Iowa Supreme Court Attorney Disciplinary Board v. Kathryn S. Barnhill , 2014 Iowa Sup. LEXIS 61 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 13–1966
Filed May 30, 2014
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 respondent committed ethical
violations and recommends a six-month suspension of the attorney’s
license. LICENSE SUSPENDED.
Charles L. Harrington, Wendell J. Harms, and David J. Grace,
Des Moines, for complainant.
Sharon L. Soorholtz Greer and Thomas L. Hillers of Cartwright,
Druker & Ryden, Marshalltown, for respondent.
2
WIGGINS, Justice.
This matter comes before us on a report of a division of the
Grievance Commission of the Supreme Court of Iowa. The Iowa Supreme
Court Attorney Disciplinary Board brought a complaint against the
respondent, Kathryn Barnhill, alleging multiple violations of our ethics
rules based on her actions in four separate legal matters. The
commission found multiple violations occurred and recommended a six-
month suspension of Barnhill’s license to practice law. We are required
to review the commission’s report. See Iowa Ct. R. 35.11(1). Based on
our de novo review, we agree with the commission that the Board
established by a convincing preponderance of the evidence Barnhill
violated our rules. However, we disagree with the recommended
suspension and find a sixty-day suspension is the appropriate sanction.
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Stowe, 830 N.W.2d 737, 739 (Iowa
2013). The Board must prove the attorney’s ethical misconduct by a
convincing preponderance of the evidence. Id. “A convincing
preponderance of the evidence is more than a preponderance of the
evidence, but less than proof beyond a reasonable doubt.” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 601 (Iowa 2012).
This places a burden on the Board that is higher than the burden in civil
cases but lower than the burden in criminal matters. Stowe, 830 N.W.2d
at 739. We respectfully consider the commission’s recommendations;
however, they are not binding upon us. Id.
When the parties enter into a stipulation in a disciplinary case, we
rely on the stipulation to determine facts. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 804 (Iowa 2010). “Nowhere
3
in our rules have we given the parties the authority to determine what
conduct constitutes a violation of our ethical rules or what sanction an
attorney should receive for such a violation.” Id. Thus, we use the
stipulation to determine the facts and then we determine whether the
facts establish a violation of our rules. Id.
II. Findings of Fact.
Using the stipulation of the parties with our review of the record,
we make the following findings of fact. We admitted Barnhill to practice
law in Iowa in 1989. The ethical complaints against her arise out of four
separate factual matters.
A. The Jerry’s Homes Matter. The Jerry’s Homes matter
involves claims Barnhill violated conflict of interest rules, made
misrepresentations, and improperly included a defendant in the action to
harass the defendant, among other allegations. In March 2001, Barnhill
filed a class action lawsuit against a roofing company that manufactured
shingles and an individual who served as the company’s president and
chief executive officer. The lawsuit class included a construction
company, Jerry’s Homes, as well as homeowners who lived in houses
built by Jerry’s Homes, among other plaintiffs. Barnhill had represented
Jerry’s Homes in prior small claims cases brought by other homeowners.
Barnhill alleged she met with the homeowners in the class action
lawsuit, explained the potential conflict of interest, and the homeowners
signed written waivers of the potential conflict. The district court
certified the class but certified a subclass of members, stating Barnhill
could only represent class members who did not have shingles installed
by Jerry’s Homes.
Barnhill made statements to the district court and in her appeal
brief that all members of the class actually reviewed the roofing
4
company’s promotional materials and acted in reliance on these
materials when purchasing shingles. These statements were
subsequently determined to be false.
Barnhill included the corporate officer as a defendant in the action.
Barnhill pleaded causes of action sounding in breach of express
warranty, breach of implied warranty, fraudulent misrepresentation,
negligent misrepresentation, and rescission. The court of appeals
ultimately granted summary judgment to the corporate officer on all
claims. The corporate officer filed a motion for sanctions against Barnhill
and the named plaintiffs. The district court awarded sanctions against
Barnhill. See Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 279–80 (Iowa
2009) (affirming the award of sanctions against Barnhill for $25,000).
B. The Williams Matter. The Williams matter involves a claim of
fraudulent misrepresentation and assorted trust account violation
claims. Barnhill’s law office manager worked for Barnhill for more than
sixteen years. This employee had authority to sign Barnhill’s name to
the trust account checks and the business account checks. Prior to the
Williams matter, the employee charged approximately $55,000 of
personal expenses to the law firm’s American Express account without
authorization. Barnhill discovered the embezzlement in 2005 and agreed
to settle the embezzlement debt. Barnhill was aware the employee
continued to sign trust account checks, but believed the employee would
never take client funds.
In the fall of 2005, the employee began a new embezzlement
scheme. At around the same time, Barnhill took on a new client, Denise
Williams. Barnhill began using the trust account to collect Williams’s
income and to pay Williams’s bills. Williams delivered her financial
records, unpaid business and personal bills, business income, and some
5
child support payments to Barnhill. Barnhill authorized the employee to
pay Williams’s business and personal bills from the money deposited in
the trust account. Barnhill did not provide written receipts for these
transactions prior to February 2007 and did not provide
contemporaneous written notice or an account of disbursements.
The employee wrote at least one check payable to herself from the
trust account during this time. Throughout the time Williams was
Barnhill’s client, there were discrepancies in the trust account regarding
Williams’s funds. Barnhill determined the employee had stolen money
from Barnhill by forging checks and making unauthorized online
transfers. Barnhill eventually informed Williams the employee had been
stealing money, and Barnhill gave Williams the trust account records so
that Williams could determine whether the employee took any of
Williams’s money from the trust account. Barnhill refunded $1363.50 to
Williams when Williams terminated Barnhill as her attorney.
Williams filed a lawsuit against Barnhill, Barnhill’s law firm, and
the employee. Following trial, the jury determined Williams proved by a
preponderance of clear, convincing, and satisfactory evidence that
Williams proved her claim of fraud against Barnhill. The district court
awarded a monetary loss to Williams against Barnhill for $53,895 in
actual damages and $10,000 in punitive damages.
C. The Public Safety Group, Inc. Matter. The Public Safety
Group, Inc. (PSG) matter involves claims of knowingly disobeying the
order of a tribunal and professional misconduct, among other
allegations. In August 2005, Barnhill represented PSG as a defendant in
a lawsuit. PSG filed a counterclaim in the action. PSG was successful in
defending the suit and recovered a substantial sum on its counterclaim.
6
The district court entered judgment in favor of PSG. PSG assigned its
interest in the judgment to another person.
The plaintiffs in the original action alleged the IRS filed an action
to levy upon the judgment, and the IRS levy motivated PSG to assign its
interest in the judgment. The plaintiffs alleged Barnhill did not notify the
district court of the IRS levy or the assignment of interest, and that
neither the IRS nor the assignee had the opportunity to intervene in the
appeal.
