IOWA SUPREME COURT ATTY. DISC. BD. v. Sobel
| Decision Date | 19 March 2010 |
| Docket Number | No. 09-0932.,09-0932. |
| Parties | IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Scott Alden SOBEL, Appellant. |
| Court | Iowa Supreme Court |
David L. Brown and Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for appellant.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for appellee.
The Iowa Supreme Court Attorney Disciplinary Board charged Scott A. Sobel with numerous violations of the Iowa Code of Professional Responsibility for Lawyers primarily resulting from his representation of two clients in a criminal matter. The Grievance Commission of the Supreme Court of Iowa found Sobel violated the code of professional responsibility. It recommended Sobel be suspended from the practice of law for a period not less than six months. On our review, we find Sobel violated the code of professional responsibility and impose a public reprimand.
Scott A. Sobel is an Iowa lawyer who practices law in Des Moines. He was admitted to practice in Iowa in 1983. He graduated from Drake Law School and received his undergraduate degree from Grinnell College. Many of his clients are immigrants, and he has developed a reputation for accepting cases from clients with limited financial means. Sobel has been recognized for his volunteer work in assisting refugees in the community. He has no prior disciplinary record.
In October 2002, Sobel agreed to represent David and Cindy Luu after they were charged with multiple counts of illegal commercialization of wildlife. The Luus are immigrants from Thailand and operate a grocery store in Des Moines. Cindy immigrated to Iowa in 1976 and graduated from high school in Des Moines. David immigrated to Iowa a short time later, and he has a ninth-grade education. David and Cindy married in Des Moines.
The Luus were charged by the state with purchasing and reselling game fish harvested in Iowa from their grocery store. The charges were brought after police and conservation officers from the Iowa Department of Natural Resources (DNR) executed a search warrant at the grocery store on October 21, 2002. Following the search, conservation officers met with the Luus in the back office of the store to discuss their investigation into the illegal harvesting and selling of fish in certain areas of Des Moines. Although an interpreter was at the scene, the conservation officers did not use the interpreter when they talked to the Luus because they felt they were able to effectively communicate with them without any interpreter assistance. The Luus were cooperative throughout the discussions and spoke about the selling and buying of fish.
The Luus contacted Sobel to represent them because he had represented them on various business and regulatory matters over the prior ten years. The Luus did not execute a written waiver and acknowledgement of the potential conflict of joint representation when they met with Sobel. Sobel testified at the disciplinary hearing that he explained the potential problem of joint representation to the Luus, but the Luus declined to sign a written waiver. David Luu denied the occurrence of any such conversation and testified that he would have signed a waiver if Sobel had asked him to do so. Cindy Luu could not recall any conversation about joint representation.
David Luu gave Sobel a retainer fee in the form of a check in the amount of $2000. Sobel placed the retainer in his trust account and subsequently withdrew the money during the course of the representation. He never provided the Luus with a written accounting of the legal services he performed.
During the course of the representation, Sobel and the Luus met with the prosecuting attorney, Daniel C. Voogt, an assistant Polk County attorney, and the conservation officer in charge of the investigation. The meeting occurred at the Polk County Attorney's office. The case was proceeding in the direction of a plea agreement at the time, and officials from the DNR sought cooperation from the Luus as a part of the agreement. At this meeting, Sobel was given photographs depicting individuals who state investigators suspected were involved in the harvesting and selling of Iowa game fish. The Luus later provided information to Sobel about the individuals during a conference in his law office. Sobel documented the information provided by the Luus on the photographs.
Voogt believed the Luus understood the investigation and the proceedings based on his interaction with them at the meeting. He further believed the Luus understood that part of their cooperation would require them to identify other individuals in the community who were involved in the illegal fish operation. Voogt expressed his belief that the Luus understood English and did not "have any concerns about the Luus' ability to understand what was going on."
