Iowa Supreme Court Attorney Disciplinary Board Vs. Todd Buchanan ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 78 / 08–0176
Filed September 12, 2008
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellant,
vs.
TODD BUCHANAN,
Appellee.
Appeal from the report of the Grievance Commission.
Board appeals from Grievance Commission report issuing private
admonition. ATTORNEY REPRIMANDED.
Charles L. Harrington and Wendell J. Harms, Des Moines, for
appellant.
David L. Brown of Hansen, McClintock & Riley, Des Moines, for
appellee.
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TERNUS, Chief Justice.
The appellant, Iowa Supreme Court Attorney Disciplinary Board,
charged the appellee, Todd Buchanan, with violations of the Iowa Code of
Professional Responsibility for Lawyers based on Buchanan’s offer to settle a
client’s dispute by destroying evidence of a possibly forged document and by
promising his client’s agreement not to cooperate with any criminal
investigation. Although the Iowa Supreme Court Grievance Commission
concluded Buchanan engaged in conduct prejudicial to the administration of
justice in violation of DR 1–102(A)(5), it did not recommend any discipline
and instead issued a private admonition. We permitted the Board to appeal
the Commission’s disposition. After reviewing the record, we conclude
Buchanan committed ethical infractions that warrant a public reprimand.
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Dull, 713 N.W.2d 199, 201 (Iowa 2006). “Under
this standard of review, we give weight to the factual findings of the
Commission, especially with respect to witness credibility, but we find the
facts anew.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Beckman,
674 N.W.2d 129, 131 (Iowa 2004). The Board must establish the charged
violations by a convincing preponderance of the evidence. Dull, 713 N.W.2d
at 201. “This quantum of proof is ‘something less than required in a
criminal prosecution, and is something more than is required in a civil
proceeding.’ ” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Steffes, 588
N.W.2d 121, 122 (Iowa 1999) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996)).
II. Factual Findings.
Attorney Todd Buchanan was retained by Scott Miller to represent
Miller in a dispute over a shower installation project. Miller had contracted
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with Flooring Gallery to install shower tile in a new home. A disagreement
arose between Flooring Gallery and Miller when problems developed in the
shower that required extensive repairs. Miller denied responsibility for the
problems, prompting Flooring Gallery to refuse payment of a bill for
approximately $1000 submitted by Miller on an unrelated job.
Attorney Michael Reck, on behalf of the owners of Flooring Gallery,
Dan and Teri Stalzer, made a written settlement demand on Miller for
payment in excess of $4600. This demand was based upon a claim that
Miller had warranted his work for one year. Miller denied that a one-year
warranty existed, so Buchanan requested a copy of the purported warranty.
Reck then sent a copy of a written warranty signed by Miller to Buchanan.
Miller denied signing the warranty and told Buchanan the document was a
forgery. Miller also threatened to file criminal charges against the Stalzers.
Based on these assertions by his client, Buchanan sent a letter to Reck, in
which he stated the following:
Thank you for sending the copy of the Warranty Agreement that
is “purportedly a copy of an original” document signed by Scott
Miller (See Iowa Code Section 715A.2). I would appreciate you
obtaining the original document and making that available for
inspection. Once you obtain custody of the original document I
ask that you preserve it so the document may be examined by
Roland Dippold, a document and handwriting analyst. I am
assuming at some point we will want handwriting samples from
Terry [sic] Stalzer and possibly other employees of Flooring
Gallery.
My client has authorized me to make an offer to settle this
matter. Upon the Stalzers’ payment to Scott Miller of the sum of
$1,000, he will sign a reciprocal release of claims that would
include an affirmation that all evidence of the warranty
agreement, that allegedly has Scott Miller’s signature on it, will
be destroyed. Furthermore, Scott Miller will agree to not
cooperate with any criminal investigation against the Stalzers
relating to that document. Last, he will agree that the terms of
the settlement will remain confidential.
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Iowa Code section 715A.2, referenced in Buchanan’s letter, is an Iowa
statute defining the crime of forgery.
Upon receipt of Buchanan’s letter, Reck informed Buchanan that he
could not ethically respond to the offer. Reck forwarded Buchanan’s letter to
the disciplinary board.