We issued an order on May 2, 2007, requiring Barnhill, counsel for
PSG, to serve a copy of the order containing notification of the
assignment on the assignee and the IRS and to provide proof of service to
our clerk and opposing counsel. Barnhill did not comply with this order.
Subsequently, Barnhill filed a motion to intervene in the appeal on behalf
of another entity and claimed opposing counsel had not complied with
the May 2, 2007 order to serve the assignee or the IRS. Opposing
counsel filed a response, pointing out Barnhill’s failure to comply with
our court order.
We issued a second order in January 2008, ordering Barnhill to
serve both the second order and the previous order on the assignee and
the IRS. Barnhill did not comply with the second order. On June 30, we
then authorized opposing counsel to serve the orders on the assignee
and the IRS because Barnhill failed to do so. Barnhill served the orders
on the assignee on July 2 and on the IRS on July 8.
D. The Everly Matter. The Everly matter involves claims of
failure to provide competent representation and alleges Barnhill brought
a frivolous claim, among other allegations. On May 26, 2006, Barnhill
filed a petition and application for writ of certiorari on behalf of Steve
Everly, a resident and taxpayer of a school district, against Musco Sports
7
Lighting, Inc. (Musco), a school district, and the superintendent of the
school district. Musco was a product supplier for the successful bidder
in a construction project involving the school district. After numerous
filings, Barnhill filed an amended petition. She did not name the school
district or the superintendent of the school district as defendants in the
amended petition, leaving Musco as the only defendant. The district
court ultimately dismissed the petition, finding the taxpayer could not
maintain suit against Musco alone and imposed sanctions against
Barnhill. Barnhill appealed the ruling. Barnhill argued her client had
standing, Musco was the proper party, and the district court erred in
sanctioning her. The court of appeals affirmed the dismissal and
sanctions, but disagreed the taxpayer did not have standing.
We granted further review and affirmed the dismissal of the
petition. We determined the district court should not have sanctioned
Barnhill for originally including Musco in the petition because a
reasonably competent attorney could make a good faith argument Musco
was a proper party to the original suit provided the school district and
the superintendent were parties to the suit. However, we decided the
district court did not abuse its discretion in sanctioning Barnhill for her
actions in maintaining the suit against Musco after she dismissed the
school district and the superintendent from the suit. See Everly v.
Knoxville Cmty. Sch. Dist., 774 N.W.2d 488, 495 (Iowa 2009) (remanding
the case to the district court to assess sanctions based upon the fact
Barnhill continued the lawsuit after she dismissed the school district and
the superintendent from the suit).
III. Disciplinary Proceedings.
Although Barnhill’s alleged actions in these four legal matters
occurred between 2001 and 2009, the Board did not file a complaint
8
until June 8, 2012. The parties waived a formal hearing and agreed for
the commission to decide the case based on the parties’ stipulation. The
parties stipulated to a nonbinding recommendation of a sixty-day
suspension of Barnhill’s law license. The commission determined
Barnhill violated multiple ethics rules and recommended we suspend
Barnhill’s license with no possibility of reinstatement for six months.
IV. Ethical Violations.
The Board alleges Barnhill violated numerous rules under the Iowa
Rules of Professional Conduct and the Iowa Code of Professional
Responsibility for Lawyers. The Iowa Rules of Professional Conduct took
effect on July 1, 2005, replacing the Iowa Code of Professional
Responsibility for Lawyers. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Curtis, 749 N.W.2d 694, 696 n.1 (Iowa 2008). The Iowa Rules of
Professional Conduct governs all conduct occurring after its effective
date. The Iowa Code of Professional Responsibility for Lawyers governs
the allegations regarding the Jerry’s Homes matter because Barnhill’s
conduct in that matter occurred prior to July 1, 2005. In discussing the
alleged rule violations, we will take each rule individually and apply it to
the applicable matters.
A. Misrepresentation: DR 1–102(A)(4). This rule states an
attorney shall not “[e]ngage in conduct involving dishonesty, fraud,
deceit, or misrepresentation.” Iowa Code of Prof’l Responsibility DR 1–
102(A)(4). To prove a violation of this rule, we have held the Board must
establish “(1) that [the attorney’s] statement was not true, and (2) that
[the attorney] made the statement with actual knowledge of falsity or in
reckless disregard for whether the statement was true or not.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 84 (Iowa
2008). Negligent misrepresentation does not violate this rule. Iowa
9
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d 288,
293 (Iowa 2002). A lawyer’s honesty regarding purely personal matters
may remain free from scrutiny. Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Plumb, 546 N.W.2d 215, 217 (Iowa 1996).
We previously distinguished between an attorney’s reckless
disregard for the truth, which would violate this rule, and an attorney’s
negligent misrepresentation, which would not violate this rule. In
Grotewold, an attorney represented to the district court he had filed tax
returns on an estate. Grotewold, 642 N.W.2d at 291. When the district
court questioned him on the absence of certain tax documents in the
court file, the attorney admitted it was likely the IRS had not received
one of the tax returns and stated that he had filed new tax returns. Id.
This information was false. Id. We determined the attorney violated this
rule. Id. at 293. We recognized “misstatements resulting from oversight
or haste do not constitute misrepresentations” in violation of this rule,
however misinformation to the court based on a hope or intention that
tasks would eventually be completed showed a casual, reckless disregard
for the truth. Id. We have frequently found violations of this rule for an
attorney’s misrepresentations to clients and the court about the status of
certain activities the attorney is supposed to complete. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Joy, 728 N.W.2d 806, 814 (Iowa
2007) (finding an attorney violated this rule when he misrepresented to
the court only minimal work needed to be completed on certain estates
and misinformed his clients about the status of their tax returns); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Bjorklund, 725 N.W.2d 1, 8 (Iowa
2006) (finding an attorney violated this rule when he misrepresented to
the court that he had ordered a transcript); Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Daggett, 653 N.W.2d 377, 380 (Iowa 2002) (finding
10
an attorney violated this rule when he stated he had filed an application
for reinstatement but had not in fact done so).
Barnhill repeatedly stated to opposing counsel and the district
court the plaintiffs in the Jerry’s Homes matter actually reviewed the
roofing company’s promotional materials and acted in reliance on these
materials when purchasing shingles. However, the evidence shows the
majority of class members did not see or rely on these materials. The
district court noted even when it confronted Barnhill and asked for
evidence of the class members’ reliance on these representations,
Barnhill made false statements. Barnhill’s appeal brief in this matter
also contained false statements. Barnhill concedes these representations
were false, but argues she was being a zealous advocate.
Zealous advocacy does not justify violating our disciplinary rules.
Rather, an attorney must confine her zeal within the boundaries of our
disciplinary rules. Comm. on Prof’l Ethics & Conduct v. Hurd, 360 N.W.2d
96, 104 (Iowa 1984). Here, the facts do not indicate haste or oversight
led to Barnhill’s comments that would suggest mere negligent
misrepresentations. Rather, Barnhill’s conduct shows her hope the facts
would be something other than what they were. Barnhill’s actions show
a reckless disregard for the truth of the statements she made; thus, we
find the Board proved Barnhill violated this rule.
