Iowa Supreme Court Attorney Disciplinary Board Vs. K. G. T.

IN THE SUPREME COURT OF IOWA
No. 108 / 06-0372
Filed October 20, 2006
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Appellant,
vs.
K. G. T.,
Appellee.
________________________________________________________________________
On review of the report of the Grievance Commission.
The Iowa Supreme Court Attorney Disciplinary Board appeals the
determination of the Grievance Commission that Iowa Court Rule 35.3
did not apply retroactively to K.G.T.’s disciplinary proceedings.
REVERSED AND REMANDED.
Charles L. Harrington and Teresa Vens, Des Moines, for appellant.
K. G. T., Larchwood, appellee, pro se.
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CADY, Justice.
In this attorney disciplinary proceeding, we must decide if the
Grievance Commission of the Supreme Court of Iowa (the “Commission”)
erred in ruling that amended Iowa Court Rule 35.3 did not apply to
permit the Iowa Supreme Court Attorney Disciplinary Board (the “Board”)
to file a complaint with the Commission against an attorney after the
Board had decided to dispose of the original complaint against the
attorney by a reprimand. On interlocutory review, we reverse the
decision of the Commission, and remand for further proceedings.
I. Background Facts and Proceedings
K.G.T. is an Iowa lawyer. In February 2005, he contacted the
Board and reported that he may have engaged in conduct in violation of
the Code of Professional Responsibility. K.G.T. self-reported that, in his
capacity as an assistant county attorney, he signed the name of a judge,
without authorization, on a hearing order in a juvenile case, and filed the
order with the clerk of court.
On June 15, 2005, the Board considered the complaint and voted
to publicly reprimand K.G.T. for his conduct. The Board prepared a
letter of public reprimand on July 20, 2005. The letter was then filed
with the clerk of the Commission, who eventually served K.G.T. with the
letter by certified mail on August 25, 2005. This service was preceded by
two unsuccessful attempts to serve K.G.T. by certified mail.
On October 19, 2005, after receiving notice of the letter of
reprimand, we declined to include the reprimand letter in the public
records of our clerk of court. Instead, we remanded the matter to the
Board for further consideration.
After further consideration, the Board filed a two-count complaint
against K.G.T. Count I of the complaint was based on the same matter
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that was the subject of the letter of reprimand. K.G.T. filed an answer to
the complaint. The answer to count I admitted the allegations, but
K.G.T. additionally moved to dismiss the count. He claimed we had no
authority to reject the Board’s letter of reprimand because the rule
authorizing the supreme court to remand a letter of reprimand was not
effective until July 1, 2005, and the rule did not apply to the conduct he
reported in February 2005.
The Commission granted the motion to dismiss count I. It held
that the rule authorizing the supreme court to reject a letter of public
reprimand by the Board could not be applied retroactively to conduct by
an attorney that the Board determined, prior to the effective date of the
rule, would result in a letter of public reprimand.
The Board sought, and we granted, permission to appeal the
decision of the Commission. The Board argued that the rule authorizing
the supreme court to remand a letter of public reprimand for further
consideration by the Board applies retrospectively to all cases pending at
the time the rule became effective as long as a hearing on the complaint
has not yet been commenced before the Commission.
II. Standard of Review
“We review rulings and reports of the grievance commission de
novo.” Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. D.J.I., 545
N.W.2d 866, 871 (Iowa 1996) (citing Iowa Sup. Ct. R. 118.10 (current
version at Iowa Ct. R. 35.10(1))).
III. Discussion
The Board is charged with the responsibility to accept and act
upon complaints from any person alleging ethical violations by lawyers.
See Iowa Ct. Rs. 34.1, 34.5. In response to a complaint, the Board may
pursue a variety of actions, including taking the complaint under
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consideration at periodic Board hearings and meetings. Iowa Ct. R. 34.8.
After considering a complaint at such a hearing or meeting, the Board
may, among other actions, reprimand the lawyer and file a written
reprimand as provided by rule 35.3. See Iowa Ct. R. 34.11(4).
