Iowa Supreme Court Attorney Disciplinary Bd. v. Attorney Doe No. 792

• Decision Date: 05 February 2016
• Docket Number: No. 14–1987.,14–1987.
• Citation: 878 N.W.2d 189
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. ATTORNEY DOE NO. 792, Respondent.
• Court: Iowa Supreme Court

878 N.W.2d 189

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.ATTORNEY DOE NO. 792, Respondent.

No. 14–1987.

Supreme Court of Iowa.

Feb. 5, 2016.

Rehearing Denied March 3, 2016.

Tara M. Van Brederode and Amanda Robinson, Des Moines, for complainant.

Attorney Doe, Des Moines, pro se.

ZAGER, Justice.

In this attorney disciplinary action, we are asked to decide whether an attorney's ex parte email to a judge that included allegations of unethical conduct and a cover-up violated our Iowa Rules of Professional Conduct. We find that the Iowa Supreme Court Attorney Disciplinary Board did not prove a violation of rule 32:8.2(a). However, we do find that the Board proved a violation of rule 32:3.5(b). The appropriate sanction for this violation is a private admonition.

I. Background Facts and Proceedings.

Attorney Doe No. 792 passed the Iowa bar exam in 1997. He chose not to practice law in Iowa at that time and moved to Los Angeles in 1998 to obtain his MBA. He spent the next ten years working as a financial analyst in Los Angeles and New York. His Iowa law license became inactive in 2000.

In 2007, Attorney Doe moved back to Iowa. Attorney Doe had a dispute with a former employer and hired attorney Steve Eckley to represent him. The relationship between Attorney Doe and Eckley quickly broke down, and Eckley withdrew from his representation of Attorney Doe. The attorney-client relationship existed between October 25 and December 5, 2007. On February 22, 2011, Attorney Doe filed a pro se fee arbitration claim with the Polk County Bar Association (PCBA) Fee Arbitration Committee (committee) claiming there was a fee dispute between him and Eckley. During the course of the proceedings, Attorney Doe was uncomfortable with the level of familiarity between the members of the committee, and between the members of the committee and Eckley. Attorney Doe specifically did not like that Eckley, as the president of the PCBA, had appointed the head of the committee, among other concerns. These potential conflicts of interest were discussed prior to the hearing, and several members recused themselves from hearing the case. Attorney Doe also made a number of untimely procedural requests to present additional information to the committee that were denied. Attorney Doe felt that this information was important and that his ability to present his side to the committee was unfairly limited because of these denials.

After a full hearing, the committee ruled in Attorney Doe's favor and required Eckley to return $3050 to Attorney Doe, which was promptly paid. However, Attorney Doe was not happy with this result. Attorney Doe believed Eckley had overcharged him by more than $25,000. Attorney Doe felt that the committee had made its ruling against him based on familiarity and favoritism. Attorney Doe appealed the ruling under Iowa Code chapter 679A by filing an "Application to Vacate Fee Arbitration Award" in the Iowa District Court for Polk County. Iowa Code § 679A.12 (2011). Judge Robert A. Hutchison was assigned to the case.

On appeal, Attorney Doe alleged two grounds upon which the award should be vacated: (1) "[t]here was evident partiality by an arbitrator appointed as a neutral, corruption in any of the arbitrators, or misconduct prejudicing his rights"; and (2) "[s]ubstantial evidence on the record as a whole [did] not support the award." Id. § 679A.12(1)(b ), (f ). After a hearing, Judge Hutchison ruled that Attorney Doe had failed to meet his burden of proof with respect to either ground and denied the application. Attorney Doe filed a motion to amend or enlarge the court's ruling. In a ruling filed November 15, 2012, the motion was granted in part and denied in part. At 12:31 a.m. on November 21, Attorney Doe sent an email to Judge Hutchison. The contents of the email are as follows:

Dear Robert Hutchison:

Like I stated in my motion to expand and correct your pathetic ruling; I never communicated with you exparte until now. Because you choose to play fast and loose with your ethical responsibilities and irresponsible rulings please accept this as your first exparte communication from me.

