Iowa Supreme Court Attorney Disciplinary Board Vs. Scott Alden Sobel

IN THE SUPREME COURT OF IOWA
No. 09–0932
Filed March 19, 2010
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
SCOTT ALDEN SOBEL,
Appellant.
On appeal of the report of the Grievance Commission of the Supreme
Court of Iowa.
Appeal by respondent from grievance commission decision finding
respondent committed ethical misconduct and recommending a suspension.
PUBLIC REPRIMAND.
David L. Brown and Alexander E. Wonio of Hansen, McClintock &
Riley, Des Moines, for appellant.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
appellee.
2
CADY, Justice.
The Iowa Supreme Court Attorney Disciplinary Board charged Scott A.
Sobel with numerous violations of the Iowa Code of Professional
Responsibility for Lawyers primarily resulting from his representation of two
clients in a criminal matter. The Grievance Commission of the Supreme
Court of Iowa found Sobel violated the code of professional responsibility. It
recommended Sobel be suspended from the practice of law for a period not
less than six months. On our review, we find Sobel violated the code of
professional responsibility and impose a public reprimand.
I. Background Facts and Proceedings.
Scott A. Sobel is an Iowa lawyer who practices law in Des Moines. He
was admitted to practice in Iowa in 1983. He graduated from Drake Law
School and received his undergraduate degree from Grinnell College. Many
of his clients are immigrants, and he has developed a reputation for
accepting cases from clients with limited financial means. Sobel has been
recognized for his volunteer work in assisting refugees in the community. He
has no prior disciplinary record.
In October 2002, Sobel agreed to represent David and Cindy Luu after
they were charged with multiple counts of illegal commercialization of
wildlife. The Luus are immigrants from Thailand and operate a grocery store
in Des Moines. Cindy immigrated to Iowa in 1976 and graduated from high
school in Des Moines. David immigrated to Iowa a short time later, and he
has a ninth-grade education. David and Cindy married in Des Moines.
The Luus were charged by the state with purchasing and reselling
game fish harvested in Iowa from their grocery store. The charges were
brought after police and conservation officers from the Iowa Department of
Natural Resources (DNR) executed a search warrant at the grocery store on
October 21, 2002. Following the search, conservation officers met with the
3
Luus in the back office of the store to discuss their investigation into the
illegal harvesting and selling of fish in certain areas of Des Moines. Although
an interpreter was at the scene, the conservation officers did not use the
interpreter when they talked to the Luus because they felt they were able to
effectively communicate with them without any interpreter assistance. The
Luus were cooperative throughout the discussions and spoke about the
selling and buying of fish.
The Luus contacted Sobel to represent them because he had
represented them on various business and regulatory matters over the prior
ten years. The Luus did not execute a written waiver and acknowledgement
of the potential conflict of joint representation when they met with Sobel.
Sobel testified at the disciplinary hearing that he explained the potential
problem of joint representation to the Luus, but the Luus declined to sign a
written waiver. David Luu denied the occurrence of any such conversation
and testified that he would have signed a waiver if Sobel had asked him to
do so. Cindy Luu could not recall any conversation about joint
representation.
David Luu gave Sobel a retainer fee in the form of a check in the
amount of $2000. Sobel placed the retainer in his trust account and
subsequently withdrew the money during the course of the representation.
He never provided the Luus with a written accounting of the legal services he
performed.
During the course of the representation, Sobel and the Luus met with
the prosecuting attorney, Daniel C. Voogt, an assistant Polk County
attorney, and the conservation officer in charge of the investigation. The
meeting occurred at the Polk County Attorney’s office. The case was
proceeding in the direction of a plea agreement at the time, and officials from
the DNR sought cooperation from the Luus as a part of the agreement. At
4
this meeting, Sobel was given photographs depicting individuals who state
investigators suspected were involved in the harvesting and selling of Iowa
game fish. The Luus later provided information to Sobel about the
individuals during a conference in his law office. Sobel documented the
information provided by the Luus on the photographs.
Voogt believed the Luus understood the investigation and the
proceedings based on his interaction with them at the meeting. He further
believed the Luus understood that part of their cooperation would require
them to identify other individuals in the community who were involved in the
illegal fish operation. Voogt expressed his belief that the Luus understood
English and did not “have any concerns about the Luus’ ability to
understand what was going on.”
