Iowa Supreme Court Attorney Disciplinary Board v. R. Scott Rhinehart ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 20–0824
Submitted October 15, 2020—Filed January 8, 2020
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
RICHARD SCOTT RHINEHART,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
Grievance commission recommends suspension for violation of
ethical rules. COMPLAINT DISMISSED.
McDonald, J., delivered the opinion of the court, in which all justices
joined. Christensen, C.J., filed a special concurrence in which Waterman,
J., joined.
Tara van Brederode and Wendell J. Harms, Des Moines, for
complainant.
Richard Scott Rhinehart, Sioux City, pro se.
2
McDONALD, Justice.
The Iowa Supreme Court Attorney Disciplinary Board filed a two-
count complaint against attorney Richard Rhinehart arising out of
Rhinehart’s conduct in two separate litigation matters. Each count of the
complaint corresponded to one of the litigation matters. In each count,
the Board alleged multiple violations of the rules of professional conduct.
A division of the Iowa Supreme Court Grievance Commission found
Rhinehart violated the rules in five respects and recommended this court
suspend Rhinehart’s license to practice law for not less than ninety days.
On de novo review, we conclude the Board failed to prove the alleged
violations, and we dismiss the complaint.
I.
“We review attorney disciplinary proceedings de novo.” Iowa Sup.
Ct. Att’y Disciplinary Bd. v. Mathahs, 918 N.W.2d 487, 489 (Iowa 2018). In
the context of attorney disciplinary proceedings, which invokes this court’s
regulatory authority, de novo review means we review the violations and
sanctions anew without regard to whether the parties have preserved or
raised the issues. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Tindal, 949
N.W.2d 637, 643 (Iowa 2020) (“In our view, we may undertake de novo
review of the commission’s record, including any rule violations alleged by
the Board, even if the commission found the Board failed to prove the
violation. Indeed, we have the power to review the commission record de
novo and impose sanctions when no party appeals or applies for
permission to appeal.”). “We may impose a greater or lesser sanction than
what the commission has recommended upon proof of an ethical
violation.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Noyes, 936 N.W.2d 440,
442 (Iowa 2019) (quoting Mathahs, 918 N.W.2d at 489).
3
II.
A.
Count one of the Board’s complaint arose out of a family law matter.
In that case, Rhinehart represented the mother in an action to modify a
decree of dissolution of marriage entered in Nebraska. The decree awarded
the mother physical care of the parties’ child, N.V. Rhinehart filed the
petition for modification in Iowa in October 2012. In the petition for
modification, the mother alleged N.V. had been sexually abused by one of
the child’s cousins, B.B., while in the father’s care during visitation. The
record shows the cousin licked N.V.’s penis, taught N.V. how to pull up
his pants, and told N.V. not to tell anyone about the incident. At the time
of the abuse, B.B. was five years old and N.V. was three years old. In the
petition, the mother prayed the father’s visitation with N.V. be supervised
until the court could determine N.V. was no longer in danger while in the
father’s care.
On November 28, 2012, Rhinehart filed an application on behalf of
the mother for an emergency hearing on temporary custody and physical
care. The application alleged the father failed to supervise and protect
N.V. during visitation. The application was supported by an affidavit from
the mother. The affidavit stated N.V. told the mother B.B. was sexually
abusing him. B.B.’s mother admitted the child had been doing
inappropriate things with two other children as well. The affidavit stated
the mother was taking N.V. to psychiatrist Dr. Daniel Gillette. Dr. Gillette
stated N.V. had posttraumatic stress disorder (PTSD) and the plan of
treatment included therapy and removal of N.V. from the abusive
situation.
The application for temporary matters came on for hearing in March
2013. Amanda Korinke, a therapist at the Mercy Child Advocacy Center,
4
testified for the mother. She testified she also began treating N.V. after
the allegations of sexual abuse. She testified the child was suffering from
PTSD and was afraid to go to the father’s residence for visitation. The
mother put into evidence the affidavit of Dr. Gillette. Dr. Gillette’s affidavit
concluded, “I would consider it appropriate to stop contact with the father
and would tend to support such a decision by the courts.” The mother
testified at the hearing. She testified N.V. told her B.B. “licked his penis”
and told N.V. not to tell. B.B.’s mother also testified. She testified she
learned the children were licking each other. When she learned of it, she
took B.B. to treat with Dr. Angela Stokes. B.B.’s mother testified the
department of human services was notified of the situation, investigated
the situation, and did not confirm a finding of sexual abuse. The father
put into evidence the affidavit of Dr. Stokes. Dr. Stokes opined there was
no evidence B.B. was a perpetrator. Dr. Stokes’s affidavit stated the
children’s sexual behaviors were age appropriate sex play, according to the
research. In her opinion, B.B. had not engaged in deviancy.
The district court denied the application regarding temporary
custody and physical care. The court found restriction of contact between
N.V. and the father was “not the correct course of action. Rather, the
parties should look to addressing N.V.’s current behaviors through an
expansion of N.V.’s counseling that would include both parents.” While
the court denied the application for supervised visitation, the court
ordered the father “should not allow N.V. any unsupervised contact with
the offending cousins.”
Rhinehart took the deposition of Dr. Gillette on July 11, four months
after the hearing on temporary matters. Leading up to the deposition,
Dr. Gillette issued a report based on evaluations of N.V. that occurred after
the hearing on temporary matters. Dr. Gillette opined,
5
It is my opinion beyond a reasonable doubt that ongoing
sexual abuse has been occurring against [N.V.] perpetrated by
an older cousin . . . and that the father has been aware of this
abuse, and has taken no meaningful steps to prevent the
ongoing abuse . . . .