B. Knowingly Making a False Statement: DR 7–102(A)(5). This
rule states an attorney shall not “[k]nowingly make a false statement of
law or fact” in the representation of a client. Iowa Code of Prof’l
Responsibility DR 7–102(A)(5). We have recognized the word “knowingly”
in the context of this rule requires actual knowledge, and we may infer
an attorney’s knowledge from the circumstances. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Ouderkirk, 845 N.W.2d 31, 45 (Iowa 2014). We have
11
consistently found a violation of this rule when we have determined the
attorney’s actions could only have been done deliberately. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Nelsen, 807 N.W.2d 259, 266 (Iowa
2011) (finding a violation of this rule when an attorney stated he would
deposit certain funds into his trust account, while knowing that not only
had he sent these funds to other individuals, but that he would continue
to do so with future checks); Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Lesyshen, 585 N.W.2d 281, 286 (Iowa 1998) (finding a
violation of this rule when an attorney forged her client’s signature and
falsely notarized the signature); Comm. on Prof’l Ethics & Conduct v.
O’Donohoe, 426 N.W.2d 166, 168–69 (Iowa 1988) (finding a violation of
this rule when an attorney deliberately backdated a deed).
We disagree the Board met its burden to prove Barnhill violated
this rule. Barnhill’s concession in her brief that she made false
statements does not show Barnhill had actual knowledge her statements
were false at the time. Rather, as the district court stated, “[I]t was as
though Barnhill said whatever needed to be said at each step to just get
past the moment, whether there was a legitimate basis for saying it or
not.” Barnhill, 765 N.W.2d at 278. This shows a reckless disregard for
the truth, but does not show Barnhill could only have acted deliberately.
Thus, we find the Board did not meet its burden to prove Barnhill
violated this rule.
C. Other Conduct Adversely Reflecting on the Fitness to
Practice Law: DR 1–102(A)(6). This rule states an attorney shall not
“[e]ngage in any other conduct that adversely reflects on the fitness to
practice law.” Iowa Code of Prof’l Responsibility DR 1–102(A)(6). We
have previously recognized “[a]ny violation of the Code of Professional
Responsibility necessarily reflects adversely on the fitness of an attorney
12
to practice law” and have noted our own hesitancy to find a violation of
this rule depending on the degree of the attorney’s noncompliance with
the rule. Comm. on Prof’l Ethics & Conduct v. Durham, 279 N.W.2d 280,
285 (Iowa 1979). We do not look to the attorney’s intent for this rule, but
rather we look to the attorney’s conduct and the surrounding
circumstances. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Barry, 762
N.W.2d 129, 138 (Iowa 2009). Our primary concern is with attorney
conduct that lessens the public confidence in the legal profession. Id.
We have previously found an attorney violates this rule when he or she
acts truly egregiously and those actions negatively affect the public’s
perception of our profession. See id. (finding an attorney violated this
rule when, as county attorney, his actions in treating certain persons
favorably caused persons to question his sense of justice and he was
ultimately removed from office for breaching his duties); Weaver, 750
N.W.2d at 79 (finding an attorney violated this rule when the attorney
was arrested for second-offense drunk driving, lied to the police officer,
and attempted to get out of the arrest).
The Board alleges Barnhill’s general handling of the Jerry’s Homes
matter showed her lack of fitness to practice law in violation of this rule.
We find on our review of the facts Barnhill’s conduct in the Jerry’s
Homes matter rises to the level of egregious behavior to support this rule
violation. Her conduct was so egregious the district court sanctioned her
conduct by imposing a $25,000 sanction. On appeal, we affirmed the
sanction. See Barnhill, 765 N.W.2d at 279. Thus, we find the Board
proved Barnhill violated this rule.
13
D. Acceptance of Employment: DR 2–109. This rule states:
(A) A lawyer shall not accept employment on behalf of
a person if it is known or it is obvious that such person
wishes to:
(1) Bring a legal action, conduct a defense, or assert a
position in litigation, or otherwise have steps taken merely
for the purpose of harassing or maliciously injuring any
person.
(2) Present a claim or defense in litigation that is not
warranted under existing law, unless it can be supported by
good faith argument for an extension, modification, or
reversal of existing law.
Iowa Code of Prof’l Responsibility DR 2–109.
The commission concluded Barnhill did not violate DR 2–109(A)(1)
or DR 2–109(A)(2) because the record did not show any evidence of the
motives of Barnhill’s clients in the Jerry’s Homes matter. We agree. The
facts do not indicate Barnhill knew or it should have been obvious to her
that her clients were hiring her to bring the claims for the purpose of
harassing or maliciously injuring someone. Further, it is not clear from
the facts Barnhill’s clients wanted to bring a claim that was not
warranted under existing law in the absence of a good faith argument.
Thus, we find the Board did not meet its burden to prove Barnhill
violated this rule.
E. Refusing to Accept or Continue Employment if the
Interests of Another Client May Impair the Independent Professional
Judgment of the Lawyer: DR 5–105(B) and DR 5–105(C). Both DR 5–
105(B) and DR 5–105(C) are conflict of interest rules. DR 5–105(B) states
[a] lawyer shall decline proffered employment if the exercise
of independent professional judgment on behalf of a client
will be or is likely to be adversely affected by the acceptance
of the proffered employment, except to the extent permitted
under DR 5–105(D).
14
Id. DR–105(B). DR 5–105(C) states
[a] lawyer shall not continue multiple employment if the
exercise of independent professional judgment on behalf of a
client will be or is likely to be adversely affected by the
representation of another client, except to the extent
permitted under DR 5–105(D).
Id. DR 5–105(C). DR 5–105(D) provides an attorney may represent
clients that would ordinarily fit under these rules if each client “consents
to the representation after full disclosure of the possible effect of such
representation on the exercise of the lawyer’s independent professional
judgment on behalf of each” and it is clear the lawyer can adequately
represent each client’s interest. Id. DR 5–105(D).
The attorney must make “a full disclosure of the possible
consequences of dual representation.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Clauss, 711 N.W.2d 1, 3 (Iowa 2006). We have
recognized any person is entitled to complete loyalty from his or her legal
counsel. Comm. on Prof’l Ethics & Conduct v. Oehler, 350 N.W.2d 195,
199 (Iowa 1984). The burden falls on the attorney to establish he or she
discharged his or her duties by ensuring the client either received
independent advice or received advice from the attorney such as the
client could have expected from an independent attorney. Id.
The commission determined Barnhill violated this rule because the
class she represented in the Jerry’s Homes matter included both Jerry’s
Homes and homeowners with potential claims against Jerry’s Homes.
The commission further determined Barnhill did not receive proper
conflict waivers from the class members.