The rest you unethical behavior you can explain to your judicial committee. You should be ashamed of yourself and I'm sure you have heard this before. Your shameless cover up for your circle of buddies will not go unaddressed. Hopefully I never have to deal with your arrogant unethical behavior again.

Have a nice holiday. FYI this isn't a tactic I've used before but when observe unethical arrogant men who abuse their power I believe its important to call it as i see it just like now. In my book you're no better than the convicted scum you sentence to jail several times a month.

Shame on you.

Judge Hutchison reported the email to the Iowa Supreme Court Attorney Disciplinary Board (Board).

Attorney Doe reactivated his Iowa license to practice law on April 11, 2014. The Board filed a complaint against Attorney Doe on April 17 for the email he sent to Judge Hutchison. In the complaint, the Board alleged Attorney Doe violated Iowa Rules of Professional Conduct 32:3.5(b) (ex parte communication) and 32:8.2(a) (false statement concerning the qualifications or integrity of a judge). Iowa R. Prof'l. Conduct 32:3.5(b), :8.2(a). On June 12, Attorney Doe sent an apology email to Judge Hutchison, which read as follows:

Judge Hutchison:

I wanted to extend my sincere apology for sending an emotional email on November 21, 2012 at 12:31 am from my mobile phone. It was unprofessional and not indicative of my character. After learning that the Iowa Rules of Professional Conduct apply to me even when I have never worked in the profession as an attorney and when my license was inactive, I have since become fully reinstated as an active licensed attorney. As a newly reinstated attorney, I want you to know that I intend to follow these rules at all times regardless of whether I am employed as an attorney or simply representing myself. Again I extend my sincere apology for the email and hope that you will accept.

The hearing before the grievance commission took place on August 11. The commission filed its findings of fact, conclusions of law, and recommended sanction on November 26. In the report, all of the members of the commission agreed that there was no basis in fact for the allegations included in the email Attorney Doe sent Judge Hutchison. However, the commission split 3–2 on the determination of whether Attorney Doe's email violated rule 32:8.2(a) of the Iowa Rules of Professional Conduct. The two minority members believed that the email lacked civility and professionalism. However, they also believed that it was objectively reasonable for a person from outside the Iowa legal community, who did not understand the legal process, to misinterpret the professional relationships of the attorneys involved and to conclude that they were being treated unfairly. The majority concluded that it was not objectively reasonable for Attorney Doe to believe that he was being treated unfairly. The majority concluded that a reasonable person should have been able to look at the testimony and the disclosures made by Judge Hutchison and conclude that the judge was not friends with the other lawyers in the case and was not covering up for the members of the committee. The commission also stated in its report that the entire panel agreed that Attorney Doe violated rules 33.1(1), 33.1(4), and 33.3(1) of the Standards for Professional Conduct.¹

The commission recommended a public reprimand. Attorney Doe filed a motion to amend and expand the ruling of the commission, which was denied. He followed with a second motion to amend and expand the ruling, which was also denied. Attorney Doe appealed the report and recommendation of the commission. The Board requests a license suspension between thirty days and four months. Attorney Doe argues that he did not violate our rules and requests that we dismiss the complaint. In the alternate, Attorney Doe requests a private admonition.

II. Standard of Review.

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cross, 861 N.W.2d 211, 217 (Iowa 2015). "The Board must prove attorney misconduct by a convincing preponderance of the evidence, a burden greater than a preponderance of the evidence but less than proof beyond a reasonable doubt." Id. While we give the findings and recommendations of the commission respectful consideration, we are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Ricklefs, 844 N.W.2d 689, 696 (Iowa 2014). If we find proof of misconduct, we may impose a greater or lesser sanction than recommended by the commission. Cross, 861 N.W.2d at 217.

III. Analysis.

The grievance commission was divided on whether Attorney Doe violated Iowa Rule of Professional Conduct 32:8.2(a) when he sent the offending email to Judge Hutchison. Rule 32:8.2(a) provides:

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer, or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Iowa R. Prof'l. Conduct 32:8.2(a). The comments to the rule expand on the purpose behind sanctioning attorneys for making such false statements:

Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices.... Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

Id. cmt. 1. One of the purposes of the rule is "[t]o maintain the fair and independent administration of justice." Id. cmt. 3.

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