(Emphasis added.) Dr. Gillette further stated N.V. “developed clear and
compelling symptoms of [PTSD] which are a direct result of the sexual
abuse that he has endured in the past and continues to endure while in
his father’s care.” (Emphasis added.) Dr. Gillette recommended that “all
contact with the father be cut off by order of the court.”
After taking Dr. Gillette’s deposition, Rhinehart filed a renewed
application for emergency hearing on temporary custody and physical
care. The father resisted and argued this issue had already been before
the court. The father also requested sanctions. The district court agreed
with the father and denied the renewed application. The district court
concluded the allegations in the petition were not new and did not
constitute an emergency. The district court found,
[T]he actions of counsel [Rhinehart] in this matter particularly
disturbing. Counsel was aware that this information was not
new. Under the current paperless system that the court is
utilization [sic] for its operation by designating the matter as
an “emergency” and placing it in red letters in the filing queue,
counsel was aware that it would be placed in front of other
pending matters of equal or higher importance and chose to
mislead the court by so doing.
The court granted the father attorney fees in the amount of $2000 and
sanctioned Rhinehart $2000 for intentionally abusing the court’s
emergency process.
The matter came on for trial in March 2014. At that time, the district
court observed that the original decree was issued in Nebraska. The
district court sua sponte concluded it lacked jurisdiction pursuant to the
Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), Iowa
Code chapter 598B, and it dismissed the modification action.
6
The court of appeals affirmed the dismissal. See LaCroix v.
Verdoorn, No. 14–0619, 2016 WL 4384429, at *4–5 (Iowa Ct. App. Aug. 17,
2016). The court of appeals also affirmed the sanctions. Id. at *6. The
court of appeals concluded there was substantial evidence supporting the
district court’s finding “there was not an ‘emergency’ as a matter of fact.”
Id.
B.
The alleged rule violations in this case arise out of the renewed
application for emergency hearing on temporary custody and physical
care. It is the Board’s burden to prove “ethical violations by a convincing
preponderance of the evidence.” Noyes, 936 N.W.2d at 442 (quoting
Mathahs, 918 N.W.2d at 489). “A convincing preponderance of the
evidence lies between the preponderance-of-the-evidence standard in a
civil case and the reasonable-doubt standard in a criminal case.” Id. at
442. We address each alleged violation in turn.
1.
The commission found Rhinehart violated Iowa Rule of Professional
Conduct 32:3.1 in filing the renewed application. The rule provides:
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.
The commission found Rhinehart violated this rule because the
information presented at the second emergency hearing was the same
information presented at the first emergency hearing.
The commission’s finding is not supported by the record. At the
hearing in August 2013, the mother testified there had been instances
since March where B.B. initiated or attempted to initiate sexual contact
7
with N.V. According to the mother, there was an instance in July where
B.B. tried to convince N.V. to touch tongues. The father admitted he was
“aware of the oral sex that’s taken place between [N.V.] and [his] nephew
[B.B.].” The father admitted he was aware of a recent allegation that B.B.
tried to talk N.V. into “touching tongues and kissing tongues.”
Dr. Gillette’s report prepared in July 2013—four months after the first
hearing—concluded there was “ongoing sexual abuse,” i.e., continued
abuse after the March 2013 order.
Given the new allegations and new evidence, we cannot conclude
the renewed application was frivolous within the meaning of the rule. The
renewed application was supported by Dr. Gillette’s opinion and the
mother’s testimony regarding what she perceived to be ongoing risk of
sexual abuse. There was contrary testimony at the hearing. Dr. Stokes
testified that the acts, even if true, did not constitute abuse. In
Dr. Stokes’s view, the sexual conduct constituted normal sex play that
should be addressed appropriately. The district court credited
Dr. Stokes’s testimony. However, the fact that Rhinehart did not obtain
relief for his client does not make the application frivolous:
The filing of an action, defense, or similar action taken
for a client is not frivolous merely because the facts have not
first been fully substantiated or because the lawyer expects to
develop vital evidence only by discovery. What is required of
lawyers, however, is that they inform themselves about the
facts of their clients’ cases and the applicable law and
determine that they can make good faith arguments in
support of their clients’ positions. Such action is not frivolous
even though the lawyer believes that the client’s position
ultimately will not prevail. The action is frivolous, however, if
the lawyer is unable either to make a good faith argument on
the merits of the action taken or to support the action taken
by a good faith argument for an extension, modification, or
reversal of existing law.
8
Iowa R. Prof’l Conduct 32:3.1 cmt. [2]. “[A]n attorney is not subject to
sanctions for merely making factual assertions or legal arguments that
ultimately are unsuccessful.” Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Caghan, 927 N.W.2d 591, 601 (Iowa 2019).
On de novo review, we conclude the Board failed to prove the
violation by a convincing preponderance of the evidence. Here, there was
a good faith basis for filing a renewed application based on the opinion of
a treating medical provider and allegations of sexual abuse occurring after
the entry of the prior order.
2.
The commission also found Rhinehart violated rule 32:3.3(a)(1).
Rule 32:3.3(a)(1) provides: “A lawyer shall not knowingly . . . 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.” A
lawyer’s false statement to the court can be either oral or in writing. See
Iowa Sup. Ct. Att’y Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 462
(Iowa 2014). “[T]he word ‘knowingly’ in the context of this rule requires
actual knowledge, and we may infer an attorney’s knowledge from the
circumstances.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d
130, 150 (Iowa 2018) (alteration in original) (quoting Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Barnhill, 847 N.W.2d 466, 475 (Iowa 2014)). “We will
not infer an attorney made a misrepresentation knowingly simply because
the misrepresentation occurred.” Barnhill, 847 N.W.2d at 486.
