Iowa Supreme Court Attorney Disciplinary Board v. Sean Joseph Barry

IN THE SUPREME COURT OF IOWA
No. 17–1415
Filed February 23, 2018
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
SEAN JOSEPH BARRY,
Appellant.
On appeal from the report of the Iowa Supreme Court Grievance
Commission.
An attorney appeals a report of the grievance commission
recommending we suspend his license to practice law in this state.
LICENSE SUSPENDED.
David L. Brown of Hansen, McClintock & Riley, Des Moines, for
appellant.
Tara van Brederode and Susan A. Wendel, Des Moines, for
appellee.
2
WIGGINS, Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against an attorney, alleging numerous violations of the Iowa
Rules of Professional Conduct in the attorney’s representation of a client
in a dissolution proceeding. For fourteen months, the attorney
misrepresented the status of the dissolution proceeding to his client and
his client’s brothers. Moreover, the attorney prepared a fraudulent
dissolution decree, to which he attached a signature page bearing a
judge’s signature from a different case. A division of the Iowa Supreme
Court Grievance Commission found the attorney’s conduct violated our
ethical rules.
Based on the attorney’s violation of our rules, the commission
recommended we suspend his license to practice law for eighteen
months. On our de novo review, we find the attorney violated the
provisions of our rules. However, we disagree with the length of the
recommended suspension. We suspend the attorney’s license to practice
law indefinitely with no possibility of reinstatement for one year from the
date of filing this opinion.
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519, 522 (Iowa
2017). The Board must prove ethical violations by a convincing
preponderance of the evidence. Id. “A convincing preponderance of the
evidence is more than the typical preponderance standard in a civil case
but less than proof beyond a reasonable doubt.” Id. We may impose a
greater or lesser sanction than what the commission has recommended
upon proof of an ethical violation. Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Vandel, 889 N.W.2d 659, 662 (Iowa 2017). “While we respectfully
3
consider the commission’s findings and recommendations, they are not
binding on us.” Id.
II. Background Facts and Proceedings.
On February 7, 2017, the Board filed a complaint against Sean
Barry alleging multiple ethical violations in his representation of Richard
Miller in a dissolution proceeding. The Board filed an amended
complaint on June 5.
On June 30, the Board and Barry filed a stipulation pursuant to
Iowa Court Rule 36.16, wherein the parties waived a formal hearing on
the matter and agreed to the facts, rule violations, and mitigating and
aggravating circumstances. The commission approved and accepted the
parties’ joint stipulation.
Stipulations of facts bind the parties. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa 2013). We
construe factual stipulations “with reference to its subject matter and in
light of the surrounding circumstances and the whole record, including
the state of the pleadings and issues involved.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 803–04 (Iowa 2010) (quoting
Graen’s Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d 295, 300
(Iowa 1983)). Because the authority to license and sanction lawyers
rests with us, we are not “bound by a stipulation of a violation or of a
sanction in reaching our final decision in a disciplinary case.” Id. at 804.
Based on the stipulation of the parties and our de novo review of the
record, we make the following findings of fact.
Barry has practiced law in Iowa since April 2008. He also has a
license to practice law in Colorado. However, the Colorado court
suspended his Colorado license on May 1, 2012, for nonpayment of his
inactive fee. His Colorado license is currently under suspension.
4
At the time of the alleged misconduct, Barry practiced law as a
partner in the law office of Montgomery, Barry, Bovee & Barry, which is
located in Spencer. In May 2014, Miller hired Barry to represent him in
dissolving his marriage. Barry met with Miller and a couple of his
brothers to obtain all the relevant information to draft Miller’s dissolution
petition and stipulation. Barry prepared the documents, both of which
Miller signed on May 27. That same day, Barry notarized Miller’s
signature on the dissolution petition. Barry never filed the petition with
the court and failed to have the petition served on Miller’s wife.
On August 29, Barry notarized a power of attorney that he had
prepared for Miller in which Miller designated his brothers as agents with
general authority to act on his behalf.
From May 27, 2014, to the end of July 2015, when Miller or his
brothers asked about the status of the dissolution, Barry repeatedly lied
to them that he had filed the dissolution petition. On one occasion,
Barry falsely informed one of the brothers that he had Miller’s wife served
and she had twenty days to answer. After the end of the twenty-day
period to answer, the brother asked about the next step, to which Barry
falsely informed him that Miller could seek a default judgment. The
brother continued to request updates from Barry on the status of the
dissolution. Barry either failed to return the brother’s phone calls or
falsely informed him the matter was progressing.
At a meeting, when Miller and his brothers expressed their
concerns about the prolonged dissolution process, Barry knowingly failed
to advise them that he had not yet filed the dissolution petition or served
it on Miller’s wife. After this meeting, they requested updates from Barry
almost daily. Barry either failed to respond to the requests for updates
5
or, when he did respond, continued to misrepresent the status of the
dissolution.
In January 2015, Miller’s other brother went to Barry’s office,
seeking a status update on the dissolution. Despite knowing he had not
filed the petition, Barry falsely informed the brother “the Judge had
signed the Decree, but there was a delay in getting them recorded.”
On or about July 8, the same brother went to Barry’s office to
request copies of the decree. Barry gave the brother a document that
Barry misrepresented as a copy of an original dissolution decree that
dissolved Miller’s marriage. To create this fraudulent decree, Barry
copied a signature page from an order setting a hearing in an unrelated
case bearing Judge Patrick M. Carr’s signature. He altered the case title
and the case number on this signature page. Without Judge Carr’s
knowledge or authorization, Barry attached the signature page to the
fraudulent decree. He inserted the file-stamp data “E-FILED 2015 JAN
14 11:33 AM CLAY — CLERK OF DISTRICT COURT” on the top of all
four pages of the fraudulent decree. Barry also inserted the case number
to the first page of the fraudulent decree.
