Amended November 29, 2016 Iowa Supreme Court Attorney Disciplinary Board v. Kathryn S. Barnhill ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 16–0731
Filed September 16, 2016
Amended November 29, 2016
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
KATHRYN S. BARNHILL,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
The grievance commission reports an attorney violated several
rules of professional conduct and recommends a suspension. LICENSE
SUSPENDED.
Tara M. van Brederode, Des Moines, and Patrick W. O’Bryan of
O’Bryan Law Firm, Des Moines, for complainant.
Kathryn S. Barnhill, West Des Moines, pro se.
2
HECHT, Justice.
The Iowa Supreme Court Disciplinary Board (the Board) charged
attorney Kathryn Barnhill with violating multiple rules of professional
conduct following two matters in which trial court judges imposed
sanctions against Barnhill for her actions in those cases. The Iowa
Supreme Court Grievance Commission (the commission) concluded
Barnhill committed ethical violations and recommended suspension of
Barnhill’s license for six months. We now review the commission’s
recommendation. See Iowa Ct. R. 36.21.
I. Background Facts and Proceedings.
“We admitted Barnhill to practice law in Iowa in 1989.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Barnhill (Barnhill II), 847 N.W.2d
466, 471 (Iowa 2014). This disciplinary proceeding arises out of a fee
dispute Barnhill had with a former client and out of her representation of
a client in a property damage claim litigated in federal court.
A. Fee Dispute. Don Jayne hired Barnhill to represent him in a
dispute with a contractor that filed a mechanic’s lien on Jayne’s
property. The amount in controversy was under $20,000. Jayne signed
a fee agreement with Barnhill in which he agreed to pay $200 per hour
for Barnhill’s services.
By the time the matter ended, Barnhill had billed Jayne over
$60,000 for her work. Jayne paid the bill but believed it was
unreasonable given the breadth of his legal problem. He retained new
counsel and filed a complaint with the Polk County Bar Association
Attorney Fee Arbitration Committee. In April 2014, the committee
determined the fee Barnhill charged was “unreasonable given the amount
of work performed . . . in relation to the scope of the problem.” It ordered
Barnhill to refund Jayne twenty-five percent of the fees collected. The
3
committee did not place any conditions on Jayne’s entitlement to the
refund.
Barnhill tendered Jayne a check for $1000 (check #1). However,
she did not immediately pay the remainder (over $14,000) of the fee
arbitration award. On May 30, 2014, we suspended her license for sixty
days for unrelated ethical misconduct, with automatic reinstatement
after the sixty days passed. Id. at 488. Obeying this court’s order and
the Iowa Court Rules, Barnhill notified Jayne’s counsel, Kenneth Munro,
that her license had been suspended. See id.
In August, after Barnhill’s suspension ended, Munro wrote to
Barnhill requesting that she pay the remainder of Jayne’s refund.
Barnhill did not respond. A month later, Munro sent another letter
requesting payment. Barnhill responded by email in mid-September,
explaining that she had not fully repaid Jayne because she was
concerned doing so might constitute practicing law while her license was
suspended. Because her license was now reinstated, she promised to
“finalize th[e] payment” when she returned from an international trip.
In early October, Jayne informed Barnhill he had ended his
attorney–client relationship with Munro and requested that Barnhill
direct all further communications regarding the fee matter to him. On
October 10, Barnhill sent a responsive letter to Jayne, signaling her
intent to pay Jayne “by the end of this month if not sooner.”
Barnhill missed her intended payment deadline and did not repay
Jayne by the end of October. Jayne subsequently filed a complaint with
the Board and retained attorney Kevin Abbott to collect the amount
owed. Abbott sent Barnhill a letter dated November 24, 2014, in which
he requested payment from Barnhill within ten days. Two weeks later,
Barnhill responded by email that Abbott “should have [a] check for full
4
payment.” Barnhill further requested that upon receiving the check
(check #2), Jayne execute “a full release and satisfaction,” including a
“release” of Jayne’s complaint to the Board. 1 Barnhill indicated she was
“prepared to take all actions available,” including “claims against Don
Jayne resulting from his continuing conduct,” unless she received “a
global release within 48 hours.” She also sent a fax to Abbott’s office
warning Abbott that she did not consent to him disbursing any proceeds
of check #2 to Jayne until she received an acceptable release.
Despite Barnhill’s statement to Abbott that she sent check #2
paying in full the balance of the fee arbitration award and her assertion
that the funds were “presently being held” in Abbott’s client trust
account, Abbott never received the check. Accordingly, in January 2015,
he filed a petition on Jayne’s behalf in district court to enforce the fee
arbitration committee’s ruling. Barnhill answered the petition, asserting
“[n]o amount remains unpaid.” Barnhill also brought counterclaims
against Jayne and cross-claims against Abbott (individually) and Abbott’s
law firm. The counterclaims and cross-claims contended Jayne, Abbott,
and Abbott’s firm were committing abuse of process and had conspired
to do so. In answering the counterclaims and cross-claims, Abbott wrote
Barnhill “has not made payment . . . and she is making a false statement
to the Court by claiming she has made said payment.”
In April, Barnhill sent Abbott a letter enclosing a photocopy of yet
another instrument (check #3) payable to Abbott’s trust account for the
balance of the fee arbitration award. In this letter, Barnhill promised she
would deliver check #3 once she received a release. Notably, check #3
1Barnhill’s demand for a release of the complaint lodged with the Board was
curious because Jayne lacked authority to halt the Board’s investigation.
5
was dated March 16, 2015—after Barnhill’s assertion of claims against
Jayne, Abbott, and Abbott’s firm. Abbott did not forward the requested
release, and he never received check #3.