We agree Barnhill violated this rule. First, we recognize a potential
conflict existed between the class members. Barnhill previously
represented Jerry’s Homes against lawsuits from homeowners for
15
negligent shingle installment. Barnhill’s representation of both Jerry’s
Homes and homeowners who had shingles installed by Jerry’s Homes
with this potential claim created a conflict.
Further, the record does not show either Barnhill’s clients received
independent advice or Barnhill provided the same sort of advice an
independent attorney would have given. The evidence before us is
insufficient to conclude Barnhill received waivers from all class members.
Although Barnhill claims she met with the individual homeowners and
received written waivers, Barnhill no longer had copies of these
documents. The stipulation on this issue only agrees Barnhill alleged
the homeowners signed waivers. It does not stipulate the homeowners
actually signed the waivers. Further, although this rule does not require
a written waiver, a valid waiver must show the client received a full
explanation of the effect of the representation. See Iowa Code of Prof’l
Responsibility DR 7–105(D). The most the record shows is affidavits
from the named plaintiffs that each named plaintiff signed a conflict
waiver. This does not show all class members signed a waiver. Finally,
even if we assumed all class members signed a waiver, the record does
not establish Barnhill made a full disclosure of possible issues with dual
representation because we do not know what information the waiver
contained. Thus, we conclude the Board proved Barnhill violated these
rules.
F. Actions that Serve Merely to Harass or Maliciously Injure
Another: DR 7–102(A)(1). This rule states an attorney shall not
[f]ile a suit, assert a position, conduct a defense, delay a
trial, or take other action on behalf of a client when the
lawyer knows or when it is obvious that such action would
serve merely to harass or maliciously injure another.
16
Id. DR 7–102(A)(1). We have previously found a violation of this rule
when an attorney’s conduct was a “dogged pursuit of substantial
judgments in the face of compelling legal and factual evidence dictating a
contrary course.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Wanek, 589 N.W.2d 265, 271 (Iowa 1999). In Wanek, an attorney
represented a newspaper business filing for Chapter 13 reorganization.
Id. at 266. The attorney sought discovery from three other newspaper
businesses. Id. These businesses did not receive the informal discovery
requests because the attorney mailed the requests to incorrect
addresses. Id. The attorney subsequently mailed a motion and a court’s
order compelling discovery to incorrect addresses for these businesses.
Id. at 267. The attorney then moved for sanctions against all three
newspapers. Id.
Upon learning of the informal discovery requests, one of the
businesses contacted the attorney to ask that, given the mailing error,
the attorney withdraw the motion for sanctions. Id. at 267. The attorney
declined. Id. It was later determined during this time the attorney had
learned of the incorrect addresses and admitted he had received the
returned incorrectly addressed mail. Id. at 268–69. Further, the
attorney continued his course of action, even after his clients had settled
their tax issues with the IRS and the attorney no longer needed the
requested documentation from the businesses. Id. at 268.
We found the attorney violated DR 7–102(A)(1) for several reasons.
While we recognized the attorney was originally justified in relying on
certain principles of law to support his actions, we also recognized the
facts subsequently changed. Id. at 270. At the point when the attorney
disregarded mailings returned as undeliverable, ignored the businesses’
claims the documents were not received, and failed to change his course
17
of action, the attorney was not acting as a reasonable attorney. Id. at
270–71. His failure to change his pursuit of the materials despite
compelling legal and factual evidence indicating his position was
incorrect violated this rule. Id. at 271.
Here, Barnhill’s action in naming the corporate officer as a
defendant in the Jerry’s Homes matter was never justified and was
legally and factually unreasonable. Accordingly, we agree with the Board
that Barnhill’s continued pursuit of the lawsuit against the corporate
officer as a defendant in the Jerry’s Homes matter showed Barnhill knew
or it should have been obvious to her that her actions were merely
harassing the corporate officer. Thus, we find the Board has proven
Barnhill violated this rule.
G. Advancing an Unwarranted Claim: DR 7–102(A)(2). This rule
states an attorney shall not
[k]nowingly advance a claim or defense that is unwarranted
under existing law, except that a lawyer may advance such
claim or defense if it can be supported by good faith
argument for an extension, modification, or reversal of
existing law.
Iowa Code of Prof’l Responsibility DR 7–102(A)(2).
The Board alleged Barnhill advanced several contract claims in the
Jerry’s Homes matter against the corporate officer in his personal
capacity and it was clear under existing law Barnhill could not sue this
person with these claims. Barnhill continued to advance these claims for
months. The district court found and we affirmed Barnhill’s arguments
did not support a good faith argument for an extension, modification, or
reversal of existing law. Barnhill, 765 N.W.2d at 273–77. Thus, we find
the Board has proven Barnhill violated this rule.
18
H. Conduct Prejudicial to the Administration of Justice: DR
1–102(A)(5). This rule states an attorney shall not “[e]ngage in conduct
that is prejudicial to the administration of justice.” Iowa Code of Prof’l
Responsibility DR 1–102(A)(5). “The Board is not required to prove
intent, knowledge, or motive to establish a violation of this rule,” and we
recognize there is no ordinary or typical conduct that violates this rule.
Barry, 762 N.W.2d at 137. Rather, we recognize the commonality in our
decisions considering this rule violation is that “ ‘the attorney’s act
hampered the efficient and proper operation of the courts or of ancillary
systems upon which the courts rely.’ ” Id. (quoting Iowa Supreme Ct. Bd.
of Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa 1999)).
Though the Board was not required to prove intent, we previously
recognized Barnhill’s intent in keeping the corporate officer in the Jerry’s
Homes matter was to force or coerce a settlement. Barnhill, 765 N.W.2d
at 279. Her persistence in advancing claims against the corporate officer
for this purpose required multiple judges to consider these claims and
ultimately dismiss these claims. Barnhill’s conduct in continuing to
pursue these claims against the corporate officer triggered a series of
unnecessary court proceedings. Thus, we agree the Board proved
Barnhill’s conduct violated this rule
I. Communicating with One of Adverse Interest: DR 7–
104(A)(1). This rule states in relevant part:
(A) During the course of representing a client a lawyer
shall not:
(1) Communicate or cause another to communicate on
the subject of the representation with a party known to be
represented by a lawyer in that matter except with the prior
consent of the lawyer representing such other party or as
authorized by law.
19
Iowa Code of Prof’l Responsibility DR 7–104(A)(1). One purpose of this
rule is to protect the represented person from the presumed imbalance in
legal skills between the lawyer and the person. Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Herrera, 626 N.W.2d 107, 113 (Iowa 2001). A
second purpose is to prevent “efforts by lawyers in their representation of
their clients to drive a wedge between other lawyers and their clients.”
Id. at 114. We have previously found an attorney violates this rule when
he or she contacts a represented party without prior communication with
the party’s attorney regarding the subject of the representation. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Box, 715 N.W.2d 758, 765
(Iowa 2006) (finding an attorney violated this rule when the attorney
conducted a real estate transaction with a represented party without
discussing the transaction with the party’s attorney); Comm. on Prof’l
Ethics & Conduct v. Shepler, 519 N.W.2d 92, 93 (Iowa 1994) (finding an
attorney violated this rule when the attorney was aware an elderly
woman with diminished capacity had a lawyer, had been instructed to
contact the lawyer or the woman’s daughter about business dealings,
and subsequently had the woman sign subordination agreements in the
absence of her attorney).
