Iowa Supreme Court Attorney Disciplinary Board Vs. Allan H. Rauch ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 142 / 07-0957
Filed March 21, 2008
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Appellee,
vs.
ALLAN H. RAUCH,
Appellant.
Appeal from report of the Grievance Commission.
Grievance Commission reports respondent has committed ethical
misconduct and recommends revocation of respondent’s license to
practice law. LICENSE REVOKED.
Allan H. Rauch, Windsor Heights, pro se.
Charles L. Harrington and Teresa A. Vens, Des Moines, for
appellee.
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STREIT, Justice.
The Iowa Supreme Court Attorney Disciplinary Board (“Board”)
accused Allan Rauch of practicing law while his license was suspended,
deceiving a client and the district court, neglecting a client’s matter,
failing to account for and refund a portion of a client’s retainer, and
failing to cooperate with the Board’s investigation. The Grievance
Commission of the Supreme Court of Iowa (“Commission”) found Rauch
violated the Iowa Code of Professional Responsibility for Lawyers and
recommended revocation of Rauch’s license in light of his prior ethical
violations. We agree with the Commission and revoke Rauch’s license.
I. Background Facts.
Rauch was admitted to the Iowa bar in 1970. He has been
disciplined for violating our ethics rules on four separate occasions. In
1988, we reprimanded Rauch for failing to act with competence and
proper care in representing clients in a personal injury case. Comm. on
Prof’l Ethics & Conduct v. Rauch, 417 N.W.2d 459, 460 (Iowa 1988). We
found he neglected his clients’ case and failed to adequately prepare for
trial. Id. In 1992, we suspended Rauch’s license for one year because he
misappropriated testamentary trust funds, collected a conservatorship
fee without court approval, maintained disorganized client trust
accounts, acted undignified and discourteous toward a tribunal, and
mishandled an adoption proceeding. Comm. on Prof’l Ethics & Conduct v.
Rauch, 486 N.W.2d 39, 40 (Iowa 1992). We later extended Rauch’s
suspension by three months because he failed to notify his clients and
opposing counsel of his suspension. Comm. on Prof’l Ethics & Conduct v.
Rauch, 508 N.W.2d 628, 629 (Iowa 1993). Rauch’s license was
reinstated in February 1994. In 2002, we suspended Rauch’s license for
one year because he neglected a client’s case at both the trial and
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appellate levels, had three ex parte conversations with three judges,
obtained two ex parte orders knowing there was another attorney
involved in the case, and lied to a judge. Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Rauch, 650 N.W.2d 574, 580 (Iowa 2002). Rauch’s
license remains suspended.
The present case concerns a complaint the Board filed against
Rauch in 2004. The Board made the following allegations: In Count I,
the Board claimed Rauch agreed to represent Neal Howser on
September 20, 2002—fifteen days after we suspended Rauch’s law
license. Howser agreed to pay Rauch $250 in two installments. Rauch
did not inform Howser of the suspension. After Howser paid Rauch
$100, Rauch prepared a motion to quash. Rauch took the motion to
Howser’s home for Howser to sign and then filed the motion with the
district court. The motion did not contain any indicia Rauch prepared it
or that he represented Howser. About a week later, Howser went to
Rauch’s office to pay him the final $150. Rauch’s office was completely
empty. Howser was unsuccessful in his attempts to contact Rauch.
Howser filed a complaint with the Board to which Rauch never
responded.
Count II alleged Derrold and Dena Anderson hired Rauch to
represent their nephew, Ned Osborn, in April 2001. The Andersons paid
Rauch $500 to pursue a reduction in Osborn’s child support obligation.
Rauch filed a motion to quash and the matter was set for hearing.
However, no hearing was ever held. Rauch also wrote one letter to Child
Support Recovery on behalf of Osborn. The Andersons had no further
communication with Rauch. In January 2002, Mr. Anderson sent Rauch
a certified letter requesting he either “do the job” or return the $500.
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Rauch did not respond to Mr. Anderson, nor did he respond to the
Board’s notice of Mr. Anderson’s complaint.
