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

• Decision Date: 21 March 1979
• Docket Number: No. 61443,61443
• Citation: 276 N.W.2d 838
• Parties: The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the Iowa STATE BAR ASSOCIATION, Appellee, v. John E. BEHNKE, Appellant.
• Court: Iowa Supreme Court

Page 838

276 N.W.2d 838

The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the Iowa STATE BAR ASSOCIATION, Appellee, v. John E. BEHNKE, Appellant.

No. 61443.

Supreme Court of Iowa.

March 21, 1979.

Rehearing Denied April 19, 1979.

George Lindeman of Lindeman & Yagla, Waterloo, for appellant.

Hedo M. Zacherle, Lee H. Gaudineer, Jr., and Roger J. Kuhle, Des Moines, for appellee.

Considered en banc.

REYNOLDSON, Chief Justice.

February 22, 1977, the Committee on Professional Ethics and Conduct of the Iowa State Bar Association (complainant) filed an eight-count complaint against Parkersburg attorney John E. Behnke (respondent) with this court's Grievance Commission (Commission). Counts I and II charged respondent with drafting certain wills naming himself as contingent beneficiary and executor in violation of specified provisions of the Iowa Code of Professional Responsibility for Lawyers.

The third division of the Commission received evidence and testimony in the summer of 1977. The Commission found complainant's allegations in counts I and II were "sustained by convincing preponderance of the evidence," concluded respondent violated Ethical Consideration 5-5 of the Iowa Code of Professional Responsibility for Lawyers, and recommended a three- year suspension "if not complete disbarment." One division member separately recommended disbarment.

Respondent appealed and raises several issues which are treated in the divisions which follow. We hold respondent's license to practice law shall be suspended and shall not be reinstated for at least three years.

I. Can the violation of an ethical consideration provide a basis for discipline?

Complainant charged that in drafting wills for Eilert and Nellie Wumkes respondent violated the following ethical considerations of the Iowa Code of Professional Responsibility for Lawyers as it was worded prior to December 16, 1977:

EC 5-5 A lawyer should not suggest to his client that a gift be made to himself or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he unduly influenced or overreached the client. If a client voluntarily offers to make a gift to his lawyer, the lawyer may accept the gift, but before doing so, he should urge that his client secure disinterested advice from an independent, competent person who is cognizant of all the circumstances. Other than in exceptional circumstances, a lawyer should insist that an instrument in which his client desires to name him beneficially be prepared by another lawyer selected by the client.

EC 5-6 A lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety.

(Emphasis added.) On December 16, 1977, EC 5-5 was amended to transfer the substance of the emphasized sentence to new disciplinary rule 5-101(B):

A lawyer or the lawyer's partners or associates shall not prepare an instrument in which a client desires to name the lawyer beneficially unless the lawyer is the spouse of, or is the son in law or daughter in law of, or is otherwise related by consanguinity or affinity, within the third degree, to the client.

The Commission found respondent violated only EC 5-5 (drafting instruments granting him beneficial interest) as charged in counts I and II.

Respondent contends violation of an ethical consideration does not provide a basis for disciplinary action. We recently resolved this issue:

All lawyers practicing before this court are bound by the canons . . . . They are not free to view them merely as aspirational. A canon cannot be ignored by an attorney on the claim he believes it conflicts with his view of a constitutionally protected right. The purpose of the canons as explained by the ethical considerations, disciplinary rules and adjudicated decisions is to show him the professionally acceptable route through questions or doubts he may have regarding such conflicts.

In re Frerichs, 238 N.W.2d 764, 769 (Iowa 1976). Attorneys have been disciplined for ethical consideration violations in Frerichs and at least five other cases. Committee on Professional Ethics & Conduct v. Wilson, 270 N.W.2d 613 (Iowa 1978); Committee on Professional Ethics & Conduct v. Baker, 269 N.W.2d 463 (Iowa 1978); Committee on Professional Ethics & Conduct v. Sloan, 262 N.W.2d 262 (Iowa 1978); Committee on Professional Ethics & Conduct v. Toomey, 253 N.W.2d 573 (Iowa 1977); Committee on Professional Ethics & Conduct v. Bromwell, 221 N.W.2d 777 (Iowa 1974).

Although in these decisions lawyers were not disciplined for ethical consideration violations alone, we find nothing to support respondent's assertion we should draw such a distinction. Nor are we willing to accept respondent's suggestion we re-examine Frerichs. We hold violation of an ethical consideration, standing alone, will support disciplinary action.

