Ia Sup. Ct. Atty. Disciplinary Bd. v. Howe
| Decision Date | 18 November 2005 |
| Docket Number | No. 05-0468.,05-0468. |
| Citation | 706 N.W.2d 360 |
| Parties | IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Bradley Bernhardt HOWE, Respondent. |
| Court | Iowa Supreme Court |
Charles L. Harrington and Teresa Vens, Des Moines, for complainant.
Mark McCormick of Belin Lamson McCormick Zumbach Flynn, A P.C., Des Moines, for respondent.
The complainant, Iowa Supreme Court Attorney Disciplinary Board, formerly the Iowa Supreme Court Board of Professional Ethics and Conduct, filed disciplinary charges against the respondent, Bradley Howe, a part-time city attorney for the city of Spencer, Iowa. In count I, the Board alleged Howe violated the Iowa Code of Professional Responsibility for Lawyers by filing charges in more than 170 misdemeanor cases that were not supported by probable cause. In count II, the Board asserted Howe engaged in unethical conduct by defending Michael Mouw against a burglary charge filed by the Spencer police department, by representing Mouw on three other charges Howe prosecuted as the assistant city attorney, and by representing Mouw in a collateral proceeding before the Iowa Department of Transportation (DOT). Similar claims were made in count III and count IV. In count III, the Board claimed Howe represented two defendants, John Towe and John Shields, against charges filed by the Spencer city police, and in count IV, the Board alleged Howe represented two defendants, Lance Larson and Mavis Olin, in cases that Howe was responsible for prosecuting as the assistant city attorney.
After taking evidence, the Grievance Commission of the Iowa Supreme Court ordered the dismissal of the count alleging the filing of factually unsupported misdemeanor charges. The Commission found Howe had committed ethical infractions with respect to the conflict-of-interest charges involving Mouw, Towe and Shields, and recommended a public reprimand for this misconduct. The Commission ordered that a private admonition be issued concerning Howe's representation of Larson and Olin.
The matter is now before this court for decision. We find the Board has proved all four counts of its complaint. While we give respectful consideration to the recommendations of the Commission, we think the misconduct that occurred in this case warrants suspension of Howe's license to practice law in this state for four months.
Initially, we address Howe's contention this court is without power to review the two counts on which the Commission did not recommend discipline. He asserts the Board was required to appeal from the Commission's disposition of those charges in order to invoke our review. In essence, Howe suggests that a multi-count disciplinary case must be treated for purposes of review as if each count were a separate proceeding. We disagree.
A disciplinary proceeding against an attorney is initiated by the filing of a "complaint" with the Commission. See Iowa Ct. R. 35.5. A complaint contains specific "charges ... of the misconduct alleged to have been committed." Id. Iowa Court Rule 35.9 sets out the authority of the Commission at the "conclusion of a hearing upon any complaint against an attorney." The Commission has three options: (1) "dismiss the complaint"; (2) "issue a private admonition"; or (3) recommend discipline in the form of a reprimand or a suspension or revocation of the attorney's license. Iowa Ct. R. 35.9 (emphasis added). If the Commission recommends discipline, it must file a report with the supreme court stating its findings of fact, conclusions of law, and recommendations. Id. "If the grievance commission dismisses the complaint or issues a private admonition, no report shall be made to the supreme court," with exceptions not pertinent here. Id. (emphasis added). The Commission's determination to dismiss the complaint or issue a private admonition becomes final unless the Board applies for permission to appeal. Id.
It is apparent from the language used in rule 35.9 that the dismissal option available to the Commission is to dismiss the complaint, not simply one count of the complaint. Thus, when the Commission is presented with multiple charges and concludes that discipline is warranted with respect to any of those charges, the Commission must file a report with the supreme court addressing the Commission's findings, conclusions and recommendations on the entire complaint. There is nothing in rule 35.9 that empowers the Commission to dispose of the complaint in a piecemeal fashion through separate orders, as occurred here. Therefore, once the Commission has decided to recommend some discipline, the entire case comes to this court for review.