Jayne requested summary judgment in the district court litigation
for the balance of the fee arbitration award, including “attorney fees for
defending [Barnhill]’s bad faith [counter and cross] claims.” Around the
same time, Barnhill sent Abbott a letter enclosing another instrument
(check #4) payable to Jayne in the amount of the balance owed on the fee
arbitration award. The letter and check were dated May 4, 2015, but did
not arrive at Abbott’s office until May 20—after Abbott had already filed
the motion for summary judgment. At the commission hearing, Abbott
opined that Barnhill backdated the letter and check because she received
notice of his motion for summary judgment “and then sent the check
that da[y] or the day after,” but wanted it to appear as though the check
preceded the filing of the motion for summary judgment.
The memo line on check #4 stated “payment in full for all claims.”
Abbott received the check but did not tender it to Jayne because, he
explained, accepting “payment in full” might compromise any chance of
recovering court costs and attorney fees incurred in defending Barnhill’s
counterclaims and cross-claims. He asked Barnhill to send another
check for court costs and attorney fees. Barnhill refused, stating the
“costs were incurred . . . needlessly rather than cash[ing] the checks I
have been sending.” Abbott responded that “checks,” plural, was a
misstatement:
I received one check from you. It was after I filed this
lawsuit and after you filed your baseless claims against
Mr. Jayne, myself and my firm. Obviously, if you had sent a
check prior to me filing this lawsuit, I would have cashed it
and not filed the lawsuit. Unfortunately, that did not
happen.
6
The district court denied the summary judgment motion without a
hearing.
A bench trial was held on Jayne’s collection action against
Barnhill. After hearing testimony and reviewing exhibits, the court ruled
in Jayne’s favor, finding Barnhill’s testimony that she delivered a check
in December 2014 “not credible in the least” and “completely without
merit.” The court entered judgment against Barnhill for the outstanding
amount of the fee arbitration award owed to Jayne, plus court costs.
Barnhill’s counterclaims and cross-claims were dismissed because the
court found “absolutely no basis” for them.
The court then addressed sanctions, including Abbott’s request for
attorney fees. It awarded over $2800 in attorney fees and imposed an
additional sanction of $5000 against Barnhill for forcing Jayne to file a
lawsuit—when there was no dispute she owed him over $14,000—and
filing frivolous counterclaims in response to that lawsuit.
B. BFC Gas Matter. Barnhill represented BFC Gas Company in
an action against Gypsum Supply Co. (GSC) for property damage. The
lawsuit alleged GSC’s “negligence caused parts of [GSC]’s facility to
damage [BFC’s] facility during a . . . storm.” BFC Gas Co. v. Gypsum
Supply Co. (BFC I), No. 13-CV-81-LRR, 2014 WL 5286868, at *1 (N.D.
Iowa Oct. 15, 2014). 2
Discovery opened in August 2013. In the course of discovery, BFC
did not designate expert opinions until months after the deadline. It also
failed to produce some documents required as part of its initial
disclosures and other documents properly requested by GSC, despite
2The lawsuit began in state court, but GSC “removed the action to [federal] court
on the basis of diversity jurisdiction.” BFC I, 2014 WL 5286868, at *1; see 28 U.S.C.
§ 1332(a) (2012).
7
GSC filing two motions to compel and the court granting both of them.
BFC Gas Co. v. Gypsum Supply Co. (BFC II), No. C13-0081, 2015 WL
64985, at *1 (N.D. Iowa Jan. 5, 2015). GSC ultimately prevailed on
summary judgment. See BFC I, 2014 WL 5286868, at *11, aff’d, 630 F.
App’x 645, 645 (8th Cir. 2016) (per curiam).
In spring 2014, GSC moved for sanctions against BFC and
Barnhill. See BFC II, 2015 WL 64985, at *4. At a sanctions hearing, over
which a federal magistrate presided, Barnhill made several statements
the court ultimately determined were false and upon which the court
relied in imposing sanctions against Barnhill and BFC. Id. at *15.
First, Barnhill claimed BFC could not produce some documents
because the United States Attorney’s Office (USAO) seized them and they
were therefore inaccessible to BFC. Id. at *5. However, “[t]he truth is the
documents were not seized until . . . more than two months after” BFC
filed the lawsuit, so BFC had opportunity in making its initial disclosures
to produce them. Id. at *6. Furthermore, the discovery responses BFC
actually provided made “no reference . . . to the seizure of documents”
and no claim “that . . . compliance with discovery demands was
hampered” by it. Id. Barnhill also asserted some of the difficulty in
producing documents occurred because BFC’s corporate officers were
recalcitrant about doing so despite Barnhill’s repeated requests.
Second, Barnhill asserted she contacted the USAO “as soon as
[she] realized [opposing counsel] was looking for” the documents—but
opposing counsel first sought the documents in September 2013 and
Barnhill did not contact the USAO until January 2014. Id. Additionally,
Barnhill represented to the court “that she had ‘just received’ the
requested documents,” but she had actually received them three months
earlier. Id.
8
Third, Barnhill represented to the court that BFC had not
submitted a property damage claim to its own insurer because its
deductible exceeded the amount of the damage. Id. at *8. However,
“BFC had no insurance at the time of the loss,” and the court found it
“inconceivable . . . that Barnhill did not know the true facts regarding
insurance when she” made the representation. Id.
The court ordered BFC and Barnhill to pay GSC’s attorney fees
(totaling over $30,000) incurred in litigating the discovery dispute and
filing the motion for sanctions. Id. at *11–12, *15. It assessed over
$18,000 of that amount solely against Barnhill. Id. at *12, *15. The
court further assessed a $20,000 sanction against BFC and Barnhill
jointly because it concluded the entire suit was frivolous. Id. at *15. In
particular, the court relied upon several allegations from BFC’s petition
that were “simply not true” and that “[e]ven the most basic investigation
would have revealed” were not true. Id. at *12–13. Specifically, the court
referred to BFC’s allegations that the storm caused no wind damage to
BFC’s own building and that no other buildings or structures in the
immediate vicinity suffered damage. Id. In reality, “damage from the
storm was widespread, including damage to other buildings in the
immediate area.” Id. at *13.