The Board alleged Barnhill violated this rule in relation to the
Jerry’s Homes matter. On our review of the facts, we find there is no
indication Barnhill communicated with an opposing party in the absence
or without the knowledge of that party’s attorney. Thus, we find the
Board has failed to prove Barnhill violated this rule.
J. Trial Conduct: DR 7–106(A). This rule states:
(A) A lawyer shall not disregard or advise a client to
disregard a standing rule of a tribunal or a ruling of a
tribunal made in the course of a proceeding, but a lawyer
20
may take appropriate steps in good faith to test the validity
of such rule or ruling.
Iowa Code of Prof’l Responsibility DR 7–106(A). We have primarily
recognized an attorney violates this rule when an attorney fails to obey a
court order. Iowa Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 710
N.W.2d 226, 234 (Iowa 2006) (finding an attorney violated this rule when
he intentionally disregarded a court order to provide other parties with
proper notice of a property sale); Comm. on Prof’l Ethics & Conduct v.
Zimmermann, 522 N.W.2d 619, 620–21 (Iowa 1994) (finding an attorney
violated this rule by failing to seek clarification of a court order).
The Board alleged Barnhill violated this rule in relation to the
Jerry’s Homes matter, and in particular that she violated Iowa Rule of
Civil Procedure 1.413(1). See Iowa R. Civ. P. 1.413(1) (recognizing
counsel’s signature to various documents certifies counsel has read the
document and to the best of counsel’s knowledge, it is well grounded in
fact).
The commission concluded Barnhill did not violate this rule
because the record did not contain sufficient evidence. We agree the
Board has failed to prove Barnhill violated this rule.
K. Trial Conduct: DR 7–106(C)(1) and DR 7–106(C)(7). This
rule states an attorney shall not “[s]tate or allude to any matter that the
lawyer has no reasonable basis to believe is relevant to the case or that
will not be supported by admissible evidence” when appearing in a
professional capacity before the tribunal. Iowa Code of Prof’l
Responsibility DR 7–106(C)(1). DR 7–106(C)(7) states an attorney shall
not “[i]ntentionally or habitually violate any established rule of procedure
or of evidence” when appearing in a professional capacity before the
tribunal. Id. DR 7–106(C)(7).
 21
We find the context of the rule indicates it was not intended to
apply in the circumstances of the Jerry’s Homes matter. This particular
subsection of the rule discusses an attorney’s conduct in the course of a
trial, including conduct such as asking questions intended to degrade a
witness and asserting personal opinions as to the credibility of a witness.
See id. DR 7–106(C). Thus, it appears the rule is intended to discourage
certain conduct when the lawyer appears before a tribunal in the course
of a trial.
The commission determined Barnhill violated this rule in the
Jerry’s Homes matter for the same reasons she violated DR 7–102(A)(2).
We decline to find Barnhill violated this rule. It does not appear
Barnhill’s conduct was habitual or an intentional violation during a trial
proceeding. Thus, we find Barnhill did not violate either subsection of
this rule.
L. Safekeeping Property: Rule 32:1.15(a) and 32:1.15(f). This
rule provides:
(a) A lawyer shall hold property of clients or third
persons that is in a lawyer’s possession in connection with a
representation separate from the lawyer’s own property.
Funds shall be kept in a separate account. Other property
shall be identified as such and appropriately safeguarded.
Complete records of such account funds and other property
shall be kept by the lawyer and shall be preserved for a
period of six years after termination of the representation.
....
(f) All client trust accounts shall be governed by
chapter 45 of the Iowa Court Rules.
Iowa R. of Prof’l Conduct 32:1.15(a), (f).
First, we find Barnhill violated rule 32:1.15(a). Barnhill did not
safeguard Williams’s money deposited in the trust account as this rule
requires. She failed to supervise her employee properly in light of the
22
prior problems she had with that employee’s handling of firm funds.
Additionally, Barnhill did not check to see if the expenditures made out
of the trust account were for legitimate expenses.
Second, we find Barnhill violated several rules in chapter 45 of the
Iowa Court Rules. Iowa Court Rule 45.2(2) provides:
Except as stated in this chapter or otherwise permitted by
law or by agreement with the client, a lawyer shall promptly
deliver to the client or third person any funds or other
property that the client or third person is entitled to receive
and shall promptly render a full accounting regarding such
property.
Iowa Ct. R. 45.2(2). We find Barnhill violated this rule by not being able
to give Williams a full accounting of her funds. Instead, Williams had to
bring a lawsuit to determine what she was entitled to from the trust
account.
Further, Iowa Court Rule 45.2(3) requires:
a. A lawyer who practices in this jurisdiction shall
maintain current financial records as provided in these rules
and required by Iowa R. of Prof’l Conduct 32:1.15 and shall
retain the following records for a period of six years after
termination of the representation:
(1) Receipt and disbursement journals containing a
record of deposits to and withdrawals from client trust
accounts, specifically identifying the date, source, and
description of each item deposited, as well as the date, payee
and purpose of each disbursement
Id. r. 45.2(3)(a)(1). Barnhill did not keep complete records of the source,
date, or amount of Williams’s income deposited into the trust account.
The only accounting of Williams’s money was the trust account register.
There were no running balances kept in the trust account register, and
Barnhill did not reconcile the trust account bank statements. Thus, we
find the Board proved Barnhill violated this rule.
23
M. Responsibilities Regarding Nonlawyer Assistants: Rule
32:5.3. This rule provides:
With respect to a nonlawyer employed or retained by
or associated with a lawyer:
(a) a partner, and a lawyer who individually or together
with other lawyers possesses comparable managerial
authority in a law firm shall make reasonable efforts to
ensure that the firm has in effect measures giving reasonable
assurance that the person’s conduct is compatible with the
professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over
the nonlawyer shall make reasonable efforts to ensure that
the person’s conduct is compatible with the professional
obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a
person that would be a violation of the Iowa Rules of
Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the
specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable
managerial authority in the law firm in which the person is
employed, or has direct supervisory authority over the
person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take
reasonable remedial action.
Iowa R. of Prof’l Conduct 32:5.3. We have previously recognized an
attorney does not violate this rule when a nonlawyer makes a mistake
that is not a direct consequence of the attorney’s inattentive supervision
or instruction. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo,
799 N.W.2d 524, 534 (Iowa 2011).
The commission found Barnhill violated this rule based on the
stipulations of fact. We agree Barnhill violated this rule in the Williams
matter. Barnhill had supervisory authority over her employee and was
aware her employee had previously embezzled money from the law firm
when Barnhill entered into the arrangement with Williams. Barnhill
24
specifically authorized and directed the employee to pay Williams’s bills
and continued to allow the employee to sign Barnhill’s name on trust
account checks. The employee completed these acts without Barnhill’s
supervision. The employee subsequently wrote at least one check
payable to herself from the trust account, and Barnhill eventually fired
her for her unauthorized use of the law firm’s line of credit.
