Iowa Supreme Court Attorney Disciplinary Board v. Attorney Doe No. 762 , 839 N.W.2d 620 ( 2013 )

IN THE SUPREME COURT OF IOWA
No. 13–0856
Filed November 8, 2013
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
ATTORNEY DOE NO. 762,
Respondent,
JANE DOE and JOHN DOE,
Appellants.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
A witness in a proceeding before the Grievance Commission of the
Supreme Court of Iowa filed an interlocutory appeal after the commission
quashed the appearance of her counsel. REVERSED AND REMANDED.
Charles L. Harrington and Amanda K. Robinson, Des Moines, for
complainant.
Max E. Kirk and Eashaan Vajpeyi of Ball, Kirk & Holm, P.C.,
Waterloo, and Heather A. Prendergast of Roberts, Stevens, Prendergast &
Guthrie, P.L.L.C., Waterloo, for respondent.
Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des
Moines, for appellants.
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APPEL, Justice.
We are called upon to consider whether a witness testifying before
the Grievance Commission of the Supreme Court of Iowa is entitled to
the presence of counsel. In this case, the commission president entered
an order which, among other things, quashed the appearance of an
attorney for a witness before the commission. We conclude a person
called upon to be a witness before our grievance commission may be
represented by counsel for the limited purpose of protecting rights
personal to the witness in the proceeding.
I. Factual Background and Proceedings.
A client, Jane Doe, filed a complaint with the Iowa Supreme Court
Attorney Disciplinary Board alleging she was subjected to sexual
misconduct by an attorney, Attorney Doe, when she and her husband
were Attorney Doe’s clients. The Board subsequently filed a complaint
against Attorney Doe on the basis of Jane’s allegations. A division of the
grievance commission was appointed to hear the complaint. The
commission scheduled a hearing for June 24, 2013.
On May 16, attorney Roxanne Conlin filed an appearance on behalf
of Jane before the commission and requested a continuance of the
scheduled hearing. Conlin advised the commission that Jane had filed a
civil lawsuit in Black Hawk County related to events alleged in the
complaint and that it would be unfair to require her to testify before the
commission without her counsel present. Conlin further advised she
would be out of the state when the hearing was scheduled to receive
treatment to ensure full recovery from a recent stroke. She asked that
the hearing be continued so that she could be present when her client
testified before the commission.
3
On May 23, Attorney Doe responded by objecting to the
appearance and request for continuance. Attorney Doe noted the
hearing was originally scheduled for February 13, 2013, and was
continued at the Board’s request so further discovery could take place.
Attorney Doe emphasized that attorney disciplinary proceedings are
intended to be held within a short time after the complaint has been
filed. See Iowa Ct. R. 35.7(1) (stating hearings should not be held more
than ninety days after complaint has been served). Attorney Doe noted
that Jane filed her civil action on September 10, 2012, and that Conlin
had ample time to file an appearance sooner.
Attorney Doe took no position on whether Conlin should be
allowed to enter an appearance on behalf of Jane as the complaining
witness, except to state that he “objects to attorney Conlin participating
in any capacity resembling that of an attorney representing the Board or
aiding in the Board’s prosecution of the matter.” Attorney Doe urged
that Conlin be “precluded from acting as counsel or co-counsel on behalf
of the Board during the hearing on the matter.”
In its response, the Board did not object to Conlin’s appearance or
request for a continuance. The Board remarked the requested
continuance was not lengthy and noted Attorney Doe had previously
moved for an indefinite stay of the proceedings pending the outcome of
the civil suit. According to the Board, in light of Attorney Doe’s request
for a more lengthy delay, Conlin’s request for a brief delay seemed
reasonable. The Board observed that Conlin’s stroke and subsequent
recovery were not predictable and that, even if Conlin had filed an earlier
appearance, the parties would still have had to address the scheduling
conflict.
