Committee on Professional Ethics and Conduct of The Iowa State Bar Ass'n v. O'Donohoe, 87-1760
| Decision Date | 20 July 1988 |
| Docket Number | No. 87-1760,87-1760 |
| Citation | 426 N.W.2d 166 |
| Parties | COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Appellee, v. Judith M. O'DONOHOE, Appellant. |
| Court | Iowa Supreme Court |
Thomas J. Levis, Des Moines, for appellant.
James E. Gritzner of Nyemaster, Goode, McLaughlin, Emery & O'Brien, P.C., Des Moines, for appellee.
Considered en banc.
The Committee on Professional Ethics and Conduct of the Iowa State Bar Association (committee) charged that attorney Judith M. O'Donohoe intentionally falsified a warranty deed in order to obtain a fraudulent advantage for her client. A division of the Grievance Commission (commission) heard the evidence in support of the claim and found the committee failed to prove that O'Donohoe willfully violated the Code of Professional Responsibility. Nevertheless, it recommended that this court reprimand O'Donohoe for lack of due care resulting in a misrepresentation. Reviewing this decision on appeal, we agree with the result reached by the commission and its recommended sanction.
I. Background. The facts in this disciplinary action are essentially undisputed. At issue are the inferences that follow from those undisputed facts.
Respondent Judith M. O'Donohoe has been engaged in the practice of law in Charles City, Iowa, since her admission to the bar in 1976. This action arose out of her representation of Leon and Joan Thome in connection with two lawsuits brought by the Staceyville Lumber Company against them.
The first suit involved a mechanic's lien foreclosure, settled in 1983 upon Thome's execution of a short-term promissory note. When the Thomes failed to make the promised payments on the note, the lumber company commenced the second suit, a collection action, in September 1985. This matter was scheduled for a summary judgment hearing on November 13, 1985. O'Donohoe advised her clients that they had no valid defense to the action and judgment would be entered accordingly.
Earlier, however, in April 1985, Thomes had incorporated their farming operation with the assistance of an attorney in Mason City. The minutes of the organizational meeting of the corporation reflected Joan Thome's intent to transfer thirty acres of Mitchell County farmland to the corporation in exchange for corporate stock. The record reveals, however, that the attorney handling these corporate matters did not prepare a deed to effect this conveyance.
Because of this incorporation, Joan Thome called O'Donohoe just prior to the lumber company's summary judgment hearing on November 13, 1985, to inquire whether the corporate minutes would suffice to insulate the property from the impending judgment lien. O'Donohoe advised that the minutes would not protect them. She suggested Mrs. Thome bring her abstract to the office immediately so that a deed could be prepared.
Over the noon hour, O'Donohoe hastily prepared a handwritten deed purporting to convey Joan Thome's thirty acres to the corporation. O'Donohoe misstated the name of the corporation and failed to join Leon Thome as a grantor for the purpose of releasing his dower interest. It was not these mistakes, however, but other details surrounding the execution of the deed, that formed the basis for the committee's complaint.
Specifically, the deed recited that it was "[s]igned this 30th day of June, 1985" by Joan Thome. The acknowledgement executed by O'Donohoe as notary public also specified that Thome personally appeared before O'Donohoe on June 30, 1985, for the purpose of executing the deed on that date. The date, of course, was really November 13, 1985, and Joan Thome recorded the deed just ten minutes before judgment in favor of the Staceyville Lumber Company was entered against the Thomes.
Further facts will be detailed as they become pertinent to the parties' arguments.
II. Arguments. The committee claims that by preparing and notarizing the back-dated deed, O'Donohoe willfully violated the following provisions of the Iowa Code of Professional Responsibility for Lawyers: EC 1-5 (a lawyer should maintain high standards of professional conduct); DR 1-102(A), (1), (3), (4), (5) and (6) (a lawyer shall not violate a disciplinary rule; engage in illegal conduct involving moral turpitude; engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; engage in any other conduct adversely reflecting on fitness to practice law); and DR 7-102(A)(1), (3), (4), (5), (6) and (7) (a lawyer shall not take action on behalf of a client that merely serves to harass or maliciously injure another; conceal or knowingly fail to disclose that which is required by law to be revealed; knowingly make a false statement of law or fact; create or preserve evidence known to be false; counsel or assist a client in conduct known to be illegal or false).
O'Donohoe's response to these allegations has four components. First, she contends that she deliberately dated the deed as she did, not for the purpose of misleading anyone, but to conform it to her understanding of the actual transaction between the parties. Second, she maintains that she fully intended to notarize the document using the actual date signed (November 13) but, in her haste, inadvertently carried the June date down to the acknowledgement. Third, she asserts that if the transfer of property to the farm corporation was not fraudulent (there being no evidence that the transaction was other than bona fide and for adequate consideration), then her careless preparation of the document to effect the transfer cannot be deemed fraudulent. Finally, she argues that her reputation as an attorney of honesty and integrity belies the suggestion that she would participate in a deceitful scheme to defraud a creditor.
Familiar rules guide our consideration of these conflicting arguments. The burden is upon the committee to prove its case by a convincing preponderance of the evidence. Committee on Professional Ethics & Conduct v. Davidson, 398 N.W.2d 856, 856 (Iowa 1987). This quantum of proof is greater than that required in a civil trial, but less than required to sustain a criminal conviction. Committee on Professional Ethics & Conduct v. Hurd, 375 N.W.2d 239, 246 (Iowa 1985). Our review of the evidence is de novo. Iowa S.Ct.R. 118.11. Though we are not bound by the commission's findings, we give them weight, especially when considering the credibility of witnesses. Iowa R.App.P. 14(f)(7); see also In re Marriage of Webb, 426 N.W.2d 402, 404 (Iowa 1988) (...
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