We can hardly characterize the employee’s conduct as a mere
mistake. It was not accidental that the employee wrote a check to herself
from the trust account. Nor can we characterize Barnhill’s conduct as
making reasonable efforts to ensure the employee’s conduct was
compatible with the professional obligations of a lawyer. Barnhill knew
her employee had previously embezzled money from the law firm and let
her continue to handle the funds without reasonable supervision.
We note it appears Barnhill attempted to supervise her employee.
Barnhill purportedly limited her employee’s authority to sign Barnhill’s
name on business checks to only circumstances when no other
authorized signer was available. However, these measures were
inadequate. Barnhill knew the employee continued to sign Barnhill’s
name on trust account checks. Barnhill also failed to keep a separate
client ledger for Williams’s funds, failed to ensure there was a running
balance of the trust account register, failed to reconcile the bank
statements, and utterly failed to have any idea what the employee was
doing with Williams’s funds. In fact, Barnhill subsequently gave the
trust account records to Williams so that Williams could attempt to
figure out whether the employee had taken any of Williams’s money.
Barnhill failed to reasonably supervise her employee. Barnhill
could have prevented the employee’s conduct of stealing money from the
trust account with reasonable supervision, particularly when she was
25
aware of her employee’s prior embezzlement. Thus, we find the Board
has proven Barnhill violated this rule.
N. Professional Misconduct: Rule 32:8.4(c). This rule states “[i]t
is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation.” Iowa R. of
Prof’l Conduct 32:8.4(c). Regarding the Williams’s matter, the
commission found Barnhill violated this rule because the Board had
proved issue preclusion under Iowa Court Rule 35.7(3). Rule 35.7(3)
states:
Principles of issue preclusion may be used by either party in
a lawyer disciplinary case if all of the following conditions
exist:
a. The issue has been resolved in a civil proceeding
that resulted in a final judgment, or in a criminal proceeding
that resulted in a finding of guilt, even if the Iowa Supreme
Court Attorney Disciplinary Board was not a party to the
prior proceeding.
b. The burden of proof in the prior proceeding was
greater than a mere preponderance of the evidence.
c. The party seeking preclusive effect has given written
notice to the opposing party, not less than ten days prior to
the hearing, of the party’s intention to invoke issue
preclusion.
Iowa Ct. R. 35.7(3).
The issue of Barnhill’s fraudulent misrepresentation in the
Williams matter was resolved in a civil trial. A jury determined Williams
proved Barnhill committed fraud by clear, convincing, and satisfactory
evidence. These facts meet the first two conditions of issue preclusion.
See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. D.J.I., 545 N.W.2d
866, 877 (Iowa 1996) (barring an attorney from relitigating the issues of
fraud and misrepresentation, among other issues, in a disciplinary case
under the doctrine of issue preclusion). We also find the Board properly
26
gave Barnhill notice to meet the third condition. Therefore, we find the
Board met its burden in proving issue preclusion applied to Barnhill’s
violation of this rule and that Barnhill violated this rule.
O. Advance Fee and Expense Payments: Rules 45.7(3) and
45.7(4). The relevant portions of rule 45.7 state:
45.7(3) Deposit and withdrawal. A lawyer must
deposit advance fee and expense payments from a client into
the trust account and may withdraw such payments only as
the fee is earned or the expense is incurred.
45.7(4) Notification upon withdrawal of fee or expense.
A lawyer accepting advance fee or expense payments must
notify the client in writing of the time, amount, and purpose
of any withdrawal of the fee or expense, together with a
complete accounting. The attorney must transmit such
notice no later than the date of the withdrawal.
Iowa Ct. R. 45.7(3)–(4). Advance fee payments and advance expense
payments have specific definitions under this rule. An advance fee
payment is payment “for contemplated services that are made to the
lawyer prior to the lawyer’s having earned the fee.” Id. r. 45.7(1). An
advance expense payment is a payment “for contemplated expenses in
connection with the lawyer’s services that are made to the lawyer prior to
the incurrence of the expense.” Id. r. 45.7(2).
In the Williams matter, the commission concluded Barnhill did not
violate rule 45.7(3) or rule 45.7(4). We agree. Our review of the facts
shows the transactions of Williams’s money into and out of the trust
account related to the payment of Williams’s expenses to third parties.
These transactions did not relate to Barnhill’s services, and thus do not
meet the definition of either an advance fee payment or an advance
expense payment. Thus, these rules do not apply to Barnhill’s conduct.
We find the Board did not meet its burden to prove Barnhill violated this
rule.
27
P. Diligence: Rule 32:1.3. This rule states “[a] lawyer shall act
with reasonable diligence and promptness in representing a client.” Iowa
R. of Prof’l Conduct 32:1.3. Accordingly, an attorney must handle a
client matter in a reasonably timely manner. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Netti, 797 N.W.2d 591, 598 (Iowa 2011). We have
found a violation of this rule when an attorney was slow to act on
matters or did not keep clients properly informed on their cases. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ackerman, 786 N.W.2d 491,
495 (Iowa 2010) (holding attorney’s dilatory handling of two estates
violated this rule); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774
N.W.2d 301, 307 (Iowa 2009) (finding the attorney violated this rule when
he failed to provide services and keep his clients informed about their
cases).
Our review of the facts shows Barnhill failed to act promptly on our
orders in the PSG matter concerning her service upon the assignee and
the IRS. Even if we were to find Barnhill’s failure to serve our May 2,
2007 order on the assignee and the IRS was due to her mistaken
understanding of the order, we issued a second order in January 2008
requiring her to serve the assignee and the IRS. It was not until after we
issued a third order ordering the opposing counsel to serve the assignee
and the IRS that Barnhill served the assignee and the IRS. Thus, we find
the Board met its burden to prove Barnhill violated this rule.
Q. Expediting Litigation: Rule 32:3.2. This rule states “[a]
lawyer shall make reasonable efforts to expedite litigation consistent with
the interests of the client.” Iowa R. of Prof’l Conduct 32:3.2. An attorney
violates this rule when he or she fails to appear at hearings and fails to
participate in discovery. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Cunningham, 812 N.W.2d 541, 548 (Iowa 2012). An attorney violates
28
this rule when the attorney uses tactics that unreasonably delay the
litigation. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793 N.W.2d
525, 530 (Iowa 2011). The Board is only required to prove the attorney’s
intent if the sole allegation is an attorney engaged in particular conduct
for the purpose of frustrating the judicial process. See id. (recognizing
the Board failed to prove an attorney’s conduct violated this rule when it
would be speculative to conclude the attorney’s actions were solely for
his convenience or for an unreasonable purpose).