The commission found the renewed application included false
statements that the father was ignoring the district court’s prior order,
that the father was refusing to protect the child, that the father was leaving
the child unattended with the abuser, that the child was suffering from
PTSD, and that the father was failing to provide adequate supervision to
9
the child. The commission found Rhinehart violated the rule because the
testimony at the hearing failed to “substantiate the claims he made in the
application.”
We conclude the Board failed to prove the violation by a convincing
preponderance of the evidence. The statements at issue here were not
false statements of fact. They were allegations Rhinehart believed could
be proved at a hearing on the matter. As discussed above, the allegations
in the renewed application were made in good faith and supported by new
evidence. Whether the evidence substantiated the claims in the renewed
application is immaterial with respect to this alleged rule violation. It
would be a stretch to say a lawyer can be disciplined for good faith
averments in a petition or application that are not borne out by the
evidence. See Caghan, 927 N.W.2d at 601 (stating an attorney cannot be
disciplined merely because an argument was unsuccessful). While the
district court may not have found Rhinehart’s evidence credible or
convincing, this does not make the good faith allegations in the renewed
application false statements of fact in violation of rule 32:3.3(a)(1).
The mere fact the district court sanctioned Rhinehart for filing the
renewed application does not support the conclusion Rhinehart violated
the rules of professional conduct as alleged in the Board’s complaint. Not
all conduct supporting a litigation sanction violates the rules of
professional conduct, and not all conduct violating the rules of
professional conduct results in a litigation sanction. Sanctionable conduct
and professional misconduct may overlap but are not congruent. Here,
the district court sanctioned Rhinehart for designating the renewed
application an emergency application because, in the district court’s view,
the renewed application was based on the same “information”—alleged
sexual abuse of N.V. by B.B. and the father’s failure to prevent it—and did
10
not warrant emergency relief. The court of appeals affirmed, concluding
there was substantial evidence supporting the finding there was no
“emergency.” LaCroix, 2016 WL 4384429, at *6. Neither court concluded
the renewed application contained false statements. Although the courts
disagreed with Rhinehart over whether there was an emergency, that was
an assessment of the new evidence and not a finding or conclusion
Rhinehart made a false statement of material fact.
Moreover, neither the Board nor commission relied on issue
preclusion, nor does that doctrine apply under these circumstances. Iowa
Court Rule 36.17(4)(b) allows the Board to invoke issue preclusion when
certain conditions are met, including that the “burden of proof in the prior
proceeding was greater than a preponderance of the evidence.” See also
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 177–78
(Iowa 2013) (discussing requirements for issue preclusion in disciplinary
cases). That condition is not met here. Litigation sanctions may be
awarded under Iowa Rule of Civil Procedure 1.413 when the violation of
that rule is established by a preponderance of the evidence. By contrast,
the Board must prove a violation of a disciplinary rule by a convincing
preponderance of the evidence. And our review of the disciplinary violation
is de novo, while the court of appeals affirmed Rhinehart's litigation
sanction under a deferential standard of review for abuse of discretion.
See LaCroix, 2016 WL 4384429, at *5; see generally First Am. Bank v.
Fobian Farms, Inc., 906 N.W.2d 736, 744 (Iowa 2018) (“We review a district
court's order imposing sanctions under our rules of civil procedure for an
abuse of discretion.” (quoting Rowedder v. Anderson, 814 N.W.2d 585, 589
(Iowa 2012))).
11
3.
The commission found Rhinehart violated rule 32:8.4(d) in filing the
renewed application. Rule 32:8.4(d) provides “[i]t is professional
misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the
administration of justice.” Iowa R. Prof’l Conduct 32:8.4(d). The
commission found the Board proved the violation because the renewed
application was based on “false facts” and because no new evidence was
presented in support of the renewed application.
We conclude the Board failed to prove the violation by a convincing
preponderance of the evidence. This rule is intended to prohibit conduct
“that has an undesirable effect—some interference with the operation of
the court system.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Weiland, 885
N.W.2d 198, 212 (Iowa 2016) (emphasis omitted). “We have said that
‘there is no typical form of conduct’ that violates the rule.” Caghan, 927
N.W.2d at 606 (quoting Iowa Sup. Ct. Bd. of Pro. Ethics & Conduct v.
Steffes, 588 N.W.2d 121, 123 (Iowa 1999) (en banc)). The conduct “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 Sup. Ct. Att’y
Disciplinary Bd. v. Silich, 872 N.W.2d 181, 191 (Iowa 2015) (quoting Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 591, 605 (Iowa 2011)).
There is no evidence here of conduct violating the well-understood
norms and conventions of the practice of law that interfered with the
operation of the court system. As discussed above, the allegations in the
renewed application were asserted in good faith and not false. As also
discussed above, there was new evidence presented in support of the
renewed application. Dr. Gillette opined there was ongoing abuse, i.e.,
abuse after the March 2013 hearing. There was also evidence, including
12
an admission from the father, that after the initial hearing there was an
incident of alleged abuse where B.B. asked N.V. to kiss or touch tongues.
B.B.’s mother acknowledged B.B.’s conduct was inappropriate. We cannot
conclude a renewed application for temporary relief brought in good faith
and supported by evidence from the treating medical provider can be
considered conduct prejudicial to the administration of justice.