After investigating the matter, the Board filed a disciplinary complaint
against Buchanan, alleging violations of (1) DR 1–102(A)(5) (a lawyer shall
not engage in conduct that is prejudicial to the administration of justice), (2)
DR 1–102(A)(6) (a lawyer shall not engage in conduct that adversely reflects
on the fitness to practice law), (3) DR 7–102(A)(1) (in the representation of a
client, a lawyer shall not take various actions that would serve merely to
harass or maliciously injure another), (4) DR 7–102(A)(8) (in the
representation of a client, a lawyer shall not knowingly engage in other illegal
conduct or conduct contrary to a disciplinary rule), and (5) DR 7–105(A) (a
lawyer shall not present, participate in presenting, or threaten to present
criminal charges solely to obtain an advantage in a civil matter). A hearing
was held before a division of the Grievance Commission. The Commission
concluded Buchanan violated DR 1–102(A)(5). It was divided (2–3) on
Buchanan’s alleged violation of DR 7–105(A), and it reported no conclusion
on the remaining charges. The Commission did not recommend any
discipline; it issued a private admonition. See Comm. on Prof’l Ethics &
Conduct v. Liles, 430 N.W.2d 111, 113 (Iowa 1988) (stating private
admonition is “something less than actual discipline”). See generally Iowa
Ct. R. 35.9 (stating the Commission may “dismiss the complaint, issue a
private admonition, or recommend to the supreme court that the attorney be
reprimanded or the attorney’s license to practice law be suspended or
revoked”). The Board was granted permission to appeal from the
Commission’s decision to impose no discipline. See generally Iowa Ct. R.
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35.11(2) (providing mechanism for Board to appeal from Commission’s
decision to issue a private admonition).
III. Ethical Violations.
The Board claims Buchanan’s offer on behalf of his client to destroy
evidence of a purported forgery and to withhold evidence in a criminal
prosecution was conduct prejudicial to the administration of justice and that
it adversely reflected on Buchanan’s fitness to practice law in violation of
DR 1–102(A)(5), (6).1 We agree.
Whether conduct is prejudicial to the administration of justice is not
subject to a precise test. Actions that have commonly been held to violate
DR 1–102(A)(5) “have hampered ‘the efficient and proper operation of the
courts or of ancillary systems upon which the courts rely.’ ” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa 2005) (quoting
Steffes, 588 N.W.2d at 123). When considering whether conduct reflects
adversely on an attorney’s fitness to practice law within the scope of DR 1–
102(A)(6), we have held the term “fitness” embraces more than legal
competence. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Mulford,
625 N.W.2d 672, 683 (Iowa 2001). Conduct that lessens public confidence
in the legal profession is an adverse reflection on an attorney’s fitness to
1The Board also asserts Buchanan violated DR 7–105(A), which provides that “[a]
lawyer shall not present, participate in presenting, or threaten to present criminal charges
solely to obtain an advantage in a civil matter.” This prohibition is not found in this form in
the Iowa Rules of Professional Conduct, which became effective shortly after the conduct at
issue here. See generally Comm. on Legal Ethics of the W. Va. Bar v. Printz, 416 S.E.2d 720,
722–23 (W. Va. 1992) (discussing differences between model code and model rules with
respect to threatening to pursue criminal charges to obtain an advantage in a civil
proceeding). We have said “we prefer not to impose a potentially serious sanction based
upon an ethical norm that is no longer applicable.” Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Kress, 747 N.W.2d 530, 539 (Iowa 2008). In Kress, we declined to consider whether an
attorney had violated DR 1–102(A)(6) because the new rules of professional conduct had
materially altered that provision. Id. at 539–40. For the same reason, we decline to
consider whether Buchanan violated DR 7–105(A).
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practice law. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Marcucci,
543 N.W.2d 879, 882 (Iowa 1996).
Turning to the facts of this case, we think Buchanan clearly implied in
his letter to Reck that Miller’s signature on the warranty agreement was a
forgery in violation of section 715A.2, a criminal statute. In the same letter
Buchanan agreed to participate in the destruction of “all evidence of the
warranty agreement[] that allegedly has Scott Miller’s signature on it.” He
also assured Reck that Miller would “not cooperate with any criminal
investigation against the Stalzers relating to that document.” Although
Buchanan argues this conduct was not illegal, “conduct may be unethical,
measured by the minimum requirements of the Code of Professional
Responsibility, even if it is not unlawful.” Gunter v. Va. State Bar, 385
S.E.2d 597, 600 (Va. 1989).
It cannot be disputed that the destruction and withholding of evidence
hampers the efficient and proper operation of the courts. See People v.
Kenelly, 648 P.2d 1065, 1066 (Colo. 1982) (“[I]f the legal system in this
country is to survive, courts of law must have the testimony of necessary
witnesses.”); Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 351 (Ind.
2005) (noting “attorneys involved in destruction or concealment of evidence
face penalties including disbarment”); In re Williams, 23 N.W.2d 4, 9 (Minn.