C. Disciplinary Proceedings. After Jayne’s November 2014
complaint to the Board, the Board opened an investigation and sought a
response from Barnhill. When Barnhill responded to the Board, she
stated she made a partial payment to Munro and sent the remaining
balance to Abbott. The Board then asked Barnhill to provide proof of the
payments made to Jayne and either or both of his attorneys. In
February 2015, when the Jayne litigation and disciplinary investigation
9
were both still ongoing, Jayne and Abbott both signed a letter to the
Board indicating neither of them had yet received payment from Barnhill.
In April 2015, Barnhill sent a letter to the Board suggesting the
disciplinary matter would be “susceptible of a summary judgment” in her
favor. Barnhill stated she tried to pay Jayne twice, but he and Abbott
had refused to accept her payment. Barnhill was unable to find a copy of
the December check (check #2) she purportedly sent to Abbott,
explaining she lacked documentation because she prepared it herself
instead of delegating the task to her office bookkeeper who was
meticulous about making copies.
The Board filed a formal complaint with the commission in October
2015. It alleged Barnhill violated the Iowa Rules of Professional Conduct
during the Jayne matter by asserting frivolous claims, Iowa R. Prof’l
Conduct 32:3.1; making a false statement of fact to a tribunal, id.
r. 32:3.3(a)(1); making a false statement of fact to a third person, id.
r. 32:4.1(a); making a false statement of material fact in a disciplinary
matter, id. r. 32:8.1(a); engaging in conduct involving dishonesty, deceit,
or misrepresentation, id. r. 32:8.4(c); and engaging in conduct prejudicial
to the administration of justice, id. r. 32:8.4(d).
The Board further alleged Barnhill violated several rules of
professional conduct in the BFC matter by asserting frivolous claims, id.
r. 32:3.1; making a false statement of fact to a tribunal, id. r. 32:3.3(a)(1);
knowingly disobeying an obligation under the rules of a tribunal, id.
r. 32:3.4(c); failing to comply with an opponent’s proper discovery
request, id. r. 32:3.4(d); making a false statement of fact to a third
person, id. r. 32:4.1(a); engaging in conduct involving dishonesty, deceit,
or misrepresentation, id. r. 32:8.4(c); and engaging in conduct prejudicial
to the administration of justice, id. r. 32:8.4(d). The Board requested the
10
commission suspend Barnhill and condition her reinstatement upon
Barnhill providing certified proof that she has paid all court ordered
sanctions.
The commission set a hearing for February 2016. Before the
hearing, Barnhill filed a “motion for summary judgment” seeking
dismissal of the disciplinary complaint. In her motion, she asserted she
sent a check to Abbott to pay the balance of the fee award in December
2014 and contended her bank statements circumstantially proved her
assertion because they demonstrated her trust account contained an
amount sufficient to satisfy the obligation from December 2014 onward.
The Board resisted the motion. The commission panel president
questioned whether the court rules permit summary judgment practice
in disciplinary matters. See Iowa Ct. R. 36.14 (permitting “preliminary”
motions and applications in disciplinary matters). However, even
assuming the court rules permit dispositive motions in disciplinary
proceedings, the panel president nonetheless denied Barnhill’s motion.
At the hearing before the commission, the parties first addressed
the BFC matter. Barnhill called two BFC witnesses who testified about
the basis for the property damage claim and attempted to corroborate
Barnhill’s explanation about the difficulty obtaining records and
documents due to the USAO investigation and seizure of documents.
The Board called as a witness Barnhill’s opposing counsel from the case.
He testified about the course of the federal court litigation—including the
dispositive order finding BFC’s expert designations untimely and
granting summary judgment in favor of the defendant. He also testified
about his interactions with Barnhill during the discovery process and
disputes and about the sanctions order entered against Barnhill and her
client.
11
Next, the Board called Abbott to testify about the Jayne matter.
Abbott explained his practice is exclusively commercial collections. He
also explained he notified the accounting staff at his firm “to be on the
lookout” for the check Barnhill claimed she sent in December 2014
(check #2), but no check ever arrived. He described his office’s
specialization in collections, related its established procedure for
receiving and documenting checks, and testified that procedure did not
reveal any checks arriving from Barnhill before the motion for summary
judgment was filed in the collection action.
Barnhill’s accountant also testified at the hearing. She
misidentified the number of the purported December 2014 check (check
#2) several times, then stated she “would have to look at the records
again”—but nonetheless had a “clear recollection” that Barnhill’s firm
sent a check in December, even though she personally was “not in the
office that week.” On cross-examination, the Board’s counsel pointed out
that the accountant knew of the scheduled commission hearing but still
did not have and could not produce at the hearing a copy of the check.
Finally, Barnhill gave a professional statement to the commission:
I have made no false statements, I have committed no
ethics violations, I paid the amount I was legally obligated to
pay by the fee arbitration award, and had the funds in the
bank account to cover the checks. I had nothing to gain by
not paying that sum. I believe this grievance is frivolous and
should be dismissed.
Perceiving a factual discrepancy, one panel member cross-examined
Barnhill about her statements and the evidence she had presented:
Q. Ms. Barnhill, you indicated that Mr. Abbott never
asked you for a replacement check or indicated that he had
never received this other check; is that correct? A. Yes.
Q. And yet, when you got [serv]ed with a lawsuit in
January, did you not assume that that meant he hadn’t
12
gotten the check? A. No, I didn’t, because as you see, he’s
still holding that one.
Q. And how far is your office, roughly, from where
Mr. Abbott’s office is? Couple miles? A. Probably.
Q. And so in February . . . 2015, you filed an answer
and a counterclaim with a cross-claim? A. Yes.