“We have never found an attorney’s conduct to be prejudicial to the
administration of justice without an underlying violation of some other
disciplinary rule.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Ouderkirk, 845
N.W.2d 31, 50 (Iowa 2014). On de novo review, we conclude the Board
failed to prove this violation.
C.
Rhinehart engaged in zealous advocacy on behalf of his client. It
was his duty to do so. See Iowa R. Prof’l Conduct 32:1.3 cmt. [1] (“A lawyer
must also act with commitment and dedication to the interests of the client
and with zeal in advocacy upon the client’s behalf.”). He filed an
application for an emergency hearing based on credible—in fact
undisputed—allegations the child’s cousin licked the child’s penis while in
the father’s care. After failing to obtain relief for his client, Rhinehart filed
a renewed application for an emergency hearing based on the opinion of a
treating medical provider and other evidence N.V. had continuing
unsupervised contact with B.B. In one instance of unsupervised contact,
B.B. asked N.V. to touch tongues. While Dr. Stokes did not find the
allegations concerning and while the district court did not find the
evidence compelling, Rhinehart’s decision to file a renewed application did
not cross the line between zealous advocacy and unethical conduct. We
conclude the Board failed to prove by a convincing preponderance of the
evidence the violations in count one of the complaint.
13
III.
A.
Count two of the Board’s complaint arose out of a business litigation
matter between two former business partners.
On October 11, 2016, the law firm of Rawlings, Ellwanger, Jacobs,
Mohrhauser & Nelson, L.L.P., sent a letter to C & K Comfort Systems and
Ben Koeppe informing Koeppe that the law firm had been retained by Ian
Cardona, a partner in C & K Comfort Systems, and that Cardona sought
to withdraw from and dissolve the partnership.
Koeppe retained Rhinehart to represent him in the business
dissolution matter. In January 2017, Rhinehart filed a petition for
declaratory judgment. The petition contained two counts: (1) declaratory
judgment; and (2) breach of contract. In the petition, Koeppe alleged
Cardona had been siphoning off partnership assets to fund a competing
venture. Koeppe declared he was entitled to the assets that would have
been distributable on October 11, 2016, had Cardona not diverted them.
The litigation was contentious and involved extensive motion
practice. In particular, the parties had numerous disputes related to
Cardona’s production of documents in response to discovery requests.
Rhinehart requested the appointment of a special master. The district
court denied the request; however, the district court did order that certain
discovery be completed. As relevant here, in May 2017, the district court
ordered Cardona to provide
copies of all bank statements and check registers of any other
accounts used by the defendant in either continuing the
business of the partnership or any other business undertaken
by the defendant from and after October 11, 2016, to the
current date. The same records shall be provided for the
defendant’s personal bank accounts including those of his
spouse for the same period.
14
Despite the district court’s order requiring the production of
business and personal bank statements and check registers, the parties
had ongoing discovery disputes regarding Cardona’s failure to produce the
records. Rhinehart filed a motion to compel the production of documents.
The district court ordered Cardona to produce the records for his new
company, Excel Comfort (Excel). As of July 2017, Cardona had still not
produced the documents. Rhinehart filed a renewed motion for special
master and renewed his request for the production of documents. In
August, the district court ordered Cardona to respond to all outstanding
discovery.
Despite the district court’s newest order regarding discovery, the
parties still had ongoing discovery disputes regarding Cardona’s failure to
produce records. In September 2017, Rhinehart filed a renewed motion to
compel. He requested the business records for Excel. On October 19,
Cardona’s attorney, Ellwanger, sent Rhinehart an email stating he would
produce the monthly statements from Excel from October 27, 2016, until
March 1, 2017. Rhinehart agreed to this. Based on this understanding,
the attorneys contacted the district court and represented the discovery
dispute had been resolved. On October 20, the district court entered an
order denying relief because the parties had represented they had resolved
the discovery dispute.
In December, Rhinehart followed up with Ellwanger because
Ellwanger still had not produced the promised documents. In response,
Ellwanger said, “I thought we had completed the discovery,” and “I am not
even sure what this Exel [sic] stuff is.” Ellwanger’s statement that he was
“not even sure what this Exel [sic] stuff is” is hard to reconcile with a prior
email contained in the same email chain in which Ellwanger agreed to
15
produce “the monthly statements of Excel from the date the account was
opened, 10/27/16, until March 1, 2017.”
The record shows Ellwanger had still not produced the requested
documents as of March 2018. At that time, the court issued an order that
defendant shall respond to all outstanding discovery. After this order,
Ellwanger filed a formal objection to the production of the Excel business
records. This is despite his prior representation to the court that the
parties had resolved their discovery dispute based on his agreement to
produce “the monthly statements of Excel from the date the account was
opened, 10/27/16, until March 1, 2017.”
The matter came on for a bench trial in June and July of 2018.
Ellwanger had still not produced the business records by the time of trial,
but Rhinehart was under the mistaken assumption that certain bank
records that had been produced contained the Excel bank records. This
misunderstanding was revealed during trial when Rhinehart discovered he
had one set of the defendant’s bank records but did not have the Excel
bank records.
On the merits of the case, the district court granted Rhinehart’s
client, Koeppe, some limited relief. For the most part, however, Koeppe
was unsuccessful on his claims. The district court concluded Koeppe
failed to prove he was entitled to any excess distributions and failed to
prove Cardona misappropriated company property or inequitably divided
the profits from partnership work. According to Rhinehart, Koeppe was
prejudiced by Cardona’s failure to produce the Excel bank statements
because he could not prove much of his case without the records.