A plea agreement was eventually reached and memorialized in a memorandum of understanding. The Luus agreed to plead guilty to twenty counts of Unlawful Commercialization of Wildlife and to pay a fine of $1000 for each count plus $15 for each fish recovered in the investigation, together with the costs of the investigation. The agreement provided the Luus would also be placed on probation, and they agreed to cooperate with the state in its continued investigation and prosecution of other individuals.
The Luus expressed two concerns to Sobel about the guilty pleas. First, they feared publicity over the case and wanted to keep it out of the news. Second, they were reluctant to appear in court before a judge out of fear of "losing face."
Sobel conferred with Voogt, who agreed his office would not notify the news media of the guilty plea and sentencing proceedings. Sobel then made a representation to the Luus that was understood by them to mean the case would not be made public. Sobel testified at the disciplinary hearing that his comments were not a specific promise, but an expression of his belief that the news media would not be notified of the proceedings in the case. Sobel never considered asking officials from the DNR to refrain from publicizing the case.
Sobel and the Luus appeared at the Polk County Courthouse on November 22, 2002, for the purpose of entering the pleas of guilty and for the court to impose sentence. Voogt appeared for the state, and the case was assigned to District Associate Judge Cynthia Moisan. The recollections of the individuals involved in the proceeding differed significantly over the question of whether the Luus personally appeared before the judge. However, it was clear the Luus were reluctant and embarrassed to personally appear before the judge. Moreover, Sobel and Voogt discussed the possibility of waiving the personal appearance of the Luus in court and disposing of the case by a written plea and sentencing. This discussion occurred while the Luus waited outside the courtroom in the hallway of the courthouse, and the discussion eventually included Judge Moisan. It was also undisputed that the written plea of guilty was ultimately accepted by the judge, and the sentence was imposed at the same time. Furthermore, the proceeding was not reported. The sentence imposed was consistent with the prior agreement.
Voogt testified at the disciplinary hearing he could not specifically recall if the Luus were in the courtroom when the judge accepted the pleas and imposed the sentences. However, he thought they may have been "sitting in the front row." Nevertheless, he could not recall any case from all the cases he had handled in the past when the defendant was not present for sentencing for an indictable offense.
The Luus expressed no problems or complaints until a few weeks after sentencing when the DNR issued a news release about the case. The news release was followed by an article published in the Des Moines Register. The article upset the Luus. Around the same time, Sobel gave the Polk County Attorney the information provided to him by the Luus about the other individuals involved in the illegal commercialization of fish, as documented on the photographs of the suspects. Sobel took this action with the belief that it was consistent with the cooperation agreement.
A short time later, the Luus terminated their professional relationship with Sobel due to the public disclosure of the case. Sobel responded by filing motions to withdraw. The Luus obtained new counsel, claiming they had little understanding of the criminal proceeding against them due to the lack of an interpreter. As a result, they felt the disposition of the case was unfair and blamed Sobel. The Luus eventually filed an application for postconviction relief, alleging Sobel provided ineffective assistance of counsel in representing them in the criminal proceeding. The application for postconviction relief was filed in June 2003.
The postconviction relief application alleged several grounds of ineffective assistance of counsel, including the failure of Sobel to provide or request an interpreter for the Luus during the criminal proceeding. The application claimed the absence of an interpreter caused the Luus to fail to fully understand the criminal proceedings against them, including the written plea bargain and cooperation agreement.
At the postconviction hearing, Sobel testified under oath he appeared at the hearing on the plea and sentencing in the criminal proceeding with the Luus. He testified the Luus were present with him in the courtroom, and he informed Judge Moisan that the Luus did not desire to have an interpreter for the hearing, contrary to his advice. Sobel further testified Judge Moisan briefly questioned the Luus about their decision to decline an interpreter, and she then proceeded with the hearing by accepting the pleas and imposing the sentence. Sobel responded to requests for admissions during the course of the proceedings and expressed his belief that the Luus did appear in court and were questioned by...
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