Q. Yet within two miles you could have hand delivered
a check to Mr. Abbot’s office to cure this problem? A. I don’t
believe he would have accepted it. I’ve thought this through
at length. That is why I made out checks to Don Jayne. I
thought he would be compelled to give the checks that were
made payable to Don Jayne to Don Jayne.
Q. But you didn’t do such a check to Mr. Jayne until
May; is that right? A. That’s correct.
Q. On the contrary to what you just said, in March of
2015 you made a check [(check #3)] out again to the Abbott
Law Firm Trust Account. A. Yes.
Q. So that’s just contrary to what you just offered to
this commission. A. In what way?
[PANEL MEMBER]: I have no further questions.
In her closing statement, Barnhill reiterated that she had no reason to
avoid paying Jayne and especially no reason to lie about it. She also
expressed some exasperation: “I don’t know why I seem to strike people
as . . . such a liar, but there is no reason.”
The commission concluded the Board proved a violation of each of
the rules alleged, with one exception: the commission did not find a
convincing preponderance of evidence indicating Barnhill violated rule
32:4.1(a) by making a false statement of material fact to a third person in
either the Jayne matter or the BFC matter. The commission considered
in mitigation Barnhill’s pro bono work and sponsorship of incarcerated
women. However, it ultimately concluded the aggravating factors in this
case far outweighed mitigating considerations. Those aggravating factors
included Barnhill’s history of disciplinary matters and sanctions for
13
substantially similar conduct, financial harm caused to Jayne, and
“Barnhill’s . . . refusal to acknowledge even the possibility that her
conduct violated the rules of professional responsibility.” See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Stowers, 823 N.W.2d 1, 17 (Iowa
2012) (considering as an aggravating factor the attorney’s defiance,
disdain, and derision exhibited during the commission hearing). The
commission recommended an indefinite suspension with no possibility of
reinstatement for six months and proposed a condition on reinstatement
requiring Barnhill “to provide proof that all outstanding debts levied
against her arising out of the Jayne and [BFC matters] have been fully
and completely satisfied.”
Barnhill filed a notice of appeal from the commission’s report.
However, she later decided not to pursue the appeal and filed a
statement signaling her desire “to retire from the practice of law and
voluntarily turn in her law license.” “An attorney . . . may acquiesce to
suspension or disbarment, but only by delivering to the grievance
commission an affidavit stating that the attorney consents to suspension
of not more than a specific duration or to disbarment” and that fulfills
several other requirements. Iowa Ct. R. 34.16(1). Barnhill has not
delivered or filed such an affidavit, and the required procedure under
rule 34.16 has not occurred. See id. r. 34.16(2)–(3). Accordingly, we
proceed to review the commission’s recommendation. See id. r. 36.21(1)
(“If no appeal is taken . . . the supreme court will set a date for
submission of the grievance commission report.”).
II. Scope of Review.
We review attorney disciplinary matters de novo. Id.; Barnhill II,
847 N.W.2d at 470. “The Board must prove the attorney’s ethical
misconduct by a convincing preponderance of the evidence”—a standard
14
“that is higher than the burden in civil cases but lower than the burden
in criminal matters.” Barnhill II, 847 N.W.2d at 470.
III. Rule Violations.
Although the courts in the Jayne and BFC matters concluded
Barnhill engaged in sanctionable conduct, those rulings do not have
preclusive effect in this disciplinary proceeding on the question of
whether Barnhill violated the rules of professional conduct. “The
difference in burden of proof between an ordinary civil action and a
disciplinary action generally means civil actions do not have preclusive
effect in disciplinary hearings.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Cepican, 861 N.W.2d 841, 845 (Iowa 2015); accord Iowa Ct. R. 36.17(4);
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Murphy, 669 N.W.2d
254, 257 (Iowa 2003).
Although the rulings do not have preclusive effect, they remain
valid and enforceable. We lack authority to review either sanctions order
on the merits because Barnhill voluntarily dismissed her appeal of the
Jayne matter and any appeal from the BFC matter would be decided by
the United States Court of Appeals for the Eighth Circuit, not this court.
Cf. Barnhill v. Iowa Dist. Ct. (Barnhill I), 765 N.W.2d 267, 280 (Iowa 2009)
(reviewing a sanctions order on the merits when the appellant actually
pursued the appeal). In this case, we simply review whether the evidence
supporting the sanctions imposed in those matters also demonstrates an
ethical violation by a convincing preponderance. Conduct occurring in
federal courts located in Iowa is subject to the Iowa Rules of Professional
Conduct even though attorneys must obtain separate admission to
practice in federal court. N.D. & S.D. Iowa Civ. R. 83.1(g)(1); see Iowa R.
Prof’l Conduct 32:8.5(b)(1) (providing “the rules of the jurisdiction in
which the tribunal sits” shall govern the “exercise of the disciplinary
15
authority of Iowa”); cf. In re Disciplinary Action Against Lyons, 780
N.W.2d 629, 634 & n.2 (Minn. 2010) (per curium) (applying the Montana
Rules of Professional Conduct in a Minnesota disciplinary proceeding
against a lawyer whose conduct occurred in federal district court in
Montana).
A. Frivolous Claims. “A lawyer shall not bring or defend a
proceeding . . . unless there is a basis in law and fact for doing so that is
not frivolous . . . .” Iowa R. Prof’l Conduct 32:3.1. When evaluating
whether an attorney violated rule 32:3.1, we identify “the alleged
offending conduct and [ask] whether there was legal authority to support
the attorney engaging in this conduct.” Barnhill II, 847 N.W.2d at 485.
The conduct at issue in the Jayne matter is Barnhill’s assertion
that Abbott, Abbott’s firm, and Jayne committed abuse of process by not
accepting multiple checks she purportedly sent and by filing a lawsuit
against her instead. “To prove a claim of abuse of process, a plaintiff
must show (1) use of the legal process, (2) in an improper or
unauthorized manner, and (3) that damages were sustained as a result
of the abuse.” Stew-Mc Dev., Inc. v. Fischer, 770 N.W.2d 839, 849 (Iowa
2009). “The plaintiff must prove that the defendant used the legal
process primarily for an impermissible or illegal motive.” Wilson v.
