Iowa Supreme Court Attorney Disciplinary Bd. v. Bergmann

• Citation: 938 N.W.2d 16
• Decision Date: 24 January 2020
• Docket Number: No. 19-1662,19-1662
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Beau A. BERGMANN, Respondent.
• Court: Iowa Supreme Court

938 N.W.2d 16

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Beau A. BERGMANN, Respondent.

No. 19-1662

Supreme Court of Iowa.

Filed January 24, 2020

Tara van Brederode, Des Moines, and Andrew J. Boettger, Ames, for complainant.

Alfredo Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry, Brown & Bergmann LLP, Des Moines, for respondent.

MANSFIELD, Justice.

I. Introduction.

A relatively inexperienced Iowa attorney had too much on his plate and, as a result, missed court deadlines and appearances. After the Iowa Supreme Court Attorney Disciplinary Board (Board) filed a complaint against the attorney, the parties reached a stipulation of facts, violations, and sanctions. They proposed that the attorney receive a public reprimand followed by twelve months of probation. The Iowa Supreme Court Grievance Commission agreed with the joint recommendation and passed it along to us.

On our review, we conclude that a public reprimand is appropriate for this case of neglect. Several mitigating factors are present, including the attorney’s inexperience. But we decline to order probation. In our view, any such change in our disciplinary system should be instituted via rulemaking, with an opportunity for public comment.

II. Facts and Procedural History.

A. Our Limited Record. Our factual record is sparse because the matter was submitted on a stipulation, and the stipulation is rather vague as to what the facts are. Also, no exhibits accompany the stipulation to provide additional background.¹

One example of a shortfall in the stipulation is the following sentence: "Bergmann neglected the dissolution case by failing to keep B.M. reasonably informed of the status of said case."² This is really a stipulation as to a legal conclusion, not a fact. It would be helpful to know in what ways Bergmann failed to keep his client informed and for how long the client remained uninformed.

The next sentences of the stipulation recite, "Bergmann received the relevant documents late from the client. However, Bergmann concedes he should have been more diligent in obtaining the information." For purposes of our review, it would be helpful to know what the documents were, when they were obtained, and what their importance to the case was.

Next the stipulation states, "Bergmann admits he did not properly follow the Rules of Civil Procedure relative to proper notice of service of process in B.M.’s matter." What was the deficiency here? What effects did it have?

The stipulation continues, "Bergmann admits he did not file the affidavits on behalf of B.M. in a timely fashion and should have done so. However, a mitigating factor is that B.M. produced these affidavits at a late hour." Again, what affidavits are the parties referring to, when should they have been filed, and when were they in fact filed?

These details matter because not every missed deadline or delay is an ethical violation.³ And even when we find an ethical violation, the sanction often turns on the seriousness of the violation and the attendant circumstances. The Board has the burden of proof. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Smith , 885 N.W.2d 185, 192 (Iowa 2016) (discussing the board’s burden of proof in a case heard on stipulation). Therefore, to the extent our factual record falls short, we cannot hold that against the attorney. See id.

From the stipulation and the admitted allegations of the complaint, we can glean some relevant facts. Beau Bergmann has been licensed to practice law in Iowa since 2012—a period of seven years. Bergmann resided first in Des Moines (2012 to 2015) and then later in Mount Pleasant (2015 to present). Until 2018, Bergmann attempted to maintain offices in both Des Moines and Mount Pleasant. Since then, Bergmann has maintained an office only in Mount Pleasant and is focused on building a practice in Henry County and the surrounding area. Bergmann has accepted court appointments through the state public defender in seventeen counties. The disciplinary proceeding concerns Bergmann’s representation of three different clients, one of which involved a court appointment.

B. The First Client. In 2014, Bergmann began representing a client in a dissolution of marriage action that involved children.⁴ Bergmann failed to appear for a hearing on temporary matters, even though he acknowledged that the client had delivered to him a copy of the order setting the hearing. Without Bergmann having made an appearance, the judge entered a ruling on temporary matters on September 26. Five days later, on October 1, Bergmann filed a motion for suspension and reconsideration of temporary matters. In that motion, Bergmann told the court, incorrectly, that the "first filing" he had received on the temporary matters hearing was the September 26 ruling. Eventually, the client retained new counsel. On November 14, the new attorney filed a motion for further hearing. The motion included four affidavits that had been notarized by Bergmann on October 1.

