Amended July 1, 2016 Iowa Supreme Court Attorney Disciplinary Board v. Attorney Doe No. 792

IN THE SUPREME COURT OF IOWA
No. 14–1987
Filed February 5, 2016
Amended July 1, 2016
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
ATTORNEY DOE NO. 792,
Respondent.
A review of the report of the Grievance Commission of the Supreme
Court of Iowa.
In this attorney disciplinary action, the grievance commission
reports respondent violated a rule of professional conduct and
recommends a public reprimand. ATTORNEY ADMONISHED.
Tara M. Van Brederode and Amanda Robinson, Des Moines, for
complainant.
Attorney Doe, Des Moines, pro se.
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ZAGER, Justice.
In this attorney disciplinary action, we are asked to decide whether
an attorney’s ex parte email to a judge that included allegations of
unethical conduct and a cover-up violated our Iowa Rules of Professional
Conduct. We find that the Iowa Supreme Court Attorney Disciplinary
Board did not prove a violation of rule 32:8.2(a). However, we do find
that the Board proved a violation of rule 32:3.5(b). The appropriate
sanction for this violation is a private admonition.
I. Background Facts and Proceedings.
Attorney Doe No. 792 passed the Iowa bar exam in 1997. He chose
not to practice law in Iowa at that time and moved to Los Angeles in
1998 to obtain his MBA. He spent the next ten years working as a
financial analyst in Los Angeles and New York. His Iowa law license
became inactive in 2000.
In 2007, Attorney Doe moved back to Iowa. Attorney Doe had a
dispute with a former employer and hired attorney Steve Eckley to
represent him. The relationship between Attorney Doe and Eckley
quickly broke down, and Eckley withdrew from his representation of
Attorney Doe. The attorney–client relationship existed between October
25 and December 5, 2007. On February 22, 2011, Attorney Doe filed a
pro se fee arbitration claim with the Polk County Bar Association (PCBA)
Fee Arbitration Committee (committee) claiming there was a fee dispute
between him and Eckley. During the course of the proceedings, Attorney
Doe was uncomfortable with the level of familiarity between the members
of the committee, and between the members of the committee and
Eckley. Attorney Doe specifically did not like that Eckley, as the
president of the PCBA, had appointed the head of the committee, among
other concerns. These potential conflicts of interest were discussed prior
3
to the hearing, and several members recused themselves from hearing
the case. Attorney Doe also made a number of untimely procedural
requests to present additional information to the committee that were
denied. Attorney Doe felt that this information was important and that
his ability to present his side to the committee was unfairly limited
because of these denials.
After a full hearing, the committee ruled in Attorney Doe’s favor
and required Eckley to return $3050 to Attorney Doe, which was
promptly paid. However, Attorney Doe was not happy with this result.
Attorney Doe believed Eckley had overcharged him by more than
$25,000. Attorney Doe felt that the committee had made its ruling
against him based on familiarity and favoritism. Attorney Doe appealed
the ruling under Iowa Code chapter 679A by filing an “Application to
Vacate Fee Arbitration Award” in the Iowa District Court for Polk County.
Iowa Code § 679A.12 (2011). Judge Robert A. Hutchison was assigned to
the case.
On appeal, Attorney Doe alleged two grounds upon which the
award should be vacated: (1) “[t]here was evident partiality by an
arbitrator appointed as a neutral, corruption in any of the arbitrators, or
misconduct prejudicing his rights”; and (2) “[s]ubstantial evidence on the
record as a whole [did] not support the award.” Id. § 679A.12(1)(b), (f).
After a hearing, Judge Hutchison ruled that Attorney Doe had failed to
meet his burden of proof with respect to either ground and denied the
application. Attorney Doe filed a motion to amend or enlarge the court’s
ruling. In a ruling filed November 15, 2012, the motion was granted in
part and denied in part. At 12:31 a.m. on November 21, Attorney Doe
sent an email to Judge Hutchison. The contents of the email are as
follows:
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Dear Robert Hutchison:
Like I stated in my motion to expand and correct your
pathetic ruling; I never communicated with you exparte until
now. Because you choose to play fast and loose with your
ethical responsibilities and irresponsible rulings please
accept this as your first exparte communication from me.
The rest you unethical behavior you can explain to
your judicial committee. You should be ashamed of yourself
and I’m sure you have heard this before. Your shameless
cover up for your circle of buddies will not go unaddressed.
Hopefully I never have to deal with your arrogant unethical
behavior again.
