Iowa Supreme Court Attorney Disciplinary Bd. v. Haskovec

• Decision Date: 11 September 2015
• Docket Number: No. 15–0894.,15–0894.
• Citation: 869 N.W.2d 554
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Joseph Michael HASKOVEC, Respondent.
• Court: Iowa Supreme Court

869 N.W.2d 554

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant

v.Joseph Michael HASKOVEC, Respondent.

No. 15–0894.

Supreme Court of Iowa.

Sept. 11, 2015.

Charles L. Harrington and Patrick W. O'Bryan, Des Moines, for complainant.

Roger Sutton, Charles City, for respondent.

Opinion

WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against an attorney alleging two violations of the Iowa Rules of Professional Conduct for the attorney having a witness sign a will outside the presence of the testator and the other witness and then giving the will to the executor to probate without disclosing this fact. A division of the Grievance Commission of the Supreme Court of Iowa found the attorney's conduct violated two rules and recommended we give him a public reprimand. On our de novo review, we find the attorney violated only one of our rules. But we nonetheless publicly reprimand the attorney for his conduct.

I. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Crum, 861 N.W.2d 595, 599 (Iowa 2015). The Board has the burden to prove violations by a convincing preponderance of the evidence. Id. “ ‘A convincing preponderance of the evidence is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt.’ ” Id. (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa 2013) ). Lastly, the commission's findings and recommendations are not binding on our decision. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Barnhill, 847 N.W.2d 466, 470 (Iowa 2014).

The attorney admitted most of the Board's factual allegations in his answer to the complaint. We deem factual matters admitted by an attorney in an answer to a complaint established without further investigation into the record. Nelson, 838 N.W.2d at 532.

In its brief, the Board set forth substantial facts. In his brief, the attorney stipulated to most of the facts set forth by the Board. Stipulations of facts are also binding on the parties. Id. “We interpret such stipulations ‘with reference to their subject matter and in light of the surrounding circumstances and the whole record, including the state of the pleadings and issues involved.’ ” Id. (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 528 (Iowa 2011) ).

The attorney also stipulated in his brief that he violated two Iowa Rules of Professional Conduct as alleged by the Board in its complaint. A party's stipulation as to a violation of the Iowa Rules of Professional Conduct does not bind us. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 804 (Iowa 2010). As we have previously stated,

Nowhere in our rules have we given the parties the authority to determine what conduct constitutes a violation of our ethical rules or what sanction an attorney should receive for such violation. The parties to a disciplinary proceeding cannot substitute their judgment as to what conduct constitutes a violation of our ethical rules or what sanction we should impose for such a violation. The constitution and our court rules vest this function solely in our court. Accordingly, to allow the parties to make these determinations is against the public policy surrounding our attorney disciplinary system.

Id. Accordingly, we will not find an attorney violated the Iowa Rules of Professional Conduct unless a factual basis exists in the record to support such a violation. See id.

II. Findings of Fact.

On our de novo review, we find the following facts. We admitted Joseph M. Haskovec to the Iowa bar in 1985. Haskovec currently serves as a magistrate for Howard County, a part-time position he has held since 2012. Haskovec also has a solo practice in Cresco; however, his solo practice makes up only a small portion of his work. Prior to his appointment as a magistrate, Haskovec worked part-time as the Howard County attorney for twenty-seven years. The events giving rise to the present complaint occurred while Haskovec was serving as a part-time county attorney, but acting as a private practitioner.

Haskovec is part of a large family, which began feuding decades ago. Family members put Haskovec in the middle of this feud when they asked him to draft a new will for one of his aunts, Edith Benson. Benson had previously executed a will and power of attorney documents in 2005, naming her nephew, Kenneth M. Bronner, as the executor of her estate and his son, Kenneth R. Bronner, as her power of attorney.

