Iowa Supreme Court Attorney Disciplinary Bd. v. Kieffer-Garrison

• Decision Date: 20 June 2014
• Docket Number: No. 14–0049.,14–0049.
• Citation: 847 N.W.2d 489
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Lori Jo KIEFFER–GARRISON, Respondent.
• Court: Iowa Supreme Court

847 N.W.2d 489

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Lori Jo KIEFFER–GARRISON, Respondent.

No. 14–0049.

Supreme Court of Iowa.

May 30, 2014.

As Corrected June 20, 2014.

Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.

Lori J. Kieffer–Garrison, Davenport, pro se.

HECHT, Justice.

The Iowa Supreme Court Disciplinary Board (Board) charged an attorney with violations of the Iowa Rules of Professional Conduct after she repeatedly missed appellate deadlines in several criminal cases, received twenty default notices as a consequence of those missed deadlines, failed to pay resulting penalties in a timely fashion over a period of two years, and allegedly made a knowingly false statement to the court. After a hearing, a division of the Grievance Commission of the Supreme Court of Iowa found the attorney's actions violated several ethical rules and recommended a suspension of her license to practice law. Upon our review, we find the Board proved the alleged violations, and we conclude the appropriate sanction is a suspension of the attorney's license for a period of six months.

I. Background Facts and Prior Proceedings.

Lori Jo Kieffer–Garrison was first licensed to practice law in Iowa in 2002. ¹ She was privately admonished in 2009 and 2010, each time for failure to cure a notice of default from the clerk of this court. Both private admonitions were based on violations of Iowa Rules of Professional Conduct 32:1.3 and 32:8.4(d).

The Board's complaint in this case alleged Kieffer–Garrison's pattern of neglecting her obligation to comply with the deadlines imposed by our rules of appellate procedure continued in 2011 and 2012. In particular, the amended complaint alleged and Kieffer–Garrison admitted she received more than twenty notices of default after failing to meet various deadlines and timely pay monetary penalties for such defaults in nine separate criminal case appeals. The Board alleged—and Kieffer–Garrison admitted—these failures and defaults constituted violations of rules 32:1.3 (lawyer shall act with reasonable diligence and promptness in representing a client); 32:3.2 (lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client); 32:3.4(c) (lawyer shall not knowingly disobey an obligation under the rules of a tribunal); and 32:8.4(d) (professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice).

In a separate count of the amended complaint, the Board alleged Kieffer–Garrisonfalsely represented to both her client, Anthony McGee, and the clerk of this court that she had timely filed by mail an application for further review in a postconviction appeal. This conduct, the Board alleged, violated rules 32:1.2(a) (lawyer shall abide by a client's decisions concerning the objectives of representation), 32:1.3, 32:3.2, 32:3.3(a)(1) (lawyer shall not knowingly make a false statement of fact to a tribunal), 32:3.4(c), and 32:8.4(d). Kieffer–Garrison denied the Board's allegations in this count and testified before the commission that she prepared the application for further review and followed her routine office procedure for timely filing it through the mail.

The commission found the Board met its burden of proving Kieffer–Garrison violated rules 32:1.3, 32:3.2, 32:3.4(c), and 32:8.4(d) as a consequence of her serial failures to comply with deadlines imposed by our rules of appellate procedure. The commission also found Kieffer–Garrison violated rules 32:1.2(a), 32:1.3, 32:3.2, 32:3.3(a)(1), 32:3.4(c), and 32:8.4(d) in failing to prepare and timely file the application for further review, and in falsely representing to McGee and the court that she had done so.

The commission recommended a one-year suspension of Kieffer–Garrison's license.

II. Scope of Review.

Our review of the commission's report is de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 366 (Iowa 2005). “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.” Howe, 706 N.W.2d at 366. The Board must prove its allegations of misconduct by a convincing preponderance of the evidence. Id.

III. Ethical Violations.

We find the Board proved by a clear preponderance of the evidence that Kieffer–Garrison violated rules 32:1.3, 32:3.2, 32:3.3(a)(1), 32:8.4(c), 32:1.2(a), and 32:8.4(d) in her repeated failures to comply with the deadlines imposed by our rules of appellate procedure. Our analysis will proceed with a discussion of the evidence pertaining to each of the violations alleged by the Board.