4
On the same day Attorney Doe and the Board filed their responses,
the commission president issued an order. The order stated that
hearings before the commission were confidential and that there was no
rule entitling a witness to have an attorney present or to have an
attorney participate in proceedings before the commission. The order
noted that while Jane argued it would be unfair to require her to testify
without counsel present, she had not set forth the specific nature of the
alleged unfairness. Further, the order indicated the commission had not
found authority supporting Jane’s position. The order indicated fairness
to the respondent was the paramount concern before the commission
and the rules requiring confidentiality of the proceedings were for the
benefit and protection of the respondent. The order found the absence of
her attorney from the hearing would cause no unfairness to Jane. Based
on the above reasoning, the order quashed Conlin’s appearance and
denied her request for a continuance. The order also admonished Conlin
that to the extent she had already participated in commission
proceedings, they were confidential under Iowa Court Rule 36.18 and
were not to be disclosed to third parties except in very limited
circumstances.
Jane sought interlocutory review of the commission’s order, which
we granted.
II. Standard of Review.
We review rulings of the grievance commission de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. K.G.T., 722 N.W.2d 787, 789 (Iowa
2006).
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III. Discussion.
A. Context of Issues Raised on Appeal.
1. Overview of Iowa attorney disciplinary process and related
caselaw. This court bears the responsibility of ensuring that Iowa
lawyers comply with the Iowa Rules of Professional Conduct. We fulfill
this responsibility employing a process established through our court
rules. See generally Iowa Ct. Rs. chs. 34–36 (containing the rules
governing the Board, attorney discipline process, and commission).
Under the established process, the Iowa Supreme Court Attorney
Disciplinary Board may investigate complaints regarding attorney
misconduct. Id. r. 34.8(1)(c). When, based on the investigation, the
Board determines prosecution is warranted, the Board may file a
complaint against the attorney with the commission. Id. rs. 34.11(5),
36.3. A panel of commissioners is then selected to hear the evidence, see
id. r. 36.14(1), 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, id. r. 35.10. 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. Id. While we are respectful of the
commission’s findings, conclusions, and recommendations, we engage in
a de novo review of the record. E.g., Iowa Supreme Ct. Att’y Disciplinary
Bd. v. McCarthy, 814 N.W.2d 596, 601 (Iowa 2012). The overarching
purpose of this disciplinary process is to aid this court in exercising its
responsibilities in regulating the legal profession in Iowa.
The rules governing our disciplinary procedure also contain a
number of provisions related to confidentiality. For instance,
commission hearings are closed to the public. Id. r. 36.14(1). Records
6
and documents related to a disciplinary hearing are confidential, though
certain documents become public if the commission recommends that we
reprimand the attorney or suspend or revoke the attorney’s license. Id.
rs. 35.7(1), 36.18(1). In such situations, only the complaint, the
commission’s report of reprimand, and the commission’s
recommendations for license suspension or revocation become public
documents. Id. r. 36.18(2). A witness who appears in a disciplinary
proceeding is bound by confidentiality rules and must swear by oath or
affirmation to that effect. Id. r. 36.18(4). Testimony before the
commission, as long as it does not become part of a document subject to
disclosure under rule 36.18(2), is not subject to discovery, cannot be
obtained by subpoena, and is inadmissible in any civil proceeding. See
id. r. 36.18(3). Further, testimony with respect to a complaint submitted
to the commission is privileged and cannot provide the foundation for a
separate lawsuit. Id. r. 35.24(1). However, the commission may disclose
information regarding possible criminal violations to appropriate law
enforcement authorities, to attorney disciplinary authorities, and to the
Iowa Commission on Judicial Qualifications. Id. r. 36.18(7).
Our rules provide that an attorney who is a respondent in a
disciplinary proceeding is entitled to representation by counsel. Id. r.
36.14(3). Our rules do not address whether a witness is entitled to have
an attorney present at a disciplinary hearing and, if so, to what extent a
witness’s counsel may participate in the proceeding. There is similarly
no applicable caselaw on these issues.