On July 27, members of Miller’s family went to the office of the
Clay County Clerk of Court to search for the records relating to Miller’s
dissolution of marriage. The staff of the clerk’s office could not locate
Miller’s dissolution decree in the court records. The staff contacted
Barry’s law office and, in Barry’s absence, spoke with other members of
the law office to inquire about the dissolution case. The staff
subsequently sought assistance from the electronic data management
system support office in Des Moines concerning the fraudulent decree
Barry had presented to the Miller family.
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On July 30, the clerk emailed Chief Judge Duane E. Hoffmeyer to
inform him of the situation. Chief Judge Hoffmeyer called the Board and
subsequently provided affidavits from the Clay County Clerk of Court, a
letter from the Miller family, and a copy of the forged decree. In a letter
dated August 6, Barry reported his ethical violations for neglecting the
dissolution matter and engaging in dishonest conduct.
Based on Barry’s conduct, the Board alleged six violations of the
Iowa Rules of Professional Conduct—(1) 32:1.3 (lack of diligence);
(2) 32:1.4(a)(3) (failure to keep client reasonably informed); (3) 32:1.4(a)(4)
(failure to promptly comply with reasonable requests for information);
(4) 32:8.4(b) (criminal act that reflects adversely on honesty,
trustworthiness, or fitness as a lawyer); (5) 32:8.4(c) (conduct involving
dishonesty, fraud, deceit, or misrepresentation); and (6) 32:8.4(d)
(conduct prejudicial to the administration of justice).
On September 5, 2017, the commission entered its findings of fact,
conclusions of law, and recommendation. The commission found Barry
violated all the rules alleged in the Board’s complaint and recommended
an eighteen-month suspension of Barry’s license. Barry appealed. We
discuss additional facts as needed.
III. Ethical Violations.
A. Lack of Diligence—Rule 32:1.3. This rule provides, “A lawyer
shall act with reasonable diligence and promptness in representing a
client.” Iowa R. Prof’l Conduct 32:1.3. An attorney must “handle a client
matter in a ‘reasonably timely manner.’ ” Vandel, 889 N.W.2d at 667
(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 591,
598 (Iowa 2011)). “[W]hen an attorney fails to appear at scheduled court
proceedings, does not make the proper filings, or is slow to act on
matters[,]” the attorney violates rule 32:1.3. Nelson, 838 N.W.2d at 537.
7
Barry failed to exercise due diligence by never filing the completed
dissolution petition despite the lapse of fourteen months. Barry had all
the necessary information to draft the petition and stipulation. Miller
signed both documents, and Barry notarized Miller’s signature on the
petition. Thus, to commence the dissolution process, all Barry had to do
was simply file the petition. Barry admitted in his letter to the Board
that Miller’s dissolution case was “simple” because there were no
children and no assets of any significant value. Yet he failed to file the
petition.
In Iowa Supreme Court Attorney Disciplinary Board v. Weiland, we
held a lawyer violated rule 32:1.3 because he delayed filing a dissolution
petition for four months. 885 N.W.2d 198, 208–09 (Iowa 2016). It
logically follows that Barry’s wholesale failure to file the petition violates
the rule.
Barry’s lack of diligence extended the case into a fourteen-month
ordeal when it could have been resolved much sooner. Miller eventually
retained new counsel who completed the dissolution in less than six
months. Accordingly, the Board proved by a convincing preponderance
of the evidence that Barry violated rule 32:1.3.
B. Keep Client Reasonably Informed—Rule 32:1.4(a)(3). This
rule requires an attorney to “keep the client reasonably informed about
the status of the matter[.]” Iowa R. Prof’l Conduct 32:1.4(a)(3). Barry not
only failed to reasonably inform the Millers about the status of the
dissolution but also misled them about the filing status of the petition
and service of process on Miller’s wife. See Weiland, 885 N.W.2d at 209
(holding the attorney failed to keep his client updated about the status of
the client’s dissolution and made misrepresentations about the filing
status of the petition and service of process on the client’s spouse).
8
Moreover, Barry created and presented a fraudulent dissolution decree to
the Millers. Instead of keeping them reasonably informed, Barry actively
misinformed. We conclude the Board proved by a convincing
preponderance of the evidence that Barry violated rule 32:1.4(a)(3).
C. Promptly Comply with Reasonable Requests for
Information—Rule 32:1.4(a)(4). This rule requires a lawyer to
“promptly comply with reasonable requests for information[.]” Iowa R.
Prof’l Conduct 32:1.4(a)(4). “A lawyer’s regular communication with
clients will minimize the occasions on which a client will need to request
information concerning the representation.” Id. r. 32:1.4 cmt. 4. “When
a client makes a reasonable request for information,” this rule “requires
prompt compliance with the request, or if a prompt response is not
feasible, that the lawyer, or a member of the lawyer’s staff, acknowledge
receipt of the request and advise the client when a response may be
expected.” Id.
From May 27, 2014, to the end of July 2015, when Miller or his
brothers repeatedly asked about the status of the dissolution, Barry
failed to communicate to them that he had not filed the petition and had
not served it on Miller’s wife. Clearly, because Barry failed to
communicate regularly with the Millers, they repeatedly requested
information concerning the prolonged delay in the dissolution process.
