Committee on Professional Ethics and Conduct of Iowa State Bar Ass'n v. Horak, 64450

• Decision Date: 21 May 1980
• Docket Number: No. 64450,64450
• Citation: 292 N.W.2d 129
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. Robert L. HORAK, Respondent.
• Court: Iowa Supreme Court

Page 129

292 N.W.2d 129

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. Robert L. HORAK, Respondent.

No. 64450.

Supreme Court of Iowa.

May 21, 1980.

Lee H. Gaudineer, Jr., Des Moines, for complainant.

David L. Phipps, Des Moines, for respondent.

Considered en banc.

LARSON, Justice.

In this proceeding we review the action of the Grievance Commission and conclude, upon the record made before the Commission, that reprimand of the respondent is appropriate under the circumstances.

This respondent was involved in rather protracted litigation in Greene County District Court. During these proceedings, opposing counsel sought and obtained from district judge James C. Smith an ex parte order authorizing an amendment to a pleading. Respondent prepared and filed, in answer to that development, a counterclaim which stated, in part:

Further, Plaintiffs, acting in concert with Judge James C. Smith, entered into a conspiracy by a late amendment to Petition herein and by knowingly violating the provisions under statute 648.19 (1977) Code of Iowa, wherein an action for damages cannot be combined with a forcible entry and detainer action and further by attempting to seek double damages and damages in excess of the sum specified in the lease all constitutes violations of Defendants' constitutional rights under 42 U.S.C. §§ 1983 and 1985. (Emphasis added.)

The district judge took umbrage at the allegation that he had participated in a conspiracy against the respondent's clients and filed a complaint. At the hearing before the Grievance Commission, the judge denied that he was a party to any such conspiracy and denied knowledge of the existence of one. The respondent did not contend that there was any factual basis for his allegation and we find none in the record. Respondent contends that the language in his counterclaim was misconstrued by the judge and the committee and that he actually meant the conspiracy was by the plaintiffs, with the judge merely being used by them in the process. He contends that the involvement of the judge was necessary to allege "state action" to present a claim for deprivation of civil rights under the provisions of 42 U.S.C. §§ 1983, 1985.

The complaint alleges violations of several provisions of the Iowa Code of Professional Responsibility for Lawyers and of the Code of Iowa. At the outset, we must make it clear that the propriety of Judge Smith's ex parte order is not in issue; nor is the issue whether a judge may be subjected to criticism by a litigant or an attorney. A lawyer, in the forceful pursuit of his client's rights, is not, nor could he be, confronted with any rule seeking to prevent or restrict justifiable criticism of the legal system or any part of it, including judges. Such a rule would be repugnant to a system of law based upon the adversary process. We have said that "(w)e are quite accustomed to the strongest sort of criticism and applaude the efforts of counsel to lodge criticism forcefully." In re Frerichs, 238 N.W.2d 764, 767 (Iowa 1976).

However, an attorney must not be permitted to engage in unbridled criticism of the court without basis in fact, even if, as respondent claims, it is for the ostensible purpose of asserting a basis for federal jurisdiction of a civil right claim. See In re Frerichs, 238 N.W.2d at 767 (subjective intent of lawyer in criticism of court not determinative of true nature; same to be judged by its likely effect upon public belief in integrity of court as an institution). To permit unfettered criticism regardless of the motive would tend to intimidate judges in the performance of their duties and would foster...