa Disciplinary Rules relating to lawyer advertising which the district court upheld. The Committee filed a cross-appeal asserting that the district court erred in concluding that some of the Iowa Disciplinary Rules relating to lawyer advertising unconstitutionally infringed on Bishop's first amendment commercial speech rights. In a related case consolidated with this appeal and cross appeal on the merits, Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. Bishop, No. 82-1012 (filed Feb. 2, 1982), the Committee also appeals the district court's December 14, 1981 Order allowing attorney's fees to Bishop as the prevailing party under 42 U.S.C. § 1988 (1976).
For present purposes we need not detail or address the district court's exact findings on the merits, the appellant's specific assertions of error on appeal, or the issues raised by the Committee in its cross appeal. 3 What concerns this court now relates to the procedural history of this case subsequent to the district court's entry of judgment and certain facts coming to light during or subsequent to oral argument in this court on March 25, 1982. The following discussion details these facts in the chronological order in which they occurred not necessarily the order in which they came to this court's attention.
Sometime after the district court's judgment was rendered in the instant case on August 21, 1981, the Committee received reports of alleged ethical violations by the appellant Bishop which were unrelated to the Iowa Disciplinary Rules regarding lawyer advertising, and an investigation was undertaken. On January 5, 1982, Bishop apparently signed a sworn affidavit which empowered his attorney, Michael W. Liebbe, 4 to surrender Bishop's license to practice law in Iowa on the grounds that Bishop was "personally, emotionally and psychologically unable to practice law at this time." On February 26, 1982, the Iowa Committee on Ethics and Conduct filed an accusation against Bishop pursuant to Iowa Code § 610.25 (1975) generally alleging violations of disciplinary rules relating to the use of client's monies. Bishop was given until April 15, 1982, to file an appearance and answer to the accusation.
Apparently concerned that the prosecution of Bishop under the accusation for ethical violations might result in Bishop's disbarment and render moot the appeals in the instant case, counsel for Bishop and the Committee filed a joint application to this court on March 4, 1982, for the limited purpose of remanding to the district court so that the parties could jointly file an application for class certification under Fed.R.Civ.P. 23(b)(2). This court granted the application and remanded to the district court on March 4, 1982. 5 Consequently, on March 8, 1982, Bishop's counsel filed a motion to amend the original complaint and an amendment to the complaint seeking class certification. In that complaint counsel alleged, inter alia, that Bishop was currently practicing law in Iowa and desired to advertise his services in ways prohibited by the Iowa Disciplinary Rules. The motion to certify the case as a class action was supported by an affidavit by the appellee Committee's counsel, which generally supported the maintainability of the instant case as a class action under Rule 23(b)(2). Although the affidavit disclosed the pending disciplinary proceedings against Bishop for rule violations unrelated to lawyer advertising, it did not reveal any other circumstances concerning Bishop's present activities, location, or ability to properly represent the class.
The same day that the motion for class certification was filed by Bishop's counsel, March 8, 1982, the district court 6 entered an order for the Committee's counsel to show cause why this action should not be certified as a class action under Rule 23(b)(2). Needless to say, the Committee did not show cause. That same day, without a hearing, and based only on the pleadings and the affidavit of the Committee's counsel, the court certified the case as a class action and designated the class to be comprised of all "lawyers of the State of Iowa who were desirous, are desirous, and in the future will be desirous of advertising their services to the public by manner, means, content and at times and places that are not permitted by the present Code of Professional Responsibility for Lawyers." 7
At oral argument had before this court on Bishop's appeal on March 25, 1982, the court was advised by counsel for both parties that they were unaware of Bishop's present whereabouts. They indicated that to their knowledge Bishop had ceased practicing law and left Iowa sometime prior to the time the class was certified. As a result of this information we requested that the parties provide this court with supplemental briefs addressing, inter alia, the potential mootness of Bishop's individual claims and propriety of the class certification in this case.
On April 2, 1982, Bishop's attorney, Michael W. Liebbe, filed a statement by attorney with the Iowa Supreme Court in which he purported to be empowered by Bishop to surrender Bishop's license to practice in the State of Iowa. Attached to this statement was Bishop's January 5, 1982 sworn affidavit. On April 15, 1982, the Iowa Supreme Court set the matter for a hearing before the court on May 12, 1982. 8
On April 29, 1982, this court received a sworn affidavit executed on April 26, 1982, from Gordon S. Allen, one of Bishop's attorneys in the instant appeal. In this affidavit Allen stated that he had spoken briefly with Bishop by phone on April 20, 1982, and that Bishop had expressed his desire to maintain his Iowa license. 9
On May 13, 1982, after an en banc hearing on May 12, 1982, at which the Iowa Supreme Court heard sworn testimony by attorney Michael W. Liebbe concerning Bishop's fitness to practice law and his willingness to surrender his law license, the Supreme Court of Iowa entered an order staying all proceedings against Bishop arising out of the Iowa Code § 610.25 accusation until further notice. 10 On June 1, 1982, the Iowa Supreme Court accepted Bishop's voluntary surrender of his license and revoked Bishop's license. In its per curiam opinion the court stated:
Bishop, through the sworn, authorized testimony of his attorney (Michael W. Liebbe), admitted that he was emotionally and psychologically unfit to practice law at this time and admitted the allegations of the accusation outlined above. 11
This court now finds as follows: 1. Gary T. Bishop has freely, voluntarily, and knowingly given his consent to surrender his license to practice law. 2. Bishop is aware of the pending proceeding pursuant to Chapter 610, The Code, involving allegations of the nature set out above which provide grounds for discipline. 3. Bishop acknowledges the material facts in the accusation, except for those contained in paragraph "10" thereof, are true.
In re Accusation Against Bishop, 320 N.W.2d 47 at 48 (Iowa S.Ct.1982) (emphasis supplied).
We believe that this procedural history and the related facts present this court with a substantial jurisdictional obstacle that precludes us from reaching the merits in this case. Specifically we are concerned with the questions of:
(1) whether or not Bishop's individual cause of action challenging the constitutionality of the Iowa Disciplinary Rules has become moot, and, if so;
(2) whether or not the class certification entered on March 8, 1982, was proper in light of the fact that: (a) the class was certified over six months after a judgment had been...
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