A plea agreement was eventually reached and memorialized in a
memorandum of understanding. The Luus agreed to plead guilty to twenty
counts of Unlawful Commercialization of Wildlife and to pay a fine of $1000
for each count plus $15 for each fish recovered in the investigation, together
with the costs of the investigation. The agreement provided the Luus would
also be placed on probation, and they agreed to cooperate with the state in
its continued investigation and prosecution of other individuals.
The Luus expressed two concerns to Sobel about the guilty pleas.
First, they feared publicity over the case and wanted to keep it out of the
news. Second, they were reluctant to appear in court before a judge out of
fear of “losing face.”
Sobel conferred with Voogt, who agreed his office would not notify the
news media of the guilty plea and sentencing proceedings. Sobel then made
a representation to the Luus that was understood by them to mean the case
would not be made public. Sobel testified at the disciplinary hearing that his
comments were not a specific promise, but an expression of his belief that
5
the news media would not be notified of the proceedings in the case. Sobel
never considered asking officials from the DNR to refrain from publicizing
the case.
Sobel and the Luus appeared at the Polk County Courthouse on
November 22, 2002, for the purpose of entering the pleas of guilty and for
the court to impose sentence. Voogt appeared for the state, and the case
was assigned to District Associate Judge Cynthia Moisan. The recollections
of the individuals involved in the proceeding differed significantly over the
question of whether the Luus personally appeared before the judge.
However, it was clear the Luus were reluctant and embarrassed to personally
appear before the judge. Moreover, Sobel and Voogt discussed the possibility
of waiving the personal appearance of the Luus in court and disposing of the
case by a written plea and sentencing. This discussion occurred while the
Luus waited outside the courtroom in the hallway of the courthouse, and the
discussion eventually included Judge Moisan. It was also undisputed that
the written plea of guilty was ultimately accepted by the judge, and the
sentence was imposed at the same time. Furthermore, the proceeding was
not reported. The sentence imposed was consistent with the prior
agreement.
Voogt testified at the disciplinary hearing he could not specifically
recall if the Luus were in the courtroom when the judge accepted the pleas
and imposed the sentences. However, he thought they may have been
“sitting in the front row.” Nevertheless, he could not recall any case from all
the cases he had handled in the past when the defendant was not present
for sentencing for an indictable offense.
The Luus expressed no problems or complaints until a few weeks after
sentencing when the DNR issued a news release about the case. The news
release was followed by an article published in the Des Moines Register. The
6
article upset the Luus. Around the same time, Sobel gave the Polk County
Attorney the information provided to him by the Luus about the other
individuals involved in the illegal commercialization of fish, as documented
on the photographs of the suspects. Sobel took this action with the belief
that it was consistent with the cooperation agreement.
A short time later, the Luus terminated their professional relationship
with Sobel due to the public disclosure of the case. Sobel responded by
filing motions to withdraw. The Luus obtained new counsel, claiming they
had little understanding of the criminal proceeding against them due to the
lack of an interpreter. As a result, they felt the disposition of the case was
unfair and blamed Sobel. The Luus eventually filed an application for
postconviction relief, alleging Sobel provided ineffective assistance of counsel
in representing them in the criminal proceeding. The application for
postconviction relief was filed in June 2003.
The postconviction relief application alleged several grounds of
ineffective assistance of counsel, including the failure of Sobel to provide or
request an interpreter for the Luus during the criminal proceeding. The
application claimed the absence of an interpreter caused the Luus to fail to
fully understand the criminal proceedings against them, including the
written plea bargain and cooperation agreement.
At the postconviction hearing, Sobel testified under oath he appeared
at the hearing on the plea and sentencing in the criminal proceeding with
the Luus. He testified the Luus were present with him in the courtroom, and
he informed Judge Moisan that the Luus did not desire to have an
interpreter for the hearing, contrary to his advice. Sobel further testified
Judge Moisan briefly questioned the Luus about their decision to decline an
interpreter, and she then proceeded with the hearing by accepting the pleas
and imposing the sentence. Sobel responded to requests for admissions
7
during the course of the proceedings and expressed his belief that the Luus
did appear in court and were questioned by the judge.
