Committee on Professional Ethics and Conduct of Iowa State Bar Ass'n v. Hurd, 85-585

CourtUnited States State Supreme Court of Iowa
Citation375 N.W.2d 239
Docket NumberNo. 85-585,85-585
Decision Date16 October 1985

Page 239

375 N.W.2d 239
Morris C. HURD, Appellant.
No. 85-585.
Supreme Court of Iowa.
Oct. 16, 1985.
Rehearing Denied Nov. 14, 1985.

Page 241

Frank A. Comito and Patrick W. O'Bryan, Des Moines, and Hedo M. Zacherle, Des Moines, for appellee.

Morris C. Hurd, Ida Grove, pro se.

Considered en banc.

LARSON, Justice.

Morris C. Hurd, respondent, has appealed a ruling of the grievance commission which recommended suspension of his license. Hurd does not challenge the sufficiency of the evidence to support the ruling. He does challenge several procedural rulings of the commission on the ground they deprived him of his constitutional due process rights. On appeal, we find no merit in his procedural arguments and conclude misconduct by the respondent calls for revocation of his license.

I. The Procedural Objections.

An attorney is entitled to the due process protections of the United States and Iowa Constitutions. Committee on Professional Ethics and Conduct v. Hurd, 360 N.W.2d 96, 100 (Iowa 1984). Many of Hurd's procedural complaints stem from his underlying premise that attorney disciplinary proceedings are "quasi-criminal" in nature. We have addressed that argument, however, and rejected it. Id. We need not discuss it further here. Nevertheless, we address his arguments in the context of the due process rights to which he is entitled as an attorney.

A. The Discovery Issues. The respondent first complains that the commission erred in ordering his oral deposition. In the deposition, however, Hurd asserted his fifth amendment right and gave only his name and address. Under these circumstances, we are at a loss to see how he could have suffered any prejudice.

Along a similar line, there was a request for admissions filed by the committee under Iowa Rule of Civil Procedure 127 (Court Rule 118.6 makes the discovery provisions of the rules of civil procedure applicable to disciplinary proceedings). Hurd filed objections to the request but has never answered it. Again, we can see no basis upon which he can claim prejudice. We reject this argument as well.

B. The Continuance Issue. About December 19, 1984, Hurd filed a motion to continue the disciplinary hearing, which was then set for January 9, 1985. At the same time, he filed a motion to permit John Stevens Berry, his counsel, to withdraw. The commission authorized Berry to withdraw, and on January 3, 1985, the hearing was reset for 9 a.m. on February 18, 1985.

On February 6, 1985, Hurd filed several papers, including a request for public hearing, a waiver of his "right to speedy trial," and an application for attorney Berry to be appointed at public expense. At that time, he also filed a motion for a second continuance. The commission, noting that the hearing was already set for the courtroom in the Ida County Courthouse, stated it would necessarily be a "public" hearing and apparently deemed it unnecessary to specifically address Hurd's request to make it public. In the same order, the commission denied the motion for continuance and denied Hurd's application for appointment of counsel.

On appeal, Hurd claims error only with respect to the commission's failure to grant the second continuance. This court has often stressed the necessity for prompt disposition of attorney disciplinary matters, and Hurd had already been granted a lengthy continuance. Under these circumstances, it was not an abuse of discretion to refuse his second request. Nor was it a denial of due process. Hurd had adequate time to secure representation and to prepare his response to the complaint.

Page 242

C. Hurd's Discovery Requests. Hurd filed a motion for production of documents, requesting a broad range of information, including the right to inspect and copy all materials which the committee intended to use at the hearing. He also asked to "inspect and copy or photograph any reports and investigation reports," and "all minutes of meetings of the Grievance Commission and of Complainant Committee on Professional Ethics, and motions and resolutions adopted by such groups, as they pertain to Morris C. Hurd [and] that he be given a copy of all record made as it pertains to him and which is required to be a part of the permanent files of the Iowa State Bar Association...." In addition, he requested that the complainant furnish him "all documents, reports, statements, or any other material that tends to show that Morris C. Hurd did not commit the acts alleged or are otherwise exculpatory in nature" and "all documents, reports, letters, statements or any other materials that show or tend to show what investigation was made by Complainant and what knowledge Complainant has concerning payments of money [in an unrelated matter pending in district court]."