The respondent places much reliance on a sentence in Iowa Court Rule 35.11(2), a provision addressing appeals filed by the Board. That rule states: "If such an appeal is from the grievance commission's dismissal of a complaint, or any charge contained therein, or a decision to issue a private admonition, such appeal shall remain confidential." (Emphasis added.) Howe apparently believes the emphasized language confirms the ability of the Commission to dismiss a charge as opposed to the entire complaint, and implies that the Board must file an appeal in order to obtain review of the dismissal of a charge. We do not read rule 35.11(2) in this way. The rule's reference to "any charge contained therein" simply recognizes the Board's discretion when appealing the Commission's dismissal of a complaint. If there are multiple charges in the dismissed complaint, the Board may choose to appeal only some of the charges dismissed by the Commission and acquiesce in the dismissal of the other charges.
Finally, we note our prior cases bear out our interpretation of rule 35.9. In several cases, this court has reviewed all charges, including those that the Commission believed should be dismissed or only warranted a private admonition, even though the Board had not appealed. See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Herrera, 626 N.W.2d 107, 109, 111-12 (Iowa 2001); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Gallner, 621 N.W.2d 183, 185 (Iowa 2001); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Walters, 603 N.W.2d 772, 777-78 (Iowa 1999); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 135 (Iowa 1999); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hansel, 558 N.W.2d 186, 187 (Iowa 1997). Howe claims this procedure is unfair because an attorney who is willing to accept the Commission's findings of fact "has no reason or basis to appeal," yet is "at risk of reversal of favorable commission findings without the benefit of participation in the appellate process."
Unlike a decision in a typical case tried in the district court, Commission reports come to the supreme court for review even when neither party has filed an appeal. See Iowa Ct. R. 35.10. Thus, an appeal in the context of a disciplinary proceeding is simply a mechanism that allows for briefing by the parties. While it may be true that an attorney who accepts the Commission's factual findings would not necessarily feel the need to appeal, there is nothing in the rules that precludes an attorney from doing so under those circumstances. If a respondent has the desire to participate in the appellate process either to challenge or support the Commission's report, he or she can do so by filing a brief an opportunity automatically accorded a respondent who appeals.1
In summary, we believe the rules anticipate that if the Commission does not dispose of the entire complaint by dismissal or private admonition, all charges come to the supreme court for final disposition. The Commission's action in the present case in filing orders dismissing one count of the complaint and issuing a private admonition on another count was contrary to rule 35.9 and is of no effect. We will consider the dismissal and private admonition as recommendations of the Commission. Because the action of the Commission may have misled the respondent with respect to the matters that were before the court for review, we have allowed both parties to file briefs addressing the counts that were the subject of the Commission's separate orders. Having reviewed those briefs, we now address the charges alleged in the Board's complaint.
Our review is de novo. See Iowa Ct. R. 35.10(1). "Under this standard of review, we give weight to the factual findings of the Commission, especially with respect to witness credibility, but we find the facts anew." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 131 (Iowa 2004). Although we respectfully consider the discipline recommended by the Commission, the final decision on the appropriate sanction is for this court. Id. The Board bears the burden to prove the allegations of misconduct by a convincing preponderance of the evidence. Id.
Bradley Howe has been licensed to practice law in the State of Iowa since 1975. He is a general practitioner, and since 1976 has also served as an assistant city attorney for the City of Spencer. As an assistant city attorney Howe is primarily responsible for prosecuting simple misdemeanor charges filed by the Spencer city police alleging violations of the city code. He testified that virtually everything he does as an assistant city attorney "involves working with the police."
By all accounts, Howe is respected in his community and is known as a hard-working, honest attorney. Howe has a reputation for being trustworthy, forthright, and fair. He has not previously been disciplined for an ethical violation.
The Board filed the present complaint on November 18, 2004, in four counts. We will discuss each charge separately.
A. Allegations of complaint and Commission decision....
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