Rule 35.3 governs the reprimand of an attorney by the Board. See
Iowa Ct. R. 35.3. Prior to July 1, 2005, the rule provided that a copy of
the reprimand be filed by the Board with the clerk of the Commission,
who is required to serve the reprimand on the attorney. Id. After service,
an attorney who fails to file an exception to the reprimand is deemed to
consent that the reprimand be final and public. Id. The clerk then
provides the supreme court with a copy of the reprimand, together with a
declaration that no exception was taken, and the supreme court must
direct the reprimand be made a public record of the court. Id. This
action then concludes the matter.
On April 20, 2005, rule 35.3 was amended to give the supreme
court the option of remanding the matter to the Board for consideration
of another disposition, in lieu of concluding the matter by making the
reprimand a public record. See Iowa Ct. R. 35.3. This rule allows the
supreme court to reject reprimands viewed to be too harsh or too lenient,
or otherwise inappropriate. Importantly, the amended rule did not go
into effect until July 1, 2005. Id.
The dispute in this case arises because the amended rule went into
effect after the Board decided to issue a reprimand. K.G.T. asserts that
count I of the complaint must be governed by the procedure that was in
place at the time the Board voted to impose a reprimand. He claims, and
the Commission held, the current procedure giving the supreme court
the option of remanding a Board reprimand for further consideration
cannot apply retroactively to count I of the complaint.
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It is the general rule that statutes and rules are presumed to apply
prospectively to actions that arise after the effective date of the
enactment. See Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d
682 (Iowa 2002); D.J.I., 545 N.W.2d at 872. This presumption exists only
if there is no additional enactment that expressly makes the law or rule
retrospective. See In re Marriage of Williams, 595 N.W.2d 126, 130 (Iowa
1999) (“A statute is presumed to be prospective in its operation unless
expressly made retrospective.” (Citation omitted.)). This same approach
“applies to our construction of court rules.” D.J.I., 545 N.W.2d at 872.
There is a disciplinary rule that specifically addresses the
prospective and retrospective application of the other disciplinary rules
governing attorney discipline. Thus, we look to the rule for guidance.
Iowa Court Rule 35.24 provides:
These rules shall have prospective and retrospective
application to all alleged violations, complaints, hearings,
and dispositions thereof on which a hearing has not actually
been commenced before the Grievance Commission prior to
the effective date of these rules.
In D.J.I., we considered the application of this rule and recognized that
the rules governing Commission proceedings apply retroactively to
alleged violations and complaints when a hearing has not been
commenced at the time of the effective date of the rule. 545 N.W.2d at
872. Thus, an amendment to a rule applies to a pending disciplinary
matter unless a hearing before the Commission has been commenced.
Id. In D.J.I., we held the pertinent rule had retroactive application
because “[t]he record show[ed] a hearing on the merits of the disciplinary
complaint filed by the Board against respondent ha[d] not been
commenced and [was] stayed pending resolution of this interlocutory
appeal.” Id.
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At the time rule 35.3 was amended to authorize the supreme court
to reject a Board reprimand, the matter in this case had not reached the
commission stage of the disciplinary process. Instead, the matter was
still before the Board, and it sought to dispose of the matter without
filing a complaint with the Commission for prosecution. See Iowa Ct. R.
34.11(5). The only action that had been taken on the original complaint
at the time of the effective date of the amendment to rule 35.3 was the
Board’s decision to dispose of the complaint by a reprimand. Thus, no
hearing had “actually been commenced before the Grievance Commission
prior to the effective date” of amended rule 35.3. See Iowa Ct. R. 35.24.
As a result, the amended rule applies retrospectively pursuant to the
language of rule 35.24.
Finally, the Board had not filed its reprimand with the clerk of the
Commission at the time of the effective date of the new rule, and K.G.T.
had not been placed in a position to object or consent to the reprimand.
Thus, K.G.T. did not take any action in reliance on the prior procedural
rule. For that reason, the retrospective application of the rule to this
case does not, contrary to the decision of the Commission, implicate any
additional principles of fundamental fairness or fair play that might
entitle K.G.T. to relief.
IV. Conclusion
We conclude the Commission erred in dismissing count I of the
complaint. We reject all grounds relied upon by the Commission. We
reverse the decision of the Commission and remand for further
proceedings.
REVERSED AND REMANDED.
All justices concur except Streit and Hecht, JJ., who take no part.