The committee's response stated it would make all exhibits available to Hurd prior to the hearing. As to the broad request to open its files, it asserted confidentiality of that information under the committee's rule 2.1(d), which provides that

any such [disciplinary] files, except for the work product of staff counsel or investigators of the committee, shall be open to the inspection of the lawyer complained against. [Emphasis added.]

We addressed a similar request by Hurd in a prior case and noted the desirability of confidentiality in order to assure a free flow of information in connection with the complaint. Hurd, 360 N.W.2d at 100. We also observed that even in a criminal case a defendant ordinarily does not have a due process right to examine investigative files. Id.

We believe the confidentiality provision was properly raised by the committee and that Hurd was not entitled to a fishing expedition in its files. We find no merit in this argument.

D. The Place of Hearing. Finally, Hurd complains that the change of the hearing site prejudiced him in his defense. The hearing was set for 9 a.m. on February 18, 1985, in the Ida County Courthouse. On the Friday before the hearing, the district court administrator notified the president of the grievance commission that the courtroom would be unavailable on February 18 because a jury trial would still be in progress. She reported, however, that she had made arrangements to hold the hearing in the city council chambers in the Ida Grove City Hall.

Hurd was immediately notified by telephone of the change but would not agree to the new location. A written order changing the place of hearing was prepared by the commission. Two copies of the order were sent to Hurd, one by certified mail with return receipt requested, and the other by ordinary mail. The ordinary-mail envelope was not returned to the commission. However, the envelope sent by certified mail was unclaimed by the respondent and, on March 27, 1985, it was returned to the grievance commission. We believe it is clear that Hurd was aware of the hearing site, both by telephone and by written order.

The evidence also showed that the clerk of the district court of Ida County posted a notice of the change of the hearing site in the city hall. Photographs, showing the posted notice, were admitted into evidence at the commission hearing.

Hurd objected to the change of hearing site, arguing he was entitled to ten days written notice of the change (without citing any authority), and asserting he had subpoenaed witnesses who would be unable to appear if the hearing site were changed.

The commission noted that several of the subpoenaed witnesses appeared at the city hall, either in person or by attorneys who filed motions to quash subpoenas. The witnesses and attorneys indicated they had no

Page 243

difficulty in locating the hearing. The commission also noted that Hurd's office was located only one-half block from the city hall and approximately four blocks from the courthouse.

We agree with the commission that Hurd has shown no prejudice as a result of the change of the hearing site.

II. The Grievance Charges.

The grievance complaint against Hurd alleged deceit of the court and opposing counsel in connection with three separate proceedings: an estate administration, a visitation hearing in a dissolution case, and a summary judgment hearing.

A. The Koons Estate. William Koons died on August 11, 1975, and his estate was probated in Ida County District Court. Hurd was named executor and served as attorney for the estate.

Several years after the estate was opened, the district court held a hearing on objections to Hurd's administration filed by the beneficiaries in the estate. Judge Dewie Gaul presided. The court concluded that several incidents of mishandling of the estate had been committed by Hurd and expressly found that he had lied in connection with one of the matters involved. The court ordered Hurd's removal as executor and attorney and ordered that he reimburse the estate for expenses.

The court's express finding of falsification by Hurd concerned his statements to an attorney as to the date he had filed the inheritance tax return. Some background is necessary to understand this issue. The decedent's two children, sole beneficiaries of his estate, became upset with Hurd's alleged mismanagement of the estate and decided to retain an independent lawyer to represent them. They hired Laurel Boerner of Ida Grove. When Boerner pressed Hurd to complete the estate proceedings, Hurd sent him a sheet of paper on which were reproduced two receipts for inheritance tax payments, one receipt dated December 14, 1978, and the other dated December 9, 1979. On the bottom of the page, Hurd wrote this note to Boerner:

I don [sic] not think that I will ever understand why it took so long to get this inheritance tax acquittance.

I filed the return within the statutory time limit, but I could not get the acquittance until now.

As you can see, I got a receipt of partial payment in December, 1978, and last Friday, I had to go to Des Moines...

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