Iowa Supreme Court Attorney Disciplinary Bd. v. Sobel
| Docket Number | 23-0549 |
| Decision Date | 09 November 2023 |
| Parties | Iowa Supreme Court Attorney Disciplinary Board, Appellee, v. Scott Alden Sobel, Appellant. |
| Court | Iowa Supreme Court |
Submitted October 11, 2023
On appeal from the report of the Iowa Supreme Court Grievance Commission.
In an attorney disciplinary action, the grievance commission recommends a thirty-day suspension of the attorney's law license based on violations of our attorney ethics rules.
Tara van Brederode, Alexis W. Grove, and Allison A. Schmidt, Des Moines, for appellee.
David L. Brown of Hansen, McClintock &Riley, Des Moines, for appellant.
The Iowa Supreme Court Attorney Disciplinary Board charged an Iowa attorney with violations of the Iowa Rules of Professional Conduct after he neglected two client matters. The Iowa Supreme Court Grievance Commission found various violations of our ethics rules and recommended the attorney's license be suspended for thirty days. The attorney challenges the commission's recommended sanction, arguing that his conduct did not violate any ethics rules and the complaint should be dismissed. Upon our de novo review of the record, we suspend the attorney's license for thirty days.
Scott Sobel has been licensed to practice law in Iowa since 1983. In the nearly forty years he has practiced, Sobel has incurred numerous admonitions and reprimands for his violations of our ethical rules of conduct. In 2002, Sobel was privately admonished for a breach of confidentiality in violation of Iowa Rule of Professional Conduct 32:1.6.[1] In 2009, Sobel was privately admonished three times for intemperate and condescending behavior in violation of rules 32:1.6(a) and 32:1.4.
In 2010, Sobel was publicly reprimanded for failing to render a proper written accounting for legal services when he withdrew fees from a retainer and did not notify the client of such withdrawal in violation of rule 32:1.5.[2] In 2017, Sobel was publicly reprimanded for neglecting to prosecute six appeals due to various health complications rather than withdrawing as counsel in violation of rules 32:1.3, 32:1.4(a)(2)-(3), 32:1.16(a)(2), 32:3.2, 32:3.4, and 32:8.4(d). In 2021, Sobel was privately admonished for violating rule 32:1.4(a)(2)-(4).
Sobel received another private admonishment in 2021 for violating rules 32:1.2(d), 32:3.3, and 32:8.4(d). In 2022, Sobel was publicly reprimanded for violating rule 32:1.4 for failing to respond to his client's requests to communicate that led to the client being in jail for sixty-four days before having an opportunity to speak to Sobel, and for failing to speak to another client prior to her probation revocation hearing and intentionally ignoring her phone calls.
The alleged violations in this case stem from Sobel's court-appointed representation of Mario Goodson in a sentencing hearing (the Goodson Matter) and Sobel's representation of coplaintiffs Samir Golubovic and Ramiza Dervisedic (the Golubovic Matter). On September 14, 2021, Sobel was appointed to represent Goodson regarding his resentencing in a criminal case. Prior to Sobel's appointment, the sentencing hearing had been set for October 4. On October 3, Sobel attempted to read the presentence investigation report (PSI) to prepare for the hearing and realized he could not access the PSI. Sobel neither contacted anyone to resolve the technical issues nor alerted the judge of his inability to access the PSI before the start of the proceeding. It was not until after the proceeding had begun, and the judge asked both parties if they had reviewed the PSI, that Sobel revealed he had not been able to access it. The judge ordered a brief break to allow Sobel and Goodson an opportunity to review the PSI. The hearing proceeded after the break, but Goodson indicated he did not have an adequate opportunity to review the PSI, so the judge ordered a second break. Following the second break, Goodson was sentenced. Additionally, Sobel did not communicate with Goodson in any manner until the morning of the hearing on October 4; however, he did communicate with Goodson's mother before the hearing.
On February 23, 2021, Sobel filed a complaint on behalf of his clients in the Golubovic Matter. Sobel did not obtain service of process within the required ninety days. See Iowa R. Civ. P. 1.302(5). In response, the district court set a hearing for June 23, noting that if the plaintiff failed to appear and proceed at the hearing, the case would be dismissed. Sobel did not attend the June 23 hearing. The district court then rescheduled the hearing for July 9, again noting that if the plaintiff failed to appear the matter would be dismissed. Sobel served the defendant in the Golubovic Matter on June 28, 125 days after the petition had been filed. The July 9 hearing was then canceled. The defendant filed a preanswer motion to dismiss on August 2. Sobel neither resisted the motion nor sought a continuance or extension to respond. On August 16, the court granted the motion to dismiss.
