Committee on Professional Ethics and Conduct of Iowa State Bar Ass'n v. Wilson

• Decision Date: 19 March 1980
• Docket Number: No. 61687,61687
• Citation: 290 N.W.2d 17
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. N. B. (Mike) WILSON, Respondent.
• Court: Iowa Supreme Court

Page 17

290 N.W.2d 17

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. N. B. (Mike) WILSON, Respondent.

No. 61687.

Supreme Court of Iowa.

March 19, 1980.

Lee H. Gaudineer, Jr., and Hedo Zacherle, Des Moines, for complainant.

Theodore T. Duffield of Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, for respondent.

Considered en banc.

McCORMICK, Justice.

On October 18, 1978, the court suspended the law license of respondent N. B. (Mike) Wilson for an indefinite period with leave to apply for reinstatement after six months. See Committee on Professional Ethics and Conduct v. Wilson, 270 N.W.2d 613 (Iowa 1978). We now rule on his application for reinstatement. We find that Wilson has failed to meet his burden to submit satisfactory proof that he "is of good moral character and in all respects worthy of the right to practice law" as required by Court Rule 118.13. Therefore we deny the application.

Complainant Committee on Professional Ethics and Conduct of the Iowa State Bar Association, which serves as a commission of this court in attorney disciplinary matters, has raised three principal issues in opposing Wilson's reinstatement. First, the Committee contends he forged the signature of Judge Wade Clarke on a dissolution of marriage decree in 1972. Second, the Committee asserts he made an insulting telephone call to Judge A. B. Crouch on October 31, 1979, and falsely denied doing so. Third, the Committee alleges Wilson violated the suspension order by filing pro se lawsuits, writing a letter as a lawyer, and listing himself as a lawyer in the yellow pages of the telephone book.

When Wilson's application was first heard on June 20, 1979, the court determined that further investigation of the Committee's allegations was warranted. The hearing was continued to permit the Department of Criminal Investigation to conduct the investigation. District Judge George Fagg was appointed a commissioner of this court to hold a subsequent evidentiary hearing and to prepare a written summary of the evidence. The parties were given leave to obtain discovery. Those proceedings were completed in due course, and the application was submitted after final hearing on February 13, 1980.

I. Findings of fact. We separately state our findings of fact on each contention of the Committee.

A. The alleged forgery. Wilson represented Mary L. Berry in a Polk County dissolution case. She sought dissolution of her marriage to William P. Berry, who was represented by attorney Edwin Skinner of Altoona. Through their attorneys, the parties attempted to reach agreement on economic issues. However, each party adamantly insisted on the right to claim their four children as dependents for income tax purposes. Mary rejected a proposed decree prepared by Skinner which provided William would have that right. She also repeatedly insisted on bringing the case to a conclusion.

On October 9, 1972, Mrs. Berry appeared with Wilson before Judge Wade Clarke in a default proceeding and offered evidence in support of her petition. Wilson had prepared an original and four carbon copies of a proposed decree which had not been approved by Skinner. The original was on bond paper and the copies were on onion skin. The decree was silent on the issue of income tax exemptions. After the proceeding before Judge Clarke, Wilson went over the form of decree with Mrs. Berry. He assured her no change would be made which would deny her the right to claim the children as dependents. He also said the decree would not be filed until after completion of necessary "paper work." Although Mrs. Berry testified in a 1978 hearing that the decree bore the signature of Judge Clarke when it was shown to her, we believe she was mistaken. Skinner had not approved the form of the decree, and Wilson delivered the unsigned original and one unsigned copy to Skinner after the October 9 hearing.

Skinner met with his client during the evening of October 10, 1972, to go over the proposed decree. Seeing that the decree was silent on the tax exemption issue, Mr. Berry refused to authorize Skinner to approve it until it was changed to award the dependency exemptions to him. Skinner therefore modified the original and copy of the decree by adding a handwritten sentence at the end of the decree, just above the signature line for the judge. The sentence read: "Respondent to have right to Claim Children on State and Federal Tax Returns as Dependents." He also changed the award for back child support from $800.00 to $600.00 on the prior page of the decree. He initialed both changes and then signed in the space provided to show his approval of the form of the decree.