The Board filed its complaint against Rauch in January 2004. The
Commission made several attempts to serve Rauch with the complaint,
all of which were unsuccessful. In February 2007, notice of the Board’s
complaint was served on the clerk of the supreme court pursuant to Iowa
Court Rule 36.6(3). Rauch did not file an answer to the complaint.
Consequently, the Board’s allegations were deemed admitted by the
Commission. See Iowa Ct. R. 36.7. The Commission held a hearing on
May 14, 2007. Rauch did not appear. Thereafter, the Commission filed
its decision which recommended revocation of Rauch’s law license.
On June 25, 2007, Rauch filed an “Appearance and Motion for
Time” in which he stated his recent receipt of the Board’s brief was his
“first and only actual notification of this action.” (Emphasis in original.)
Rauch claimed he would have responded to the Board’s complaint had
he received it. Rauch stated “[t]he inordinate and excessive lapses of
time involved in the prosecution of this action and the use of Court Rule
36.3(3) may well constitute a denial of due process and equal protection.”
He requested the opportunity to be heard on the merits of the case. In
response, the Board claimed Rauch had only himself to blame for the
delay. The Board noted Rauch received notices of its investigation but
chose not to keep the Board informed of his current address.1
We granted Rauch fourteen days to file and serve notice of his
appeal. In our order, we stated Rauch could raise on appeal his
challenges to notice and service in the underlying commission
proceeding. Subsequently, Rauch filed a notice of appeal. However, he
1It is not known why the Board took so long to serve the clerk of the supreme
court with the complaint. Effective July 1, 2005, Iowa Court Rule 36.6 was amended to
allow for substituted service in the event a lawyer cannot be found.
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failed to file a proof brief and only belatedly filed a designation of the
contents of an appendix. Rauch has therefore waived any argument he
had with respect to sufficiency of the notice. See Iowa R. App. P.
6.14(1)(c) (stating “[f]ailure in the brief to state, to argue or to cite
authority in support of an issue may be deemed waiver of that issue”).
II. Scope of Review.
We review the findings of the Grievance Commission de novo. Iowa
Ct. R. 35.10(1). We give weight to the Commission’s findings but we are
not bound by those findings. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
McGrath, 713 N.W.2d 682, 695 (Iowa 2006). The Board has the burden
to prove disciplinary violations by a convincing preponderance of the
evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 710
N.W.2d 226, 230 (Iowa 2006). This burden is “ ‘less than proof beyond a
reasonable doubt, but more than the preponderance standard required
in the usual civil case.’ ” Id. (quoting Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).
III. The Commission’s Findings.
With respect to Count I, the Commission found Rauch engaged in
the unauthorized practice of law by agreeing to represent Howser while
his law license was suspended. See Iowa Code of Prof’l Responsibility for
Lawyers DR 3–101(B) (prohibiting a lawyer from practicing in a
jurisdiction where to do so would be in violation of regulations of the
profession in that jurisdiction); DR 7–106(A) (prohibiting a lawyer from
disregarding a court’s ruling). It also found Rauch was guilty of deceit by
failing to inform Howser that his license was suspended and by
ghostwriting and filing a pleading on behalf of Howser without disclosing
to the court his involvement in the matter. See DR 1–102(A)(4)
(prohibiting a lawyer from engaging in conduct involving dishonesty,
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fraud, deceit, or misrepresentation); Iowa Supreme Ct. Bd. of Prof’l Ethics
& Conduct v. Lane, 642 N.W.2d 296, 299 (Iowa 2002) (condemning
ghostwriting as a misrepresentation to the court). Finally, the
Commission found Rauch committed an additional ethical violation by
failing to respond to the Board after being served with Howser’s
complaint. See DR 1–102(A)(5) (prohibiting a lawyer from engaging in
conduct that is prejudicial to the administration of justice); DR 1–
102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely
reflects on the fitness to practice law); Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002) (stating
a lawyer’s failure to timely respond to the Board violates DR 1–102(A)(5),
(6)).