The parties have also stipulated that Bergmann "believes" his request for reconsideration was appropriate and timely and "does not feel he was untruthful in connection with this disciplinary matter but accepts responsibility."

C. The Second Client. In 2015, Bergmann was appointed to defend an individual who had been charged with perjury. The individual was convicted later that year. Bergmann filed a notice of appeal on December 21. On January 13, 2016, another attorney, Kenneth Weiland, likewise filed a notice of appeal. On January 25, both Bergmann and Weiland were issued notices of default and assessed $150 penalties for failure to file and serve the combined certificate and pay the appeal fee. On February 8, Weiland filed the combined certificate and requested a waiver of the appeal fee. Bergmann took no action. On May 24, both Bergmann and Weiland were issued notices of default and assessed $150 penalties for failure to file and serve the appellant’s proof brief and designation of appendix parts. Neither attorney responded to these notices, and the appeal was dismissed for want of prosecution. See Iowa R. App. P. 6.1202(1)(a ). Later, Weiland moved unsuccessfully for reinstatement of the appeal.

According to the parties’ stipulation, Bergmann erroneously believed that his court-appointed duties had ended once Weiland filed a notice of appeal as appellate counsel. Bergmann acknowledges he should have followed up with the court and with Weiland to ensure the defaults were cured and the appeal was progressing.

D. The Third Client. The third matter involved a custody proceeding that unfolded during 2016. Bergmann’s client repeatedly had difficulty reaching Bergmann. Bergmann admits he received calls and failed to timely respond. At an August 15 pretrial conference, Bergmann learned for the first time that his client had reached a settlement in mediation; before then, Bergmann had been unaware of either the mediation or the settlement. In late October, Bergmann’s client asked him to withdraw. In November 2016, Bergmann filed a notice of withdrawal at the client’s request. The court denied Bergmann permission to withdraw until a new attorney appeared. Bergmann admits there were administrative shortcomings with regard to the records he maintained in the matter.

E. The Complaint and Subsequent Proceedings. The Board filed a complaint against Bergmann on November 14, 2018, alleging disciplinary rule violations in the foregoing three matters. Bergmann filed a motion for a more specific statement and an answer. As already noted, the parties subsequently reached a stipulation and submitted the matter to the commission on that basis. See Iowa Ct. R. 36.16(1). The commission found violations of Iowa Rule of Professional Responsibility 32:1.3 (requiring the attorney to "act with reasonable diligence"), rule 32:1.4 (requiring the attorney to "reasonably consult with the client"), rule 32:3.2 (requiring the attorney to "make reasonable efforts to expedite litigation"), rule 32:3.4(c) (requiring the attorney not to "knowingly disobey an obligation under the rules of a tribunal"), and rule 32:8.4(d) (requiring an attorney not to "engage in conduct that is prejudicial to the administration of justice").

F. Other Considerations. Bergmann has had many stressors in his life. Some are work-related. Bergmann has practiced primarily in the area of indigent criminal defense. This practice requires considerable travel, much of which has not been compensated in Bergmann’s case. Bergmann used to have an associate, but the associate left suddenly, and Bergmann has been unable to hire another.

Bergmann also has sources of stress in his personal life. He and his wife lost a child due to a miscarriage. Bergmann suffers from persistent depressive disorder

in the mild range. His wife has suffered from depression as well. Bergmann is currently undergoing personal and marriage counseling.

Bergmann has begun using office management software and has instituted regular staff meetings to improve office procedures and ensure work is done in a timely manner.

Bergmann has been a member of the executive council of the Young Lawyers Division of the Iowa State Bar Association since 2015. He serves as a volunteer judge at mock trial competitions. He has worked on pro bono cases.

Bergmann has responded to all correspondence from the Board. He volunteered for a psychiatric evaluation after these matters arose and has been receiving mentoring from his brother, also an Iowa attorney.

III. Standard of Review.

"We review attorney disciplinary matters de novo." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Earley , 933 N.W.2d 206, 213 (Iowa 2019) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lynch , 901 N.W.2d 501, 506 (Iowa 2017) ); see Iowa Ct. R. 36.21(1). "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." Earley , 933 N.W.2d...