Iowa Supreme Ct. Att'y Disciplinary Bd. v. Matthew L. Noel ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 19–0661
Filed September 6, 2019
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
MATTHEW L. NOEL,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
The grievance commission recommends a thirty-day suspension of
an attorney’s license to practice law for violations of ethics rules.
ATTORNEY REPRIMANDED.
Tara van Brederode and Wendell J. Harms, Des Moines, for
complainant.
Max E. Kirk, Waterloo, for respondent.
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WIGGINS, Justice.
The Iowa Supreme Court Attorney Disciplinary Board filed a
complaint against Matthew L. Noel alleging multiple violations of the Iowa
Rules of Professional Conduct. A division of the Iowa Supreme Court
Grievance Commission found the Board proved some of the alleged
violations and recommended a thirty-day suspension. We agree that the
Board proved some of the alleged violations, but we publically reprimand
Noel under the circumstances of this case.
I. Scope and Standard of Review.
We review attorney disciplinary matters de novo. Iowa Ct. R.
36.21(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kowalke, 918 N.W.2d
158, 161 (Iowa 2018). “The Board must prove attorney misconduct by a
convincing preponderance of the evidence, a burden greater than a
preponderance of the evidence but less than proof beyond a reasonable
doubt.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130,
144 (Iowa 2018) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morse,
887 N.W.2d 131, 138 (Iowa 2016)). We give the commission’s findings,
conclusions, and recommendations respectful consideration, “especially
with respect to witness credibility,” but we are not bound by them. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Kieffer-Garrison, 847 N.W.2d 489, 492
(Iowa 2014) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Beckman, 674 N.W.2d 129, 131 (Iowa 2004)); accord Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Stansberry, 922 N.W.2d 591, 593 (Iowa 2019). We
may impose a sanction that is greater or lesser than that recommended by
the commission. Iowa Ct. R. 36.21(1); Stansberry, 922 N.W.2d at 594.
II. Findings of Fact and Prior Proceedings.
“Facts admitted in an answer are ‘deemed established.’ ” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519, 522 (Iowa
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2017) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838
N.W.2d 528, 532 (Iowa 2013)). We admitted Noel to the practice of law in
Iowa in 2008. He practices primarily in civil and criminal litigation. In
December 2015, Noel practiced law in the office of Mayer, Lonergan &
Rolfes. On April 20, 2017, Noel began to practice law as The Noel Law
Firm and ended his partnership with Mayer, Lonergan & Rolfes.
A. Prior Disciplinary Proceeding. On October 30, 2017, the
Board filed an ethics complaint against Noel for conduct predating and
unrelated to his conduct that gave rise to the present disciplinary
proceeding. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Noel (Noel I), 923
N.W.2d 575, 581 (Iowa 2019). Between November 2008 and January 1,
2014, Noel had a contract with the state public defender to provide legal
services to indigent adults and juveniles. Id. at 579. During that time,
Noel sought fees for services he did not perform, made false mileage claims,
and failed to remedy billing submissions that he subsequently realized
were incorrect. Id. at 585–86, 587, 588.
The Board filed an amended complaint in Noel I on March 5, 2018.
Id. at 581. The Noel I commission held a hearing on that amended
complaint on March 27 and 28, and issued its report and sanctions
recommendation on July 18. Id. In February 2019, we suspended Noel’s
license for at least one year as a result of his unethical billing practices
between 2008 and January 1, 2014. Id. at 591.
B. Fact-Finding Regarding Present Disciplinary Proceeding—
Janelle Huffman Matter. In December 2015, Janelle Huffman spoke with
Noel about filing a lawsuit against a roofing company, JT Home
Improvement, for water damage caused by the roofing company. Noel
agreed to represent Huffman in a lawsuit against JT Home Improvement
upon payment of a retainer. Noel and Huffman also orally agreed that Noel
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would charge her $175 per hour. Huffman’s insurance carrier hired
Restoration and Cleaning of the Quad Cities, L.L.C., doing business as
Rainbow International Restoration & Cleaning (Rainbow), to repair the
water damage and restore the interior of her residence.
In January 2016, Huffman met with Noel to discuss filing a lawsuit
against Rainbow for failing to properly repair and restore the interior of
her residence. Noel agreed to represent Huffman in a lawsuit against
Rainbow upon payment of a retainer. That month, Huffman paid Noel’s
firm $920.
On January 26, Noel billed Huffman $350 to “Draft and Prepare
Petition and Original Notice.” The petition named JT Home Improvement
and Rainbow as defendants, but Noel never filed this petition.
Between January and June 2016, Huffman repeatedly contacted
Noel’s law office to ask about the status of her suit against JT Home
Improvement and Rainbow and for advice on how to handle her housing
situation and interactions with Rainbow. She received no substantive
response from Noel.
On June 17, Rainbow sued Huffman for $6800, which it alleged
Huffman owed for Rainbow’s water damage remediation and
reconstruction services beginning in August 2015. Huffman emailed Noel
on June 25 to report that Rainbow had served her with papers and that
she would deliver them to his office.
In a letter dated July 17, Noel informed Huffman that he was
working on an answer and counterclaim to Rainbow’s suit, the answer was
due on July 15, and he would have it filed by then. Noel filed an answer
and breach-of-contract counterclaim against Rainbow on July 29.
On August 29, counsel for Rainbow and Huffman filed the Iowa Rule
of Civil Procedure 1.281 Trial Scheduling and Discovery Plan for Expedited
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Civil Action. The plan provided that the parties would provide initial
disclosures no later than September 30, 2016, and a complete set of joint
jury instructions and verdict forms, including a statement of the case, at
least fourteen days before trial. It also stated late settlement fees under
Iowa Rule of Civil Procedure 1.909 were applicable. Noel never provided
Huffman’s initial disclosures to Rainbow. He admitted he did not file the
jury instructions and “that is certainly something [he] dropped the ball on,
there’s no doubt about it.”