Skinner obtained checks from Mr. Berry for amounts required to be paid at the time of filing the decree, including court costs. Mr. Berry was given the unsigned copy of the decree. Someone from Wilson's office later picked up the original decree and the checks.

On the morning of October 11, 1972, Wilson took the original and three remaining carbon copies of the decree to the courthouse. He dated the decrees and signed the name "Wade Clark" to each of them. A loop on the "W" in Judge Clarke's purported signature on the original of the decree covered part of the handwritten word "Dependents" in the sentence added to the decree by Skinner. Wilson changed the back child support award from $800 to $600 on each of the carbon copies but did not show the additional change regarding dependency. He filed the original and had the copies file-stamped. The clerk's stamp shows this was done at 8:23 a. m. The filed decree was microfilmed on the following day and the microfilm copy shows the handwritten changes. Wilson could not have failed to see the handwritten sentence just above the signature line before he signed and filed the decree.

However, on two subsequent occasions he gave Mrs. Berry carbon copies of the decree. Neither those copies nor the one retained in his office contained the handwritten change regarding dependency, although each included the change relating to back child support. Moreover, the four carbon copies of the decree are accounted for in the evidence. Mr. Berry kept the unsigned copy he received from Skinner on October 9. Mrs. Berry was given one copy after the filing, and she obtained another from Wilson's office later. Wilson kept the other copy in his file. Like the original, none of the copies bore the actual signature of the judge.

Mrs. Berry claimed the children as dependents for the first time in 1975 and again in 1976. Her tax returns were audited by the Internal Revenue Service in 1977, and she was charged with a tax deficiency based on her exemption claims. She then obtained a certified copy of the decree from the clerk's office and saw for the first time that the decree awarded the exemptions to Mr. Berry. When she confronted Wilson about this, he denied knowing how the language got in the decree and showed her his copy which did not include it.

Through new counsel, Mrs. Berry moved to modify the decree to give her the right to claim the children as dependents. The modification proceeding was tried before Judge Gibson C. Holliday on May 31, 1978. In that proceeding Wilson testified in behalf of Mrs. Berry. He said the decree filed October 11, 1972, was signed by Judge Clarke. He also said his copies of the decree did not show the exemptions were to go to Mr. Berry. He testified: "I note on the original decree that is signed there, that is handwritten in there, there is Mr. Skinner's signature but my initials do not appear on there. If I had it changed, I would have had Judge Clarke's signature on it. We do this on every one when there is an alteration after the judge signs the decree." When he was asked by Skinner on cross-examination if he knew who signed the decree, he responded: "I am not sure actually who signed it. I am quite sure I was at the courthouse and filed it, but there is nothing on my decree about any alleged exemptions for children."

After hearing the evidence in the modification proceeding, Judge Holliday concluded that even if Mrs. Berry had not agreed to the provision regarding exemptions, Judge Clarke must have intended Mr. Berry to have them since he signed the decree containing that provision. He denied the application for modification.

In January 1979 Mrs. Berry filed an application to set aside the decree or to modify it in which she alleged that the signature of Judge Clarke on the decree was a forgery. This application was heard by Judge Holliday on April 2, 1979. A document examiner testified he compared the signature on the decree in the clerk's office with known signatures of the late Judge Clarke ¹ and concluded the signature on the decree was not that of the judge. As a result of this hearing, Judge Holliday found in his ruling of May 1, 1979, "that the signature of Judge Wade Clarke on the Decree in the Court file is a forgery and not the signature of Judge Wade Clarke." The other provisions of his ruling are not relevant in this proceeding.

On April 2, 1979, the date he heard the evidence, Judge Holliday sent a memorandum to the Polk County Attorney referring to the alleged forgery of Judge Clarke's signature. On May 29, 1979, an assistant county attorney filed an application for subpoena to obtain handwriting samples from Wilson, who he alleged "refused to present himself for the purpose of the giving of a handwriting exemplar." Subsequently a subpoena was issued to require Wilson to give handwriting exemplars, and he did so on July 2, 1979.

In the meantime, this court held its first hearing on Wilson's application for reinstatement on June 20, 1979. He made a statement in that hearing which included the following:

We finally arrived at a settlement of the decree along the lines which I stated. I went down on the morning of October 9, 1972, in front of Judge Clarke and proved up. I have a copy of the...