On July 6, 2010, Haskovec, Benson, and Benson's sister, Elsie Pint, met for two hours at Benson's home to discuss the provisions of a new will, a new power of attorney, and a new durable power of attorney for health care decisions. Haskovec and Benson discussed removing certain family members from Benson's will and naming new individuals as her power of attorney and durable power of attorney for health care decisions. Haskovec, Benson, and Pint also discussed how to change the beneficiaries on Benson's Ameriprise Financial account. Haskovec did not change the beneficiaries on this account. Rather, he advised Benson to speak with the financial agent on the account to determine the proper way to make that change.¹

On July 8, Haskovec returned to Benson's home to execute the new documents. She designated new beneficiaries and a new executor.² Haskovec and Pint were with Benson when she executed the will, and Haskovec signed the will as a witness. For some unknown reason, Pint did not sign the will as a witness. The will was not a self-proving will because Haskovec did not use self-proving wills in his practice.

In early August, Benson's health began to fail and she entered the Cresco hospital. It was at that time other family members discovered the changes Haskovec had made to Benson's will and power of attorney documents. The hospital where Benson was admitted notified Benson's great-nephew, Kenneth R., and his wife, Terri Bronner, that other family members were trying to move Benson out of her local hospital. After learning from family member Susan Randall that Benson had named Randall as her new power of attorney and executor under the 2010 documents, Kenneth R. went to Haskovec's office to question him about the changes to the will.

When questioned by Kenneth R., Haskovec confirmed he had written the new will and other documents executed by Benson. After this discussion Haskovec reviewed the will and discovered that Pint, who had been present at the execution of the will, did not sign the will as a witness. Soon after discovering Pint had not signed the will, Haskovec consulted the Iowa Code and noted that for a will to be valid, two witnesses must sign it in the presence of the testator and each other. See Iowa Code § 633.279(1) (2011). Though Haskovec recognized Benson's will did not meet this requirement, he thought there might be some legal argument a probate attorney could make to save the will.³

Prior to Benson's death, he sent the will to Arizona for Pint to sign the will as a witness. Pint then signed the will pursuant to Haskovec's instructions and returned it to his office.

On August 26, Benson passed away. In mid-September, Haskovec gave the 2010 will to Randall so she could probate it. Haskovec did not disclose to Randall the fact that Pint signed the will outside the presence of himself and the testator. Randall took the will to another attorney, Michael Dunbar, so he could open an estate.

After receiving the will, Dunbar sent Haskovec an Affidavit of the Subscribing Witness. After receiving the affidavit, Haskovec contacted Dunbar. Haskovec readily admitted he had sent the will to Pint for her signature, as she had not signed it on the same day as he and Benson had. He informed Dunbar he would not sign the affidavit because the statements in it were not accurate. Dunbar then informed Randall the will was invalid and he could not probate it. Another attorney, Brian McPhail, ultimately probated the 2005 will.

On October 13, 2014, the Board filed a complaint against Haskovec alleging violations of rule 32:4.1(b) (“In the course of representing a client, a lawyer shall not knowingly ... fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 32:1.6.”) and rule 32:8.4(c) ( “It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”). Iowa Rs. Prof'l Conduct 32:4.1(b), 32:8.4(c).

The Board, in its hearing brief filed with the commission, argued Haskovec was representing Randall when he gave her the will and then failed to disclose to her the issue with Pint's signature. However, we find the Board failed to prove by a convincing preponderance of the evidence Randall was Haskovec's client. Haskovec only gave Randall the will. He provided no legal advice to her and did not probate the will for her. We find the only client Haskovec represented concerning this matter was Benson.

The commission found that Haskovec violated rules 32:4.1(b) and 32:8.4(c). The commission recommends we give Haskovec a public reprimand for this conduct rather than a suspension because his disclosure to attorney Dunbar “prevented any fraud or dishonesty from being perpetrated on the Court or the public.”

III. Ethical Violations.

A. Rule 32:4.1(b). Rule 32:4.1(b) provides:

In the course of representing a client, a lawyer shall not knowingly:

....

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 32:1.6.

Id. r. 32:4.1(b) (emphasis added).

The plain language requires that, in order for an attorney's failure to disclose a material fact to violate this rule, disclosure must be necessary for the attorney to avoid assisting his or her client in perpetrating a crime or fraud. See ...