On October 7, Rainbow served interrogatories and requests for
production of documents on Noel as Huffman’s counsel. Noel’s office
passed along the interrogatories to Huffman on October 10, asking her to
answer and return them to the office “at her earliest convenience.” Noel
did not inform Huffman of the necessity of returning the interrogatories in
a timely manner.
Noel did not timely produce the discovery requests. He eventually
conveyed unsigned interrogatory answers on February 1, 2017, and
responded to Rainbow’s request for documents on May 8, 2017. However,
he did so only after Rainbow sent him a notice of overdue discovery
requests, and the court granted Rainbow’s motions for orders compelling
discovery and awarding sanctions.
Noel did not resist either the motion to compel or the motion for
sanctions. Although it is disputed whether Noel informed Huffman of the
motion to compel, he did not inform Huffman of the motion for sanctions.
The sanctions order imposed a $345 attorney fee sanction that Noel
eventually paid, even though he claimed Huffman was the cause of the
delay.
On February 3, the court granted Noel’s motion to continue the trial.
It scheduled a settlement conference for April 21 and trial for May 22. On
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April 20, court administration informed Rainbow’s counsel and Noel that
Judge Mark Cleve would preside at the settlement conference. However,
on April 21, the court cancelled the settlement conference because Noel
did not want to proceed with the settlement conference due to Judge
Cleve’s prior affiliation with Rainbow’s counsel’s law firm, some years
back. The court never rescheduled the settlement conference.
Noel did not consult with Huffman about whether to proceed with
the settlement conference scheduled with Judge Cleve. Huffman did not
instruct Noel to cancel the settlement conference. Efforts to reach
Huffman to discuss the circumstances with Judge Cleve were
unsuccessful, so Huffman met Noel at the courthouse for the cancelled
conference on April 21. Noel then was able to inform Huffman that the
case was not settled and would be tried to a jury beginning on May 22.
Throughout this time, Huffman continued to inquire about the status of
her case against JT Home Improvement.
The week before the trial date, Noel and Huffman met for a trial
preparation meeting. On Friday, May 19, Huffman emailed Noel’s legal
assistant, saying she hoped “Noel can maybe make a settlement.” Noel’s
legal assistant conveyed this desire to Noel and to Rainbow, but Rainbow
refused to settle unless Huffman paid something. Noel’s office informed
Huffman of Rainbow’s refusal. It also said that a settlement would be
unlikely and that trial on Monday was “probably the best bet.”
The morning of trial, counsel met with the presiding judge, Judge
Joel Barrows, in chambers to discuss Rainbow’s unresisted motion in
limine and Noel’s failure to file jury instructions. Because Noel did not file
jury instructions and neither party moved to continue, Judge Barrows said
that he needed some time to think about the appropriate next steps and
suggested the attorneys “see what we can go do with this case.”
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The attorneys then negotiated a $4500 settlement with their
respective clients and reported the settlement to Judge Barrows. The court
assessed a late settlement fee of $1000 against Huffman. Noel testified
that he told Huffman the late settlement fee was part of the settlement
package. Huffman denies this. We find Huffman more credible on this
fact issue.
On June 6, Huffman filed the first of two “To Whom It May Concern”
letters with the court. In the June 6 letter, Huffman alleged that Noel “told
[her] the judge told him this isn’t a Rainbow problem – it’s a Roofer [(i.e.,
JT Home Improvement)] issue – get out of there – settle it – he was sending
the Jury home.” She also claimed that Noel led her to believe that she had
to pay only $4500 but then she was sent a bill for an additional $1000.
On June 9, Noel sent Huffman a letter after he had received a copy
of her June 6 letter. In his letter to Huffman, he explained that he thought
she understood that she would pay the court costs. He also stated that
he had not filed against JT Home Improvement yet because her June 6
letter “essentially turned [him] into a witness as to the [settlement]
negotiations [and] it may be [his] ethical duty [to] withdraw from th[e] case
[against JT Home Improvement].” He then stated, “If [Huffman] insist[ed]
on holding a hearing with the Judge about the Court costs [he] will have
to withdraw and will no longer [be] able to represent [her].” Huffman paid
the $1000 late settlement fee on June 12.
On June 14, Huffman sent her second letter to the court. In that
letter, she again inquired why the court assessed her the $1000 fee even
though she already paid Rainbow and did not have her day in court. She
claimed, “[T]his [(the $1000 fee)] wasn’t a late settlement[;] this was a you
pay!!!” She also claimed Noel told her he would not represent her against
JT Home Improvement if she did not pay the $1000 bill.
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The district court treated Huffman’s June 6 and June 14 letters as
motions for a hearing and scheduled one for July 27. At the hearing,
which Judge Barrows presided over, Huffman declined to waive attorney–
client privilege such that Noel could discuss the communications between
himself and Huffman relevant to the allegations made in Huffman’s letters.
Judge Barrows also expressed his belief that he was obligated to refer the
matter to the Board because of Noel’s purported misrepresentation of
Judge Barrows’s statements, handling of discovery, and failure to comply
with the terms of the trial scheduling and discovery plan. Judge Barrows
thereafter set Huffman’s letter-motions for a status conference on
August 24 and recused himself. He filed his complaint with the Board
shortly after the July 27, 2017 hearing.
Noel subsequently filed a motion to withdraw. After the August 24
status conference, the court found that the settlement record revealed Noel
“agreed to be personally liable for the late settlement fee” and that the
court should return the $1000 Huffman paid. The court also granted
Noel’s motion to withdraw. Noel eventually paid the $1000 fee on April 5,
2018.