The Luus testified they never appeared before a judge for the plea and
sentencing. They also testified they had a limited understanding of the
English language and of the criminal proceeding. Judge Moisan, her court
reporter, and her court attendant testified the Luus never appeared in court.
Judge Moisan testified Sobel and Voogt met with her in chambers and
requested to waive the appearance of the Luus. Judge Moisan indicated
Sobel assured her the Luus spoke English. She recalled she signed the
sentencing order based on the written plea without requiring the Luus to
appear in court.
The postconviction relief court found the Luus received ineffective
assistance of counsel and vacated the judgment and sentence. The district
court specifically found Sobel was ineffective by allowing the Luus to enter
their pleas of guilty and to be sentenced without appearing in court and
without providing an interpreter for them. Following the ruling, the
disciplinary board filed a multicount complaint against Sobel, alleging
various violations of the code of professional responsibility arising out of his
representation of the Luus and his testimony at the postconviction relief
hearing.
II. Board Complaint.
The board claims Sobel engaged in conduct involving dishonesty,
fraud, deceit, or misrepresentation by giving false testimony at the
postconviction relief hearing concerning the presence of the Luus and the
actions and conduct of Judge Moisan at the plea and sentencing hearing in
violation of DR 1–102(A)(1), (4), (5), and (6) and DR 7–102(A)(8) of the Iowa
Code of Professional Responsibility for Lawyers. It asserts Sobel failed to
provide full disclosure to the Luus concerning the potential effect of joint
8
representation in violation of DR 5–105(D), DR 7–102(A)(8), and DR 1–
102(A)(1), (5), and (6). The board further claims Sobel failed to render a
complete accounting of client funds in violation of DR 9–102(B)(3), DR 7–
102(A)(8), and DR 1–102(A)(1), (5), and (6). By failing to provide an
interpreter for the Luus in the criminal case, the board alleges Sobel engaged
in conduct prejudicial to the administration of justice in violation of DR 1–
102(A)(5). This conduct also violated DR 1–102(A)(1) and (6). The board
further claims Sobel violated the attorney-client privilege by turning over the
information provided to him by the Luus and documented on the
photographs to the county attorney without their consent in violation of
DR 4–101(B)(1) and DR 1–102(A)(1), (5), and (6). Finally, the board contends
Sobel engaged in conduct involving dishonesty, fraud, deceit, or
misrepresentation by misrepresenting to the Luus that their case would not
be made public in violation of DR 1–102(A)(4). It also alleged this conduct
violated DR 1–102(A)(1), (5), and (6). The commission found the board
established the violations described in the complaint. It recommended Sobel
be suspended from the practice of law for six months.
III. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa
2002). We are not bound by the findings made by the commission, but give
them weight. Id.
IV. Violations.
The violations alleged by the board cover Sobel’s conduct in
representing the Luus in the criminal proceeding and his subsequent
conduct in testifying at the postconviction relief action. We begin by
addressing the board’s claim that Sobel was dishonest, deceitful, and
fraudulent when he (1) represented under oath at various times during the
9
postconviction relief action that the Luus appeared in court before Judge
Moisan for the plea and sentence, (2) said he had expressed the need for an
interpreter at the plea and sentence hearing, and (3) testified at the
postconviction relief hearing that the court questioned the Luus about an
interpreter.
A. Misrepresentation and Dishonesty. The commission found the
testimony of Judge Moisan and her staff was an accurate account of what
occurred on November 22, 2002, when the plea of guilty was entered and the
sentences were imposed. Consequently, it concluded Sobel was untruthful
in expressing his contrary account of the proceedings during the
postconviction relief action. While we agree Judge Moisan and her staff
provided the most accurate account of the proceedings, the commission
failed to consider the possibility that Sobel could have, nevertheless,
expressed a conflicting account of the proceeding without engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation.
We begin by recognizing the existence of ample research showing that
a person’s memory of events can be subject to error and distortion based on
factors unrelated to intent or purpose to be untruthful. See Daniel L.
Schacter, The Seven Sins of Memory: How the Mind Forgets and Remembers
4–5 (2001) (highlighting seven main reasons for memory failures); Daniel L.