In response to one of Miller’s brother’s reasonable request for
information, Barry told him Miller’s wife had been served and had twenty
days to answer instead of informing him of the delay in filing or, rather,
nonfiling. See Weiland, 885 N.W.2d at 210 (finding the attorney violated
rule 32:1.4(a)(4) for lying to his client that he had filed the petition when
the client asked for an update and for continuing to mislead her by
blaming the delay on the process server). When the brother asked about
9
the next step after twenty days had elapsed, Barry misled him by
explaining the process for obtaining a default judgment instead of telling
him the truth.
Moreover, the Millers went to Barry’s office to convey they were
upset with the long delay in the whole process. They requested updates
almost daily thereafter. Barry continued to mislead them by creating a
fraudulent dissolution decree. Based on the foregoing, we find the Board
proved by a convincing preponderance of the evidence that Barry violated
rule 32:1.4(a)(4).
D. Criminal Act that Reflects Adversely on Honesty,
Trustworthiness, or Fitness as a Lawyer—Rule 32:8.4(b). This rule
prohibits a lawyer from “commit[ting] a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer
in other respects[.]” Iowa R. Prof’l Conduct 32:8.4(b). “It is the
commission of a criminal act reflecting adversely on a lawyer’s fitness to
practice law, not the act of getting caught committing a crime, which
constitutes a violation of this rule.” Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Taylor, 887 N.W.2d 369, 378 (Iowa 2016). Thus, even if the state
has not charged, or the court has not convicted, the lawyer of a crime,
the lawyer does not necessarily escape the ambits of rule 32:8.4(b). Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Lustgraaf, 792 N.W.2d 295, 299
(Iowa 2010).
The Board found that Barry violated rule 32:8.4(b). In its amended
complaint, it cited to Iowa Code section 715A.2. Iowa Code section
715A.2(1) states,
1. A person is guilty of forgery if, with intent to
defraud or injure anyone, or with knowledge that the person
is facilitating a fraud or injury to be perpetrated by anyone,
the person does any of the following:
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a. Alters a writing of another without the other’s
permission.
b. Makes, completes, executes, authenticates, issues,
or transfers a writing so that it purports to be the act of
another who did not authorize that act, or so that it purports
to have been executed at a time or place or in a numbered
sequence other than was in fact the case, or so that it
purports to be a copy of an original when no such original
existed.
c. Utters a writing which the person knows to be
forged in a manner specified in paragraph “a” or “b”.
d. Possesses a writing which the person knows to be
forged in a manner specified in paragraph “a” or “b”.
Iowa Code § 715A.2(1)(a)–(d) (2015).
Iowa Code section 715A.2(2) provides,
2. a. Forgery is a class “D” felony if the writing is or
purports to be any of the following:
....
(3) A check, draft, or other writing which ostensibly
evidences an obligation of the person who has purportedly
executed it or authorized its execution.
....
Id. § 715A.2(2)(a)(3).
The evidence in the stipulation is sufficient to show Barry
committed forgery pursuant to section 715A.2. Barry knowingly and
intentionally created a fraudulent dissolution decree and presented it to
the Millers as an original decree signed by a judge without the judge’s
authority or knowledge. Barry attached the judge’s signature page from
another case to the decree, changed the case title and case number on
the signature page, inserted the case number on the first page of the
decree, and inserted file-stamp data to all four pages of the decree.
11
Barry’s crime of forgery reflects adversely on his honesty,
trustworthiness, and fitness as a lawyer, even if the authorities never
charged him with the crime. See Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Stowe, 830 N.W.2d 737, 743 (Iowa 2013) (“We have previously
recognized the crime of forgery, by its very nature, reflects adversely on
an attorney’s fitness to practice law.”). We therefore find on our de novo
review the Board proved by a convincing preponderance of the evidence
Barry violated rule 32:8.4(b).
E. Conduct Involving Dishonesty, Fraud, Deceit, or
Misrepresentation—Rule 32:8.4(c). This rule prohibits an attorney
from “engag[ing] in conduct involving dishonesty, fraud, deceit, or
misrepresentation[.]” Iowa R. Prof’l Conduct 32:8.4(c). “Honesty is
necessary for the legal profession to function.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Haskovec, 869 N.W.2d 554, 560 (Iowa 2015). We take
rule 32:8.4(c) violations very seriously. Weiland, 885 N.W.2d at 211.
Misrepresentation requires a level of scienter that is more than
negligent behavior or incompetence. Id. Instead, “the key question we
must answer is whether the effect of the lawyer’s conduct is to mislead
rather than to inform.” Id. at 211–12 (quoting Haskovec, 869 N.W.2d at
560).
Here, Barry knowingly and intentionally misrepresented to the
Millers that he had filed the dissolution petition when in fact he had not
filed such a petition. To continue with the guise that the dissolution
process was underway, Barry told one of Miller’s brother that Miller’s
wife had been served and had twenty days to answer, all while knowing
he had not filed the petition. When the brother followed up with Barry
after twenty days had passed, Barry lied about being able to obtain a
default judgment.
12
When Miller’s other brother went to Barry’s office seeking
information on the status of the case, Barry told him a judge had signed
the decree but there was a delay in getting it recorded. To bury the truth
even further, Barry created a fraudulent dissolution decree by attaching
a signature page with the judge’s signature from a different case,
changing the case title and case number on the signature page, inserting
the case number on the first page of the decree, and inserting file-stamp
data to each of the four pages of the decree. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Thompson, 732 N.W.2d 865, 867 (Iowa 2007) (“Forging
a signature involves dishonesty, fraud, deceit, and misrepresentation.”).