Sometime after the July and August 2017 hearings, Huffman filed
her complaint with the Board.
C. Present Disciplinary Proceedings. On July 31, 2018, the
Board filed the present complaint alleging Noel’s conduct in the Huffman
matter violated Iowa Rules of Professional Conduct 32:1.2(a) (“[A] lawyer
shall abide by a client’s decisions concerning the objectives of
representation and . . . shall consult with the client as to the means by
which they are to be pursued.”), 32:1.3 (“[A] lawyer shall act with
reasonable diligence and promptness in representing a client.”),
32:1.4(a)(1) (“[A] lawyer shall . . . promptly inform the client of any
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decisions or circumstances with respect to which the client’s informed
consent . . . is required . . . .”), 32:1.4(a)(2) (“[A] lawyer shall . . .
reasonably consult with the client about the means by which the client’s
objectives are to be accomplished[.]”), 32:1.4(a)(3) (“[A] lawyer shall . . .
keep the client reasonably informed about the status of the matter[.]”),
32:1.4(a)(4) (“[A] lawyer shall . . . promptly comply with reasonable
requests for information[.]”), 32:1.4(b) (“[A] lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.”), 32:3.4(d) (“[A] lawyer shall
not . . . in pretrial procedure . . . fail to make a reasonably diligent effort
to comply with a legally proper discovery request by an opposing party[.]”),
32:8.4(c) (“It is professional misconduct for a lawyer to . . . engage in
conduct involving dishonesty, fraud, deceit, or misrepresentation[.]”), and
32:8.4(d) (“It is professional misconduct for a lawyer to . . . engage in
conduct that is prejudicial to the administration of justice[.]”).
Noel filed his answer on August 27, and the commission scheduled
a hearing for December 12–13. In his answer, Noel directly responded to
the Board’s factual allegations, and at the hearing on December 12, he
clarified that he was also denying the rule violations allegations.
On December 4, the Board amended its complaint to add additional
facts. Noel did not file an answer to the amended complaint, but at the
outset of the first day of the hearing, he denied the new allegations.
The commission submitted the case on December 13. In February
2019, while the commission was awaiting the parties’ submission of
posthearing filings, we issued our Noel I opinion, suspending Noel’s license
for at least one year as a result of his unethical billing practices between
2008 and January 1, 2014. See Noel I, 923 N.W.2d at 579–80, 591.
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On April 19, 2019, the commission issued its report and
recommendation in the present case. It found Noel violated rules 32:1.2(a)
in two respects, 32:1.3, and 32:1.4(a)(2)–(4) and (b). It found the Board
failed to establish Noel violated rules 32:3.4(d) and 32:8.4(c) and (d). The
Board did not pursue its allegation that Noel violated rule 32:1.4(a)(1) in
its posthearing brief, and the commission did not address that allegation
in its report and recommendation. Neither will we.
The commission recommended a thirty-day suspension of Noel’s
license to practice law for the present violations. In determining its
sanctions recommendation, it did not take into account our February 2019
opinion disciplining Noel.
Noel did not appeal, and the Board did not apply for permission to
appeal the commission’s ruling. See Iowa Ct. R. 36.22(1)–(2). We set the
date for submission of the commission’s report, and both parties filed
written statements regarding the recommended discipline. See id.
r. 36.21(1). Of particular import, the Board contends we should treat
Noel’s February 2019 discipline as prior discipline, which is an aggravating
factor. Noel contends to the contrary.
III. Violations.
A. Whether Noel Violated Rule 32:1.2(a)—Scope of
Representation and Allocation of Authority Between Client and
Lawyer. Rule 32:1.2(a) provides in pertinent part,
Subject to paragraphs (c) and (d), a lawyer shall abide by a
client’s decisions concerning the objectives of representation
and, as required by rule 32:1.4, shall consult with the client
as to the means by which they are to be pursued. A lawyer
may take such action on behalf of the client as is impliedly
authorized to carry out the representation. A lawyer shall
abide by a client’s decision whether to settle a matter.
Iowa R. Prof’l Conduct 32:1.2(a).
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We find the Board proved by a convincing preponderance of the
evidence that Noel failed to abide by Huffman’s objective in suing JT Home
Improvement and Rainbow and his agreement to file a lawsuit against
JT Home Improvement and Rainbow. See Kieffer-Garrison, 847 N.W.2d at
494 (finding attorney failed to abide by her client’s decisions concerning
the objectives of the representation when she agreed to prepare and file an
application for further review but did not do so). The record reveals
communications from Huffman to Noel, beginning in January 2016,
indicating her desire to proceed with a lawsuit against JT Home
Improvement and Rainbow. However, Noel never filed the lawsuit.
The commission also found that Noel violated this rule by failing to
sufficiently consult with Huffman “as to the means by which [her
objectives were] to be pursued.” Iowa R. Prof’l Conduct 32:1.2(a). We
disagree.
Comment [1] to rule 32:1.2 provides in relevant part, “With respect
to the means by which the client’s objectives are to be pursued, the lawyer
shall consult with the client as required by rule 32:1.4(a)(2).” Id. r. 32:1.2
cmt. [1]. Rule 32:1.4(a)(2) imposes a duty on the lawyer to “reasonably
consult with the client about the means by which the client’s objectives
are to be accomplished.” The commission concluded Noel did not do this
because he failed to ensure Huffman understood what he expected of her,
specifically, by communicating expectations in a written letter after it
became clear that Huffman often misunderstood oral communications.