II. Can respondent raise legal issues not presented to the Commission?

Respondent has raised issues which apparently were not presented to the Commission including the issue just resolved. Complainant has made no objection. Nonetheless, the question arises whether we now should consider them.

In Committee on Professional Ethics & Conduct v. Roberts, 246 N.W.2d 259 (Iowa 1976), we declined to reach a contention that Roberts was not provided with timely notice of his hearing before the Commission "because it was not urged before the commission." Id. at 260. That complaint related to procedural due process. Had Roberts complained to the Commission the alleged defect could have been corrected.

Most of respondent's complaints in this appeal are different. He alleges he should prevail because Commission's report was not timely filed with this court, a defect which, after the event, is beyond correction. He contends EC 5-5 is unconstitutionally vague. Constitutional issues lie exclusively within the judiciary's domain. Salsbury Laboratories v. DEQ, 276 N.W.2d 830, 836 (Iowa 1979).

Commission rule 13 provides the Commission shall hold a hearing and issue a ruling "upon any preliminary motion or application filed in connection with a complaint." Supreme Court Order of June 23, 1975, reprinted in Iowa Court Rules, Sup.Ct.R., at 25d (1979). Our rule 118.9 requires the Commission's report to include "conclusions of law" as well as findings of fact and recommendations.

While these provisions indicate questions of law ordinarily should be preserved by raising them before the Commission, we are not persuaded traditional concepts of error preservation must always be imposed in attorney disciplinary proceedings. To do so would be to characterize the procedure as just an unusual lawsuit. It is not:

"A disciplinary proceeding is basically an inquiry into the fitness of a member of the bar, in the light of his (or her) conduct, to continue in the practice of the law." This proceeding is not criminal, but is special, civil in nature, and has been described as like an investigation by the court into the conduct of its officers. . . . .

The matter is triable de novo in this court . . . .

Committee on Professional Ethics & Conduct v. Kraschel, 260 Iowa 187, 193-94, 148 N.W.2d 621, 625 (1967) (citations omitted). See Mildner v. Gulotta, 405 F.Supp. 182, 191-92 (E.D.N.Y.1975), Aff'd mem., 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976); In re Echeles, 430 F.2d 347, 349-50 (7th Cir. 1970).

A distinction must be drawn between basic concepts of ethics policy and relatively routine issues of procedure or evidence. Where it is apparent that raising the legal issue before the Commission would not have changed the record made there, nor the course of the proceeding before that body, we will not automatically apply the error preservation principles closely linked to the adversary nature of a lawsuit. We have the ultimate responsibility to determine respondent's fitness to practice law. We would not always discharge that responsibility if we invariably rejected either party's law issues on error preservation grounds.

III. Are Iowa Sup.Ct.R. 118 filing and appeal periods mandatory and jurisdictional?

Rule 118.9 provides that "(t)he disposition or report of the commission shall be made or filed with this court within thirty days of the date set for the filing of the last responsive brief and argument."

In this case all briefs were to be filed October 15, 1977. Respondent's brief was filed November 1. The Commission's report was dated November 28. Respondent's first appeal was filed January 6, 1978. The report was not filed with this court until February 21, 1978.

Complainant concedes the Commission was very late in filing its report with this court. It offers no excuse or explanation. The Commission did not notify this court and the parties of its inability to file the report on time, a requirement of rule 118.9. Although the report was dated within thirty days from the date respondent's brief was actually filed, through some omission it was not filed with this court for almost three months.

Although rule 118.9 employs the word "shall," we are satisfied the mandatory-directory distinction explained in Taylor v. Department of Transportation, 260 N.W.2d 521, 522-24 (Iowa 1977), is applicable. The thirty-day filing requirement "is not essential to accomplishing the principal purpose of (our ethics rule) but is designed to assure order and promptness in the proceeding." Id. at 523. Accord, Caldwell v. State Bar, 13 Cal.3d 488, 496, 531 P.2d 785, 791, 119 Cal.Rptr. 217, 223 (1975); Maryland State Bar Association, Inc. v. Frank, 272 Md. 528, 532-34, 325 A.2d 718, 720-21 (1974).

Violation of a directory obligation ordinarily does not invalidate subsequent proceedings unless prejudice is shown. Taylor, 260 N.W.2d at 523. Respondent does not attempt to show prejudice. He claims such showing is unnecessary...