Schacter & Elaine Scarry, Introduction to Memory, Brain, and Belief 2–3
(Daniel L. Schacter & Elaine Scarry eds. 2000) (“To the extent that beliefs are
defined by a subjective conviction about the truth of an assertion that
cannot be proven, then memory could be viewed as a type of belief . . . . And
because memory is a fundamentally constructive process that is sometimes
prone to error and distortion, it makes sense that such beliefs are
occasionally misguided.”); Deborah Davis & William C. Follette, Foibles of
Witness Memory for Traumatic/High Profile Events, 66 J. Air L. & Com. 1421,
10
1439–1544 (2001) [hereinafter Davis & Follette] (discussing failures in the
acquisition, storage, and retrieval of memories that may lead to
inaccuracies). Inaccurate memory can result from human failures encoding,
storing, or retrieving information from the brain. Davis & Follette at 1436.
Thus, the inability of a person to accurately recall an event does not
necessarily lead to the conclusion that the person’s inaccurate recollection is
an expression of dishonesty or deceit. Generally, misrepresentation requires
intent to deceive to support an ethical violation. Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 553 (Iowa 2004).
In this case, no record was made of the court proceeding. The event
that was the subject of recall for all witnesses occurred two years before the
postconviction relief action and nearly six years before the disciplinary
hearing. Clearly, the passage of time presented challenges to the ability to
recall the event. The prosecuting attorney recalled the Luus were present,
but could not recall if they were actually in the courtroom or remained
outside the courtroom. He also testified he could not remember a time when
he was involved in a criminal case when the defendant did not appear for
sentencing. Importantly, the prosecuting attorney was convinced at one
point in the postconviction relief action that the Luus were in the courtroom
and were questioned by the judge.
Considering all the facts and circumstances, we conclude the board
failed to prove by a convincing preponderance of the evidence that the
inaccurate statements by Sobel during the postconviction relief proceeding
were made with an intent to deceive or to be dishonest. Our prior cases have
only defined a convincing preponderance of the evidence as a level of proof
between a preponderance of the evidence and evidence beyond a reasonable
doubt. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Miller, 568 N.W.2d
665, 666 (Iowa 1997). This standard, however, necessarily requires no
11
substantial doubt about the correctness of the conclusion drawn from the
evidence. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (referring to
“clear and convincing evidence” standard).
As to the specific element of intent to deceive that is required to be
proven before an attorney can violate the ethical prohibition of engaging in
conduct involving misrepresentation and dishonesty, we are not convinced
on our de novo review that the record establishes sufficient proof to support
the violation. While it is possible Sobel may have intended to misrepresent
the truth, it is just as likely his recollection was inaccurate in the same way
the prosecutor seemed to inaccurately recall the proceedings. The Luus
were present in the courthouse, and a discussion did occur between the
attorneys and the judge concerning the Luus’ appearance in court.
Considering the passage of time and the number of court appearances made
by busy attorneys, Sobel could have simply inaccurately recalled the event or
otherwise formulated an inaccurate, yet honest, account of the event. While
the record supports no substantial doubt that Sobel’s account of the plea
and sentencing proceeding was inaccurate, it does not supply the same level
of confidence that Sobel intended to be deceptive in his recollection of the
event.
B. Remaining Violations. The remaining violations can largely be
grouped into a series of misunderstandings and miscommunications
between Sobel and the Luus. On the charge of failing to make a full
disclosure of the effects of joint representation in a criminal case, Sobel
maintained he fully explained the issue of joint representation to the Luus,
while David Luu believed the issue was never discussed, and Cindy Luu
could not recall. On the charge of violating the attorney-client privilege,
Sobel maintained he believed the Luus understood that the information he
provided to the county attorney after the sentencing was part of the
12
cooperation agreement, while the Luus claimed they did not understand the
cooperation agreement. On the charge of misrepresenting the public nature
of the criminal case, Sobel maintained he told the Luus he would pursue
certain action to keep the case out of the news, while the Luus believed
Sobel told them the case would be private.
In each instance, the commission either found the Luus were not fully
informed and did not understand the issue underlying each allegation due to
the inadequate communication between Sobel and the Luus or found the
Luus’ testimony to be more credible than the testimony of Sobel. Under
either case, the commission found violations occurred.