However, the record reveals otherwise. Either directly or through
his office assistants, he did reasonably consult with Huffman about the
means for accomplishing her objectives. Noel and the office assistants
would communicate with Huffman by email and left voicemails for her—
two methods of communication that can reduce misunderstandings. The
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office assistants routinely made follow-up phone calls to Huffman to see
where she was on getting Noel certain documents. One assistant, Janna
Linville, testified that even when Huffman would email the office, she found
Huffman responded better to oral communication “so [Huffman] could ask
her question right then.” Both office assistants also testified that Huffman
would stop into the office weekly so there were times when Huffman would
email the office and then stop in before anyone had a chance to respond
by email.
The record further reveals that someone in the office did
communicate to Huffman what Noel expected of her. Linville testified that
if she communicated orally with Huffman, she would have Huffman repeat
back the information, that she “had to think outside the box how to explain
things to [Huffman],” and that Huffman acted as if she understood what
the office conveyed to her at the time.
The commission concluded Noel failed to consult with Huffman
regarding the means by which her objectives were to be pursued because
Noel’s communications with Huffman were often oral and he admitted at
the hearing that he “should have kept [Huffman] more updated.”
Specifically, the commission questioned why Noel did not write letters to
communicate with Huffman, a client who was difficult to communicate
with.
It is undoubtedly true that Noel could have communicated with
Huffman more often and through additional letters or emails as the
commission concluded. However, there is some evidence in the record
suggesting that even if Noel had communicated more often or through
writing, Huffman still would have struggled to understand. For example,
after Huffman filed her June 6, 2017 letter to the court, Noel sent Huffman
a letter dated June 9, 2017, explaining that her June 6 letter to the court
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“essentially turned [him] into a witness as to the [settlement] negotiations
[and i]f [she] insist[ed] on holding a hearing with the Judge about the Court
costs [he] will have to withdraw and will no longer [be] able to represent
[her against JT Home Improvement].” On June 12, in an email response
to Huffman, one of Noel’s legal assistants again explained the conflict of
interest that Huffman’s June 6 letter possibly created and the potential
consequences. Nevertheless, in her June 14 letter to the court, Huffman
claimed Noel refused to represent her against JT Home Improvement
unless she paid the late settlement fee. Huffman’s June 14 letter to the
court suggests she struggled to understand why Noel would not represent
her against JT Home Improvement even though she was twice given an
explanation in writing.
Similarly, after Huffman wrote the $1000 check and a hearing on
her letters to the court was set, Noel emailed Huffman a copy of the court
order for the hearing and a letter dated June 21, 2017. The email
explained why the $1000 fee was still outstanding—because he was
holding Huffman’s check in trust and he had not cashed it. Nonetheless,
Huffman replied to the email, claiming Noel cashed the check.
Upon our review, we conclude that the record does not show that
Noel failed to reasonably consult with Huffman about the means for
accomplishing her objectives. Noel’s office repeatedly informed and
reminded Huffman of what Noel expected of her. There was testimony that
the office assistants tried to communicate with Huffman in ways that she
seemed most responsive to. Noel and both office assistants testified
Huffman would often act as if she understood after they consulted her on
what Noel needed.
Although not best practices, Noel’s consultations with Huffman
about the means for accomplishing her objectives cannot be said to be
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unreasonable. Moreover, the fact that a client did not comply as instructed
or requested and would forget or not actually understand does not, alone,
establish that the attorney’s consultation was unreasonable.
We find Noel violated rule 32:1.2(a) when he failed to file a lawsuit
against JT Home Improvement and, thereby, failed to abide by Huffman’s
decisions regarding the objectives of the representation. Noel did not
violate rule 32:1.2(a) by failing to reasonably consult with Huffman about
the means for accomplishing her objectives.
B. Whether Noel Violated Rule 32:1.3—Diligence. Rule 32:1.3
provides, “A lawyer shall act with reasonable diligence and promptness in
representing a client.” Thus, the lawyer has a duty to handle client
matters in a “reasonably timely manner.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Netti, 797 N.W.2d 591, 598 (Iowa 2011) (quoting Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 678 (Iowa
2010)). An attorney violates this rule when the attorney “fails to appear at
scheduled court proceedings, does not make the proper filings, or is slow
to act on matters.” Nelson, 838 N.W.2d at 537.
Ordinarily, a violation of rule 32:1.3 does not “occur from one missed
deadline.” West, 901 N.W.2d at 524 (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012)). Rather,
a violation occurs from the “consistent failure to perform those obligations
that a lawyer has assumed[ ] or a conscious disregard for the
responsibilities a lawyer owes to a client.” Id. (alteration in original)
(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d
860, 867 (Iowa 2010)). Often, this involves the “lawyer doing little or
nothing to advance the interests of [the] client after agreeing to represent
the client.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman,
683 N.W.2d 549, 552 (Iowa 2004).
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Noel failed to handle Huffman’s matters in a reasonably timely
manner. Although he drafted a petition and original notice against
JT Home Improvement and Rainbow in January 2016 and he represented
Huffman through August 2017, he never filed that lawsuit. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Barry, 908 N.W.2d 217, 223–24 (Iowa
2018) (holding attorney violated rule 32:1.3 by never filing a completed
petition); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weiland, 885 N.W.2d
198, 208–09 (Iowa 2016) (finding attorney violated rule 32:1.3 when he
delayed filing a petition for four months); cf. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 668–69 (Iowa 2007)
(holding attorney violated rule 32:1.3 when he failed to file an appellate
brief on behalf of his client or move to withdraw).
Noel failed to make the initial disclosures required in the trial
scheduling and discovery plan. He failed to file a set of jury instructions
as required by the trial scheduling and discovery plan. He was also late
in producing answers to interrogatories and responses to requests for
production and produced those discovery items only after the opposing
side filed a motion to compel and a motion for sanctions.
Noel’s consistent failures to timely meet his obligations as Huffman’s
attorney violated rule 32:1.3.