Have a nice holiday. FYI this isn’t a tactic I’ve used
before but when observe unethical arrogant men who abuse
their power I believe its important to call it as i see it just like
now. In my book you’re no better than the convicted scum
you sentence to jail several times a month.
Shame on you.
Judge Hutchison reported the email to the Iowa Supreme Court Attorney
Disciplinary Board (Board).
Attorney Doe reactivated his Iowa license to practice law on April
11, 2014. The Board filed a complaint against Attorney Doe on April 17
for the email he sent to Judge Hutchison. In the complaint, the Board
alleged Attorney Doe violated Iowa Rules of Professional Conduct
32:3.5(b) (ex parte communication) and 32:8.2(a) (false statement
concerning the qualifications or integrity of a judge). Iowa R. Prof’l
Conduct 32:3.5(b), :8.2(a). On June 12, Attorney Doe sent an apology
email to Judge Hutchison, which read as follows:
Judge Hutchison:
I wanted to extend my sincere apology for sending an
emotional email on November 21, 2012 at 12:31am from my
mobile phone. It was unprofessional and not indicative of
my character. After learning that the Iowa Rules of
Professional Conduct apply to me even when I have never
worked in the profession as an attorney and when my license
was inactive, I have since become fully reinstated as an
active licensed attorney. As a newly reinstated attorney, I
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want you to know that I intend to follow these rules at all
times regardless of whether I am employed as an attorney or
simply representing myself. Again I extend my sincere
apology for the email and hope that you will accept.
The hearing before the grievance commission took place on August
11. The commission filed its findings of fact, conclusions of law, and
recommended sanction on November 26. In the report, all of the
members of the commission agreed that there was no basis in fact for the
allegations included in the email Attorney Doe sent Judge Hutchison.
However, the commission split 3–2 on the determination of whether
Attorney Doe’s email violated rule 32:8.2(a) of the Iowa Rules of
Professional Conduct. The two minority members believed that the email
lacked civility and professionalism. However, they also believed that it
was objectively reasonable for a person from outside the Iowa legal
community, who did not understand the legal process, to misinterpret
the professional relationships of the attorneys involved and to conclude
that they were being treated unfairly. The majority concluded that it was
not objectively reasonable for Attorney Doe to believe that he was being
treated unfairly. The majority concluded that a reasonable person
should have been able to look at the testimony and the disclosures made
by Judge Hutchison and conclude that the judge was not friends with
the other lawyers in the case and was not covering up for the members of
the committee. The commission also stated in its report that the entire
panel agreed that Attorney Doe violated rules 33.1(1), 33.1(4), and
33.3(1) of the Standards for Professional Conduct. 1
1Attorney Doe alleges that the commission violated his right to procedural due
process by finding that he violated the Standards for Professional Conduct. There are
no sanctions or penalties for violating the standards. Rather, the commission only
noted that the standards “should serve as the basis for any lawyer’s interaction with the
Court and other members of the profession.” In this opinion, we are only determining
6
The commission recommended a public reprimand. Attorney Doe
filed a motion to amend and expand the ruling of the commission, which
was denied. He followed with a second motion to amend and expand the
ruling, which was also denied. Attorney Doe appealed the report and
recommendation of the commission. The Board requests a license
suspension between thirty days and four months. Attorney Doe argues
that he did not violate our rules and requests that we dismiss the
complaint. In the alternate, Attorney Doe requests a private admonition.
II. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Cross, 861 N.W.2d 211, 217 (Iowa
2015). “The Board must prove attorney misconduct by a convincing
preponderance of the evidence, a burden greater than a preponderance of
the evidence but less than proof beyond a reasonable doubt.” Id. While
we give the findings and recommendations of the commission respectful
consideration, we are not bound by them. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Ricklefs, 844 N.W.2d 689, 696 (Iowa 2014). If we find
proof of misconduct, we may impose a greater or lesser sanction than
recommended by the commission. Cross, 861 N.W.2d at 217.
III. Analysis.
The grievance commission was divided on whether Attorney Doe
violated Iowa Rule of Professional Conduct 32:8.2(a) when he sent the
offending email to Judge Hutchison. Rule 32:8.2(a) 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,
___________________________________
whether Attorney Doe violated the Iowa Rules of Professional Conduct and not the
standards.
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adjudicatory officer, or public legal officer, or of a candidate
for election or appointment to judicial or legal office.
