Frerichs, Matter of

• Decision Date: 18 February 1976
• Docket Number: No. 36,36
• Parties: In the Matter of the Citation of Attorney C. A. FRERICHS.
• Court: Iowa Supreme Court

Page 764

238 N.W.2d 764

In the Matter of the Citation of Attorney C. A. FRERICHS.

No. 36.

Supreme Court of Iowa.

Feb. 18, 1976.

Frederick G. White, Waterloo, for respondent, C. A. Frerichs.

En banc.

HARRIS, Justice.

This is an original disciplinary proceeding in which C. A. Frerichs, the respondent attorney, was cited to show cause why disciplinary action should not be taken against him for conduct directed to the court.

The citation was immediately precipitated by respondent's written assertion this court had practiced what amounted to deceit in processing a criminal appeal. Respondent was attorney for Michael P. Wetlaufer, defendant in State v. Wetlaufer, 236 N.W.2d 57 (Iowa 1975). In an unpublished per curiam opinion we affirmed Wetlaufer's conviction of possession of a controlled substance in violation of § 204.401, The Code. Following the filing of our opinion respondent prepared and filed a petition for rehearing.

Respondent expressed his belief the court had refused to address a constitutional question he urged was necessary to fully consider the appeal. He charged the court with 'willfully avoiding' constitutional questions raised by him in three consecutive cases, thus violating the constitutional rights of his clients. While denying any such assertion we of course recognize the right and duty of any attorney holding such a view to assert it--within the broad but carefully prescribed boundaries of professional ethics. Respondent was not cited for criticism of our opinions. The citation was issued because respondent ascribed improper motives to the court in not reaching all constitutional questions respondent sought to raise. Respondent was cited for accusing the court of what amounted to fraud and deceit in its review of the factual record.

The petition for rehearing stated:

'Thus, this is a classic case where the trial court and the appeals court refuse to address themselves to the merits of a defendant's substantial constitutional claims by the simple expedient of refusing to recognize or discuss the facts in the case or to specifically rule on the specific substantive issues raised under those facts.

'* * *

'Petitioner's Petition for Rehearing specifically charges the Iowa Supreme Court with willfully avoiding the substantial constitutional issues raised by defendant's appeal and of violating his rights to 'due process' and 'equal protection of the laws.'

'This allegation is not made in haste or without appropriate consideration by defendant's counsel. This is the third criminal appeal in a row pursued by defendant's counsel where the Iowa Supreme Court 'ducked' the constitutional questions raised in the appeals.'

The three appeals respondent referred to were not cases involving statutory construction, which we would approach with the announced resolve to avoid a holding of unconstitutionality if reasonably possible. State v. Aldrich, 231 N.W.2d 890, 894 (Iowa 1975); State v. Lavin, 204 N.W.2d 844, 849 (Iowa 1973). Rather, in all three we had simply held the circumstances complained about did not rise to the level of deprivation of constitutional rights.

As noted, in the petition for rehearing in Wetlaufer, respondent referred to earlier appeals. Our citation likewise included similar assertions in previous petitions for rehearing filed by respondent.

In the petition following the filing of our opinion in State v. Johnson, 219 N.W.2d 690 (Iowa 1974) respondent stated 'The court's ruling not only rewrites the record, it rewrites the assigned errors submitted to it for determination and accordingly is a violation of due process under the federal and state constitutions.' The petition stated elsewhere: '* * * This court has now followed plaintiff's lead and has ignored the claimed error by its refusal to rule.' The same petition for rehearing contained the following statement: 'This court in its ruling has pointedly refused to rule on defendants assigned errors but has chosen instead to set up its own straw men and rule on those instead.'

In a petition for rehearing following the filing of our opinion in State v. Cage, 218 N.W.2d 582 (Iowa 1974), after charging we refused to rule on the merits of defendant's contentions, respondent asserted '(failure of this court to review Division I) rewrites the common sense proposition set forth in State v. Evans and makes a game out of the pursuit of justice and victimizes the criminal accused for the protection of trial courts. * * *.'