C. Whether Noel Violated Rule 32:1.4(a)(2), (a)(3), (a)(4), and
(b)—Communication. The Board alleged and the commission found Noel
violated rule 32:1.4(a)(2), (a)(3), (a)(4), and (b). We find Noel violated rule
32:1.4(a)(3), (a)(4), and (b).
Rule 32:1.4(a)(2) provides that an attorney shall “reasonably consult
with the client about the means by which the client’s objectives are to be
accomplished.” As discussed above, although Noel failed to ensure
Huffman actually understood what he communicated to her and what he
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expected of her, he did not fail to reasonably consult with her on the means
for accomplishing her objectives. We find the Board failed to establish Noel
violated rule 32:1.4(a)(2).
Rule 32:1.4(a)(3) requires an attorney to “keep the client reasonably
informed about the status of the matter,” and rule 32:1.4(a)(4) requires the
attorney to “promptly comply with reasonable requests for information.”
Noel failed to keep Huffman reasonably informed about the status of the
suit she wished to file against JT Home Improvement and Rainbow and to
promptly comply with reasonable requests for information.
Huffman testified and the record reveals that she emailed Noel
several times between January and June 2016 for an update on the status
of that lawsuit. During that same period, she also emailed Noel several
times, asking for advice or suggestions on how to handle matters with
Rainbow and her housing situation. The commission found credible
Huffman’s testimony that she did not receive any responses from Noel.
Indeed, the record reveals the first recorded substantive response Huffman
received from Noel was a letter dated July 17, 2016, in which Noel
indicated Rainbow had filed suit against Huffman first, he was working on
an answer that was due on July 15, and he would have the answer filed
by then.
Noel’s failure to keep Huffman reasonably informed caused her to
repeatedly inquire and request information about her case’s status. See
Iowa R. Prof’l Conduct 32:1.4 cmt. [4] (“A lawyer’s regular communications
with clients will minimize the occasions on which a client will need to
request information concerning the representation.”). But the evidence in
the record demonstrates Noel did not respond promptly, if at all, to
Huffman’s inquiries and requests, and Noel produced no evidence that
persuasively rebuts that conclusion. Noel even admitted, “I do think I
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should have kept her more updated.” Thus Noel violated rule 32:1.4(a)(3)
and (a)(4). See Barry, 908 N.W.2d at 224–25 (finding attorney violated rule
32:1.4(a)(3) and (a)(4) when he failed to reasonably inform the clients about
the status of the case, causing the clients to repeatedly ask or stop in for
updates); cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelissen, 871
N.W.2d 694, 698–99 (Iowa 2015) (finding the Board failed to establish a
violation of rule 32:1.4(a)(3) and (a)(4) when the record showed the attorney
normally, although not always, responded to the client’s emails within one
or two days).
Rule 32:1.4(b) provides, “A lawyer shall explain a matter to the
extent reasonably necessary to permit the client to make informed
decisions regarding the representation.” Iowa R. Prof’l Conduct 32:1.4(b).
Noel failed to adequately communicate and explain matters to Huffman.
Comment [5] to rule 32:1.4 provides in relevant part,
The client should have sufficient information to participate
intelligently in . . . the means by which [the client’s objectives]
are to be pursued, to the extent the client is willing and able
to do so. Adequacy of communication depends in part on the
kind of advice and assistance that is involved.
Id. cmt. [5]. Several emails from Huffman to Noel and the testimonies of
Huffman, Noel, and Noel’s two office assistants show Huffman struggled
to understand what was expected of her and indicate Noel failed to take
steps to adequately explain matters such that Huffman could intelligently
participate in the means for pursuing her objectives.
Further, Noel failed to inform Huffman of the necessity of returning
her answers to Rainbow’s interrogatories in a timely manner and the
ramifications for not doing so. He also failed to inform Huffman when
Rainbow filed a motion for sanctions, that he did not resist the motion for
sanctions, or of the ramifications of the motion. Noel’s failure to inform
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Huffman of that sanctions matter ensured she did not have sufficient
information to make informed decisions about the case or to participate in
that aspect of her case. Cf. Turner, 918 N.W.2d at 146 (finding attorney
violated rule 32:1.4(b) when he did not communicate with a client to the
extent reasonably necessary for the client to be able to make an informed
decision of whether to file a Chapter 7 or Chapter 11 bankruptcy case);
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Vandel, 889 N.W.2d 659, 665
(Iowa 2017) (finding attorney violated rule 32:1.4(b) when her “failure to
fully explain the circumstances [of her threat to withdraw as counsel] left
[the client] unable to make an informed decision regarding [the attorney’s]
representation and effectively prepare for and participate in the trial”).
We find the Board proved by a convincing preponderance of the
evidence that Noel violated rule 32:1.4(a)(3), (a)(4), and (b).
D. Whether Noel Violated Rule 32:3.4(d)—Fairness to Opposing
Party and Counsel. Rule 32:3.4(d) provides a lawyer shall not “in pretrial
procedure . . . fail to make a reasonably diligent effort to comply with a
legally proper discovery request by an opposing party.” Iowa R. Prof’l
Conduct 32:3.4(d). Because this case involved only one motion to compel,
one motion for sanctions, and difficulties in obtaining written
documentation from the client in order to comply with the discovery
requests, the commission concluded the Board failed to prove that Noel
violated rule 32:3.4(d). We disagree.
In Iowa Supreme Court Attorney Disciplinary Board v. Hedgecoth, the
attorney repeatedly failed to comply with opposing counsel’s discovery
requests and, eventually, court orders to produce discovery. 862 N.W.2d
354, 358–59 (Iowa 2015). The attorney’s repeated failures occurred over
a five-month period. Id. Opposing counsel filed one motion to compel and
three motions for sanctions. Id. In that case, there were multiple motions,
19
in part because opposing counsel did not hesitate to file the motions. See
id. (stating that opposing counsel filed the motion to compel two weeks
after the first set of discovery requests was due, the first motion for
sanctions one week after the court granted the motion to compel, the
second motion for sanctions one day after the attorney and his client failed
to appear for a deposition, and the third motion for sanctions two weeks
after the court issued a second order compelling discovery).