Iowa R. Prof’l Conduct 32:8.2(a). The comments to the rule expand on
the purpose behind sanctioning attorneys for making such false
statements:
Assessments by lawyers are relied on in evaluating the
professional or personal fitness of persons being considered
for election or appointment to judicial office and to public
legal offices . . . . Expressing honest and candid opinions on
such matters contributes to improving the administration of
justice. Conversely, false statements by a lawyer can
unfairly undermine public confidence in the administration
of justice.
Id. cmt. 1. One of the purposes of the rule is “[t]o maintain the fair and
independent administration of justice.” Id. cmt. 3.
A. First Amendment. In Weaver, we addressed how sanctioning
attorneys for statements they make implicates the First Amendment.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 80
(Iowa 2008). We first analyze whether the statement is entitled to First
Amendment protection. Id. at 82. If we determine it is not, then we
consider whether the statement violated the Iowa Rules of Professional
Conduct. Id.
In Weaver, we declined to apply the subjective New York Times test
in determining whether statements made by attorneys about judicial
officers are afforded First Amendment protection. Id. at 81. Instead, we
adopted an objective standard for assessing criticisms of judicial officers
made by attorneys. Id. at 82. This objective standard is “dependent on
what the reasonable attorney, considered in light of all his professional
functions, would do in the same or similar circumstances.” Id. (quoting
In re Disciplinary Action Against Graham, 453 N.W.2d 313, 322 (Minn.
1990)).
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We also cautioned that there are limitations on the type of speech
which we may discipline. Id. While all statements of opinion are not
automatically given First Amendment protection, “a statement of opinion
relating to matters of public concern which does not contain a provably
false factual connotation will receive full constitutional protection.” Id.
(quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695,
2706, 111 L. Ed. 2d 1, 18 (1990)). Statements such as “rhetorical
hyperbole” are also protected by the First Amendment if they cannot
“reasonably [be] interpreted as stating actual facts.” Id. (quoting
Milkovich, 497 U.S. at 20, 110 S. Ct. at 2706, 111 L. Ed. 2d at 19).
The framework for our analysis, then, is to first determine whether
the statements contained in Attorney Doe’s email to Judge Hutchison are
“sufficiently factual to be susceptible of being proved true or false.” Id.
(quoting Milkovich, 497 U.S. at 21, 110 S. Ct. at 2707, 111 L. Ed. 2d at
19). If Attorney Doe’s statements may be proven true or false, we next
determine whether the statements are actually true or false. Id. If we
determine that the statements Attorney Doe made in his email are false,
we then decide whether Attorney Doe had “an objectively reasonable
basis for making the statements.” Id. (quoting In re Cobb, 838 N.E.2d
1197, 1212 (Mass. 2005)). If we conclude that Attorney Doe did not have
an objectively reasonable basis for the allegations in his email, and
therefore the statements are not entitled to First Amendment protection,
we proceed to a determination of whether those statements violated the
Iowa Rules of Professional Conduct. Id.
1. Type of statement. We first must decide whether the statements
contained in Attorney Doe’s email to Judge Hutchison are capable of
being proven true or false. See id. Attorney Doe alleged that Judge
Hutchison “play[ed] fast and loose with [his] ethical obligations,” referred
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to “unethical behavior” a number of times, stated that the judge engaged
in a “shameless cover up for [his] circle of buddies,” and stated that the
judge was abusing his power. Ethical violations, cover-ups, and abuse of
judicial power are all things that are capable of being proven true or
false. They are not simply hyperbolic statements. We can look to the
record and facts to determine whether there was any conduct that
violated judicial ethics, constituted a cover-up for the attorneys involved
in the case, or amounted to an abuse of judicial power. Further,
Attorney Doe reported Judge Hutchison to the Commission on Judicial
Qualifications, demonstrating that he at least thought there was some
type of actionable violation. Therefore, these are the types of statements
that do not enjoy full constitutional protection. See id.
2. Falsity of statement. We next consider whether the statements
Attorney Doe made about Judge Hutchison in his email are false. See id.
Attorney Doe accused Judge Hutchison of committing ethical violations.
