Iowa Supreme Court Attorney Disciplinary Bd. v. Humphrey
| Decision Date | 25 January 2019 |
| Docket Number | No. 18-1830,18-1830 |
| Citation | 922 N.W.2d 601 |
| Parties | IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Bryan John HUMPHREY, Appellant. |
| Court | Iowa Supreme Court |
Tara van Brederode and Andrew J. Boettger, Des Moines, for complainant.
Bryan John Humphrey, Fort Madison, pro se.
An attorney failed to prosecute an appeal for one client, never communicated with a second client in a criminal matter, and failed to address his loss of a third client’s abstract of title. The attorney also dragged his feet in responding to the Iowa Supreme Court Attorney Disciplinary Board (the Board) and, in one instance, misrepresented to the Board what he had done. In addition, the attorney has a significant history of discipline for similar misconduct. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Humphrey , 812 N.W.2d 659 (Iowa 2012) ; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Humphrey , 551 N.W.2d 306 (Iowa 1996) ; Comm. on Prof'l Ethics & Conduct v. Humphrey, 529 N.W.2d 255 (Iowa 1995).
The attorney and the Board reached a stipulation as to facts and ethical rule violations, which included a recommended sixty-day suspension of the attorney’s license. The Iowa Supreme Court Grievance Commission found this sanction to be too lenient and recommended an indefinite suspension of at least eighteen months. We likewise find the stipulated sanction to be too lenient. We impose an indefinite suspension with no possibility of reinstatement for one year.
Bryan Humphrey is a solo practitioner in Fort Madison who was admitted to the Iowa bar in 1981. This disciplinary proceeding relates to Humphrey’s representation of three different clients.
A. The A.M. Matter. In 2015 and 2016, Humphrey represented A.M., the mother, in a private termination of parental rights proceeding. After filing a notice of appeal on A.M.’s behalf, Humphrey did nothing to advance the appeal. Humphrey later explained that his client had indicated she no longer wished to pursue the appeal. However, as Humphrey put it, "I did not make a responsive filing with the Court to dismiss the appeal, but rather allowed the dismissal to occur by order of the Court; obviously not a prudent decision on my part."
Thus, Humphrey ignored a notice of default from the clerk of the appellate courts, failed to pay an assessed penalty of $150, and simply allowed the appeal to be dismissed pursuant to Iowa Rule of Appellate Procedure 6.1202.
B. The Gerety Matter. In 2017, Daniel Francis Gerety was charged with operating while intoxicated, first offense, in violation of Iowa Code section 321J.2. He retained Humphrey to represent him and paid him an $800 retainer. Humphrey entered an appearance on Gerety’s behalf on March 22, 2017.
When Gerety did not appear for his pretrial conference on July 11, the district court rescheduled the pretrial conference for August 22 and the trial for September 13. On August 22, Humphrey informed the court that Gerety wanted to submit a written guilty plea. On September 11, Humphrey moved to continue the trial on the ground that Gerety lived in California and needed more time to file the written guilty plea. The court granted a continuance, and Gerety ultimately signed the written guilty plea on September 19, which Humphrey filed on September 25.
Meanwhile, Gerety had mailed a complaint to the Board with a September 11 postmark, complaining that he had "never heard from" Humphrey after hiring him and paying an $800 retainer. As Gerety stated,
C. The Bergund Matter. Also in 2017, Paul Bergund tried without success to get Humphrey to deliver an abstract of title, which Humphrey had been holding since 1989 and had apparently lost or misplaced. When Bergund decided to file a complaint with the Board, Humphrey initially did not respond, but later told the Board he had "taken steps to remedy the problem by extending [an] offer to cover the cost of preparing a replacement abstract." This claim was not accurate; Humphrey had not communicated with Bergund. Two months later, after Bergund followed up with the Board, Humphrey finally did contact Bergund, telling him to check with the abstract company and find out what the cost of a replacement abstract would be.
D. Failures to Respond to the Board. Humphrey repeatedly ignored Board inquiries about the A.M., Gerety, and Bergund matters. In the A.M. matter, Humphrey left the Board’s original certified letter unclaimed. He then failed to respond to a Board letter personally delivered to him by the Lee County Sheriff’s Office. He also disregarded the Board’s notice of complaint, finally responding only when this court issued a notice of possible temporary suspension of his law license.