Additionally, the court granted one of the sanctions motions because
the court found the discovery responses the attorney eventually provided
were deficient, untimely, unresponsive, and not in final form. Id. at 359.
We noted that “[e]ach of the[] motions were filed because [the attorney]
repeatedly failed to provide timely discovery responses to opposing
counsel’s proper requests” and found the attorney violated rule 32:3.4(d).
Id. at 362–63.
In Iowa Supreme Court Attorney Disciplinary Board v. Barnhill, the
attorney failed to “designate expert opinions until months after the
deadline,” “to produce some documents required as part of [the] initial
disclosures,” and to produce some documents properly requested by the
opposing party even though opposing counsel filed two motions to compel,
which the court granted. 885 N.W.2d 408, 415 (Iowa 2016). Roughly half-
a-year after discovery opened, opposing counsel filed a motion for
sanctions. See id. (noting discovery opened in August 2013 and the motion
for sanctions was filed in spring 2014). We found the attorney’s conduct
violated rule 32:3.4(d). Id. at 423. We relied on Hedgecoth for the
proposition that an attorney violates 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. (quoting
20
Hedgecoth, 862 N.W.2d at 362–63). We reasoned Barnhill’s conduct was
similar to the unethical conduct in Hedgecoth. Id.
In Iowa Supreme Court Attorney Disciplinary Board v. Kennedy, the
attorney filed, on January 6, a notice of identification of an expert with a
certification that he had served the notice on all parties. 837 N.W.2d 659,
665 (Iowa 2013). Opposing counsel did not receive the notice until June 8
but thereafter immediately notified the attorney that the notice was
insufficient because it did not provide the expert’s qualifications or the
purpose for calling the expert. Id. On July 12, opposing counsel sent a
letter to the attorney threatening to file a motion for summary judgment
within a week because all of the discovery responses were overdue. Id.Opposing counsel filed for summary judgment on July 20, claiming the
attorney’s client failed to disclose his expert witness’s qualifications and
the purpose for calling the expert within the statutorily designated time.
Id. Opposing counsel sent another letter in October indicating he still had
not received the requested discovery documents or information about the
expert. Id. He then filed a motion to compel two weeks later, which the
court granted. Id. The attorney stipulated that she evaded opposing
counsel’s proper attempts to learn the expert’s identity and opinions. Id.
at 670. We found her “persistent noncompliance fell short of being
‘reasonably diligent’ and thus violated rule 32:3.4[(d)]” despite there being
only one motion to compel. Id. (quoting Iowa R. Prof’l Conduct 32:3.4(d)).
Although the multiple motions to compel and for sanctions were a
dispositive factor in Hedgecoth and Barnhill, Kennedy demonstrates that
multiple motions are not a prerequisite to violating rule 32:3.4(d). Rather,
such motions are merely evidence suggesting the attorney did not make a
reasonable effort to comply with proper discovery requests. Opposing
counsel’s willingness to either file such motions, as in Hedgecoth, 862
21
N.W.2d at 358–59, or be forgiving and lenient, like Rainbow’s counsel here
or as in Kennedy, 837 N.W.2d at 665, should not be determinative of
whether an attorney violates rule 32:3.4(d).
Further, Noel’s conduct is similar to the situations in Hedgecoth,
Barnhill, and Kennedy. As in Barnhill, Noel failed to make the required
initial disclosures, see 885 N.W.2d at 415, and similar to Hedgecoth, when
Noel finally provided Huffman’s answers to interrogatories, they were
unsigned, cf. 862 N.W.2d at 359 (noting discovery responses were not in
final form). Like in Hedgecoth and Kennedy, Noel’s handling of discovery
resulted in multiple requests and inquiries from opposing counsel about
discovery. See Hedgecoth, 862 N.W.2d at 358–59; Kennedy, 837 N.W.2d
at 665. Often he did not respond to these inquiries from Rainbow’s
counsel for days or weeks. See Kennedy, 837 N.W.2d at 665 (noting after
opposing counsel resent the discovery requests on May 17, the attorney’s
next response was on July 21 when she provided some of the requested
discovery).
Moreover, Noel’s behavior in early February and March 2017
indicates he had not made a reasonable effort to comply with Rainbow’s
request for production of documents. First, the court compelled Noel to
produce all of the requested discovery by February 1. Noel provided
Rainbow’s counsel with Huffman’s unsigned answers to interrogatories on
February 1 but did not respond to the request for production of
documents. He said nothing about the document request in his
February 1 communication conveying the interrogatory answers. On
February 7, he emailed Rainbow’s counsel to explain that while he had all
the information necessary to complete the document request, he had had
the flu, so he would have the response to the request by the end of the
week. However, a February 7 email from Noel’s legal assistant to Huffman
22
and a February 9 letter from Noel to Huffman reveal that Noel was still
trying to obtain the information from Huffman necessary to complete the
response when he emailed Rainbow’s counsel on February 7. In addition,
in a letter dated March 28, Noel asked Rainbow’s counsel if the deadline
for the response could be moved back to April 7 because he was under a
time crunch with another case involving multiple felony charges.
Analogous to Kennedy, Noel’s excuses for the continued failure to respond
to Rainbow’s documents request seem like an effort to evade Rainbow’s
attempts of ascertaining information relevant to the case. See id. at 670.
This behavior does not constitute a reasonable effort to comply with
requested discovery.