Based on the foregoing, we agree with the commission and find the
Board proved that Barry violated rule 32:8.4(c) by a convincing
preponderance of the evidence.
F. Conduct Prejudicial to the Administration of Justice—Rule
32:8.4(d). This rule prohibits an attorney from “engag[ing] in conduct
that is prejudicial to the administration of justice[.]” Iowa R. Prof’l
Conduct 32:8.4(d). Actions that “violate well-understood norms and
conventions of the practice of law and hamper the efficient and proper
operation of the courts will generally constitute a violation of this rule.”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Liles, 808 N.W.2d 203, 206
(Iowa 2012).
Barry undoubtedly delayed court proceedings because his charade
lengthened the dissolution process for months on end. Moreover, he
caused court personnel to invest time and energy in searching court
records, verifying cases, and investigating the matter. See Iowa Supreme
Ct. Att’y Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 463 (Iowa 2014)
(stating a lawyer violates rule 32:8.4(d) when his or her misconduct
13
wastes judicial resources). Accordingly, the Board proved by a
convincing preponderance of the evidence Barry violated rule 32:8.4(d).
IV. Sanction.
In determining the appropriate sanction, we engage in a fact-based
analysis and consider a number of factors, such as “the nature of the
underlying violation, need to deter, public protection, protection of the
reputation of the legal profession, and the [lawyer]’s fitness to practice
law.” Thompson, 732 N.W.2d at 867. We also take into account
mitigating and aggravating circumstances. Id. There is no general
disciplinary standard for a particular type of attorney misconduct;
however, we are concerned with maintaining some degree of uniformity
throughout our disciplinary cases. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Clauss, 711 N.W.2d 1, 4 (Iowa 2006). Yet this concern
should not run afoul of “the particular facts in each case [which
ultimately] drive the resulting discipline.” Thompson, 732 N.W.2d at 867.
Although we do not condone Barry’s lack of diligence and other
violations of our ethical rules, we agree with the commission that the
forging of a court order is the most egregious of his violations. See Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d 288,
294 (Iowa 2002) (stating “misrepresentation [was] the most serious
violation in [the] case” among the violations); Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Clauss, 530 N.W.2d 453, 454 (Iowa 1995)
(noting the commission found violations in relatively minor matters but
choosing to pass on these violations because of the seriousness of other
violations, such as forging a signature). “The concept of
[misrepresentation] is repulsive to our system of justice and its very
presence within our profession supports serious discipline . . . .”
Grotewold, 642 N.W.2d at 294.
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Sanctions for attorney misconduct involving misrepresentation
generally range from a public reprimand to a three-year suspension. In
some cases, we found a public reprimand sufficient for attorney
misconduct involving false instruments or forgery. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Newman, 748 N.W.2d 786, 787–89 (Iowa 2008)
(publicly reprimanding an attorney with no prior disciplinary record who
forged a judge’s signature on an approved-but-unsigned order and filed it
with the court); Comm. on Prof’l Ethics & Conduct v. Roberts, 312 N.W.2d
556, 557–58 (Iowa 1981) (publicly reprimanding an attorney who misled
the court by forging his client’s signature on an affidavit and filing the
affidavit with the court). However, we also suspended an attorney for
sixty days. See Liles, 808 N.W.2d at 205, 207 (imposing a sixty-day
suspension where an attorney, who had received a prior public
reprimand for a different ethical violation, forged the signature of one of
the witnesses on a will and filed it for probate).
In other cases, we imposed six-month suspensions. See
McGinness, 844 N.W.2d at 459–60, 467 (imposing a six-month
suspension where an attorney fabricated certificates of service to
corroborate his lie that he had served discovery requests on opposing
counsel and continued to lie during the district court’s hearing on the
opposing counsel’s sanctions motion); Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Lesyshen, 585 N.W.2d 281, 286, 288 (Iowa 1998)
(suspending an attorney’s license for six months because, in addition to
neglecting her client’s lawsuit and having a prior public reprimand, the
attorney forged her client’s signature to the supplemental answers to
interrogatories and falsely notarized the signature); Comm. on Prof’l
Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453–54 (Iowa 1990)
(imposing a six-month suspension where an attorney blindly followed his
15
client’s instructions to backdate several documents and falsely notarized
signatures).
In Iowa Supreme Court Board of Professional Ethics & Conduct v.
Rylaarsdam, we suspended an attorney’s license for six months for
mainly two instances of fraud, among other violations. 636 N.W.2d 90,
91–93 (Iowa 2001). The attorney forged both of his clients’ signatures on
a petition to sell a shed belonging to an estate and forged one client’s
signature on two documents admitting claims filed in the estate. Id. at
91. Other than the forged signatures, the substance of all three
documents was true. Id. The attorney then misrepresented to his clients
that he had closed the estate. Id. One of the clients subsequently hired
him for a different estate. Id. For this estate, the attorney completed a
blank letter-of-appointment form and embossed the clerk of court’s seal
on it without knowledge or consent of the clerk. Id. He then
misrepresented to his client that the estate had been opened. Id. After
considering the attorney’s cooperation with the Board, acknowledgment
of both his ethical misconduct and necessity of a sanction, sincere
remorse, depression, and lack of a prior disciplinary record, we
concluded a six-month suspension was appropriate. Id. at 91–93.