Following our opinion in Miller v. Miller, 202 N.W.2d 105 (Iowa 1972), after charging our findings were without a basis in fact, respondent asserted '* * * (t)he lasting impression furnished by this court in its opinion is that plaintiff was 'had' on the custody question by a prejudiced trial court and mere delay in prosecuting the appeal. * * *.' The same petition stated:

'The court's baseless conclusions will undoubtedly be used in future litigation by plaintiff where defendant will not have ready access to the proof he offered at trial. This court in its haste to chastise the trial court for improprieties has rewritten the record to the detriment of defendant and the parties' minor children and has done so in a manner which will undoubtedly foster future litigation.'

The same petition contains the following assertion:

'Defendant submits that in this court's haste to censure the trial court, it has first rewritten the record and then financially punished defendant and his children for the trial court's indiscretions. * * *. It ignores the trial record and flies in the face (of other facts).'

I. Our system of justice rests upon the mutual regard of the bench and bar. Each branch of the profession traditionally accords the other the courteous behavior and ordinary civility which stems, not from any need or inclination of submissiveness of one branch for the other, but from the high demands and lofty purpose of the system itself.

We have been quick to demand civility in the demeanor of judges toward attorneys, as exacted by the American Bar Association's Canons of Judicial Ethics, adopted by our court rule 119. Forsyth v. Forsyth, 210 N.W.2d 430, 432 (Iowa 1973). Cf. State v. Glanton, 231 N.W.2d 31, 35 (Iowa 1975). There is a dearth of opinions on the subject because violations of the canons seem extremely rare.

We have noted even fewer occurrences involving demeaning conduct by lawyers directed toward courts. The oath of office which respondent took upon his admission to the bar incorporated verbatim the following provisions of Iowa Code § 610.14, duties of attorneys and counselors:

'1. To maintain the respect due to courts of justice and judicial officers.

'* * *

'5. To abstain from all offensive personalities * * *.'

Disciplinary Rule (DR) 8--102B of our Iowa Code of Professional Responsibility for Lawyers provides: 'A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.'

The Ethical Considerations of our Iowa Code of Professional Responsibility for Lawyers (hereinafter ICPRL) describe our common experience and prescribe the objectives for professional conduct. They constitute a body of principles upon which the lawyer can rely for guidance in many situations, including the one before us.

Ethical Consideration (hereinafter EC) 8--6 states in part:

'* * * Adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism. While a lawyer as a citizen has a right to criticize such officials publicly, he should be certain of the merit of his complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.'

ICPRL, EC 7--36 provides in part:

'Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties. Although a lawyer has the duty to represent his client zealously, he should not engage in any conduct that offends the dignity and decorum of proceedings. While maintaining his independence, a lawyer should be respectful, courteous, and aboveboard in his relations with a judge or hearing officer before whom he appears. * * *.'

See also EC 9--6; § 610.14(1), The Code; 7 C.J.S. Attorney and Client § 23d(2), pp. 752--753; and 7 Am.Jur.2d, Attorneys at Law, § 29, p. 61.

The ICPRL alludes to a lack of freedom on the part of judges to defend themselves. There is the danger any judicial defense against unprofessional assertions may be thought to arise from an improper sensitivity to criticism. Yet we recognize the plain function and purpose of a petition for rehearing is to criticize. We are quite accustomed to the strongest sort of criticism and applaud the efforts of counsel to lodge criticism forcefully.

In answering the citation respondent argues he was fulfilling his professional duty to be critical. Of course he has such a duty but the argument is in no way responsive to the matters raised in the citation. The citation is directed, not to the fact of respondent's criticism, but to the nature and manner of his reckless charges.

Respondent's assertions easily could be said to allege commission of public offenses. Setting aside the concept of judicial immunity we note that, under § 740.3, The Code, it would be an indictable misdemeanor for any judge to willfully and maliciously oppress any person under pretense of judicial capacity. Under 18 U.S.C. § 241, it would be a felony for judges to conspire to injure, oppress, threaten, or intimidate any citizen in the exercise of a constitutional right. We find respondent's assertions unprofessional because they attribute to this court sinister, deceitful and unlawful motives and purposes.

Respondent now urges his intent was not to allege the commission of any illegal actions on the part...