Hayes, 464 N.W.2d 250, 266 (Iowa 1990) (en banc).
Like the district court in the underlying Jayne litigation, we
conclude Barnhill’s counterclaims and cross-claims were meritless. To
prove Abbott and Jayne were using the legal process in an improper or
unauthorized manner and were doing so primarily with an illegal or
impermissible motive, Barnhill would have had to prove she in fact sent
check #2 in December 2014 and Abbott lied about never receiving it.
Like the commission, we find Abbott’s explanation much more credible.
16
In light of Barnhill’s unfulfilled promises to pay Jayne in September and
October and her inability to provide anything other than naked
assertions and conclusory testimony from her accountant who was away
from the office when Barnhill claims to have drawn the check, we
conclude there was no plausible factual basis for the counterclaims and
cross-claims. Although filing a claim “is not frivolous merely because the
facts have not first been fully substantiated,” it is frivolous “if the lawyer
is unable . . . to make a good faith argument on the merits.” Iowa R.
Prof’l Conduct 32:3.1 cmt. 2. No good-faith basis existed here. We find
Barnhill violated rule 32:3.1 in the Jayne matter.
The federal district court in the BFC matter also determined
Barnhill filed a frivolous claim. However, the evidence in the federal
district court file bearing upon the nature of the storm and the resulting
damage is not in the disciplinary record in this case. We conclude there
is not a convincing preponderance of evidence demonstrating the BFC
claim was frivolous under rule 32:3.1.
B. False Statements. “A lawyer shall not knowingly . . . make a
false statement of fact or law to a tribunal . . . .” Id. r. 32:3.3(a)(1).
Similarly, “a lawyer shall not knowingly . . . make a false statement of
material fact or law to a third person.” Id. r. 32:4.1(a). The word
“knowingly” is important; “[w]e will not infer an attorney made a
misrepresentation knowingly simply because the misrepresentation
occurred.” Barnhill II, 847 N.W.2d at 486. False statements also
implicate two other ethical rules: prohibitions against “conduct involving
dishonesty, fraud, deceit, or misrepresentation” and “conduct that is
prejudicial to the administration of justice.” Iowa R. Prof’l Conduct
32:8.4(c)–(d).
17
1. False statements to a tribunal and in a disciplinary matter. In
Barnhill II, we concluded Barnhill did not violate rule 32:3.3(a)(1) when
she “[a]t most ... acknowledged her petition contained false
information.” Barnhill II, 847 N.W.2d at 486. Barnhill did much more
than that here. “[F]alse statements to the court can be made both orally
and in writing,” and we find Barnhill did both. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 462 (Iowa 2014).
In the Jayne matter, Abbott contended in his answer to Barnhill’s
counterclaims and cross-claims that Barnhill was making a false
statement to the court by claiming she had paid Jayne. We agree.
Barnhill not only included false information in her pleadings; she
premised an entire cause of action on the false assertion that payment of
the balance of the fee arbitration award had been tendered, continued to
assert the falsity throughout the bench trial, and even filed a motion for
new trial reiterating it. We find she violated rule 32:3.3(a)(1). We also
agree with the commission that Barnhill’s continued assertion in this
disciplinary proceeding that she sent a check when she actually did not
constitutes a violation of rule 32:8.1(a), which prohibits lawyers from
making false statements of material fact “in connection with a
disciplinary matter.” Iowa R. Prof’l Conduct 32:8.1(a).
We also conclude Barnhill violated rule 32:3.3(a)(1) in the BFC
litigation. The record includes copies of emails demonstrating Barnhill’s
receipt of the documents earlier than she represented to the court and
establishing her first contact with the USAO occurred long after she
asserted it had taken place.
2. False statements to a third person. The commission concluded
the Board did not prove Barnhill made false statements of material fact
to a third person in violation of rule 32:4.1(a). The issue to be resolved in
18
determining whether Barnhill violated this rule is whether opposing
counsel is a third person within the meaning of the rule. We have found
an attorney violated rule 32:4.1(a) when he made false statements to real
estate lenders issuing loans to the attorney’s clients. See Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Engelmann, 840 N.W.2d 156, 162 (Iowa
2013). We have not decided, however, whether “third person” includes
opposing counsel.
The Iowa Rules of Professional Conduct include a rule addressing
fairness to opposing parties and counsel. Iowa R. Prof’l Conduct 32:3.4.
However, unlike the rule preceding it, which addresses candor toward
the tribunal, rule 32:3.4 does not expressly address a duty of candor
toward the opposing party and counsel. Compare id., with id. r. 32:3.3.
Instead, rule 32:3.4 primarily addresses discovery conduct and an
attorney’s presentation of their client’s evidence and testimony. See id.
r. 32:3.4 cmt. 1 (“Fair competition in the adversary system is secured by
prohibitions against destruction or concealment of evidence, improperly
influencing witnesses, obstructive tactics in discovery procedure, and the
like.”). Nonetheless, we conclude the absence of an express prohibition
against false statements to opposing counsel in rule 32:3.4 does not
exclude opposing counsel from the universe of third persons mentioned
in rule 32:4.1.
Rule 32:4.1 appears in a section of the rules entitled “Transactions
with Persons Other Than Clients.” The comments to the rules explain
that lawyers are “required to be truthful when dealing with others on a
client’s behalf.” Id. r. 32:4.1 cmt. 1. These references to “others” are
clearly broad and include anyone apart from the lawyer’s client or a
tribunal (which rule 32:3.3 addresses separately).
19
Furthermore, our research reveals some courts in other
jurisdictions with materially similar or even identical ethical rules
consider opposing counsel a third person within the meaning of the rule.