Here, Barry’s misconduct went beyond lying to his clients. Like
the attorney in Rylaarsdam, “in an even more calculated and
unscrupulous attempt to hide his neglect, [Barry] falsified a court
document.” Id. at 93. However, even worse than the attorney in
Rylaarsdam who forged his clients’ signatures, Barry forged a judge’s
signature by attaching a signature page bearing the judge’s signature
from a different case to a fraudulent dissolution decree. See Thompson,
732 N.W.2d at 868 (stating “a lawyer may feel a false sense of
justification as a representative agent” when forging his or her client’s
16
signature but it is more questionable that “a lawyer could ever possess
even a momentary sense of justification in forging the signature of a
judge on a court order”).
In some cases, we imposed a harsher sanction than that imposed
in Rylaarsdam and concluded three years was the appropriate length.
See In re Rickabaugh (Rickabaugh I), 661 N.W.2d 130, 130–31, 133 (Iowa
2003) (per curiam) (suspending an attorney’s license for three years for
misconduct including fabricating the pleadings and forging a judge’s
signature); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Hansel, 558
N.W.2d 186, 192 (Iowa 1997) (imposing a three-year suspension for
conduct that included knowledge of a forgery); Clauss, 530 N.W.2d at
454–55 (imposing a three-year suspension where a lawyer with a past
disciplinary record forged his wife’s signature on a return of service,
notarized the forged signature, and falsely stated under oath that his wife
had signed the return in his presence); see also Comm. on Prof’l Ethics &
Conduct v. Wenger, 469 N.W.2d 678, 679, 681 (Iowa 1991) (suspending a
lawyer’s license for three years because the lawyer offered false evidence
and gave false testimony while under oath at a disciplinary hearing).
In some circumstances, we disbarred attorneys from the practice of
law in this state. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Rickabaugh (Rickabaugh II), 728 N.W.2d 375, 382 (Iowa 2007); see also
Stowe, 830 N.W.2d at 741, 743 (revoking an attorney’s license for forging
his client’s signature on two checks the attorney had stolen to transfer
funds into his personal bank account and factoring into our disbarment
decision the combination of the felony forgery convictions and conversion
of client funds).
In Rickabaugh II, we revoked the license of the same attorney who
was under scrutiny in Rickabaugh I. 728 N.W.2d at 382. Among other
17
serious ethical infractions, the attorney forged his client’s signature on a
court document, despite his previous discipline in Rickabaugh I for
fabricating the pleadings and forging a judge’s signature. Id. In light of
multiple violations of our disciplinary rules and his “blatant disregard for
his duty as an attorney to be honest and truthful[,]” we held disbarment
would best serve both the public at large and the legal profession in
particular. Id.
In the instant case, the commission weighed two cases that they
found were most similar to Barry’s conduct concerning the forged
dissolution decree: Rickabaugh I, 661 N.W.2d 130, and Thompson,
732 N.W.2d 865. In Rickabaugh I, we suspended an attorney’s license to
practice law in Iowa for three years. 661 N.W.2d at 133. The Nebraska
Supreme Court had disbarred the attorney after finding he accepted a
legal matter he was not competent to handle, neglected the matter, failed
to keep his clients advised of developments in the case, created
fraudulent pleadings, and forged a judge’s signature. Id. at 130–31. We
issued a reciprocal discipline notice and order to which the attorney
objected. Id. at 130.
In our review of the case, we accepted the factual findings from the
Nebraska proceeding as conclusive. Id. at 131. We stated, “When
combined with other serious misconduct, tendering a false document to
the court may warrant disbarment in Iowa.” Id. at 133. However, we
reasoned the “[attorney’s] action, fortunately, fell short of such fatal
misconduct.” Id. We weighed into our decision the “minor mitigating
factor” that “there was no case in which to file the forged document”
because of the attorney’s neglect. Id. After considering similar
misconduct by other Iowa lawyers, we suspended the attorney’s license
for three years. Id.
18
In Thompson, we suspended an attorney’s license to practice law in
Iowa for nine months. 732 N.W.2d at 869. An assistant county attorney
prepared an order for hearing on the motion for waiver of juvenile court
jurisdiction. Id. at 866. He then signed the name of a district court
judge to the order without the judge’s knowledge or authorization. Id.
The attorney filed the order with the clerk of court. Id. In determining
the appropriate sanction, we considered two aggravating factors and one
mitigating factor. Id. at 868. First, we noted “the forgery was a bold,
clear[,] and calculated act of dishonesty.” Id. Furthermore, we stated,
Unlike cases involving the forged signature of a client where
a lawyer may feel a false sense of justification as a
representative agent, it is hard to imagine how a lawyer
could ever possess even a momentary sense of justification
in forging the signature of a judge on a court order.
Id. Second, we took into account the attorney’s previous ethical rule
violations, including the alteration of a court document. Id. As for the
single mitigating factor, we noted the attorney self-reported his conduct
to the Board and stipulated to the commission that he had violated our
ethical rules. Id. at 868–69.
Like in Rickabaugh I, the fact that Barry did not and could not file
the court order is only a minor mitigating factor because there was no
open case due to his lack of diligence. We note, however, Nebraska
disbarred the attorney in Rickabaugh I and that case involved reciprocal
discipline. Here, no jurisdiction has disbarred Barry and this case does
not involve reciprocal discipline.
We see some differences between Thompson and Barry’s case.
Barry lacks the more colorful disciplinary history of the attorney in
Thompson, whom we sanctioned in three instances, one of which
included misconduct for correcting a typographical error on an original
19
document in a court file without permission. 732 N.W.2d at 866.
