Iowa Supreme Court Attorney Disciplinary Bd. v. Johnson
| Docket Number | 22-2003 |
| Decision Date | 31 March 2023 |
| Citation | 988 N.W.2d 399 |
| Parties | IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Scott A. JOHNSON, Respondent. |
| Court | Iowa Supreme Court |
Tara van Brederode, Allison Schmidt, and Alexis Grove, Des Moines, for complainant.
Scott Johnson, Spencer, pro se.
The Iowa Supreme Court Attorney Disciplinary Board filed a complaint charging attorney Scott A. Johnson with nineteen violations of the Iowa Rules of Professional Conduct involving six different clients. The majority stemmed from neglect of cases and clients, but the most serious involved forgery and deception related to Johnson's representation of criminal defendants where he lied to the courts in furtherance of his own self-interests. The Board asks that this court find all the alleged violations established and suspend Johnson's license to practice law for three years. Upon our de novo review of the record, we are persuaded by the Board's position and suspend Johnson's law license.
On April 27, 2022, the Board filed a five-count complaint with the Iowa Supreme Court Grievance Commission charging Johnson with violations of Iowa Rules of Professional Conduct 32:1.2(a), 32:1.3, 32:1.4(a)(2)–(3), 32:1.5(a), 32:3.2, 32:3.3(a)(1), 32:8.1(b), and 32:8.4(b)–(d). The Board alleges that Johnson "submit[ed] false time and expense claims to the Iowa State Public Defender's Office (‘SPD’), neglect[ed] his legal matters, fail[ed] to communicate with his clients, fail[ed] to appear at hearings, fail[ed] to respond to the Board's pre-charge investigative inquiries, and forg[ed] a client's signature on a guilty plea."
Johnson was admitted to practice law in Iowa on September 18, 2015, and was practicing in Spencer at the time relevant to the Board's complaint. When the complaint was filed—less than eight years into Johnson's tenure as an Iowa attorney—Johnson had already received a private admonition and a public reprimand, and his license was then under suspension for failure to comply with a client security commission audit of his lawyer trust account.1
Johnson's only response to the Board's complaint came on May 17 and 18, when he filed (and then amended) his answer. Johnson admitted almost all of the allegations against him but denied he had filed a guilty plea without his client's consent. After filing that answer and participating in a scheduling conference, "Johnson ceased all involvement in the proceedings," even failing to participate in discovery. (Emphasis omitted.) Accordingly, the Board successfully moved for sanctions pursuant to Iowa Rule of Civil Procedure 1.517(2)(b )(1), and as a consequence, the commission deemed admitted the allegation Johnson had previously denied (but not the ultimate conclusion as to whether that conduct did in fact violate the rules of professional conduct).
After a one-day hearing on July 27, a five-member division of the commission found all of the factual allegations in the complaint proven and unanimously concluded that those facts established the ethical violations charged. The commission members disagreed, however, as to the appropriate sanction. Three members recommend a three-year suspension, while two members recommend two years.
In attorney discipline cases, this court reviews "alleged violations and evidence de novo to ensure that the Board has proven each allegation of misconduct by a convincing preponderance of the evidence." Iowa Sup. Ct. Att'y Disciplinary Bd. v. Aeilts , 974 N.W.2d 119, 125 (Iowa 2022). This is true even where the responding attorney admits the alleged conduct and the rule violations in the complaint. See Iowa Sup. Ct. Att'y Disciplinary Bd. v. McCarthy , 814 N.W.2d 596, 601 (Iowa 2012). "The convincing preponderance of the evidence standard is ‘less demanding than proof beyond a reasonable doubt, but requires a greater showing than the preponderance of the evidence [standard].’ " Aeilts , 974 N.W.2d at 125 (quoting Iowa Sup. Ct. Att'y Disciplinary Bd. v. Adams , 809 N.W.2d 543, 545 (Iowa 2012) ).
That said, based on Johnson's admissions and the unresisted, unchallenged sanctions, "[f]or purposes of our de novo review, we deem [all of] the factual allegations contained in ... the complaint admitted." Iowa Sup. Ct. Att'y Disciplinary Bd. v. Moonen , 706 N.W.2d 391, 396 (Iowa 2005). "Using these admissions of law and fact, together with our review of the record, we make the following findings of fact and determinations of [Johnson's] ethical violations." Id. at 397.