See, e.g., In re Corizzi, 803 A.2d 438, 441 & n.5 (D.C. 2002); La. State
Bar Ass’n v. Harrington, 585 So. 2d 514, 519 (La. 1990); Att’y Grievance
Comm’n v. Trye, 118 A.3d 980, 990 (Md. 2015); In re Walsh, 872 N.W.2d
741, 749 (Minn. 2015) (per curiam); In re Edison, 724 N.W.2d 579, 584
(N.D. 2006) (per curiam); Office of Disciplinary Counsel v. Battistelli, 457
S.E.2d 652, 660 (W. Va. 1995). Today we join those jurisdictions and
hold an attorney can violate rule 32:4.1(a) by making a false statement of
material fact to opposing counsel.
Although the commission concluded Barnhill did not violate this
rule, we disagree. Barnhill repeatedly stated falsely to Abbott that she
had sent payment when she had not. The fact Abbott did not believe
those statements is of no consequence to our determination. The rule
prohibits attorneys from making knowingly false statements, with no
exception providing an attorney does not commit an ethical violation if
the third person knows or believes the statement is false. We conclude
Barnhill violated rule 32:4.1(a) in the Jayne matter.
We decline to find Barnhill violated the same rule in the BFC
matter, however. We have already concluded Barnhill violated rule
32:3.3(a)(1) by making false statements to the court at the sanctions
hearing. We do not find a duplicative violation of rule 32:4.1(a) simply
because opposing counsel was also present when the conduct occurred.
3. Conduct involving dishonesty, deceit, or misrepresentation. “It is
professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.” Iowa R. Prof’l Conduct
32:8.4(c). As we have explained,
20
Rule 32:8.4 is a general rule prohibiting conduct involving
dishonesty, fraud, deceit, or misrepresentation. The Iowa
Rules of Professional Conduct contain other, more specific,
provisions dealing with the same concept. . . . When we find
conduct violates a specific provision involving dishonesty,
fraud, deceit, or misrepresentation, we will not find the same
conduct violates rule 32:8.4(c).
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 591, 605
(Iowa 2011). Rules 32:3.3(a)(1) and 32:4.1(a) are more specific provisions
dealing with the same conduct. Accordingly, because we have already
found Barnhill violated these rules, we do not find a separate violation of
rule 32:8.4(c). See id.
4. Conduct prejudicial to the administration of justice. As we have
already noted, the Board alleged and the commission found Barnhill
violated rule 32:8.4(d), which prohibits lawyers from engaging “in
conduct that is prejudicial to the administration of justice.” Iowa R.
Prof’l Conduct 32:8.4(d). “[T]here is no typical form of conduct” that
violates this rule. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Steffes, 588 N.W.2d 121, 123 (Iowa 1999) (en banc). “Instead, the
dispositive inquiry is whether ‘the attorney’s act[s] hampered the efficient
and proper operation of the courts or of ancillary systems upon which
the courts rely.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kingery, 871
N.W.2d 109, 121 (Iowa 2015) (alteration in original) (quoting Steffes, 588
N.W.2d at 123); accord Barnhill II, 847 N.W.2d at 484.
An attorney violates rule 32:8.4(d) “when his [or her] misconduct
results in additional court proceedings or causes court proceedings to be
delayed or dismissed.” Barnhill II, 847 N.W.2d at 484 (alteration in
original) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 841
N.W.2d 114, 124 (Iowa 2013)). In Barnhill II, we concluded Barnhill
violated rule 32:8.4(d) “by continuing to pursue an unwarranted claim.”
Id. She did the same thing in this case by pursuing frivolous claims in
21
the Jayne matter and by repeatedly asserting she had paid Jayne in full
when she had not. Her conduct led to an entire lawsuit and bench trial
that were ultimately unnecessary. Furthermore, her failure to comply
with discovery obligations in the BFC matter led to additional court
proceedings, including a sanctions hearing and hearings on GSC’s
motions to compel. Indeed, even after granting summary judgment to
GSC, the federal district court had to leave the case open so that the
sanctions issue could be resolved. We conclude Barnhill violated rule
32:8.4(d) in both matters.
C. Conduct in Discovery. The commission found Barnhill
committed two additional violations in the BFC matter: knowing
disobedience of a court order and failure to comply with an opponent’s
proper discovery request. Iowa R. Prof’l Conduct 32:3.4(c)–(d). A lawyer
“must have actual knowledge of the court order to violate” rule 32:3.4(c).
Barnhill II, 847 N.W.2d at 484. “If an attorney has knowledge of the
court order, and yet fails to obey the court order, the attorney violates”
rule 32:3.4(c). Id. The federal district court issued orders on January 22
and March 18, 2014, compelling BFC to provide discovery responses, but
responses were not made. Responding to the motion for sanctions for
her failure to comply with these orders compelling discovery, Barnhill
asserted the USAO’s seizure of documents obstructed her ability to
comply. The federal court order imposing sanctions against Barnhill,
however, noted that the requested documents had not yet been seized
when they were requested and Barnhill and her client should have
disclosed them as part of their initial disclosures under the applicable
federal rules of procedure. The federal court’s order imposing sanctions
further concluded that some of the items (emails) requested from BFC in
22
discovery remained accessible to BFC notwithstanding the seizure and
should have been produced in response to discovery requests.
At the hearing before the commission, Barnhill attributed her
failure to comply with the discovery orders to the uncooperativeness of
her client. We find this attribution unavailing, however. The record
reveals the USAO provided Barnhill access to the seized documents on
February 21, 2014—well before the second order compelling discovery on
March 18. We conclude Barnhill violated rule 32:3.4(c).