1946) (“The willful participation by an attorney in the destruction or
suppression of evidence which he knows may be required upon a trial,
hearing, or other legal proceedings constitutes a breach of professional duty
and subjects such attorney to discipline.”); cf. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502 (Iowa 2008) (holding
attorney’s failure to fully cooperate with disciplinary board was conduct
prejudicial to the administration of justice). The fact Buchanan’s offer to
destroy and withhold evidence was not accepted or acted upon does not
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mitigate the wrongfulness of his attempt to engage in conduct prejudicial to
the administration of justice. See Kenelly, 648 P.2d at 1066 (“An attorney,
who is sworn to uphold the law and to aid in the administration of justice,
has a high duty as an officer of the court to never participate in any scheme
to obstruct the administration of justice or the judicial process.”); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Gallner, 621 N.W.2d 183, 188
(Iowa 2001) (holding “the failure to achieve the ultimate goal does not
mitigate the wrongful attempt”); Office of Disciplinary Counsel v. Campbell,
345 A.2d 616, 621–22 (Pa. 1975) (holding attorney who agreed to supposedly
arrange for the destruction of nonexistent evidence engaged in conduct
prejudicial to the administration of justice).
Buchanan’s conduct also reflects adversely on his fitness to practice
law. The public expects attorneys “to uphold the law and to aid in the
administration of justice.” Kenelly, 648 P.2d at 1066. Buchanan’s conduct
indicated he was amenable to obstructing the criminal investigation of a
forgery, and therefore, it reflected adversely on his fitness to serve as an
officer of the court. See Campbell, 345 A.2d at 621–22 (holding attorney’s
agreement to supposedly arrange for the destruction of nonexistent evidence
reflected adversely on his fitness to practice law); cf. Ireland, 748 N.W.2d at
502 (holding attorney’s failure to fully cooperate with disciplinary board
adversely reflected on his fitness to practice law).
In summary, we agree with the commission that Buchanan violated
DR 1–102(A)(5) by engaging in conduct prejudicial to the administration of
justice. In addition, we conclude his actions also reflected adversely on his
fitness to practice law in violation of DR 1–102(A)(6). We turn now to the
appropriate discipline.
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IV. Sanction.
Buchanan’s conduct violated our code of professional responsibility,
and he is, therefore, subject to discipline. In determining an appropriate
sanction,
“we consider the nature and extent of the respondent’s ethical
infractions, his fitness to continue practicing law, our obligation
to protect the public from further harm by the respondent, the
need to deter other attorneys from engaging in similar
misconduct, our desire to maintain the reputation of the bar as
a whole, and any aggravating or mitigating circumstances.”
Howe, 706 N.W.2d at 378 (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Kallsen, 670 N.W.2d 161, 164 (Iowa 2003)).
In addition to the fact that a private admonition of an attorney is not
discipline, it is also significant that a private admonition is not made public.
See Iowa Ct. Rs. 35.9 (requiring commission to file report only if it
recommends a reprimand or a suspension or revocation of attorney’s
license), 35.11(3) (providing that appeal from commission’s issuance of a
private reprimand shall remain confidential unless and until supreme court
reverses or modifies commission’s report). Therefore, the issuance of a
private admonition for an ethical infraction does not deter other attorneys
from engaging in similar misconduct. Moreover, the failure to impose
discipline for an ethical violation diminishes the reputation of the bar as a
whole because it sends a message that attorneys may shirk their ethical
responsibilities with impunity. Finally, we are also mindful that one of the
underlying purposes of attorney discipline is “ ‘to protect the integrity of and
public confidence in our system of justice.’ ” Howe, 706 N.W.2d at 378(quoting Comm. on Prof’l Ethics & Conduct v. Vesole, 400 N.W.2d 591, 593
(Iowa 1987)). To fail to discipline an attorney who offers to engage in
conduct that undermines the integrity of our court proceedings through the
destruction and suppression of evidence would weaken the public’s
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confidence in the courts, contrary to the purpose of our disciplinary system.
For these reasons, we agree with the Board that the Commission’s issuance
of a private admonition was an insufficient sanction.
On the other hand, we do not think Buchanan’s conduct warrants the
suspension or revocation of his license. Buchanan has no prior disciplinary
history. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Borth, 728 N.W.2d
205, 212 (Iowa 2007) (stating attorney’s lack of prior ethical violations was a
mitigating circumstance that supported issuance of a public reprimand). In
addition, there is nothing in the record to suggest that the public would be
at risk of further harm if we allow Buchanan to continue to practice law.
Therefore, we conclude the goals of the attorney disciplinary system will be
adequately addressed through the imposition of a public reprimand.
V. Conclusion.
We publicly reprimand Todd Buchanan for his ethical violations and
tax the costs of this proceeding against him.
ATTORNEY REPRIMANDED.