In our de novo review of the record, including our review of the hearing
transcript and the judge’s rulings, we find nothing that would constitute
a violation of judicial ethics. Attorney Doe also accused Judge Hutchison
of covering up for his “circle of buddies.” Judge Hutchison’s interjection
to correct Attorney Doe and Eckley regarding the ex-spouse of one of the
committee members was not improper. Despite Attorney Doe’s
discomfort with the closeness of the professional relationship among the
attorneys in this case, Judge Hutchison’s comments and conduct during
the hearing do not go beyond what a professional acquaintance would be
expected to know about a member of their profession. Finally, Attorney
Doe accused Judge Hutchison of an abuse of judicial power. Again, we
find nothing in our review of the record, including our review of the
10
hearing transcript and court rulings, that shows Judge Hutchison
abused his judicial discretion. 2
3. Existence of objectively reasonable basis for making the
statement. The commission was split as to whether Attorney Doe had an
objectively reasonable basis for making the statements he did about
Judge Hutchison. The members who did believe Attorney Doe had an
objectively reasonable basis for his statements thought so because
a person from outside the Iowa legal community, who did not
understand the legal process, could have misinterpreted the
testimony about the professional relationships between
Judge Hutchison and the other members of the Fee
Arbitration Committee and believed that he was being
treated unfairly by a group of friends.
We consider whether Attorney Doe’s conclusion that Judge
Hutchison was involved in a cover-up for the other attorneys involved—
whether the members of the committee or Eckley himself—was the same
conclusion a “reasonable attorney, considered in light of all his
professional functions, would [conclude] in the same or similar
circumstances.” Id. (quoting Graham, 453 N.W.2d at 322). 3 We note
that Attorney Doe’s initial unease with the closeness of the professional
relationships between the attorneys in Polk County is understandable
since he had, up to that point, not practiced law in Iowa and had been
living in large, urban areas. However, there was testimony establishing
that the relationships did not go beyond that of professional
acquaintances. Judge Hutchison’s comment regarding the ex-spouse of
2We also note that the Commission on Judicial Qualifications dismissed
Attorney Doe’s complaint because they found there was no evidence of judicial
misconduct.
3We do note, however, that the commission found Attorney Doe’s knowledge of
the legal process at the point in time that he sent the email to Judge Hutchison to be
comparable to any other pro se litigant.
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a committee member is not sufficient for a reasonable person in Attorney
Doe’s position to conclude there was a cover-up. There was testimony by
other committee members establishing that, while they may have used
the word “friend” to describe their relationship with other attorneys, their
familiarity did not rise past that of a professional acquaintance. One
such exchange that occurred when Attorney Doe questioned committee
member Jim Sayre regarding his relationship with Eckley and others in
the Iowa legal community demonstrates the disconnect:
Q. So would you state that you are not friends with
[Eckley] at all? A. I didn’t say close friends.
Q. Would you say that Steve Eckley is a friend? A. If
I see Steve, I’m going to say, “Hello.” I don’t recall that we
have ever had any extended conversation about anything.
Q. My question is: If you saw him, would you say,
“He’s not a friend of mine?” Would you say that? A. No, I
wouldn’t say that.
Q. Okay. So would you say that he’s a friend?
We do not find that it was objectively reasonable for Attorney Doe to
make the comments contained in his email that Judge Hutchison was
involved in a cover-up, engaged in unethical behavior, or abused his
judicial power. Because we conclude Attorney Doe did not have an
objectively reasonable basis for the allegations he made in his email to
Judge Hutchison, the statements are not entitled to First Amendment
protection. Id. We now proceed to a discussion of whether the email
violated our Iowa Rules of Professional Conduct.
B. Rule 32:8.2(a). We have only imposed sanctions for false
statements made against judges or public legal officers in a small
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number of cases. 4 The most recent disciplinary case that arose under
rule 32:8.2(a) involved a private email sent to the Iowa Attorney General’s
office that alleged misconduct by both the Polk County Attorney’s office
and the attorney general’s office. Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Kennedy, 837 N.W.2d 659, 663–64 (Iowa 2013). In the letter that
Kennedy sent to the attorney general, she alleged that the county
attorney’s office had offered an inmate early release to testify against her
client, and when the inmate refused, he was mentally, emotionally, and
physically abused. Id. at 663. She also alleged that the inmate was
isolated and forced to take drugs that made him unable to function
normally. Id. She said that the county attorney’s office was behind the
coercion of the inmate and that the department of corrections would not
allow her to visit any inmates, including her client. Id. at 663–64. After
receiving the letter, a lengthy investigation was launched into the
allegations made by Kennedy. Id. at 664. The Division of Criminal
Investigation determined that all the allegations were false, and Kennedy
later stipulated that her statements were false. Id. We found that
Kennedy violated rule 32:8.2(a) because she did not have “an objectively
reasonable basis” for the false statements made in her letter. Id. at 671
(quoting Weaver, 750 N.W.2d at 90). We also found that Kennedy
violated a number of other rules, and her license to practice law was
suspended for one year. Id. at 662.