We agree Sobel’s failure to obtain an interpreter to assist in adequately
communicating with the Luus was at the center of the dispute in nearly all of
the charges. Yet, Sobel had represented the Luus on many occasions in the
past, and he believed he was able to adequately communicate with them
without an interpreter. The prosecuting attorney and the conservation
officer from the DNR also believed they effectively communicated with the
Luus on those occasions they met with them during the course of the
criminal proceeding. Although Sobel’s judgment concerning the effectiveness
of his communication may have been wrong, an error in judgment or mere
negligence by an attorney is not a basis for discipline. Comm. on Prof’l Ethics
& Conduct v. Bitter, 279 N.W.2d 521, 526 (Iowa 1979) (recognizing
disciplinary rules relating to misconduct do not apply to actions based on
mere negligence); see Moorman, 683 N.W.2d at 551–52 (“Neglect is more than
ordinary negligence and usually involves multiple acts or omissions.”).
Importantly, other people involved in the case who had contact with the
Luus similarly believed they understood the proceedings. We cannot
conclude the judgment formed by Sobel that he could adequately
communicate with the Luus without an interpreter, even if later found to be
13
wrong, was the type of conduct that reflects adversely on the fitness of an
attorney to practice law. Thus, the violations based on Sobel’s failure to
obtain an interpreter cannot be sustained. Sobel believed he had adequately
communicated the problem of joint representation, the terms of the plea and
cooperation agreement, and the risks of public disclosure of the case. Even
if his judgment was wrong, it did not make his conduct in representing the
Luus without the aid of an interpreter unethical.
Additionally, those violations found by the commission that essentially
required the commission to accept the testimony of the Luus that the
conversations and representations by Sobel never occurred or did not occur
as Sobel described cannot be sustained. Sobel testified he properly advised
the Luus contrary to the complaints made against him by the Luus. To the
extent the Luus denied the advice was given or the relevant communications
did not occur as Sobel claimed, we recognize the Luus had a motive to deny
the conversations and claim confusion and misinformation about the
proceedings after sentencing was imposed. The Luus had a motive to deny
the conversations took place not only to “save face” in their community once
the case became public, but also to support their subsequent belief that the
sentence was too harsh. Of course, we recognize Sobel would have also had
a motive to falsely deny the Luus’ claims to avoid the consequences of ethical
misconduct. Yet, the Luus’ testimony was not strong enough to support the
violations found by the commission. In addition to their possible motives,
the confusion and lack of understanding urged by the Luus clearly
diminished the weight of their testimony about the existence of certain
conversations and the accuracy of Sobel’s representations during the
conversations. To the extent Sobel contributed to the confusion and
misunderstanding experienced by the Luus, we have already concluded any
14
error in judgment by Sobel in failing to utilize the assistance of an
interpreter does not support discipline.
Nevertheless, the board did establish Sobel failed to provide written
notice of fees he withdrew from the $2000 retainer provided by the Luus and
deposited in his trust account. DR 9–102(B)(3) requires lawyers to not only
maintain complete records of all funds delivered to the lawyer, but to also
render an accounting to the client. We have interpreted this provision to
require lawyers who accept advance fee payments to “notify their clients in
writing of the time, amount, and purpose of any withdrawal of the fee.” Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Apland, 577 N.W.2d 50, 59
(Iowa 1998).
Sobel asserted he provided the Luus with an oral explanation of the
fees withdrawn from the retainer. He also argued the retainer was not an
advance fee payment subject to the rule because he had earned the fee by
the time the retainer was paid.
The accounting rules set out in Apland require notice of withdrawal of
the fee to be in writing. Id. Additionally, Sobel acknowledged he had not
earned the entire retainer at the time it was received. Accordingly, we
conclude Sobel violated DR 9–102(B)(3).
V. Discipline.
Consistent with our prior cases, we discipline Sobel by imposing a
public reprimand. See Apland, 577 N.W.2d at 60; Comm. on Prof’l Ethics &
Conduct v. Garretson, 515 N.W.2d 25, 28 (Iowa 1994) (stating failure to
render accounting for legal services warrants public reprimand).
15
VI. Conclusion.
We publicly reprimand Sobel for failing to render a proper written
accounting for legal services. Costs of the action shall be taxed to Sobel
pursuant to rule 35.26(1).
PUBLIC REPRIMAND.
All justices concur except Streit and Wiggins, JJ., who take no part.