Rhinehart filed a motion to amend and enlarge the district court’s
trial ruling and judgment. A large part of the motion to amend and enlarge
was dedicated to Cardona’s failure to produce the business records. In
16
the motion, Rhinehart wrote, “This court criticizes Plaintiff for failure to
provide adequate proof and information while at the same time rewards
the Defendant for ignoring the Court Order and hiding the information.”
He further wrote, “The Court’s judgment in this case rewards the
Defendant’s devious actions and willful violation of Court orders.” In a
reply brief to Cardona’s response to the motion to amend, Rhinehart
accused attorney Ellwanger of “double talk” regarding discovery and said
the court “condoned” the double talk. The district court denied the motion.
B.
The alleged rule violations in count two of the Board’s complaint
arise out of Rhinehart’s motion to amend and enlarge.
1.
The Board alleged Rhinehart violated rule 32:3.1 for filing a motion
to amend and enlarge. Recall, rule 32:3.1 provides a lawyer shall not
controvert an issue “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. Prof’l Conduct
32:3.1.
The commission found the Board failed to prove this violation by a
convincing preponderance of the evidence. As the commission explained,
“It is common for attorneys to file a motion to enlarge or amend following
an unfavorable ruling. [The case] was a convoluted matter with several
issues to address.” The commission ultimately concluded, “The mere fact
that Rhinehart filed the motion to enlarge and amend in and of itself does
not rise to the level of an ethical violation.”
On de novo review, we agree with the commission’s resolution of the
alleged violation.
17
2.
The Board next alleged Rhinehart violated rule 32:3.3(a)(1) when he
included false statements in his motion to amend and enlarge the district
court’s ruling. Specifically, Rhinehart asserted (1) Cardona placed a
significant portion of partnership funds into the Excel bank account;
(2) Cardona intentionally and willfully violated a court order in failing to
produce the business records; and (3) Cardona testified he placed
partnership funds in the Excel bank account.
The commission concluded the Board failed to prove the violation
with respect to the first two statements. The commission explained the
matter “was a complicated one due to the parties[’] failure to keep clear
records, the formation of a new business during the pendency of the
lawsuit in addition to the, on occasion, unclear documentation by the
attorneys involved.” The commission concluded the first two statements
could not be false because of the subjective nature of the claims. On de
novo review, we agree with the commission’s resolution of these violations.
The commission did find Rhinehart knowingly made a false
statement in his motion papers when he wrote Cardona testified he placed
partnership funds in the Excel bank account. We agree with the
commission that this was an incorrect statement regarding Cardona’s
testimony as Cardona explicitly testified to the opposite.
Although we agree with the commission that Rhinehart’s statement
was incorrect, we cannot conclude the Board proved this violation by a
convincing preponderance of the evidence. Rule 32:3.3(a)(1) provides:
“(a) 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.” “We will not infer an
attorney made a misrepresentation knowingly simply because the
18
misrepresentation occurred.” Barnhill, 847 N.W.2d at 486.
“[M]isrepresentation requires intent to deceive to support an ethical
violation.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Sobel, 779 N.W.2d 782,
787 (Iowa 2010).
The circumstances here do not support an inference Rhinehart had
the intent to deceive. Rhinehart made a statement regarding his
recollection of the testimony in the case. His recollection was wrong. His
recollection was more likely than not colored by his apparently sincere
belief that Cardona did in fact divert partnership money into the Excel
bank account, an allegation Rhinehart found he was unable to prove
without access to the Excel bank records. We think it is unlikely that
Rhinehart made the statement with the intent to deceive the district court
knowing the district court heard Cardona’s testimony. We are reluctant
to sanction an attorney’s statements made in a posttrial motion regarding
the evidence at trial when, frequently, the motions are made without a full
and complete transcript and the evidence and ultimate fact issues are
disputed. Of course, this is not to say such statements can never violate
rule 32:3.3(a)(1). We simply conclude the Board failed to show by a
convincing preponderance of the evidence that Rhinehart knew this
statement was false when made and that Rhinehart made this statement
with the intent to deceive the district court.
3.
Finally, the Board alleged Rhinehart violated rule 32:8.2(a). The rule
provides, “A lawyer shall not make a statement that the lawyer knows to
be false or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge, adjudicatory officer, or public legal
officer . . . .” Iowa R. Prof’l Conduct 32:8.2(a). This rule includes
statements made about judges in court filings. See Iowa Sup. Ct. Bd. of
19
Pro. Ethics & Conduct v. Ronwin, 557 N.W.2d 515, 522–23 (Iowa 1996) (per
curiam) (finding a violation for statements regarding the integrity of judges
made in pleadings and briefs).
To prove a violation of the rule, the Board must prove by a
convincing preponderance of the evidence the statement at issue was
sufficiently factual to be “capable of being proved true or false.” Iowa Sup.
Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 82 (Iowa 2008). The
Board must also prove the lawyer subjectively knew the statement was
false when made or the lawyer made the statement with reckless disregard
for its truth or falsity. See Iowa R. Prof’l Conduct 32:8.2(a). The Board
must also prove the statement concerned “the qualifications or integrity of
a judge, adjudicatory officer, or public legal officer.” Id. And finally, “one
of the purposes of the rule is to ‘maintain the fair and independent
administration of justice.’ ” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Att’y Doe
No. 792, 878 N.W.2d 189, 198 (Iowa 2016) (quoting Iowa R. Prof’l Conduct
32:8.2(a) cmt. [3]). Thus, the statement must be made in a context
whereby the statement actually hindered or caused to be questioned the
fair and independent administration of justice. See id.The commission found the following statements in Rhinehart’s
motion to amend and enlarge violated the rule: (1) the district court
rewarded Cardona for willfully ignoring discovery orders; (2) the district
court condoned Ellwanger’s double talk on discovery issues; and
(3) relatedly, the district court faulted Rhinehart for believing Ellwanger’s
misrepresentations regarding discovery. In concluding the Board proved
the violations, the commission parsed through the statements to conclude
they were false. For example, the commission concluded it was false to
say the district court “rewarded” Cardona because the district court’s
20
ruling was reasonable but not a “reward” to Cardona. The commission
parsed the other statements similarly.