In the PSG matter, the commission concluded Barnhill did not
violate rule 32:3.2 because the evidence did not show Barnhill had the
intent to slow the proceedings by failing to serve the court order or that
her failure to serve the order was done for her convenience or for an
unreasonable purpose. We agree with the commission. Thus, we find
the Board did not meet its burden to prove Barnhill violated this rule.
R. Fairness to Opposing Party and Counsel: Rule 32:3.4(c).
This rule states “[a] lawyer shall not . . . knowingly disobey an obligation
under the rules of a tribunal except for an open refusal based on an
assertion that no valid obligation exists.” Iowa R. of Prof’l Conduct
32:3.4(c). The attorney must have actual knowledge of the court order to
violate this rule. Cunningham, 812 N.W.2d at 548. If an attorney has
knowledge of the court order, and yet fails to obey the court order, the
attorney violates this rule. Id.
The commission found Barnhill violated this rule by failing to serve
our court orders after we issued numerous court orders in the PSG
matter. We agree Barnhill had knowledge of our court orders and
violated this rule by failing to comply with our May 2, 2007 order and
subsequent orders. We find the Board proved Barnhill violated this rule.
29
S. Conduct Prejudicial to the Administration of Justice: Rule
32:8.4(d). This rule states “[i]t is professional misconduct for a lawyer to
. . . engage in conduct that is prejudicial to the administration of justice.”
Iowa R. of Prof’l Conduct 32:8.4(d). Such conduct includes an attorney’s
actions that hamper “ ‘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. Templeton, 784 N.W.2d 761, 768 (Iowa 2010)
(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d
360, 373 (Iowa 2005)). We have previously recognized an attorney
violates this rule “ ‘when his [or her] misconduct results in additional
court proceedings or causes court proceedings to be delayed or
dismissed.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 841
N.W.2d 114, 124 (Iowa 2013) (quoting Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Rhinehart, 827 N.W.2d 169, 180 (Iowa 2013)).
The commission found Barnhill violated this rule in both the PSG
matter and the Everly matter. On our review of the facts, we conclude
Barnhill violated this rule when she caused delays in the PSG matter by
not serving the orders and in the Everly matter by continuing to pursue
an unwarranted claim. Thus, we find the Board proved Barnhill violated
this rule.
T. Competence: Rule 32:1.1. This rule states “[a] lawyer shall
provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.” Iowa R. of Prof’l Conduct
32:1.1. The Board may prove an attorney violated this rule by the
attorney’s failure “to make a competent analysis of the factual and legal
elements of a client’s legal problem.” Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Wright, 840 N.W.2d 295, 300 (Iowa 2013). We recognized in Everly
30
that there was no authority to support Barnhill’s position she could bring
a certiorari action without naming a government entity. 774 N.W.2d at
495. We find Barnhill did not make a competent analysis of the facts
and law when she continued the lawsuit after dismissing the government
entity and the superintendent. In fact, we upheld sanctions against her
for this conduct. Id. at 495–96. Therefore, we find the Board proved
Barnhill violated this rule.
U. Declining or Terminating Representation: 32:1.16(a)(1).
This rule states in relevant part:
(a) Except as stated in paragraph (c), a lawyer shall not
represent a client or, where representation has commenced,
shall withdraw from the representation of a client if:
(1) the representation will result in violation of the
Iowa Rules of Professional Conduct or other law.
Iowa R. of Prof’l Conduct 32:1.16(a)(1). We have found an attorney
violates this rule when he or she helps a party with conduct that is a
fraudulent transaction. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Engelmann, 840 N.W.2d 156, 162–63 (Iowa 2013) (finding an attorney
violated this rule when he misrepresented information in property
transactions and failed to withdraw despite numerous opportunities to
do so).
The stipulated facts do not allow us to find Barnhill violated this
rule in the Everly matter. While we have found Barnhill’s continued
pursuit of the case against Musco violates other rules, it is not clear from
the facts her clients asked her to engage in this conduct. Further, it
does not appear Barnhill’s conduct related to whether she could
represent her clients. Rather, it appears the choices Barnhill made in
her representation led to her violation of other rules. Thus, we find the
Board did not meet its burden to prove Barnhill violated this rule.
31
V. Meritorious Claims and Contentions: Rule 32:3.1. This rule
states in relevant part:
A lawyer shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless there is a basis
in law and fact for doing so that is not frivolous, which
includes a good faith argument for an extension,
modification, or reversal of existing law.
Iowa R. of Prof’l Conduct 32:3.1. In analyzing this rule, we have
previously identified the alleged offending conduct and analyzed whether
there was legal authority to support the attorney engaging in this
conduct. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Daniels, 838
N.W.2d 672, 678 (Iowa 2013) (determining there was legal support for an
attorney to file a petition for relief under the circumstances, thus the
attorney did not violate this rule).
The conduct at issue here is Barnhill’s continued pursuit of a
lawsuit against Musco in the Everly matter after dismissing the school
district and the superintendent from the lawsuit. In Everly, we
recognized we knew “of no authority for the proposition that a
disappointed taxpayer [could] bring a certiorari action solely against a
supplier to a successful bidder who allegedly improperly procured a
government contract without naming a government entity.” 774 N.W.2d
at 495. Thus, we conclude there was no authority to support Barnhill’s
conduct in pursuing the lawsuit. Therefore, we find the Board has
proven Barnhill violated this rule.
W. Candor Towards the Tribunal: Rule 32:3.3(a)(1). This rule
states in relevant part, “A lawyer shall not knowingly: (1) make a false
statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer.” Iowa
R. of Prof’l Conduct 32:3.3(a)(1). The word “knowingly” has a specific
32
meaning under our rules. The Iowa Rules of Professional Conduct
defines “knowingly” as “actual knowledge of the fact in question. A
person’s knowledge may be inferred from circumstances.” Id. r. 32:1.0(f).
We will not infer an attorney made a misrepresentation knowingly simply
because the misrepresentation occurred. Netti, 797 N.W.2d at 603.
Further, it is not enough that an attorney admits he or she
misrepresented facts or that the attorney filed a motion containing false
information to prove the attorney violated this rule. See id.
For the Everly matter, the Board argues Barnhill falsely
represented to the district court that Musco was in a contractual
relationship with the school district. The commission concluded Barnhill
did not violate this rule because Barnhill subsequently corrected the
statement. Our review of the facts shows the Board has not met its
burden to prove Barnhill knowingly made this misrepresentation. At
most, Barnhill acknowledged her petition contained false information.
Thus, we find the Board did not meet its burden to prove Barnhill
violated this rule.
V. Sanction.
To determine the appropriate sanction in an attorney disciplinary
case, we consider
“the 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.”
Iowa Supreme Ct. Disciplinary Bd. v. Marks, 814 N.W.2d 532, 541 (Iowa
2012) (quoting Iowa Supreme Ct. Disciplinary Bd. v. Ireland, 748 N.W.2d
498, 502 (Iowa 2008)).