Finally, even after Noel claimed on February 7 to have all of the
information needed to respond to Rainbow’s document request, he still did
not provide a response until May 8. He did not communicate with
Rainbow’s counsel about the delay until Rainbow’s counsel sent him a
letter on March 17, threatening to file for sanctions. Even then, Noel did
not respond to that letter for a week and a half. Noel’s continued delay
caused Rainbow’s counsel to file a motion for sanctions on April 3 and a
motion in limine, specifically to exclude evidence that was not produced in
discovery, on May 8. Assuming Noel did have all the necessary
information to complete the documents request on February 7, failing to
do so for another three months and failing to communicate with opposing
counsel for almost two months is not a reasonable effort to comply with
requested discovery.
We find the Board proved by a convincing preponderance of the
evidence that Noel violated rule 32:3.4(d).
E. Whether Noel Violated Rule 32:8.4(c)—Conduct Involving
Dishonesty, Fraud, Deceit, or Misrepresentation. Rule 32:8.4(c)
23
provides that it is professional misconduct for an attorney to “engage in
conduct involving dishonesty, fraud, deceit, or misrepresentation.” Iowa
R. Prof’l Conduct 32:8.4(c). To establish a violation of rule 32:8.4(c), “[t]he
Board must prove some level of scienter that is greater than mere
negligence.” Stansberry, 922 N.W.2d at 596. The salient question is
“whether the effect of the lawyer’s conduct is to mislead rather than to
inform.” Barry, 908 N.W.2d at 226 (quoting Weiland, 885 N.W.2d at 211–
12). The commission found the Board failed to prove Noel violated rule
32:8.4(c) because it found Huffman’s testimony on this claim lacked
credibility. We agree with the commission’s conclusion.
The Board alleged Noel violated rule 32:8.4(c) based on Huffman’s
claim about what Noel told her Judge Barrows said on the morning of trial.
In her June 6 letter to the court, Huffman asserted that Noel said Judge
Barrows “told him this isn’t a Rainbow problem – it’s a Roofer [(i.e.,
JT Home Improvement)] issue – get out of there – settle it – he was sending
the Jury home.” At the July 27 hearing on Huffman’s letters, Judge
Barrows denied making those statements. At the disciplinary hearing,
Noel denied telling Huffman Judge Barrows made such statements.
As there is no other contemporaneous evidence of what Noel told
Huffman with respect to Judge Barrows’s statements, this fact issue turns
on a credibility determination. The commission did not find credible
Huffman’s recollection of what Noel told her Judge Barrows said. The
commission made this finding based on Huffman’s other recollections of
the morning of trial that were obviously inaccurate. Although we are not
bound by the commission’s findings, we agree with the commission on its
credibility determinations here. See Kieffer-Garrison, 847 N.W.2d at 492.
Other than Huffman’s recollection, there is nothing in the record
demonstrating that Noel actually misrepresented Judge Barrows’s
24
statements and that he did so with the intent to mislead. See Netti, 797
N.W.2d at 605; cf. Stansberry, 922 N.W.2d at 596; Barry, 908 N.W.2d at
226. Accordingly, we find the Board failed to prove Noel violated rule
32:3.4(c) by a convincing preponderance of the evidence.
F. Whether Noel Violated Rule 32:8.4(d)—Conduct That Is
Prejudicial to the Administration of Justice. Rule 32:8.4(d) provides it
is professional misconduct for an attorney to “engage in conduct that is
prejudicial to the administration of justice.” Iowa R. Prof’l Conduct
32:8.4(d). This rule is intended to prohibit conduct “that has an
undesirable effect—some interference with the operation of the court
system.” Weiland, 885 N.W.2d at 212. While “[t]here is no typical form of
conduct that prejudices the administration of justice,” Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Weiland, 862 N.W.2d 627, 637 (Iowa 2015)
(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d
580, 587 (Iowa 2011)), conduct that violates this rule “must hamper ‘the
efficient and proper operation of the courts or of ancillary systems upon
which the courts rely’ by violating the well-understood norms and
conventions of the practice of law,” Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Silich, 872 N.W.2d 181, 191 (Iowa 2015) (quoting Netti, 797 N.W.2d at
605). “We have consistently held an attorney violates rule 32:8.4(d) when
the ‘misconduct results in additional court proceedings or causes court
proceedings to be delayed or dismissed.’ ” Vandel, 889 N.W.2d at 666
(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 841 N.W.2d
114, 124 (Iowa 2013)). The commission concluded the Board failed to
prove that Noel violated rule 32:8.4(d). We disagree.
Noel’s neglectful and untimely handling of discovery matters
resulted in additional court proceedings and caused other court
proceedings to be delayed. His conduct resulted in opposing counsel filing
25
a motion to compel and a motion for sanctions, which led to three
additional court proceedings—one on each motion and one on the
sanctions amount. His conduct also resulted in the extension of the
deadline for filing motions for summary judgment and the trial being
delayed from March 13, 2017, to May 22, 2017. See Barnhill, 885 N.W.2d
at 422 (finding attorney violated rule 32:8.4(d) when, in one client matter,
her failure to comply with discovery obligations resulted in additional court
proceedings, “including a sanctions hearing and hearings on [the opposing
party’s] motions to compel,” which required the court to leave the case
open, even after it had granted summary judgment, so the sanctions issue
could be resolved); see also Turner, 918 N.W.2d at 151 (finding attorney
violated rule 32:8.4(d) when he, among other things, made improper filings
in the bankruptcy court that delayed the proceedings).