However, Barry forged a dissolution decree, unlike the attorney in
Thompson, who forged a scheduling order. See id. We agree with the
commission “the legal nature and consequences to a scheduling order
are significantly less than that of a dissolution of [a] marriage decree.”
Moreover, in addition to attaching the signature page of a judge
from another case to the fraudulent dissolution decree, Barry also
replaced the case title and case number on the signature page, inserted
the case number on the first page of the decree, and inserted file-stamp
data on each of the four pages of the decree. Such action requires more
forethought and strategizing than that of the attorney in Thompson who
simply forged a judge’s signature. Lastly, Barry perpetuated his
falsehood for fourteen months while the attorney in Thompson was
discovered within a short period of time. See id.
Lastly, McGinness is an informative case. 844 N.W.2d 456. In that
case, an attorney “embarked on a course of dishonest conduct” by
attaching fabricated certificates of service to two discovery requests he
had never served to opposing counsel. Id. at 459. To fabricate the
certificates of service, the attorney had photocopied an old certificate of
service from his response to opposing counsel’s discovery requests in the
same case. Id. When opposing counsel confronted the attorney, the
attorney lied that he had prepared and signed the discovery requests. Id.
The attorney continued to embellish in his filed response to opposing
counsel’s motion for sanctions. Id. He went so far as to hire a
handwriting expert to defend his position. Id. At the sanctions hearing,
the attorney maintained his position and thus lied to the district court.
Id. at 460.
 20
In determining the appropriate sanction, we stated the attorney’s
persistence in continuing his lies was a “remarkable” factor that
aggravated the sanction that we ought to impose. Id. at 466. We gave
less weight to his remorse and cooperation because he expressed
remorse and cooperated with the Board only after the district court had
sanctioned him and had referred him to the Board. Id. at 467. We
considered other mitigating factors such as his service to the community,
no prior disciplinary history, and no substantial harm to the client. Id.
After taking into account the aggravating and mitigating factors, we
imposed a six-month suspension. Id.
Here, like the attorney in McGinness, Barry exhibited “remarkable
persistence in pursuing his dishonest course[.]” See id. at 466.
However, Barry continued his falsehood for fourteen months, a time
period much longer than the length of the attorney’s falsehood in
McGinness. Although we do not know if the attorney in McGinness would
have also perpetuated his falsehood for just as long as Barry did, the fact
of the matter is that opposing counsel in McGinness swiftly confronted
the attorney about the fabrication of the discovery requests and
certificates of service, thereby cutting short the length of the attorney’s
deception. Moreover, more egregious than the attorney’s misconduct in
McGinness, Barry forged a judge’s signature by attaching a signature
page bearing the judge’s signature from a different case to a fraudulent
dissolution decree. As already mentioned, forgery of a judge’s signature
is a grave misrepresentation. Finally, unlike the misconduct of the
attorney in McGinness, Barry’s misconduct caused harm to his
vulnerable client.
After a comparative analysis of Rickabaugh I, Thompson, and
McGinness to the case at hand, we conclude the appropriate sanction for
21
Barry’s ethical rule violations falls on the spectrum between the lengthy
three-year suspension in Rickabaugh I and the six-month suspension in
McGinness. Specifically, the appropriate sanction is closer to the nine
months imposed in Thompson. However, before affirmatively concluding
on the appropriate length of the sanction, we consider the mitigating and
aggravating circumstances present in this case.
A. Mitigating Factors. In his August 6, 2015 letter to the Board,
Barry accepted responsibility for his actions and expressed some degree
of remorse. We have recognized that an attorney’s acceptance or
acknowledgment of some wrongdoing constitutes a mitigating
circumstance. Liles, 808 N.W.2d at 207; Rylaarsdam, 636 N.W.2d at 91.
Barry also cooperated with the Board, entered stipulations, and waived a
hearing. Such actions mitigate the sanction we will impose for Barry’s
violations of our disciplinary rules. Cf. Wenger, 469 N.W.2d at 680
(noting the attorney’s failure to cooperate with the committee amounted
to an aggravating factor).
However, Barry’s remorse and cooperation came on the coattails of
the clerk of court’s discovery of his fraudulent dissolution decree. As the
commission and the Board reasoned, “[T]here is nothing to suggest that
Barry was prepared to abandon his course of deception prior to the Clerk
of Court and Iowa District Court Chief Judge’s contact with Barry’s law
firm.” In McGinness, we stated the attorney’s remorse and cooperation
came after the district court entered an order imposing sanctions and the
Board contacted him concerning a complaint about his misconduct.
844 N.W.2d at 467. We reasoned “[t]he chronology tends to deflate
consideration of remorse and cooperation as mitigating factors.” Id.
Here, we agree with the commission that nothing in the record
suggests Barry was prepared to abandon the path he was traversing but
22
for the impetus provided by the unraveling of his deception.
Notwithstanding the chronology of Barry’s self-reporting, because Barry
expressed some level of remorse and cooperated with the Board, we find
a deflated degree of mitigation.
Additionally, Barry self-reported his misconduct, although he
delivered the letter to the Board after the clerk of court had contacted his
law office inquiring about the dissolution file and it became apparent the
end of his charade was just around the corner. Admittedly, his self-
reporting is simultaneously self-serving and apologetic. Barry apologized
and stated he understands there should and will be consequences.
Nevertheless, his letter portrays himself as a victim, rather than the
perpetrator, and paints the Millers as relentless clients who pressured
him for updates on the case and made threats against him for his slow
handling on the matter.