On de novo review, we conclude the Board failed to prove the
violations by a convincing preponderance of the evidence. Fairly read,
Rhinehart’s statements do not express a false statement “concerning the
qualifications or integrity of a judge.” Iowa R. Prof’l Conduct 32:8.2(a).
There is no mention of the district court’s qualifications or integrity.
Instead, Rhinehart criticized the district court’s decisions regarding
discovery and the district court’s ruling on the merits. Rhinehart argued
the judgment rewarded Cardona’s discovery conduct because Koeppe was
unable to prove his case against Cardona without the business record.
The statements at issue in this case are simply different in kind from
the statements we have found to violate rule 32:8.2(a). For example, in
Iowa Supreme Court Attorney Disciplinary Board v. Kennedy, the lawyer
wrote a letter to the Iowa Attorney General accusing the Polk County
Attorney’s Office of engaging in a conspiracy to coerce an incarcerated
witness to testify against the lawyer’s client in a high-profile homicide case.
See 837 N.W.2d 659, 663 (Iowa 2013). The lawyer alleged the Polk County
Attorney’s Office was forcing the potential witness to take drugs and was
“mentally, emotionally, and physically abus[ing]” the potential witness in
retaliation for the witness’s refusal to testify. Id. The allegations were
false, and we concluded the attorney violated the rule because she had no
“ ‘objectively reasonable basis’ for her false attacks on the integrity of
public officers.” Id. at 671 (quoting Weaver, 750 N.W.2d at 90). In
addition, the lawyer’s letter impeded the administration of justice because
it “spurred a lengthy and costly investigation into the allegations of
misconduct and coercion.” Att’y Doe No. 792, 878 N.W.2d at 199
(discussing Kennedy, 837 N.W.2d at 663–64).
21
In Iowa Supreme Court Attorney Disciplinary Board v. Weaver, the
district court sentenced a former district associate judge to a two-year term
of incarceration following his conviction for operating while intoxicated,
second offense. See 750 N.W.2d at 75–78. Weaver spoke to a newspaper
reporter about the case. See id. at 77–78. In a published newspaper
article, Weaver accused the sentencing judge of personal bias and
dishonesty. Id. Among other things, Weaver stated, “I can’t speculate
about the reasons why he did this, . . . [b]ut he’s not being honest about
the reasons why he committed me to the Department of Corrections.” Id.
at 86 (alteration in original). The publication of Weaver’s statements cast
unfounded aspersion upon the sentencing judge.
In Iowa Supreme Court Board of Professional Ethics and Conduct v.
Ronwin, an attorney made false statements about state court judges and
other attorneys in pleadings submitted in federal court. 557 N.W.2d at521–23. Ronwin accused a state judge of “deliberately lying” to help others
steal from him. Id. at 521–22. He also alleged that the judge entered a
directed verdict against Ronwin even though the judge knew the grounds
were false, that the judge conspired with others to harm Ronwin, and that
the judge’s “conduct amounts to criminal obstruction of justice.” Id. at
521. He also maintained the state court judge’s acts “were not the result
of incompetence but of deliberate criminal abuse of power.” Id. at 522.
Ronwin’s accusation of criminality and abuse of power cast untrue
aspersions on the administration of justice.
In our view, Rhinehart's word choices—“rewards” and “condoned”—
unduly personalized the role of the district court in adjudicating a hard-
fought case. However, these less-than-ideal word choices did not cross
the boundary into conduct that violated rule 32:8.2(a). Rhinehart’s
statements did not “hinder[] the fair and independent administration of
22
justice. Because this situation is considerably different than the prior
cases in which we have found a violation, we find that the Board failed to
prove a violation of rule 32:8.2(a).” Att’y Doe No. 792, 878 N.W.2d at 199.
IV.
The Board failed to prove by a convincing preponderance of the
evidence that Rhinehart violated the rules of professional conduct as
alleged in its complaint. We dismiss the complaint with prejudice. See
Ouderkirk, 845 N.W.2d at 50–51 (dismissing complaint with prejudice
where Board failed to prove violations by a convincing preponderance of
the evidence); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Rasmussen, 823
N.W.2d 404, 411 (Iowa 2012) (“Rasmussen did not violate any disciplinary
rule. The case is dismissed.”); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Olson,
807 N.W.2d 268, 282–83 (Iowa 2011) (dismissing complaint).
COMPLAINT DISMISSED.
All justices concur. Christensen, C.J., files a special concurrence,
which Waterman, J., joins.
23
#20–0824, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rhinehart
CHRISTENSEN, Chief Justice (concurring specially).
