Iowa Supreme Court Attorney Disciplinary Bd. v. Tindal
| Decision Date | 09 October 2020 |
| Docket Number | No. 20-0005,20-0005 |
| Citation | 949 N.W.2d 637 |
| Parties | IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Eric TINDAL, Appellant. |
| Court | Iowa Supreme Court |
Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for appellant.
Tara van Brederode and Wendell J. Harms, Des Moines, for appellee.
Lawyers shouldn't use default notices from the supreme court clerk as a tickler system for appellate briefing deadlines. Eric D. Tindal did so; and in 2018, we publicly reprimanded him for default notices he received in sixteen appeals. We now decide the sanction for his default notices in another thirteen appeals. Importantly, all but four of the new default notices at issue preceded his 2018 public reprimand. The Iowa Supreme Court Attorney Disciplinary Board seeks "at least" a two-month suspension. A division of the Iowa Supreme Court Grievance Commission that heard the evidence recommends a one-month suspension. It is undisputed that Tindal cured all of the defaults without any appeal being dismissed, and he personally paid every penalty assessment. Tindal, by all accounts a competent criminal defense trial lawyer, has agreed to forgo handling court-appointed criminal and postconviction appeals. For these reasons, we impose a second public reprimand rather than suspending his license.
Tindal obtained his Iowa law license in 2000. He worked seventeen years at a general practice firm in Cedar Rapids before joining his current firm in Iowa City where he focuses on criminal defense.
In 2012, Tindal received a private admonition for lack of diligence in a court-appointed appeal after receiving two default notices and failing to apply for further review of the court of appeals decision. When Tindal joined Dean Keegan's law practice in 2017, his workload increased dramatically, in part because Tindal took over the cases handled by another lawyer in the firm who experienced serious health problems. Tindal continued handling numerous court-appointed appeals, sometimes adding two or three a week. During this time, he received default notices. Each notice of default contained the same advisory language:
You are advised that if the appeal is dismissed as a result of counsel's failure to comply with this default notice, a copy of the dismissal order will be forwarded to the Iowa Supreme Court Attorney Disciplinary Board and to the State Public Defender's Office, where applicable. The dismissal may serve as grounds for an investigation of neglect of a client's legal matter.
Tindal cured each default by filing the overdue briefs and appendices and personally paying all the penalties. No appeal was dismissed, nor did we order Tindal's removal as appellate counsel. Based on the wording of the clerk's notice, Tindal believed disciplinary charges would only be triggered by the dismissal of an appeal.
The Board charged Tindal with disciplinary violations based on twenty-one default notices and penalty assessments in sixteen appeals. On December 6, 2017, Tindal paid the accrued penalties assessed for those defaults totaling $3150. On October 3, 2018, we publicly reprimanded Tindal for that conduct. Meanwhile, Tindal had continued to receive default notices and penalty assessments in other appeals.
On April 10, 2019, the Board filed a new complaint against Tindal alleging multiple default notices issued between February 2018 and March 2019 in thirteen appeals.1 All but four of the default notices preceded his October 2018 reprimand. Tindal cured every default and paid all the monetary penalties out of his own pocket. No appeal was dismissed, nor did his default notices result in the appointment of substitute appellate counsel. Tindal voluntarily revised his contract with the State Public Defender to remove himself from its appellate court-appointed list.
In all thirteen appeals, the Board alleged that Tindal violated Iowa Rules of Professional Conduct 32:1.3 (diligence), 32:3.2 (expediting litigation), and 32:8.4(d) (). In one of the appeals, the Board additionally alleged that Tindal's poor communication with a client, Edward Campbell, violated Iowa Rule of Professional Conduct 32:1.4(a)(2), (3), and (4).
On August 28, 2019, the commission held an evidentiary hearing. The Board submitted its case through documentary evidence including the filings in the appeals and his correspondence with Campbell. Tindal called five witnesses who testified in person regarding his professionalism and competency as a criminal defense lawyer.