4We have previously imposed sanctions under rule 32:8.2(a) on one occasion.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kennedy, 837 N.W.2d 659, 671, 677
(Iowa 2013). The court has also imposed sanctions for violations of DR 8–102(B), a
similar rule under the prior code of professional responsibility. See, e.g., Comm. on
Prof’l Ethics & Conduct v. Horak, 292 N.W.2d 129, 131 (Iowa 1980). DR 8–102(B)
provided that “a lawyer shall not knowingly make false accusations against a judge or
other adjudicatory officer.” Iowa Code of Prof’l Responsibility DR 8–102(B).
13
This court has imposed sanctions for false statements in four cases
under the old rules. In Weaver, an attorney spoke with a newspaper
reporter about the judge who presided over his criminal OWI
prosecution. 750 N.W.2d at 77. Weaver told the reporter that he
believed the judge was personally biased against him and that the judge
was dishonest about the reason for imposing Weaver’s sentence. Id. at
77–78. The next day, the reporter published an article entitled, “Bias on
the bench. Ongoing court battle pits judge against retired judge as
Weaver makes allegations of personal bias, dishonesty against presiding
judge.” Id. at 77. The article included multiple quotes from Weaver. Id.
We held that Weaver violated DR 8–102(B) because he did not have an
objectively reasonable basis for his false accusation against the judge.
Id. at 89–90. We found that Weaver also violated other rules and
suspended his license to practice law for three months. Id. at 91–92.
In Ronwin, an attorney made false statements about state court
judges and other attorneys in pleadings submitted in federal court. Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ronwin, 557 N.W.2d 515,
521–23 (Iowa 1996) (per curiam). The state court had entered a directed
verdict against Ronwin in an underlying civil action. Id. at 519. In his
complaint in federal district court, Ronwin alleged that a state district
court judge’s statement that Ronwin’s claim was not supported by “one
shred of evidence” was false, that the judge was “deliberately lying” to
help others steal from him, and that the entire trial in front of the judge
“[was] rigged.” Id. at 521–22. The federal district court dismissed
Ronwin’s complaint. Id. at 521. Ronwin appealed to the United States
Court of Appeals for the Eighth Circuit. Id. Here, he alleged the judge
entered a directed verdict even though he knew the grounds were false,
that the judge acted in conspiracy with other parties to harm Ronwin,
14
that the judge’s “conduct amounts to criminal obstruction of justice,”
and that the judge’s directed verdict was fraudulent, fabricated, a lie,
and criminal conduct. Id. The Eighth Circuit affirmed the dismissal by
the federal district court. Id. In our disciplinary opinion, we noted
Ronwin also made allegations that other judges acted in furtherance of
the conspiracy and other attorneys lied to the court. Id. at 522. He also
maintained the state court judge’s acts “were not the result of
incompetence but of deliberate criminal abuse of power.” Id. We found
that Ronwin violated DR 8–102(B), among other rules, and ultimately
revoked his license to practice law in Iowa. Id. at 522–23.
In Horak, an attorney alleged in pleadings that the presiding judge
was involved in a conspiracy against the attorney’s clients. Comm. on
Prof’l Ethics & Conduct v. Horak, 292 N.W.2d 129, 130 (Iowa 1980).
Horak never contended that there was a factual basis for the allegation of
conspiracy on the part of the judge. Id. He argued that both the judge
and the grievance commission misconstrued the language in his
pleading, and that he actually meant the plaintiffs were involved in the
conspiracy and using the judge in the process. Id. He also stated that
he needed to include the involvement of the judge in his pleading in order
to allege state action that would allow him to present a claim for
deprivation of civil rights. Id. We found that the statement in the
petition was false and Horak knew the statement was false at the time it
was made. Id. at 131. We held Horak violated DR 8–102(B) and he was
reprimanded. Id.
In Frerichs, an attorney filed a petition for rehearing that included
allegations of deceit by this court in processing criminal appeals. In re
Frerichs, 238 N.W.2d 764, 765 (Iowa 1976). In his petition, Frerichs
alleged that the court was “willfully avoiding” addressing constitutional
15
claims he made in three different client cases. Id. In a previous petition
for rehearing, Frerichs stated the court’s conclusions in that case were
baseless and ignored trial records and other facts. Id. at 766. We found
that Frerichs violated DR 8–102(B) by making false statements about the
court. Id. at 767. We noted that, setting aside judicial immunity, the
allegations made against the court and the individual justices could be
indictable misdemeanors or felonies. Id. at 767. We ultimately
admonished Frerichs for his conduct. Id. at 770.