Rule 32:3.4(c) and rule 32:3.4(d) are interrelated; courts often
grant motions to compel and issue corresponding orders (giving rise to
possible violations under rule 32:3.4(c)) after a party has already failed to
comply with proper discovery requests—a violation of rule 32:3.4(d). See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hedgecoth, 862 N.W.2d 354,
362–63 (Iowa 2015). We have concluded an attorney violated rule
32:3.4(d) when “the court granted several motions to compel and motions
for sanctions filed by opposing counsel” because the attorney “repeatedly
failed to provide timely discovery responses to opposing counsel’s proper
requests.” Id. Barnhill’s conduct in this case was similar to the conduct
we concluded in Hedgecoth violated the rule. See id. We conclude
Barnhill violated rule 32:3.4(d).
IV. Sanction.
Having concluded Barnhill committed ethical violations, we now
turn to decide the appropriate sanction. Our guidelines for sanctions in
attorney disciplinary matters are well established:
In considering an appropriate sanction, this court considers
all the facts and circumstances, including the nature of the
violations, the attorney’s fitness to practice law, deterrence,
the protection of society, the need to uphold public
confidence in the justice system, and the need to maintain
the reputation of the bar. We also consider mitigating and
23
aggravating circumstances. The court gives respectful
consideration to the findings and recommendations of the
commission, but “may impose a greater or lesser sanction
than that recommended by the commission.”
McGinness, 844 N.W.2d at 463–64 (citations omitted) (quoting Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Wheeler, 824 N.W.2d 505, 509–10
(Iowa 2012)). “The primary goal of attorney discipline is to protect the
public, not to punish the attorney.” Barnhill II, 847 N.W.2d at 487.
In Barnhill II, we concluded a sixty-day suspension was
appropriate after Barnhill pressed frivolous claims, knowingly disobeyed
court orders, and engaged in conduct prejudicial to the administration of
justice (among other violations). Id. at 488. We weighed aggravating
factors, including “Barnhill’s extensive legal experience,” the fact she
caused client harm, the multitude of violations, and “two prior
admonitions from the Board.” Id. at 486. In mitigation, we considered
Barnhill’s pro bono work and volunteerism, her acknowledgement of the
violations, and the sanctions already imposed on her in the underlying
district court matters. Id. at 486–87; see also Everly v. Knoxville Cmty.
Sch. Dist., 774 N.W.2d 488, 495 (Iowa 2009) (affirming the district court’s
decision to sanction Barnhill but remanding for determination of an
appropriate sanction); Barnhill I, 765 N.W.2d at 279–80 (affirming a
monetary sanction the district court imposed upon Barnhill).
The conduct in this case was similar to the conduct for which we
have previously suspended Barnhill. In fact, much of Barnhill’s conduct
in the Jayne matter began immediately after her previous suspension for
similar misconduct ended. “Prior misconduct is more suggestive of
increased sanctions when it involves the same type of conduct as the
conduct currently subject to discipline.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Baldwin, 857 N.W.2d 195, 214 (Iowa 2014). Barnhill’s
24
disciplinary history is an aggravating factor. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Conroy, 845 N.W.2d 59, 67 (Iowa 2014) (noting the
fact an attorney received a suspension for identical misconduct just three
years earlier was an aggravating factor and demonstrated the current
misconduct was “an unfortunate but recurrent theme”).
Additionally, “persistence . . . in perpetuating [a] falsehood is a
remarkable aggravating factor.” McGinness, 844 N.W.2d at 466.
Barnhill asserted throughout the Jayne litigation that she sent check #2
to Abbott in December 2014 in payment of the balance owed on the fee
arbitration award. However, the district court found that argument
meritless because Barnhill provided no proof of the check or of any
aspect of its delivery—including a return receipt or even the name of the
courier who delivered it. Even so, Barnhill continued to assert before the
commission that she sent Abbott a timely check. At the commission
hearing, Barnhill called her accountant to testify about check #2. The
accountant first testified she could not remember the check number but,
after Barnhill stated she thought the accountant was “misremembering,”
changed her testimony to be that the check had no number because it
was a counter check. Yet in the underlying Jayne litigation only a month
earlier, Barnhill propounded in support of her defense the accountant’s
affidavit asserting check #2 bore a specific number. The accountant’s
testimony and Barnhill’s repeated assertions about the check are not
credible in light of the multiple contradictions and especially in light of
the fact a financial record like a check should be easily retrievable.
Barnhill’s continued insistence that she sent a check despite a total lack
of proof is an aggravating factor. See id.
Furthermore, Barnhill “has twenty years’ experience as an
attorney, which can be considered an aggravating factor.” Iowa Supreme
25
Ct. Att’y Disciplinary Bd. v. Kennedy, 837 N.W.2d 659, 675 (Iowa 2013);
accord Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morris, 847 N.W.2d 428,
436 (Iowa 2014). Just as Barnhill’s experience was an aggravating factor
two years ago, we consider it an aggravating factor again here. See
Barnhill II, 847 N.W.2d at 486.
Some of the mitigating factors present in Barnhill II—specifically,
Barnhill’s volunteerism and pro bono work—are also mitigating factors in
this case. See id. Additionally, as in Barnhill II, to some extent “courts
have already punished Barnhill by levying sanctions . . . against her.” Id.
at 488. Barnhill did not acknowledge violations or accept responsibility
in this case as she did in the previous disciplinary proceeding. See id. at
486. However, she indicates she intends to retire from practicing law.
Voluntary cessation of practice or a self-imposed practice limitation does
not excuse misconduct but can be a mitigating factor. See Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 871 (Iowa 2010); see
also Kingery, 871 N.W.2d at 124–25 (“[W]e can consider voluntary
cessation when evaluating whether our sanction will serve its purposes
of deterring future misconduct and protecting the public.”). Nonetheless,
even when an attorney “indicated he ha[d] no plans to resume the
practice of law,” we concluded a suspension was “consistent with
promoting public confidence in the justice system and maintenance of
the reputation of the bar as a whole.” Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Ireland, 748 N.W.2d 498, 503 (Iowa 2008). A suspension is
appropriate here despite Barnhill’s stated intent to retire.