As a whole, the letter contains an oxymoronic, but all too familiar,
combination of self-serving justifications and sincere explanations for his
actions. Despite the ambivalent nature of his letter, we give some
deflated credit to him for detailing his misconduct in the letter. 1 See
Thompson, 732 N.W.2d at 866, 868–69 (finding an attorney’s self-report
as a mitigating circumstance even though the attorney notified the Board
of his misconduct only after the judge whose signature was forged
instructed him to report the matter to the Board). But see Clauss,
530 N.W.2d at 454 (“[The attorney’s] sudden candor was prompted, not
by his discovery of new facts, but by the knowledge of the imminent
revelation of the actual facts.”).
1Chief Judge Hoffmeyer reported Barry’s misconduct to the Board in a letter
dated August 7, 2015. However, according to the stipulations, Chief Judge Hoffmeyer
telephoned the Board and later provided supporting documents. We are unsure of the
date of this phone call. The Board received Barry’s letter on August 6, 2015.
23
In addition, Barry performed community service at an orphanage
in Haiti. See McGinness, 844 N.W.2d at 467 (recognizing service to the
community as a mitigating factor). Additionally, Barry has been
suffering from depression. Illness does not reduce the serious nature of
Barry’s ethical rule violations, but it influences the severity and type of
discipline we will impose. Nevertheless, “we will not excuse ethical
violations because of an attorney’s ill health, emotional problems,
personality disorders, or the general stress of a busy law practice.”
Hansel, 558 N.W.2d at 191.
We have recognized depression as a mitigating factor. Thompson,
732 N.W.2d at 868. In Grotewold, we stated “depression can take hold of
a person without his or her knowledge or understanding of the need for
treatment.” 642 N.W.2d at 294. Furthermore, “these symptoms too
often appear before the disease is diagnosed and treatment is sought.”
Id. at 295. If what he claims in his letter is true, Barry worked for the
past few years with undiagnosed and untreated depression. This is an
important mitigating factor. However, absent evidence of the relation
between the depression and the misconduct, we cannot understand “the
full extent of depression as a mitigating circumstance in the imposition
of discipline.” Id.
In his letter to the Board, Barry somewhat established a
relationship between his depression and his ethical rule violations by
explaining how his depression prevented him from pressing the “send”
button after doing the substantive work because he “just became
paralyzed and couldn’t do it.” Such an explanation explains his lack of
diligence in filing the dissolution petition but loosely explains his
misrepresentations to the Millers. See id. at 296 (stating the record
contained plenty of evidence to explain the relationship between the
24
depression and the neglect of professional duties but reasoning the
evidence did not explain the relationship between the depression and the
false statements to the court, although acknowledging the two
circumstances coexisted).
Moreover, Barry has not been receiving treatment from a licensed
mental health professional. The record contains a letter from Rita Henry
with Inner Prosperity and treatment records. Such information does not
provide any details on Henry’s credentials.
Furthermore, since self-reporting the matter to the Board in
August 2015, Barry only attended seven counseling sessions with Henry
and eight other sessions, such as “one-day healing intensive.” In 2017,
Barry only attended three counseling sessions, once in March, April, and
May, respectively. In light of the fact that Barry claimed in his letter that
the debilitating symptoms of depression adversely impacted his ability to
work, like the commission, we express concerns about the adequacy of
the frequency of counseling Barry received.
To be fair, at the time of his letter, Barry stated he was on the
waiting list for inpatient treatment at the Turnaround House in Ojai,
California. Although subsequent recovery efforts are important as a
mitigating factor, we decline to speculate on the question of whether
Barry is now receiving treatment at Turnaround House and, if not,
whether he has recently sought help from a licensed health professional,
such as a psychiatrist or psychologist. Accordingly, Barry’s depression
plays a minor mitigating role in the sanction we ought to impose.
Additionally, Barry’s law office was in transition at the time of the
Miller case because his father and uncle, both partners at the office, were
in the process of retiring. Thus, Barry and his other law partner
absorbed extra work. The stress of a law practice does not excuse
25
Barry’s misconduct, but we do consider his stressful situation as a
mitigating factor in determining the proper discipline. See Weiland,
885 N.W.2d at 215 (considering the attorney’s testimony that his mother
was in and out of the hospital, his car broke down during that time, he
had issues with city inspectors and his apartment, and he was working
on other time-consuming cases); Wenger, 469 N.W.2d at 680–81
(considering the attorney’s increased workload because of his law
practice’s transition from a two-lawyer to a sole practitioner office, his
new responsibility as the primary caretaker of his newborn child because
of his wife’s hospitalization, and his depressive disorder).
Lastly, Barry claimed he placed his license in inactive status
following his self-reporting. We view an attorney’s voluntary cessation of
law practice as a mitigating factor. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 871 (Iowa 2010).
B. Aggravating Factors. We now turn to the aggravating factors.
We emphasize “[w]hat should dictate the sanction in this case is the
nature, number, and seriousness of the ethical violations[.]” Hansel,
558 N.W.2d at 192. Barry’s misconduct implicates “two core values of
our profession”: “honesty and integrity[.]” Id.