Attorney Doe argues that there should be a distinction under rule
32:8.2(a) between when the statement is made in public and when the
statement is made in private. He argues that publication is key under
the rule, and when there is no publication, there can likewise be no
violation. While there is nothing in the language of the rule itself that
would suggest the false statement needs to be made publicly rather than
privately, we have only found violations of this rule when the false
statement was made either publicly or to a third person. See Kennedy,
837 N.W.2d at 663–64 (involving an email sent to the attorney general’s
office alleging misconduct of other attorneys—namely, members of both
the Polk County Attorney’s office and the Iowa Attorney General’s office);
Weaver, 750 N.W.2d at 77–78 (involving an attorney who told a reporter
the presiding judge was dishonest and biased); Ronwin, 557 N.W.2d at
521 (involving a number of allegations against judges made in pleadings
submitted in federal court); Horak, 292 N.W.2d at 130 (involving
allegations made against a judge in pleadings to the court); Frerichs, 238
N.W.2d at 765–66 (involving false allegations made about the court in
pleadings). Attorney Doe’s email to Judge Hutchison, in contrast to our
previous cases, was private. It was sent directly to the judge’s state
email and no one else. The offending email is unprofessional; however,
16
the email does not rise to the same level as the conduct in the five cases
where we have found violations of this rule.
Additionally, one of the purposes of the rule is to “maintain the fair
and independent administration of justice.” Iowa R. Prof’l Conduct
32:8.2(a) cmt. 3.
Rule 8.2(a) does not differentiate between statements
made in or out of court, or by lawyers connected or
unconnected to a particular proceeding. However, those
factors are relevant to both the First Amendment analysis
and to concerns about actual disruption or actual
interference with the administration of justice.
2 Geoffrey C. Hazard, Jr., W. William Hodes, & Peter R. Jarvis, The Law
of Lawyering § 67.03 at 67-7 (4th ed. 2015).
We note the distinction between this case and the cases in which
we have found a violation of rule 32:8.2(a) or DR 8–102(B). In Kennedy,
the email sent by the attorney spurred a lengthy and costly investigation
into the allegations of misconduct and coercion. 837 N.W.2d at 663–64.
In Weaver, the attorney’s statements resulted in a published newspaper
column that included allegations of bias and dishonesty by the presiding
judge. 750 N.W.2d at 77–78. In Ronwin, Horak, and Frerichs, the
allegations of judicial misconduct were made in pleadings to the court,
thereby disrupting or slowing down the legal process. Ronwin, 557
N.W.2d at 521; Horak, 292 N.W.2d at 130; Frerichs, 238 N.W.2d at 765–
66. This is in contrast to the situation here, where Attorney Doe sent a
private email to Judge Hutchison that did not itself result in any
disruption of the legal process. Though unprofessional, we cannot
conclude that the email hindered the fair and independent
administration of 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).
17
C. Rule 32:3.5(b). Although the commission did not find that
Attorney Doe violated rule 32:3.5(b), so long as the Board utilized our
established process for rule violations, we are still entitled to review this
rule violation. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Zenor, 707
N.W.2d 176, 178 (Iowa 2005). We have summarized the proper process
the Board must take when charging an attorney with a rule violation:
[T]he . . . Board may investigate complaints regarding
attorney misconduct. When, based on the investigation, the
Board determines prosecution is warranted, the Board may
file a complaint against the attorney with the commission. A
panel of commissioners is then selected to hear the evidence,
and may either dismiss the case, issue a private admonition,
or recommend that we reprimand the attorney or suspend or
revoke the attorney’s license to practice law. In any case in
which the commission recommends a reprimand,
suspension, or revocation, the commission files findings of
fact, conclusions of law, and recommendations in this court.
While we are respectful of the commission’s findings,
conclusions, and recommendations, we engage in a de novo
review of the record. The overarching purpose of this
disciplinary process is to aid this court in exercising its
responsibilities in regulating the legal profession in Iowa.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Att’y Doe No. 762, 839 N.W.2d
620, 622 (Iowa 2013). Thus, as long as the proper procedure was
followed by the Board in charging and giving notice to the attorney, we
are able to review the entire record on our de novo review. See id. “[W]e
ultimately decide what discipline is appropriate under the unique facts of
each case.” Zenor, 707 N.W.2d at 178 (quoting Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Shinkle, 698 N.W.2d 316, 318 (Iowa 2005)).
The key in our consideration of the rule 32:3.5(b) violation is whether the
Board “prove[d] attorney misconduct by a convincing preponderance of
the evidence.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Blessum, 861
N.W.2d 575, 582 (Iowa 2015).