The Commission did not make any specific findings with respect to
Count II other than it noted Rauch failed to respond to the Board after he
was served with the Andersons’ complaint. The Commission
acknowledged Rauch’s representation of Osborn (at the direction of the
Andersons) occurred prior to the one-year suspension we imposed in
September 2002. The Commission noted it did not believe Rauch’s
suspension would have been lengthened had we considered the
Andersons’ complaint at that time. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Moorman, 729 N.W.2d 801, 805–06 (Iowa 2007)
(imposing a concurrent sanction because it is unlikely the supreme court
would have imposed a longer suspension had it been aware of the
conduct that is the subject of the disciplinary proceeding at the time of
its previous decision).
IV. Misconduct and Sanction.
We agree with the Commission’s findings and conclusions. We
must now determine the appropriate sanction. We consider “the nature
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of the violations, protection of the public, deterrence of similar
misconduct by others, the lawyer’s fitness to practice, and our duty to
uphold the integrity of the profession in the eyes of the public.” Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Fleming, 602 N.W.2d 340,
342 (Iowa 1999) (citing Comm. on Prof’l Ethics & Conduct v. Havercamp,
442 N.W.2d 67, 69 (Iowa 1989)). We also consider both aggravating and
mitigating circumstances. Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Ruth, 656 N.W.2d 93, 99 (Iowa 2002) (citing Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Sherman, 637 N.W.2d 183, 187 (Iowa
2001)). Ultimately, the form and extent of a disciplinary sanction “must
be tailored to the specific facts and circumstances of each individual
case.” Comm. on Prof’l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 537
(Iowa 1981).
We have before us a long and troubled history of ethical violations
committed by Rauch. He has demonstrated a penchant for deceit and a
total lack of respect toward the courts of this state. He thumbed his
nose at this court by accepting Howser’s case just days after we
suspended his license. He tried to hide his involvement by omitting his
name on the motion to quash. Ghostwriting a court document is a
“ ‘deliberate evasion of the responsibilities imposed on an attorney.’ ”
Lane, 642 N.W.2d at 299 (quoting Wesley v. Don Stein Buick, Inc., 987
F. Supp. 884, 886 (D. Kan. 1997)); see Iowa R. Civ. P. 1.423 (requiring
“[e]very pleading or paper filed by a pro se party that was prepared with
the drafting assistance of an attorney who contracted with the client to
limit the scope of representation pursuant to Iowa R. Prof’l Conduct
32:1.2(c) [to] state that fact before the signature line at the end of the
pleading or paper that was prepared with the attorney’s assistance”).
Moreover, Rauch left Howser in a bind when he agreed to represent
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Howser and then promptly closed his office. Howser aptly summed it up
when he stated before the Commission: “There’s enough
misrepresentation in this world without having an attorney, someone
that you believe is going to help you, misrepresent himself the way this
gentleman did.”
Our legal system depends on zealous advocates who are diligent
and honest. See Comm. on Prof’l Ethics & Conduct v. Bauerle, 460
N.W.2d 452, 453 (Iowa 1990) (“Fundamental honesty is the base line and
mandatory requirement to serve in the legal profession.”). Rauch
possesses neither of these qualities. When determining the appropriate
sanction, we must consider both the current charges as well as Rauch’s
past discipline. Comm. on Prof’l Ethics & Conduct v. Wenger, 469 N.W.2d
678, 680 (Iowa 1991) (stating past disciplinary action bears upon an
attorney’s character and is considered an aggravating factor). Doling out
another suspension is simply not sufficient in light of Rauch’s history of
failing to obey our previous suspension orders. Rauch’s pattern of
unethical conduct over a number of years warrants revocation of his law
license. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rickabaugh, 728
N.W.2d 375, 382 (Iowa 2007) (finding attorney’s history of ethical
infractions demonstrates he “does not respect the awesome
responsibilities of an attorney”); Iowa Supreme Ct. Bd. of Prof'l Ethics &
Conduct v. Beckman, 674 N.W.2d 129, 139 (Iowa 2004) (finding
attorney’s “pattern of misconduct and dishonesty demonstrates that he
has no intention of complying with his legal and ethical obligations
unless forced to do so”).
V. Conclusion.
We revoke Rauch’s license to practice law in the state of Iowa.
Costs are taxed to Rauch pursuant to Iowa Court Rule 35.25(1).
LICENSE REVOKED.