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

• Decision Date: 18 December 1985
• Docket Number: No. 85-1242,85-1242
• Citation: 379 N.W.2d 6
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Complainant, v. Karl J. HORN, Respondent.
• Court: Iowa Supreme Court

Page 6

379 N.W.2d 6

54 USLW 2402

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Complainant, v. Karl J. HORN, Respondent.

No. 85-1242.

Supreme Court of Iowa.

Dec. 18, 1985.

Comito & Capps, Des Moines, for complainant.

Karl J. Horn, Charles City, pro se.

Considered by REYNOLDSON, C.J., and McCORMICK, McGIVERIN, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

The Committee on Professional Ethics and Conduct of the Iowa State Bar Association (committee) initiated this proceeding before the Grievance Commission, charging respondent Karl J. Horn in two divisions. The first claim alleges respondent failed to respond to notices sent by the committee prior to its filing a formal complaint. The second claim alleges that the respondent neglected to timely file, as executor of an estate, for an investment credit carryback, made misrepresentations to his client and another lawyer regarding the same, and failed to timely transfer stock certificates in an estate proceeding.

Respondent appeared in person and testified before the Grievance Commission. The Grievance Commission filed a report incorporating its findings of fact, conclusions of law, and recommendations. The Commission determined that respondent violated disciplinary rules as to the second claim and recommended that his license to practice law be suspended for a period of three months. Respondent took no appeal from the report. See Iowa Sup.Ct.R. 118.10, .11. In this situation we review the record de novo and decide the matter. Iowa Sup.Ct.R. 118.10. We are not bound by the Commission's findings or recommendations, but give respectful consideration to them. Committee on Professional Ethics and Conduct v. Freed, 341 N.W.2d 757, 758 (Iowa 1983).

Respondent has been licensed to practice law in this state since 1962. During his first five years of practice he was employed as house counsel for a Charles City corporation. Thereafter, respondent was employed at a Charles City law firm for eight years. Since that time he has been a sole practitioner engaged primarily in a general practice of law.

The alleged ethical violations which initially led to a complaint being filed against the respondent arose from his handling of an estate. A client, who was a friend of respondent, died leaving a substantial estate that included several farming operations. In his will, drafted by respondent, decedent named respondent as his executor. Respondent also served as attorney for the estate. Under the terms of the will, decedent's net estate was left in trust. Decedent designated a daughter, who lived nearby, to act as trustee. Soon after the estate was opened, the daughter became dissatisfied with respondent's handling of the estate and retained her own personal attorney.

When the estate was closed, the daughter's attorney, acting on behalf of his client, filed a complaint with the committee regarding respondent's handling of the estate. The matter was not resolved and this proceeding was instituted before the Grievance Commission. We consider each of the two formal complaints separately.

I. Failure to cooperate. The facts relating to the allegations that respondent failed to cooperate with the committee are not in dispute. When the committee received the letter from the attorney representing decedent's daughter, it notified respondent that an investigation would be made and that there would be a hearing on the matter. A copy of the complaint was enclosed and the committee made the following request: "In the meantime, you are requested to furnish the Committee with a statement responsive to this complaint, which statement may be addressed in my care. Please see Rule 3.3 of the enclosed Rules of Procedure of the Committee."

No response was received from the letter and approximately eight weeks later a second letter was sent to respondent. In pertinent part the letter stated:

This letter constitutes notice under Rule 3.3 of the Rules of Procedure of the Committee on Professional Ethics and Conduct of the Iowa State Bar Association and you are advised to govern yourself accordingly.

That Rule provides:

"If after thirty days, ¹ no such response from respondent has been received, he shall be notified by restricted certified mail that unless he responds thereto within ten days from receipt of notice, complaint may be filed with the Grievance Commission for failure so to respond, and concerning all or any portion of the matter about which complaint was made, and the committee shall proceed therewith thereafter, if no response is received."

Again, respondent failed to respond to the committee's request. The committee alleges that respondent's failure to reply constitutes unethical and unprofessional conduct requiring that disciplinary action be taken.

Respondent admitted that he received the letters from the committee and that he did not respond to such letters. He conceded that the responsible thing to do would have been to respond to such inquiries and that such response probably would have aided the committee in its investigation. However, respondent gave no explanation or excuse for his failure to respond except that "I may have a psychological problem somewhere."

The Grievance Commission's findings of law determined that:

As to the failure to respond to the communications of the Ethics Committee it is quite true that Respondent did so but the Commission is cited to and finds no authority holding the same to constitute grounds for actionable misconduct. The Respondent was certainly foolish in not responding and he gives no explanation for this failure.

In a concurring opinion, one member of the Commission asserted that Rule 3.3 is a rule and not a standard of ethical conduct. He concluded that if failing to comply with Rule 3.3 is to be an ethical violation, it should be set forth as such in the canons of ethics or rules of discipline so that all attorneys would be put on notice.

Whether an attorney commits a separate ethical violation by failing to answer the committee's request for a reply to its complaint, is an issue of first impression in this jurisdiction. Other courts, however, have addressed this issue. The general rule is that a lawyer owes an obligation to cooperate with discipline authorities regardless of whether there is a rule requiring a response. Generally, a failure to respond to an investigation committee's request for an answer to a complaint is deemed a separate act of misconduct subjecting the attorney to discipline. See, e.g., In re Evans, 661 P.2d 171, 174-77 (Alaska 1983) (failure to respond to investigative inquiry constitutes a default under state bar rule and subjects attorney to disciplinary measures); In re Draper, 317 A.2d 106, 108 (Del.Supr.1974) (record of failing to cooperate with the censor committee, an arm of the court, requires severe discipline); Matter of Russell, 424 A.2d 1087, 1088 (D.C.App.1980) (an attorney violates DR 1-102(A)(5) by failing to respond to bar counsel's inquiries); Matter of Kopp, 402 Mich. 74, 77, 259 N.W.2d 559, 560 (1977) (failure to answer request for investigation is violation of procedural rules of grievance board and constitutes misconduct which requires appropriate discipline); Matter of Serstock, 316 N.W.2d 559, 561 (Minn.1982) (failure to respond to the disciplinary investigations is a violation of DR 1-102(A)(1), DR 1-102(A)(5) and DR 1-102(A)(6)); In re Lince, 200 N.W.2d 56, 58-59 (N.D.1972) (failure to submit written answer to a complaint filed by grievance commission, answer interrogatories, and appear before the commission violates rules of disciplinary procedure and merits condemnation even though attorney was found not to have committed the breach of conduct alleged in the underlying complaint); Matter of Treacy, 277 S.C. 514, 290 S.E.2d 240, 241-42 (1982) (failure to respond to complaint and cooperate with investigation is misconduct and reason for sanction); In re Clark, 99 Wash.2d 702 663 P.2d 1339, 1341-42 (1983) (although underlying complaint dismissed, attorney was suspended for violating state bar rule that required attorney to cooperate with the bar association); Matter of Elliott, 83 Wis.2d 904, 907, 266 N.W.2d 430, 431-32 (1978) (failure to cooperate with discipline authorities pursuant to state bar rule is ethical violation subjecting attorney to discipline); cf. In re Geurts, 290 Or. 241, 620 P.2d 1373, 1376 (1980) (noncooperation with discipline review board, by itself, not grounds for ethical violation as rules of professional discipline don't...