The Board and Tindal filed posthearing briefs. On January 2, 2020, the commission filed its findings of fact, conclusions of law, and recommended sanctions. The commission found Tindal violated Iowa Rules of Professional Conduct 32:1.3, 32:3.2, and 32:8.4(d) in all thirteen appeals but that the Board failed to prove Tindal violated rule 32:1.4(a) in Campbell's appeal. The commission found that the default notices in nine of the thirteen appeals preceded Tindal's 2018 public reprimand and concluded consideration of those additional defaults would have triggered his suspension by our court. Based primarily on that conclusion, the commission recommended that we impose a thirty-day suspension. The Board seeks at least a sixty-day suspension. Tindal asks to avoid a suspension, noting the lack of client harm and the fact most of the default notices preceded his prior reprimand.
"We review attorney disciplinary proceedings de novo." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Meyer , 944 N.W.2d 61, 67 (Iowa 2020) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Rhinehart , 827 N.W.2d 169, 171 (Iowa 2013) ). The Board must prove the attorney misconduct by a convincing preponderance of the evidence, which "is more demanding than the civil preponderance-of-the-evidence standard but less demanding than the criminal beyond-a-reasonable-doubt standard." Id. While "[w]e give the commission's findings and recommendations respectful consideration, ... we are not bound by them." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Morse , 887 N.W.2d 131, 138 (Iowa 2016) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Weiland , 862 N.W.2d 627, 635 (Iowa 2015) ).
We reiterate that using the appellate clerk's notices of default "as a private tickler system is unacceptable behavior for an attorney." Weiland , 862 N.W.2d at 642 ; see also Iowa Supreme Ct. Att'y Disciplinary Bd. v. Curtis , 749 N.W.2d 694, 699 (Iowa 2008) (). Tindal agrees with the commission's finding that he violated rules 32:1.3 and 32:3.2, but we are not bound by an attorney's stipulation as to rule violations. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Kingery , 871 N.W.2d 109, 117 (Iowa 2015). Tindal disputes the commission's finding that he violated rule 32:8.4(d) and argues the Board waived appellate review of the commission's finding that the Board failed to prove a violation of rule 32:1.4(a). We review each alleged rule violation to determine whether the Board met its burden of proof. Id.
A. Iowa Rule of Professional Conduct 32:1.3. Iowa Rule of Professional Conduct 32:1.3 states, "A lawyer shall act with reasonable diligence and promptness in representing a client." An attorney may violate rule 32:1.3 through repeated failures to perform obligations or a "conscious disregard" for the responsibilities owed to the client. Weiland , 862 N.W.2d at 635. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lesyshen , 712 N.W.2d 101, 105 (Iowa 2006).
We have previously determined that an attorney violated this rule when she failed to comply with the deadlines in nine separate criminal cases, resulting in over twenty default notices. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Kieffer-Garrison , 847 N.W.2d 489, 492 (Iowa 2014). From February 16, 2018, to March 8, 2019, Tindal received notices of default in thirteen appeals for missing deadlines. These defaults occurred despite the fact that Tindal asked for and received ten extensions. We determine that Tindal violated rule 32:1.3, as he concedes and the commission found.
B. Iowa Rule of Professional Conduct 32:3.2. Iowa Rule of Professional Conduct 32:3.2 states, "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." For example, "[a]n attorney violates this rule when he or she fails to ‘file documents, pursue appeals, and meet deadlines.’ " Weiland , 862 N.W.2d at 637 (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Conroy , 845 N.W.2d 59, 65 (Iowa 2014) ).
We have specifically determined that an attorney violates rule 32:3.2 when the attorney fails to file required appellate documents, resulting in default notices. Kingery , 871 N.W.2d at 120. The same conduct exists here. Tindal failed to make a reasonable effort to expedite his clients’ appeals. He repeatedly failed to timely file documents, often even after receiving extensions. We agree with the commission that Tindal violated rule 32:3.2, as he concedes.
C. Iowa Rule of Professional Conduct 32:8.4(d). Iowa Rule of Professional Conduct 32:8.4(d) states, "It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice ...." A dismissal is not required to find a violation of this rule; "An attorney violates rule 32:8.4(d) when his or her ‘misconduct ... causes court proceedings to be delayed or dismissed.’ " Conroy , 845 N.W.2d at 65 (emphasis added) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Rhinehart , 827 N.W.2d 169, 180 (Iowa 2013) ).
"Failing to comply with appellate deadlines is prejudicial to the administration of justice." Id. Additionally, "an attorney...
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