33
In this case, the Board and Barnhill stipulated to a nonbinding
recommendation of a sixty-day suspension. The commission
recommended a six-month suspension.
This case presents both mitigating and aggravating factors.
Aggravating factors in this case include Barnhill’s extensive legal
experience, Barnhill’s misconduct causing financial harm to Williams,
Barnhill’s multiple violations, and Barnhill’s two prior admonitions from
the Board.
Mitigating factors include Barnhill’s involvement in pro bono work
with the Polk County Bar Association Volunteer Lawyers Program,
Barnhill’s volunteerism at a halfway house and jail, and her activity in
her community. Barnhill also acknowledged multiple violations through
her stipulations. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson,
838 N.W.2d 528, 542 (Iowa 2013) (“An attorney’s acknowledgment of
ethical violations is a mitigating factor.”).
Barnhill argues we should consider additional mitigating factors.
She argues that since this conduct last occurred she has instituted
practices to help manage her trust account. We agree corrective
measures to address previous misconduct are a mitigating factor and
that her effort to correct previous issues with her trust account is a
mitigating factor. See id. at 543 (recognizing corrective measures such
as improving accounting practices and employing additional help are
mitigating factors).
Barnhill also requests that we consider the award of punitive
damages in one of the matters and the previous sanctions imposed by
the courts under Iowa Rule of Civil Procedure 1.413(1) in two of these
matters as mitigating factors. In the Williams matter, the jury awarded a
judgment against Barnhill in the amount of $53,895, as well as punitive
34
damages against Barnhill in the amount of $10,000. In the Jerry’s
Homes matter, the district court sanctioned Barnhill for $25,000.
Barnhill, 765 N.W.2d at 279–80. We affirmed the district court’s decision
to sanction. Id. at 280. In the Everly matter, we affirmed sanctions in
part. Everly, 774 N.W.2d at 495–96.
We have considered an attorney’s interim suspension when
determining the proper sanction for an attorney disciplinary matter. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell, 830 N.W.2d 355, 359–
60 (Iowa 2013) (recognizing the commission recommended a public
reprimand because the attorney had previously served a seven-month
suspension, but ultimately concluding an additional suspension was
necessary). A suspension promptly protects the public and upholds
public confidence in our justice system. See id. at 360. Monetary
sanctions, such as a requirement of only restitution, may convey
attorneys have the ability to buy their way out of professional difficulties.
See D’Angelo, 710 N.W.2d at 235 (recognizing a concern with allowing
the public to believe an attorney may use financial means to address
disciplinary problems).
Courts do not award punitive damages for restitution purposes.
See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.
Ct. 1513, 1519, 155 L. Ed. 2d 585, 600 (2003) (recognizing a difference
between compensating a person for a concrete loss and awarding
punitive damages). The purpose of punitive damages is to punish a
person for their civil wrongdoing and to protect the public by deterring
the defendant and others from engaging in similar future conduct. See
McClure v. Walgreen Co., 613 N.W.2d 225, 232 (Iowa 2000). We have
previously stated one of the primary goals of rule 1.413 “is to maintain a
high degree of professionalism in the practice of law.” Barnhill, 765
35
N.W.2d at 273. The rule prevents abusive filing by attorneys caused by
professional incompetence. Id.
The primary goal of attorney discipline is to protect the public, not
to punish the attorney. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Hauser, 782 N.W.2d 147, 154 (Iowa 2010). Although punitive damages
and attorney discipline have different purposes as to punishment, both
have an element of protecting the public by deterring future conduct.
Thus, where a court awarded punitive damages or sanctions against an
attorney arising out of the same facts and transactions we deem
unethical, we can consider the award of punitive damages or the levy of
sanctions as mitigating factors.
We find all of Barnhill’s violations to be serious. We have
previously recognized that “ ‘honesty is the base line and mandatory
requirement to serve in the legal profession.’ ” Iowa Supreme Ct.
Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 465 (Iowa 2014) (quoting
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kallsen, 814 N.W.2d 233, 239
(Iowa 2012)). In our cases involving similar conduct, we have imposed
sanctions ranging from sixty days to revocation. Cunningham, 812
N.W.2d at 548–54 (imposing an eighteen-month suspension when an
attorney failed to obey a court order, failed to contact his client,
misrepresented to a client he had filed a petition, neglected clients, failed
to appear at hearings and participate in discovery, and his conduct
resulted in the court rescheduling proceedings); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102, 105, 111 (Iowa 2012)
(concluding a sixty-day suspension was appropriate when the attorney
made false statements to a tribunal, failed to perform necessary work on
an estate, took early receipt of probate fees, and procrastinated on
closing an estate for several years); Dunahoo, 799 N.W.2d at 531–35
36
(suspending an attorney’s license for one year when the attorney
intentionally disobeyed a court order, failed to take action in a
foreclosure matter, failed to communicate with his client, failed to
provide contemporaneous accounting or notice regarding trust account
withdrawals, intentionally filed a petition in the wrong district, and
wasted judicial resources); Netti, 797 N.W.2d at 598–607 (suspending an
attorney’s license for two years when the attorney failed to properly
administer an estate, failed to handle estate proceedings and tax issues
in a reasonably timely manner, did not keep his client informed or
respond to client requests, did not give his client contemporaneous
notice of withdrawals from the client trust account, misrepresented to
the court he had authority to represent a client, and his conduct resulted
in additional unnecessary proceedings); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 382 (Iowa 2007)
(revoking an attorney’s license when, among other ethical infractions, the
attorney fabricated documents and forged a judge’s signature); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Isaacson, 565 N.W.2d 315,
318 (Iowa 1997) (imposing a six-month suspension when an attorney
committed fraud and failed to disclose potential conflicts of interest). We
recently suspended an attorney’s license for six months for falsifying
certificates of service attached to discovery requests. McGinness, 844
N.W.2d at 460, 467.
We have considered all the factors in this case. These include the
aggravating and mitigating factors and the overall nature of the
violations, which primarily involve overzealousness and sloppy practices.
We have also taken into account the extent to which courts have already
punished Barnhill by levying sanctions and imposing punitive damages
against her. Weighing all of these considerations, we believe the
37
appropriate sanction in this matter is a sixty-day suspension as
stipulated by Barnhill and the Board.
VI. Disposition.
We suspend Barnhill from the practice of law for sixty days. This
suspension applies to all facets of the practice of law, including but not
limited to advertising her services. See Iowa Ct. R. 35.13(3). Barnhill
must also comply with Iowa Court Rule 35.23, addressing the
notification of clients and counsel. We tax the costs of this action to
Barnhill, pursuant to Iowa Court Rule 35.27. Absent an objection by the
Board, we shall reinstate Barnhill’s license to practice law on the day
after the sixty-day suspension period expires. See Iowa Ct. R. 35.13(2).
LICENSE SUSPENDED.
All justices concur except Appel, J., who takes no part.