In the Gerety matter, Humphrey ignored the Board’s requests for copies of his correspondence with Gerety, an itemization of his time spent on the Gerety matter, and his trust accounting for Gerety’s advance fees. In the Bergund matter, as in A.M., Humphrey did not respond to the Board’s notice of complaint until he received a follow-up notice threatening a temporary suspension of his license.
E. This Proceeding. On June 7, 2018, the Board filed a complaint against Humphrey. Humphrey answered on July 16, admitting the factual allegations of the complaint but not the alleged ethical violations. On August 9, the parties entered into and submitted a stipulation as to facts, exhibits, disciplinary rule violations, mitigating and aggravating circumstances, and recommended sanction. See Iowa Ct. R. 36.16. The parties’ stipulation also waived formal hearing before the commission. See id. The parties jointly recommended a sixty-day suspension of Humphrey’s law license.
On October 19, the commission accepted the parties’ factual stipulation, agreed with most of the stipulated rule violations, but recommended a much longer suspension involving no possibility of reinstatement for eighteen months.
"When the parties enter into a stipulation, ... they are bound by the stipulated facts, which we interpret with reference to their subject matter and in light of the surrounding circumstances and the whole record." Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson , 884 N.W.2d 772, 777 (Iowa 2016). However, "[w]e are not bound by stipulations as to ethical violations or the appropriate sanction." Id.
We do not believe a detailed discussion of Humphrey’s rule violations is needed. The parties stipulated, the commission concluded, and we agree that Humphrey violated Iowa Rule of Professional Conduct 32:1.3 (diligence) in all three matters, rule 32:1.4 (communication) in the Gerety and Bergund matters, and rule 32:3.2 (expediting litigation) in the A.M. and Gerety matters. Humphrey also violated rule 32:3.4(c) () in the A.M. matter and rule 32:8.4(d) () in the Gerety matter. Furthermore, Humphrey violated rule 32:8.1(b) by failing to respond to lawful demands from the Board.
Additionally, the Board charged Humphrey with engaging in conduct prejudicial to the administration of justice, contrary to rule 32:8.4(d), in the Bergund matter. Bergund was not a litigated proceeding; typically, violations of rule 32:8.4(d) arise in litigation. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo , 799 N.W.2d 524, 534 (Iowa 2011) . Nevertheless, our precedent does indicate that Humphrey engaged in conduct prejudicial to the administration of justice when he failed to respond to the Board’s inquiry in Bergund and later gave inaccurate information that further delayed a resolution of the matter. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. West , 901 N.W.2d 519, 525 (Iowa 2017). Lastly, we agree that Humphrey intentionally misrepresented to the Board what he had done to address the lost abstract of title in the Bergund matter, thereby violating rules 32:8.1(a) and 32:8.4(c).
However, the Board did overcharge this case to some extent. For guidance in future cases, we will discuss that overcharging briefly.
First, the Board alleged that Humphrey violated rule 32:8.4(a) in all three matters. Rule 32:8.4(a) provides, "It is professional misconduct for a lawyer to ... violate ... the Iowa Rules of Professional Conduct ...." We have repeatedly held that this rule "does not create a separate ethical infraction." Dunahoo , 799 N.W.2d at 534 ; see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti , 797 N.W.2d 591, 598 n.1 (Iowa 2011) ; Templeton, 784 N.W.2d at 769. We reiterate that reminder today. Rule 32:8.4(a) does not need to be automatically tacked onto every count of an attorney disciplinary complaint.
Second, the Board alleged that Humphrey violated rule 32:3.4(c) in the Gerety and Bergund matters. We do not agree. Unlike in A.M., Humphrey disobeyed no court order in those two matters. See IowaSupreme Ct. Att’y Disciplinary Bd. v. Hedgecoth , 862 N.W.2d 354, 362 (Iowa 2015) (). In Gerety, Humphrey put off court deadlines by seeking and obtaining unjustified extensions. That was improper, but it didn’t violate rule 32:3.4(c). Bergund was not even a litigated proceeding.
Third, we are not convinced that Humphrey violated rule 32:1.15 (safekeeping client property) simply because he could not locate an abstract of title twenty-eight years after it had been entrusted to him. If that were...
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