I join the majority decision but write separately to emphasize that
our dismissal of the disciplinary complaint against Rhinehart should not
be interpreted as condoning his behavior. In addition to demanding that
attorneys maintain ethical behavior as outlined in our rules of professional
conduct, we also expect attorneys to behave with civility and
professionalism. “Ethical violations are enforced through the traditional
disciplinary process, while all but the most extreme violations of the
obligation of civility are enforced by courts [through sanctions].” Donald
E. Campbell, Raise Your Right Hand and Swear to be Civil: Defining Civility
as an Obligation of Professional Responsibility, 47 Gonz. L. Rev. 99, 144
(2011–2012) [hereinafter Campbell]. “To put it another way, ethical
obligations can be seen as the shall-nots of lawyering, and professionalism
as creating affirmative obligations of the lawyer to the broader society.” Id.
at 139. “[P]rofessionalism is defined not as what a lawyer must do (obey
ethics rules while acting zealously on behalf of a client), but by what a
lawyer should do to protect the integrity of the legal system.” Id. at 141.
When attorneys engage in uncivil and unprofessional behavior, they lower
the bar for our profession and open the door for ethics complaints against
them.
As this court noted, Rhinehart “unduly personalized the role of the
district court in adjudicating a hard-fought case.” Rhinehart justifies his
behavior by characterizing himself as a zealous advocate. While his word
choice in criticizing the district court in his motion to amend and enlarge
may have made his client feel better, it did nothing to help his client legally.
As the district court judge who presided over the case testified to the
grievance commission, Rhinehart’s language that the district court was
24
“reward[ing] the Defendant for ignoring the Court Order” “doesn’t tell [the
district court it] did anything wrong as a matter of fact or law. There’s
nothing identified there that [the district court] needed to correct or
change.” Attorneys should not justify hostility as zealous advocacy
because they can zealously advocate for their clients’ interests while still
treating others with fundamental decency and respect.
While the rules violations Rhinehart was charged with deal with his
behavior towards the tribunal, his abrasive treatment of opposing counsel
in the Koeppe matter was also unnecessary. For example, when he was
frustrated about not receiving certain documents in discovery from
opposing counsel, he emailed opposing counsel:
So my plan is to subpoena your client to my office sometime
during the week between Christmas and New Year and force
him to produce the records and respond to my questions in a
deposition. You are great on promises and lousy on delivery.
What day works for you between December 26th and
December 30th. If I don’t he[a]r from you by noon tomorrow I
will just a pick a time that works for me.
In response to a different letter from Rhinehart about setting a trial date,
opposing counsel emailed Rhinehart, “Why does every letter you write have
to be nasty. I also want to get it done that week. I am trying to figure
something out[.]” Rhinehart replied, “You promise quick response. All
lies. I am bored with your lack of professionalism. Time to retire[.]”
Rhinehart accused this opposing counsel of lying multiple times
during the course of the Koeppe case and repeated these assertions
without support during these disciplinary proceedings. Rhinehart told the
commission that this opposing counsel “either . . . doesn’t care about the
rules or he is so suffering mentally with dementia or poor memory that he
does these things.” He also declared, “And my suggestion is that [opposing
counsel] has some kind of mental illness, some kind of inability to recall
25
events.” Opposing counsel also testified before the commission, and
nothing in the record supports Rhinehart’s claims about opposing
counsel’s mental status. It goes without saying that making flippant,
unsubstantiated comments about anyone’s mental status is incredibly
offensive. The district court judge testified before the commission that it
was Rhinehart’s “language when [he] referenced [opposing counsel was] a
liar and should retire” that led the judge to make a referral to the
disciplinary board about Rhinehart’s behavior.
Ultimately, Rhinehart’s behavior in the Koeppe case has forced our
court into the unenviable position “to act as ‘kindergarten cop’ and [review]
a dispute between attorneys caused by one who either never learned or
has forgotten the basic good manners others learned before first grade.”
Saldana v. Kmart Corp., 84 F. Supp. 2d 629, 640 (D.V.I. 1999), aff’d in
part, rev’d in part, 260 F.3d 228 (3d Cir. 2001). This is not the first time
Rhinehart’s caustic behavior has come to the attention of our court. In
2013, we suspended Rhinehart’s license for sixty days for extrinsic fraud
by failing to disclose two pending contingency-fee cases during his
marriage dissolution proceeding and for disbursing disputed client fees to
himself. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169,
183 (Iowa 2013). The district court presiding over Rhinehart’s dissolution
noted Rhinehart “has demonstrated a lack of credibility, and also a
willingness to say whatever he thinks will benefit him throughout the
course of the present proceedings.” Id. at 173. In recommending a sixty-
day suspension of Rhinehart’s license, the grievance commission
explained, “[Rhinehart] continued to exhibit little or no remorse in either
count of the Complaint. He continued to attempt to relitigate the extrinsic
fraud issue, and even in stipulating to Count II, attempted to justify his
actions.” Id. at 182. Unfortunately, though Rhinehart did not violate our
26
professional rules in this case, not much has changed about his behavior
since 2013.
During these disciplinary proceedings, Rhinehart focused on
relitigating the family law matter that led to count one of the Board’s
complaint. The district court in that case concluded it lacked jurisdiction
and sanctioned Rhinehart for abusing the court’s emergency process. In
his commission hearing, Rhinehart questioned several witnesses in an
attempt to relitigate both of these issues. He also deposed the court of
appeals judge who wrote a concurrence affirming the district court’s
decision in which the concurrence wrote the district court had authority
to award sanctions due to the dismissal of the case on jurisdictional
grounds. Rhinehart spent most of this deposition trying to relitigate the
matter by posing legal “hypotheticals” based on the same fact pattern as
his case and stressing his belief that this judge was wrong.
