Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Ronwin

• Decision Date: 18 December 1996
• Docket Number: No. 96-378,96-378
• Citation: 557 N.W.2d 515
• Parties: . Edward RONWIN, Appellant. Supreme Court of Iowa
• Court: Iowa Supreme Court

Page 515

557 N.W.2d 515

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Appellee, v. Edward RONWIN, Appellant.

No. 96-378.

Supreme Court of Iowa.

Dec. 18, 1996.

Rehearing Denied Jan. 23, 1997.

Edward Ronwin, Beaver Creek, pro se.

Norman G. Bastemeyer, Charles L. Harrington, and David J. Grace, Des Moines, for appellee.

Considered by LARSON, P.J., and CARTER, NEUMAN, ANDREASEN, and TERNUS, JJ.

PER CURIAM.

In March 1995 the Iowa Supreme Court Board of Professional Ethics and Conduct (board) filed a complaint against Edward Ronwin, alleging violation of disciplinary rules (DR) of the Iowa Code of Professional Responsibility for Lawyers (Professional Code) and provisions of Iowa Code section 602.10112 (1995), setting forth the duties of attorneys. The complaint charged Ronwin with (1) filing a frivolous lawsuit against Susan Hill when he knew, or when it was obvious, that the suit would serve merely to harass and maliciously injure her (DR 7-102(A)(1)), (2) knowingly making false accusations against Judge Hutchison (DR 8-102(B)), (3) engaging in conduct that is prejudicial to the administration of justice (DR 1-102(A)(5)), (4) engaging in conduct that adversely reflects on his fitness to practice law (DR 1-102(A)(6)), (5) failing to maintain the respect due the court and judicial officers (Iowa Code § 602.10112(1)), (6) failing to abstain from offensive personalities (Iowa Code § 602.10112(5)), and (7) commencing and continuing a federal court action from a motive of passion and interest (Iowa Code § 602.10112(6)).

These charges arise from a lawsuit filed in Iowa district court against Hill and other defendants, a federal lawsuit in the United States District Court for the Southern District of Iowa against Hill and other defendants, their attorneys, and various members of the judiciary, and an appeal to the United States Court of Appeals for the Eighth Circuit. The federal suit and appeal were taken after the Iowa appellate court affirmed the dismissal of the lawsuit in state court and the award of penalties imposed under Iowa Rule of Civil Procedure 80.

Following hearing on the complaints, the Grievance Commission (commission) found Ronwin violated both the disciplinary rules and the Iowa statute as alleged in the complaint. The commission recommended Ronwin's license to practice law be suspended indefinitely with no possible reinstatement for one year. The commission also recommended Ronwin participate and complete six hours of continuing education on the Iowa Code of Professional Responsibility for Lawyers.

Ronwin appealed the commission's report and recommendations. The board cross-appealed from the commission's recommendations. Our review of the appeal is de novo. Iowa Sup.Ct. R. 118.11. Before our review of Ronwin's conduct, we will address the special issues raised by him on appeal relating to the burden of proof, the claim of absolute privilege, and the constitutionality of DR 8-102(B).

I. Burden of Proof.

In 1967 we adopted a "convincing preponderance of the evidence" standard of proof in attorney discipline cases. Committee on Prof'l Ethics & Conduct v. Kraschel, 260 Iowa 187, 193-94, 148 N.W.2d 621, 625 (1967). This burden of proof conforms to the majority rule and the better considered weight of authority. Id. Our opinion implicitly rejected the "clear and convincing" standard that was recognized in In re De Caro, 220 Iowa 176, 185, 262 N.W. 132, 135 (1935). We have stated the requirement is "something less than required in a criminal prosecution, and as something more than is required in a civil proceeding," Kraschel, 260 Iowa at 194, 148 N.W.2d at 625, "a greater quantum of evidence than that required in a civil trial, but less than that required to sustain a criminal conviction," Committee on Prof'l Ethics & Conduct v. Hurd, 375 N.W.2d 239, 246 (Iowa 1985), and "a greater quantum of evidence than a preponderance, but less than that required to sustain a criminal conviction." Committee on Prof'l Ethics & Conduct v. Horn, 526 N.W.2d 301, 301 (Iowa 1995).