On August 17, Sobel filed a motion to set aside the dismissal and set the matter for hearing. In the motion, Sobel indicated his failure to respond was due to being sick with "bronchitis and ear issues," difficulties with "diabetes management," and needing his "rescue inhaler on multiple occasions." He further indicated he was in quarantine after being exposed to COVID-19. In explaining why he did not effectuate timely service, Sobel stated he had undergone "scopes and biopsies and dilations to determine difficulty swallowing and motility of the digestive tract" and that he had contracted two infections after the procedures, all of which took two and a half months to complete. Sobel orally suggested to his clients that they seek other counsel, but Sobel took no further steps to withdraw from representation in the Golubovic Matter. On October 11, the district court set aside the dismissal for "good cause attributable to excusable neglect."
The Iowa Supreme Court Attorney Disciplinary Board (the Board) filed a two-count complaint alleging Sobel violated several of the Iowa Rules of Professional Conduct. Count I alleges that Sobel violated Iowa Rules of Professional Conduct 32:1.3 and 32:1.4(a)(3) in connection with his representation in the Goodson Matter. Count II alleges that Sobel violated Iowa Rules of Professional Conduct 32:1.16(a)(2), 32:3.2, and 32:8.4(d) in connection with his representation in the Golubovic Matter. Sobel filed an answer and denied that his conduct violated the rules of professional conduct. The parties entered into a partial stipulation of facts on December 20 and waived formal hearing.
In Sobel's poststipulation brief, he argued that the district court in the Golubovic Matter had set aside the complaints against him; therefore, issue preclusion precluded a finding that he violated the rules. The Board filed an objection, arguing that Sobel's failure to provide written notice of his intent to invoke preclusion pursuant to Iowa Court Rule 36.17(4)(c) prevents him from invoking it in his poststipulation brief. In response, Sobel argued that rule 36.17(4) was an evidentiary rule. He characterized the invocation of issue preclusion as presenting a legal argument rather than putting on evidence. Therefore, Sobel argued that Iowa Court Rule 36.17(4) was not applicable.
The commission determined that Iowa Court Rule 36.17 was applicable to the legal arguments of the parties even though the matter was submitted to the commission on the basis of a stipulation rather than a formal hearing. The language of Iowa Court Rule 36.17(4)(c) requires written notice of an intent to invoke issue preclusion within ten days of the hearing. Because the formal hearing had been waived, the commission found Iowa Court Rule 36.17(4)(c) inapplicable. However, the commission determined that Sobel had not satisfied Iowa Court Rule 36.17(4)(a)-(b), which must be satisfied to properly invoke issue preclusion. Therefore, the commission found that issue preclusion could not be utilized as a basis for determining the Board failed to meet its burden of proof in the disciplinary matter.
In the Goodson Matter, the commission found Sobel violated both rules of professional conduct alleged in the Board's complaint. First, it found he violated rule 32:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client, when he failed to review the PSI, remedy his technical difficulties, or to communicate with Goodson prior to the hearing. Second, the commission concluded Sobel violated rule 32:1.4(a)(3), which requires a lawyer to keep their client reasonably informed of the matter, by not communicating with Goodson or reviewing the PSI prior to the hearing.
In the Golubovic Matter, the commission found Sobel violated all three rules of professional conduct alleged in the Board's complaint. First, it determined Sobel violated rule 32:1.16(a)(2), which requires a lawyer to withdraw from representation if a "physical or mental condition materially impairs the lawyer's ability to represent the client," when Sobel did not withdraw as counsel despite his acknowledgment that his physical health conditions were the cause of his mistakes in the Golubovic Matter. Iowa R. of Prof'l Conduct. 32:1.16(a)(2). Second, the commission found he violated rule 32:3.2, which requires a lawyer "make reasonable efforts to expedite litigation," when his failures in the Golubovic Matter caused the petition to not advance from February 23, 2021, until October 11 2021. Id. r. 32:3.2. Finally, the commission concluded Sobel violated rule 32:8.4(d), which prohibits a lawyer from engaging "in conduct that is prejudicial to the administration of justice," when Sobel's...
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