We acknowledge the undesirable effect of Noel’s conduct is not as
egregious as in other cases. See, e.g., Barry, 908 N.W.2d at 226 (finding
attorney’s conduct delayed court proceedings by lengthening the
dissolution process for months); Vandel, 889 N.W.2d at 666 (finding
attorney’s conduct that delayed proceedings was prejudicial to opposing
party because resolution of the show cause application was delayed by two
weeks); Barnhill, 885 N.W.2d at 422 (finding attorney violated the rule, in
another client matter, when she repeatedly falsely asserted she had paid
the client in full, which led to an additional lawsuit and bench trial that
were ultimately unnecessary). Nevertheless, Noel’s conduct interfered with
the operation of the court system by causing three additional hearings,
delaying the summary judgment filing deadline, and delaying the date of
trial. We find by a convincing preponderance of the evidence that Noel
violated rule 32:8.4(d).
26
IV. Sanction.
We must now determine the appropriate sanction for Noel’s present
unethical conduct. The commission recommended a thirty-day
suspension. The Board contends we should suspend Noel’s license for an
additional sixty days on top of the one-year suspension we imposed in
Noel I. It also contends we should consider the discipline imposed in Noel I
as prior discipline, an aggravating factor, because the suspension in Noel I
is unrelated to Noel’s representation of Huffman and Noel’s misconduct in
the Huffman matter occurred after the misconduct that gave rise to Noel I.
Noel concurs with the commission’s recommendation that his license be
suspended for an additional thirty days. However, he contends we should
not consider the discipline imposed in Noel I as prior discipline because
the conduct giving rise to the present case occurred and was reported
before the Board filed its complaint in Noel I.
“We craft appropriate sanctions based upon each case’s unique
circumstances,” Kennedy, 837 N.W.2d at 673 (quoting Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Kallsen, 814 N.W.2d 233, 239 (Iowa 2012)), but we
also “try to achieve consistency with prior cases involving similar
misconduct,” Stansberry, 922 N.W.2d at 598. We consider several factors,
including
[t]he nature of the violations, the attorney’s fitness to continue
in the practice of law, the protection of society from those unfit
to practice law, the need to uphold public confidence in the
justice system, deterrence, maintenance of the reputation of
the bar as a whole, and any aggravating or mitigating
circumstances.
Turner, 918 N.W.2d at 152 (alteration in original) (quoting Morse, 887
N.W.2d at 143). We also consider aggravating and mitigating
circumstances. Barry, 908 N.W.2d at 227.
27
In other cases involving attorney neglect similar to Noel’s, we have
imposed discipline ranging from a public reprimand to a six-month
suspension. See Hedgecoth, 862 N.W.2d at 365; Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Conroy, 845 N.W.2d 59, 66 (Iowa 2014); Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Humphrey, 812 N.W.2d 659, 666 (Iowa 2012).
But we have also imposed lengthier suspensions when “the neglect is one
violation among many much more serious ones or occurs amidst
aggravating circumstances.” Hedgecoth, 862 N.W.2d at 365.
We disagree with the Board that Noel I is prior discipline. In order
to be prior discipline, we must have found Noel’s prior conduct violated
our rules and sanctioned him before he committed the conduct giving rise
to the present proceeding. See State v. Freeman, 705 N.W.2d 286, 291
(Iowa 2005) (requiring each offense to be complete as to a conviction and
sentencing before commission of the next offense in order to qualify for the
enhancement); see also State v. Wade, 467 N.W.2d 283, 285 (Iowa 1991).
Although Freeman is a criminal case, we find it and its predecessor’s
reasoning is persuasive. We use prior discipline as an aggravating factor
because an attorney did not learn from his or her prior misconduct. How
can we use prior discipline for this purpose when we did not discipline an
attorney prior to committing an act? Thus, for prior discipline to qualify
as an aggravating factor, we must have disciplined an attorney before he
or she commits the subsequent act.
We believe the timing of the present violations has bearing on the
sanction. The acts that form the basis for this proceeding occurred from
December 2015 to July 27, 2017. The acts forming the basis for Noel I
occurred from July 2009 to August 2013. Noel I, 923 N.W.2d at 581. The
Board filed the Complaint in Noel I on October 30, 2017. Id. On March 5,
2018, the Board amended its compliant in Noel I. Id. On July 18, the
28
commission entered its findings and recommendation in Noel I. Id. The
Board waited until July 31 to file the complaint in the present case. We
entered our decision in Noel I on February 15, 2019.
In Iowa Supreme Court Attorney Disciplinary Board v. Moorman, we
found the attorney had committed various ethical violations between 2001
and 2004, including neglect in handling client matters. 729 N.W.2d 801,
803–05 (Iowa 2007). We also noted that we had previously suspended the
attorney’s license for two years following his neglect of a client matter in
2002. Id. at 804, 805. We imposed a public reprimand for the 2001–2004
conduct that was the basis of the present disciplinary proceeding even
though the attorney’s conduct would usually generate a suspension up to
two years. Id. at 805–06. We reasoned,
Had we been aware of the conduct that is the subject of this
disciplinary proceeding at the time of our previous decision, it
is unlikely this conduct would have caused us to suspend
Moorman’s license for longer than two years. Because
Moorman’s license is presently under suspension, we see no
purpose served by ordering another suspension insofar as a
deterrence or protection of the public is concerned.
Id. at 806.
Likewise, even if we had been aware of Noel’s conduct that gave rise
to the present case when we issued our decision in February of 2019, “it
is unlikely this conduct would have caused us to suspend [Noel’s] license
for longer than [one] year[].” Id.; accord Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Marks, 814 N.W.2d 532, 542 (Iowa 2012). Therefore, we see no
reason to enhance Noel’s sanction in the present case or extend the
suspension we imposed in Noel I. A public reprimand is the proper
sanction. However, we remind Noel that future misconduct will result in
harsher sanctions.
29
V. Disposition.
We impose a public reprimand on Noel rather than the suspension
recommended by the commission. We tax the costs of this action to Noel
pursuant to Iowa Court Rule 36.24(1).
ATTORNEY REPRIMANDED.