“Sanctions for violations involving dishonesty have ranged from a
brief suspension . . . to revocation.” Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Kieffer-Garrison, 847 N.W.2d 489, 496 (Iowa 2014); accord
Barnhill II, 847 N.W.2d at 487. “We have in the past suspended lawyers
26
from the practice of law for filing frivolous matters, although these cases
have been accompanied by other unethical conduct.” Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Daniels, 838 N.W.2d 672, 679 (Iowa 2013). We
have even revoked lawyers’ licenses in some circumstances, usually
when the lawyer commits a bevy of exceptionally serious ethical
infractions alongside frivolous litigation. See, e.g., Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 381–82 (Iowa 2007)
(revoking a lawyer’s license after he fabricated documents, forged
signatures (including a judge’s signature), accepted fees prematurely,
practiced law while suspended, and generally “demonstrated a blatant
disregard for his duty as an attorney to be honest and truthful”); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ronwin, 557 N.W.2d 515,
520, 522–23 (Iowa 1996) (per curium) (revoking a lawyer’s license after
the lawyer pressed a frivolous claim resulting in sanctions imposed
against him and separately and repeatedly made unfounded and
unsupported allegations that several judges and lawyers were conspiring
to violate his civil rights and tortiously injure him). Frivolous claims and
false statements are particularly troublesome. As we have explained,
Fundamental honesty is the base line and mandatory
requirement to serve in the legal profession. The whole
structure of ethical standards is derived from the paramount
need for lawyers to be trustworthy. The court system and
the public we serve are damaged when our officers play fast
and loose with the truth.
Comm. on Prof’l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa
1990); accord Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bjorklund, 725
N.W.2d 1, 12 (Iowa 2006) (“A lawyer who employs dishonesty as a routine
component of his [or her] normal operating procedure clearly lacks the
character required of members of the bar.”); Comm. on Prof’l Ethics &
Conduct v. Postma, 430 N.W.2d 387, 392 (Iowa 1988) (“Our profession
27
has no place for persons who demonstrate a penchant for distorting the
truth.”).
Although Barnhill’s ethical shortcomings in this case are serious,
they do not involve the panoply of violations and auxiliary misconduct
that justified revocation in some cases. However, they are also not so
isolated as to justify a mere reprimand. See Daniels, 838 N.W.2d at 679
(imposing a reprimand for one isolated instance of filing a frivolous
claim). Instead, Barnhill committed violations in multiple matters on the
heels of a suspension for committing very similar violations in other
matters. That pattern of misconduct deserves a suspension. See Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Gallner, 621 N.W.2d 183,
187 (Iowa 2001) (“Normally, a pattern of misconduct gives rise to
enhanced sanctions.”).
We now turn to cases involving similar misconduct. In a recent
case involving primarily and exclusively an attorney’s dishonesty, we
imposed a six-month suspension. McGinness, 844 N.W.2d at 467. The
attorney violated rules 32:3.3(a)(1)(A), 32:8.4(c), and 32:8.4(d) by copying
“old certificates of service in an attempt to deceive opposing counsel” and
then “attempt[ing] to cover his tracks with more fabrication.” Id. at 462–
63. We concluded the violations’ seriousness simply outweighed the
mitigating circumstances—which included community service and an
unblemished disciplinary history:
Our citizens generally, and this court particularly, rely upon
the honesty and integrity of lawyers to ensure the fair
operation of our adversary system of justice. In the arena of
civil discovery, the honesty of lawyers is an essential
component. While McGinness’s conduct may be an
extraordinary one-time occurrence that is out of character
for him, we must protect the integrity of the judicial system
and the lawyers who work within it.
Id. at 467. We find McGinness to be a useful comparator.
28
We imposed a three-month suspension when, in one matter, an
attorney made misleading statements to the court and persisted in a
defense position “that was patently frivolous.” Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Hohnbaum, 554 N.W.2d 550, 552 (Iowa 1996).
Similarly, in 2013, we imposed a thirty-day suspension on an attorney
who made false statements to a tribunal and engaged in conduct
prejudicial to the administration of justice by committing “acts of false
notarization” in one matter. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Palmer, 825 N.W.2d 322, 325–26 (Iowa 2013). We noted the violations
were “less extensive than those at issue in [prior cases presenting similar
facts] and deserve[d] a correspondingly less severe sanction.” Id. at 326.
After considering these cases and the circumstances presented
here, we conclude a six-month suspension is appropriate. Barnhill’s
misconduct is just as serious as the conduct we condemned in
McGinness. And while we imposed a three-month suspension for a one-
time occurrence in Hohnbaum, Barnhill has established a pattern of
unethical conduct and a disciplinary history justifying a lengthier
suspension in this case. If that pattern continues, the sanctions will
escalate further in any future disciplinary proceedings—including
possible revocation. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct
v. Beckman, 674 N.W.2d 129, 139 (Iowa 2004) (revoking the license of a
lawyer who “repeatedly and convincingly demonstrated his inability and
unwillingness to abide by our canons of ethics”); see also Conroy, 845
N.W.2d at 67 (“Conroy has now been suspended twice with escalating
sanctions . . . . The two suspensions will be an aggravating factor should
there be future proceedings involving Conroy . . . .”).
29
V. Conclusion.
We suspend Barnhill’s license to practice law in this state
indefinitely with no possibility of reinstatement for six months from the
date this opinion is filed. The suspension applies to “all facets of
ordinary law practice.” Iowa Ct. R. 34.23(3). Upon application for
reinstatement, Barnhill must establish she has not practiced law during
her suspension, has complied with the notification requirements of Iowa
Court Rule 34.24, and has complied with the reinstatement procedures
of Iowa Court Rule 34.25. Costs are taxed to Barnhill pursuant to Iowa
Court Rule 36.24(1).
LICENSE SUSPENDED.
All justices concur except Appel, J., who takes no part.