We reject Ronwin's argument that the "clear and convincing" standard, the highest civil law standard of proof, is required in disciplinary cases to avoid successful constitutional challenge. We purposefully adopted the standard in Kraschel and rejected a more stringent standard in Committee on Professional Ethics & Conduct v. Brodsky, 318 N.W.2d 180, 182 (Iowa 1982).

II. Absolute Immunity.

Ronwin argues he cannot be disciplined for statements contained in his pleadings and appellate briefs in federal court because of his constitutional First Amendment rights. He urges that all participants in a judicial proceeding have an absolute constitutional right to access to the courts and that to deny an attorney this protection, while providing laypersons with absolute immunity, would violate his equal protection rights.

The Iowa Supreme Court has exclusive power to admit persons to the practice of law in the courts of this state. Iowa Code § 602.10101. We may revoke or suspend the license of an attorney to practice law in this state. Iowa Code § 602.10121. Included in the grounds for revocation or suspension of the license of an attorney is the willful violation of any of the duties of an attorney. Iowa Code § 602.10122(3). The obligations of an attorney under the statute include the duties:

(1) To maintain the respect due to the courts of justice and judicial officers.

(2) To counsel or maintain no other actions, proceedings, or defenses than those which appear to the attorney or counselor legal and just, except the defense of a person charged with a public offense.

....

(5) To abstain from all offensive personalities, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which the attorney or counselor is charged.

(6) Not to encourage either the commencement or continuance of an action or proceeding from any motive of passion or interest.

Iowa Code § 602.10112(1), (2), (5), (6).

Disciplinary proceedings against an attorney charged with violation of disciplinary rules arising from statements and accusations contained in pleadings and briefs do not infringe upon the attorney's constitutional right to freedom of speech. In Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, 133 (1964), the Court stated Calculated falsehood falls into that class of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefits that may be derived from them is clearly outweighed by the social interest in order and morality." Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.

(Citation omitted) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035 (1942)).

We have upheld the suspension of an attorney whose criticism of a judge went beyond the limits of fair criticism of the court. In re Glenn, 256 Iowa 1233, 1238, 130 N.W.2d 672, 675 (1964). We rejected a First Amendment claim arising from statements made by an attorney in his petitions for rehearing following supreme court decisions. In re Frerichs, 238 N.W.2d 764, 765-66, 768 (Iowa 1976). In Frerichs, we found the conduct involved is generally held not to be protected by the freedom of speech guarantee under the First Amendment, id. at 768, and recognized "a lawyer, acting in a professional capacity, may have some fewer rights to free speech than would a private citizen." Id. at 769. Our authority was derived from In re Sawyer, 360 U.S. 622, 646-47, 79 S.Ct. 1376, 1388, 3 L.Ed.2d 1473, 1489 (1959) (Stewart, J., concurring), where the Court stated:

A lawyer belongs to a profession with inherited standards of propriety and honor, which experience has shown necessary in a calling dedicated to the accomplishment of justice. He who would follow that calling must conform to those standards.

Obedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech....

In Committee on Professional Ethics & Conduct v. Horak, 292 N.W.2d 129 (Iowa 1980), we commented:

An attorney must not be permitted to engage in unbridled criticism of the court without basis in fact, even if, as respondent claims, it is for the ostensible purpose of asserting a basis for federal jurisdiction of a civil right claim.... To permit unfettered criticism regardless of the motive would tend to intimidate judges in the performance of their duties and would foster unwarranted criticism of our courts. This is obviously the gist of the rules and ethical considerations involved here....

Horak, 292 N.W.2d at 130.

Other jurisdictions have accordingly recognized the limitations imposed upon an attorney's First Amendment rights. See In re Graham, 453 N.W.2d 313, 321 (Minn.1990) (attorney's First Amendment rights are not absolute in a disciplinary action); Ramirez v. State Bar, 28 Cal.3d 402, 169 Cal.Rptr. 206, 211-12, 619 P.2d 399, 404 (1980) (the court has jurisdiction to discipline member attorneys for defamation or disrespectful statements contained in pleadings or other court papers; "outrageous" and "unwarranted" statements concerning a judge or justice are not protected by "free speech" considerations).

III. DR 8-102(B).

We adopted the Professional Code in 1958. Under its provisions, the disciplinary rules are mandatory in character and state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. (Preliminary statement of the Professional Code.) DR 8-102(B) provides "a lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer." In Horak, we explained the basis for DR 8-102(B), citing Ethical Consideration 8-6, which provides in part:

While a lawyer as a citizen has a...