A. Rule 32:1.3: Reasonable Diligence and Promptness. A lawyer violates rule 32:1.3 in failing to act with reasonable diligence and promptness in representing a client. Iowa R. Prof'l Conduct 32:1.3. Kieffer–Garrison violated this rule in repeatedly failing to comply with deadlines imposed by the rules of this court in nine separate criminal cases and in failing to promptly pay penalties imposed by the court. The documentary evidence of more than twenty default notices issued to her in those cases overwhelmingly supports our finding of this violation.

B. Rule 32:3.2: Expediting Litigation. This rule is violated when a lawyer fails to “make reasonable efforts to expedite litigation consistent with the interests of the client.” Iowa R. Prof'l Conduct 32:3.2. An attorney violates this rule by failing to appear for status conferences and respond to court inquiries. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 679–80 (Iowa 2010). Similarly, an attorney violates this rule in failing to comply with orders compelling discovery responses. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cunningham, 812 N.W.2d 541, 548 (Iowa 2012). We conclude Kieffer–Garrison's serial failures to comply with the requirements of this court's procedural rules governing the timely presentation and progression of appeals constituted a violation of her obligation to demonstrate reasonable efforts to expedite numerous appeals consistent with her clients' interests.²

C. Rule 32:3.4(c): Knowing Disobedience of an Obligation Under the Rules of a Tribunal. A lawyer's obligation to act with fairness to opposing parties and their counsel includes the obligation to refrain from “knowingly disobey [ing] an obligation under the rules of a tribunal except for an open refusal based on an assertion that no obligation exists.” Iowa R. Prof'l Conduct 32:3.4. In this case, there can be no doubt that Kieffer–Garrison knew the rules of this court imposing time deadlines pertaining to appeals, and that she persistently violated them in several criminal appeals. Her violations of the rules occurred despite her acknowledged receipt of numerous notices of those deadlines informing her of the specific rules requiring timely filings. Our decisions have explained, however, that the purpose of rule 32:3.4(c) is to ensure “ ‘[f]air competition in the adversary system’ through proper adherence to discovery and evidence rules.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Dunahoo, 799 N.W.2d at 524, 533 (Iowa 2011) (quoting Iowa R. Prof'l Conduct 32:3.4(c) cmt. 1). We find the Board failed to meet its burden of proving Kieffer–Garrison's conduct undermined the competitive fairness of the appeals or disadvantaged opposing counsel. Accordingly, we find no violation of rule 32:3.4(c) by Kieffer–Garrison in this case.

D. Rules 32:8.4(c); 32:3.3(a)(1): Engaging in Dishonesty; Lack of Candor Toward a Tribunal in the McGee Case. We now turn to the Board's claim that Kieffer–Garrison failed to prepare and timely file an application for further review in the McGee case and falsely represented to the clerk of this court she had done so. We find Kieffer–Garrison was appointed on June 23, 2011, as McGee's counsel in a postconviction relief appeal. On October 7, the clerk of this court issued a notice of default informing Kieffer–Garrison she had failed to timely serve McGee's proof brief and appendix designation. Kieffer–Garrison subsequently filed both the proof brief and the appendix designation thirty-six and forty-three days late, respectively. Another notice of default was issued by the clerk on February 27, 2012, as a consequence of Kieffer–Garrison's failure to timely file the appendix, which was eventually filed twenty-seven days late.

The court of appeals affirmed the dismissal of McGee's petition for postconviction relief on June 13. McGee learned of this development not from Kieffer–Garrison, but via his receipt of a copy of the decision from the court. McGee conferred with Kieffer–Garrison who agreed to prepare and file an application for further review by this court.

No such application was received by the clerk of this court in due course, however, and procedendo was therefore issued on July 11. Thereafter, McGee called the clerk's office to check on the status of his appeal. He was informed that an application for further review had not been filed in his case.

McGee went to Kieffer–Garrison's office to inquire. After Kieffer–Garrison assured McGee an application had been filed, McGee called the clerk's office. He handed his cell phone to Kieffer–Garrison who spoke with a deputy clerk. Kieffer–Garrison told the deputy she had sent an application to the clerk via the postal service but could not supply tracking confirmation. When the deputy asked Kieffer–Garrison if she possessed a copy of the application, Kieffer–Garrison said she was unable to locate a copy that could be promptly transmitted to the clerk's office by email or fax. The deputy informed Kieffer–Garrison that her only...