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In previous cases, so long as the Board originally charged the
attorney with a rule violation, we still considered it on our de novo review
even if the commission did not find the Board proved a violation. See,
e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ricklefs, 844 N.W.2d at
698 (discussing a rule violation because it was charged by the Board, but
ultimately agreeing with the commission that there was no violation);
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431, 440
(Iowa 2012) (finding there was a violation of the rule even though the
commission determined there was no violation); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Dunahoo, 799 N.W.2d 524, 532 (Iowa 2011) (finding a
violation of a rule that was charged by the Board even though the
commission did not find a violation).
In its original petition, the Board alleged that Attorney Doe violated
rule 32:3.5(b). Rule 32:3.5(b) provides that a lawyer shall not
communicate ex parte with a judge, juror, prospective juror, or other
official during the course of a proceeding unless they are authorized to
do so. Iowa R. Prof’l Conduct 32:3.5(b). The comments expand on the
rule and state that “[d]uring a proceeding a lawyer may not communicate
ex parte with persons serving in an official capacity in the proceeding,
such as judges, . . . unless authorized to do so.” Id. cmt. 2.
We think it is clear that the Board demonstrated by a convincing
preponderance of the evidence that Attorney Doe violated rule 32:3.5(b).
The email that Attorney Doe sent Judge Hutchison was sent “during the
proceeding.” Id. r. 32:3.5(b). On April 20, 2012, Attorney Doe filed the
action in district court appealing the decision of the fee arbitration
committee, thus beginning the course of the proceeding assigned to
Judge Hutchison. On October 25, Judge Hutchison issued his order
denying Attorney Doe’s application to vacate the arbitration award. On
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November 5, Attorney Doe filed a motion to amend or enlarge the
findings and conclusions of Judge Hutchison’s order. On November 16,
Judge Hutchison denied the motion. On November 21, while the case
was still under the jurisdiction of the district court, Attorney Doe sent
the email in question. See Iowa R. App. P. 6.101(1)(b); 9 Barry A.
Lindahl, Iowa Practice Series: Civil Practice Forms § 19.30, at 898 (2015)
(“The general rule is that the district court loses jurisdiction over the
merits of a controversy once an appeal is perfected.”). Attorney Doe filed
an appeal of Judge Hutchison’s ruling on November 26.
Further, the email was sent to Judge Hutchison when he was
acting in his official capacity during the proceeding. Iowa R. Prof’l
Conduct 32:3.5(b) cmt. 2. The email itself acknowledges that it is an ex
parte communication, and Attorney Doe has repeatedly admitted to
sending the email to Judge Hutchison. We disagree with the findings of
the commission and find that the Board proved by a convincing
preponderance of the evidence that Attorney Doe violated rule 32:3.5(b).
D. Notice of Charges. Arguably, Attorney Doe may have violated
several of our rules of professional conduct. However, the Board only
charged him with violations of rule 32:3.5(b) and rule 32:8.2(a). Further,
the commission’s report raised for the first time violations of the
Standards for Professional Conduct. The commission found that
Attorney Doe violated rules 33.1(1), 33.1(4), and 33.3(1) of the
standards. 5 As noted by the commission, there are no sanctions or
5Rule 33.1(1) states that “[a] lawyer’s 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). Rule 33.1(4) notes that the standards are in place to
“achieve the twin goals of civility and professionalism.” Id. r. 33.1(4). Rule 33.3(1)
instructs lawyers to “speak and write civilly and respectfully in all communications with
the court.” Id. r. 33.3(1).
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penalties for violating the standards. But more significantly, Attorney
Doe was never put on notice of any of these alleged violations under the
standards until the point at which the commission found that he violated
them. See In re Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 1226, 20
L. Ed. 2d 117, 123 (1968) (“This absence of fair notice as to the reach of
the grievance procedure and the precise nature of the charges deprived
petitioner of procedural due process.”). Attorney Doe should have been
put on notice of all the charges against him the commission would
consider in his disciplinary proceeding. Otherwise, the proceedings
“become a trap when, after they are underway, the charges are
amended.” Id. at 551, 88 S. Ct. at 1226, 20 L. Ed. 2d at 122. The lesson
here is that while Attorney Doe may have violated other ethical rules, it is
incumbent on the Board to properly raise the alleged violations in order
to provide proper notice of the charges to the attorney. It must then
prove the violation by a clear preponderance of the evidence.