Rhinehart never appealed the court of appeals ruling, but he
admitted during the deposition that he sent this judge a letter “explaining
what [he] thought was the flaw in [her] decree.” Rhinehart later told the
grievance commission, “I want you to read [that judge’s] deposition. She
had no idea what she was talking about. She had no idea what she was
doing with that case. She couldn’t even verify she read the briefs. It’s just
incredible.” Notably, Rhinehart never asked the judge during her
deposition if she read the briefs, so she never had the opportunity to verify
whether she read them. He asked her if she reviewed the appendix, and
she answered that she had “no independent recollection of what [she]
reviewed prior to this opinion,” but she “generally” reviewed the appendix
in cases before her. In summary, the judge testified that she had no
“independent recollection” of Rhinehart’s appeal beyond what was stated
in the opinion, which was issued years before her deposition, and she
27
declined to speculate on Rhinehart’s proffered “hypotheticals” because she
does not decide those issues “without a case in front of [her] that [she]
ha[s] to decide or be a part of the decision-making process on.”
Similar to the Koeppe matter, Rhinehart “unduly personalized the
role of the district court” in the family matter that led to sanctions and the
court of appeals ruling affirming them. In his appellate brief, Rhinehart
wrote, “The record does not reflect the Cheshire Cat grin on the Court’s
face as he dismissed this action on his own Motion.” He also wrote, “the
Court’s disdain for [Rhinehart’s client] and her counsel was clear.”
Rhinehart later told the commission that this district court judge “was a
lazy judge, and he was disrespectful as hell to me.” Further, Rhinehart
exclaimed, “The truth is he’s too damn lazy to do his job.” Despite a
lengthy legal career, Rhinehart struggles to gracefully accept cases that do
not end in his client’s favor.
Incivility has damaging consequences. “In a close case, civility may
tip the scales toward a lawyer with a reputation for integrity, causing the
uncivil lawyer’s client to lose the case.” Judith D. Fischer, Incivility in
Lawyers’ Writing: Judicial Handling of Rambo Run Amok, 50 Washburn
L.J. 365, 369 (2011) (footnote omitted). It “can result in higher litigation
costs for the client via needless arguing about discovery, unnecessary
motions to compel, and hearings on those motions that could have been
avoided if the parties acted reasonably,” and “the depletion and waste of
judicial resources” that accompanies this “gratuitous fighting.” David A.
Grenardo, A Lesson in Civility, 32 Geo. J. Legal Ethics 135, 145 (2019)
[hereinafter Grenardo]. Moreover, “incivility amongst attorneys increases
the stress lawyers must deal with” in an already notoriously stressful
profession and “helps perpetuate negative perceptions and stereotypes
about lawyers and the legal system—namely that lawyers are arrogant,
28
rude, obstreperous, and obnoxious jerks, and the client with the most
abhorrent lawyer in the case will prevail.” Id. at 145–46. Finally,
“attorneys who act in an uncivil manner can harm their reputation” and
“ostracize [the attorney] from the legal community.” Id. at 146. Rhinehart
acknowledged in his past attorney disciplinary case that he had faced
professional consequences for his conduct that included a loss of clients.
Rhinehart, 827 N.W.2d at 181.
Overall, “[c]ivility, which generally means treating others with
courtesy, dignity, and respect, comprises an essential trait of a successful
lawyer.” Grenardo, 32 Geo. J. Legal Ethics at 138. At least 140 state or
local bar associations have adopted civility codes to guide attorneys’
interactions with opposing counsel, clients, judges, and third parties.
Campbell, 47 Gonz. L. Rev. at 141–42. Iowa’s rules of professional conduct
have not adopted a mandatory civility code, but that does not mean we are
left without recourse for attorneys who engage in uncivil behavior. Our
district courts can enforce civility through sanction, albeit carefully so
“that they are not chilling a lawyer’s valid advocacy.” Id. at 145. “[C]ourts
should put in writing any specific obligations relating to civility to ensure
that everyone involved in the process is aware of such civility
requirements.” Id. The following ten core concepts of civility serve as a
good starting point for courts:
(1) Recognize the importance of keeping commitments and of
seeking agreement and accommodation with regard to
scheduling and extensions; (2) be respectful and act in a
courteous, cordial, and civil manner; (3) be prompt, punctual,
and prepared; (4) maintain honesty and personal integrity; (5)
communicate with opposing counsel; (6) avoid actions taken
merely to delay or harass; (7) ensure proper conduct before
the court; (8) act with dignity and cooperation in pre-trial
proceedings; (9) act as a role model to client and public and
as a mentor to young lawyers; and (10) utilize the court system
in an efficient and fair manner.
29
Id. at 146; see also Iowa State Bar Ass’n, Attorney Regulation,
https://www.iowabar.org/general/custom.asp?page=ProfessionalConduc
t#:~:text=We%20will%20treat%20all%20other,other%20counsel%2C%20
parties%20or%20witnesses (last visited Dec. 21, 2020) (voluntary
standards for professional conduct; now codified in Iowa Court Rules
chapter 33); American College of Trial Lawyers, Code of Pretrial Conduct
and Trial Conduct (2009), https://www.actl.com/docs/default-
source/default-document-library/position-statements-and-white-
papers/codes_of_pretrial_and_trial_conduct_09_web_permission
[https://perma.cc/KCC2-J8PT].
It costs nothing for an attorney to be civil, but, as this case shows,
the costs of incivility are high. Let this case serve as a reminder to all
attorneys that their “conduct should be characterized at all times by
personal courtesy and professional integrity in the fullest sense of those
terms.” Iowa Ct. R. 33.1(1). Rhinehart likely could have avoided these
disciplinary proceedings altogether simply by treating opposing counsel
and judges with the sort of basic decency and respect most learn before
first grade.
Waterman, J., joins this special concurrence.