A. Count I—Brown Representation. In January 2018, Johnson was appointed to represent Allison Brown in a postconviction relief (PCR) proceeding she initiated in September 2016. Johnson's representation continued until he withdrew from the matter in January 2020. During this two-year representation, Johnson billed less than five total hours of work related to Brown's case, spoke with Brown over the phone roughly twice, and caused her PCR trial to be postponed at least twice. He requested (and the court granted) an application for travel reimbursement related to a purported in-person visit with Brown at the Newton Correctional Facility and submitted a time and expense log claiming $166.14 for that purpose; however, he never actually met with Brown in person. In submitting his time and expense log to the SPD, Johnson certified "under penalty of law that ... the statements and information contained in [his] submission [were] true, accurate, and complete."
Throughout the entire course of the representation, Brown appeared to be in the dark as to what Johnson was doing to advance her case. He did not inform Brown when the State moved to dismiss her petition or when he subsequently moved to amend the petition in response to the motion for summary dismissal. Brown complained to the court four times about Johnson's lack of communication—once in July 2018, twice in April 2019, and once in December 2019—requesting Johnson be removed as her attorney in her final two letters.
In the meantime, after the court denied the State's motion for summary dismissal, Johnson requested a continuance of the trial due to a scheduling conflict. The court granted the motion, directing Johnson and the State to coordinate with court administration within ten days to set a new trial date. Johnson never followed up, leaving the trial court to eventually set a new trial date in October 2019—thirteen months after it was previously set. Eight days prior to the new trial date (and nearly five months after the court had set that date), Johnson requested another continuance based on a scheduling conflict. After the court granted it, but before a new date could be set, Johnson moved to withdraw from his representation. He did not notify Brown that he was moving to withdraw. In January 2020, the court granted Johnson's motion and appointed new counsel for Brown—four years out from the initiation of her PCR case.
B. Count II—Monson , Kreykes , and Peterson Representations. In March 2020, Johnson was appointed to represent Timothy Monson, a criminal defendant. After a pretrial conference in September, the district court believed a plea agreement had been reached and scheduled a plea hearing for later that month. From that time until May 2021, however, the court had to continue the plea hearing no less than nine times. Although some of those continuances stemmed from COVID-19 or other health concerns, some were at the behest of Johnson without any clear reason given, and another was simply due to Johnson's failure to obtain a signed guilty plea from the client or appear at the hearing. Indeed, both Johnson and Monson failed to appear for a plea hearing scheduled for February 22, 2021, when no guilty plea was yet on file, despite the court's earlier warning that if no plea was filed and Monson failed to appear, the court would issue a warrant for his arrest. Only after missing yet another plea deadline in April and receiving another warning from the court threatening to issue a warrant for Monson's arrest did Johnson finally obtain and file Monson's guilty plea.
This pattern of behavior carried over to Johnson's representation of Clinton Kreykes and Tracy Peterson—criminal defendants Johnson was appointed to represent in February 2021 in separate O'Brien County cases. Both Johnson and his clients failed to appear at pretrial conferences in their respective cases—first on February 22 and again on March 8. Both sets of conferences were continued after Johnson and his clients were no-shows. Johnson gave the court no notice before missing the February 22 conferences and failed to respond to the court's attempts to contact him. He again gave the court no notice before missing the March 8 conferences, although he did email the prosecutor just prior to the conferences asking for a continuance due to a scheduling conflict. A third set of pretrial conferences was scheduled for April 5, and Peterson's April 13 trial date had to be postponed to June (although he ultimately ended up pleading guilty before trial). After finally appearing at these conferences, Kreykes's case proceeded to trial in April, ending in a guilty verdict. But when it came time for Kreykes's May 3 sentencing hearing, Johnson arrived too late for the hearing to proceed as scheduled, and he only requested a continuance after the hearing was supposed to have taken place.
C. Count III—Terwilliger Representation. Sometime between January and March 2021, Johnson agreed to represent Tiffany Terwilliger, the petitioner in a marriage dissolution proceeding. He filed his appearance on March 1, and the matter was set for trial on August 11. In the week leading up to trial, the court reporter emailed Johnson four times to assess the status of the case, but Johnson failed to respond to any of her emails. And when it came time for trial—despite his...
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