E. Sanction. Having found that Attorney Doe violated rule
32:3.5(b), we turn to a discussion of sanctions. The issue of sanctions
has been hotly debated in this case, with recommendations at various
points throughout the proceedings ranging from a public reprimand to
license revocation. Ultimately, the commission recommended a public
reprimand, the Board requested a license suspension between thirty
days and four months, and Attorney Doe requested a private admonition.
Although we find our prior cases to be instructive, “[t]here is no
standard sanction for [any] particular type of misconduct.” Blessum, 861
N.W.2d at 591 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morris,
847 N.W.2d 428, 435 (Iowa 2014)). Rather, we “determine an
appropriate sanction based on the particular circumstances of each
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case.” Morris, 847 N.W.2d at 435 (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa 2007)).
When crafting a sanction, we consider the nature of the
violations, the attorney’s fitness to continue in the practice of
law, the protection of society from those unfit to practice law,
the need to uphold public confidence in the justice system,
deterrence, maintenance of the reputation of the bar as a
whole, and any aggravating or mitigating circumstances.
Blessum, 861 N.W.2d at 591 (quoting Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Clarity, 838 N.W.2d 648, 660 (Iowa 2013)).
We have previously heard cases in which one of the violations was
an ex parte contact with a judge; however, we have no reported cases
involving only a violation of rule 32:3.5(b) and no other rules. In our
cases where we found an improper ex parte communication, in addition
to other violations, we have imposed sanctions ranging from a thirty-day
suspension to a three-year suspension. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 684 (Iowa 2010) (three-year
suspension); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Ackerman, 611 N.W.2d 473, 474–75 (Iowa 2000) (thirty-day suspension);
Comm. on Prof’l Ethics & Conduct v. Postma, 430 N.W.2d 387, 392 (Iowa
1988) (six-month suspension).
In the cases where we have decided to impose a sanction for an ex
parte communication with a judge, the behavior in question was much
more egregious than sending a single, unprofessional email to a judge.
In Johnson, the attorney presented an improper ex parte order to the
court without the consent of his opposing counsel. 792 N.W.2d at 680.
In Ackerman, the attorney presented an ex parte dismissal order to the
judge without advising the county attorney. 611 N.W.2d at 474. In
Postma, the attorney presented an ex parte order to the judge that
included false information about the opposing party. 430 N.W.2d at
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390–91. In each of these cases, the attorney’s conduct “hampered the
efficient and proper operation of the courts.” Johnson, 792 N.W.2d at
680 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784
N.W.2d 761, 768 (Iowa 2010)). This did not occur in this case.
We must also consider any mitigating and aggravating factors
when we determine the appropriate sanction to impose for a violation of
our rules. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelissen,
871 N.W.2d 694, 700 (Iowa 2015). Attorney Doe testified at the hearing
in front of the grievance commission that he was under a great deal of
stress at the time he sent the email. He said that he was struggling with
issues in his personal life. His mother and grandmother had recently
passed away, his dog had died, and he was alone for Thanksgiving. He
was also suffering financial stress as a result of the dispute with his
previous employer and was concerned about the state of the stock
market. Although we acknowledge the reasons stated for Attorney Doe’s
decision to send the email to Judge Hutchison, we do not find them to be
an excuse.
However, we do find that there were mitigating factors present.
There have been no previous disciplinary actions against Attorney Doe.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Qualley, 828 N.W.2d 282, 294
(Iowa 2013). No clients were harmed by Attorney Doe’s actions. Ricklefs,
844 N.W.2d at 700. Attorney Doe did take responsibility for his actions
by apologizing to Judge Hutchison and admitting that his email was
unprofessional. Id.
While Attorney Doe’s email was unprofessional, we do not believe a
license suspension or a public reprimand is the appropriate sanction.
However, had we found other properly charged and proven violations, a
public sanction would be appropriate. Instead, we choose to privately
23
admonish Attorney Doe. We do note that, while a private reprimand is
not discipline, it serves as a warning and puts the attorney on notice that
his or her behavior violates certain ethical requirements. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Said, 869 N.W.2d 185, 194 (Iowa 2015).
Likewise, in imposing only a private admonition, we are in no way
minimizing or condoning the unwarranted and unprofessional attack on
a judicial officer.
IV. Conclusion.
For the above reasons, we find that the Board did not prove
Attorney Doe violated rule 32:8.2(a) of the Iowa Rules of Professional
Conduct, but the Board did prove Attorney Doe violated rule 32:3.5(b) of
the Iowa Rules of Professional Conduct. We privately admonish Attorney
Doe.
ATTORNEY ADMONISHED.
All justices concur except Appel, Waterman, and Mansfield, JJ.,
who take no part.