Misrepresentation is a “grave and serious breach of professional
ethics.” Rickabaugh II, 728 N.W.2d at 382 (quoting Iowa Supreme Ct. Bd.
of Prof’l Ethics & Conduct v. Stein, 603 N.W.2d 574, 576 (Iowa 1999)). We
have repeatedly recognized “[f]undamental honesty is the base line and
mandatory requirement to serve in the legal profession.” Bauerle,
460 N.W.2d at 453. In fact, “the paramount need for lawyers to be
trustworthy” forms the foundation for “[t]he whole structure of ethical
standards.” Id. Thus, Barry’s misrepresentation of the status of the
dissolution case to the Millers and forgery of a judge’s signature
26
constitute serious breaches of the fundamental concepts we hold dear to
our justice system. See Stowe, 830 N.W.2d at 743 (“Forgery strikes at
the very heart of an attorney’s trustworthiness and honesty.”). When our
court officers circumvent the truth, whether in their own interests or for
the sake of their clients’ interests, they damage the court system itself
and the public’s confidence in the court system.
Moreover, “[a] lawyer has a very special responsibility for candor
and fairness in all his dealings with a court” because “[a]bsent mutual
trust and confidence between a judge and a lawyer—an officer of the
court—the judicial process will be impeded and the administration of
justice frustrated.” Lesyshen, 585 N.W.2d at 288 (quoting Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Plumb, 546 N.W.2d 215, 217–18 (Iowa
1996)).
Even in light of mitigating circumstances, “[t]he controlling
consideration is the absolute necessity for lawyers to be absolutely
honest.” Clauss, 530 N.W.2d at 455. In fact, cases involving false
statements or misrepresentations to the court usually result in more
severe disciplinary sanctions. West, 901 N.W.2d at 528. Additionally, as
we stated in Thompson, we consider forging a judge’s signature as a more
serious crime than forging a client’s signature. See 732 N.W.2d at 868.
Furthermore, Barry’s perpetuation of his deception “is a
remarkable aggravating factor.” McGinness, 844 N.W.2d at 466 (stating
the attorney repeatedly lied to opposing counsel and to the district court
and, despite having a number of opportunities to withdraw from his
deception, he “simply dug himself into a progressively deeper ethical
pit”). In fact, forging a fraudulent dissolution decree was “merely the last
step in a dishonest scheme” that lasted for fourteen months. Iowa
27
Supreme Ct. Att’y Disciplinary Bd. v. Kallsen, 814 N.W.2d 233, 238 (Iowa
2012).
Prior disciplinary action is a significant aggravating factor.
Weiland, 885 N.W.2d at 215; see also Lesyshen, 585 N.W.2d at 288
(considering the attorney’s prior public reprimand). “This is particularly
true when the current rule violations involve the same type of conduct as
the prior conduct subject to discipline.” Weiland, 885 N.W.2d at 215;
accord Thompson, 732 N.W.2d at 866, 868 (noting the similarity between
the attorney’s most recent forgery and his history of discipline,
particularly prior misconduct involving alteration of a court document).
In 2013, Barry failed to file an appellate proof brief and designation
of appendix, causing the dismissal of his client’s appeal. The Board
admonished Barry for neglecting his client’s appeal, in violation of rules
32:1.3 (lack of diligence) and 32:3.2 (failure to expedite litigation). It is
apparent that our past admonition has not improved Barry’s conduct in
pursuing his client’s matters with diligence. We note this prior
misconduct involved no misrepresentations.
Harm to a client is also an aggravating factor. West, 901 N.W.2d
at 528; Weiland, 885 N.W.2d at 215. Miller’s dissolution took well over
fourteen months to reach completion even though Barry testified the
dissolution was “simple.” Miller’s new counsel finalized the dissolution
in just a few months.
Lastly, vulnerability of the client is an aggravating factor. Weiland,
885 N.W.2d at 215. Barry stated in his letter that Miller’s wife was
abusive toward Miller, and Miller wanted her to leave him alone.
Additionally, Miller has been low functioning since birth. Miller’s
brothers were present to help him throughout the dissolution process.
Barry knew of Miller’s situation and his vulnerability, yet deceived the
28
Millers and failed to act with diligence in filing the dissolution petition.
See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Stowers, 626
N.W.2d 130, 133 (Iowa 2001) (“Each time an attorney betrays a client’s
trust by failing to fulfill professional obligations, and then compounds
the damage by intentionally concealing the failure, public confidence in
our profession is diminished.”).
C. Appropriate Sanction. We find Barry’s misconduct is more
egregious than those in McGinness and Thompson because of the
continuous nature of his misconduct over a long period of time. Rather
than owning up to his lack of diligence, Barry covered it up by forging a
divorce decree. His actions not only caused the client but also the staff
of the clerk’s office to expend time and resources to investigate Barry’s
deception. Furthermore, Barry took advantage of a client who was in a
vulnerable position. However, we find his misconduct is less egregious
than that in Rickabaugh I. Accordingly, we suspend Barry’s license to
practice law in Iowa for an indefinite period with no possibility of
reinstatement for one year from the date of filing of this opinion. As an
additional requirement for reinstatement, Barry must provide an
evaluation from a licensed health care professional verifying his fitness to
practice law.
V. Disposition.
We suspend Barry’s license to practice law in Iowa for an indefinite
period with no possibility of reinstatement for one year from the date of
filing of this opinion. The suspension applies to all facets of the practice
of law. See Iowa Ct. R. 34.23(3). Barry must comply with the
notification requirements of Iowa Court Rule 34.24. To establish his
eligibility for reinstatement, Barry must file an application for
reinstatement meeting all applicable requirements of Iowa Court Rule
29
34.25 and provide an evaluation from a licensed health care professional
verifying his fitness to practice law. We tax the costs of this action to
Barry in accordance with Iowa Court Rule 36.24(1).
LICENSE SUSPENDED.