2. Positions of the parties. Jane argues the presentation of
evidence during a hearing before the commission must conform to the
Iowa Rules of Civil Procedure and the Iowa Rules of Evidence. See Iowa
Ct. R. 36.14(4). She points out that in civil proceedings before the
7
district court, which are conducted in accordance with these rules,
counsel for witnesses are routinely in attendance. Jane sees no reason
not to take a similar approach in hearings before the commission,
particularly in light of rule 36.14(4)’s explicit incorporation of the
procedural and evidentiary rules ordinarily applied in district court
proceedings.
Jane concedes no rule expressly authorizes counsel to be present,
but puts forward the opposite side of the coin—namely, that no rule
prohibits the participation of counsel for a witness. She then cites policy
reasons for allowing her access to counsel during her testimony. For
instance, Jane emphasizes that providing an environment in which she
may testify “fully, fairly, and comfortably” is in the commission’s interest.
She notes the subject matter in this case involves an alleged sexual
assault, which, she argues, is a subject matter the legislature has
recognized in other contexts as particularly sensitive. See Iowa Code §
229A.5A(1) (2013) (granting “[a]ny person compelled to appear under a
demand for oral testimony” the right to be “accompanied, represented,
and advised by counsel at the person’s own expense”). Jane more
generally argues the exclusion of counsel will undermine the fairness and
integrity of proceedings before the commission.
Jane further asserts the Sixth Amendment right to counsel should
apply to a witness in a proceeding before the commission when the
witness has a vested interest in the proceeding. According to Jane, she
has a vested interest at stake because her testimony, even if confidential,
may have an impact on the civil proceeding for the reason that Attorney
Doe’s counsel will have knowledge of it.
In addition, Jane argues that while a witness may not have a right
to participate generally in the proceedings, he or she should nonetheless
8
be afforded the right to counsel to take advantage of certain protections,
such as the privilege against self-incrimination and the attorney–client
privilege. Jane, quoting People v. Ianniello, 235 N.E.2d 439, 443 (N.Y.
1968), notes that “ ‘[f]aced with a confusing variety of rules concerning
the existence and scope of his privileges, a witness should not be
required to make these choices unaided by his lawyer.’ ” See also People
v. Smays, 594 N.Y.S.2d 101, 105 (N.Y. Sup. Ct. 1993) (discussing
Ianniello).
Jane argues confidentiality concerns regarding the presence of her
counsel during her testimony are misplaced. Jane asserts her counsel
will be bound by the same confidentiality requirements as others who
attend the hearing. See Op. of the Justices to the Governor, 371 N.E.2d
422, 424–25 (Mass. 1977) (holding the presence of counsel for a witness
did not violate grand jury secrecy). Jane also notes her counsel would be
bound by the Iowa Rules of Professional Conduct.
Finally, Jane asserts an overly broad application of confidentiality
rules may violate First Amendment rights. She cites cases in which
courts have found rules prohibiting disclosure unless and until formal
charges were filed was an unconstitutional restriction on free speech.
See In re Brooks, 678 A.2d 140, 146 (N.H. 1996); R.M. v. Supreme Ct.,
883 A.2d 369, 381 (N.J. 2005); Doe v. Doe, 127 S.W.3d 728, 736 (Tenn.
2004).
The Board, for the most part, sides with Jane. According to the
Board, past practice has been to allow witnesses to be accompanied by
counsel when testifying before the commission. The Board notes a
complaining witness often has a pending civil action against the attorney
who is subject to the grievance proceeding. The Board states its counsel
is often asked for legal advice by complaining witnesses, but that it is not
9
permitted to provide such advice. The Board agrees with Jane that the
presence of a witness’s counsel will not compromise the confidentiality of
the proceeding. The Board further notes alleged victims of sexual assault
may have to face their perpetrators in grievance commission hearings
and argues the presence of counsel will allow these victims to
successfully navigate the proceedings.
Attorney Doe objects to the presence of an attorney for Jane.
Attorney Doe asserts Jane’s primary motivation is to protect her civil
cause of action against him. He notes Jane has cited no specific rule of
civil procedure or evidence requiring the presence of counsel for a
witness in a proceeding before the commission.
As to the protection of privileges, Attorney Doe asserts Board
counsel will be able to object to questions that might inappropriately
delve into privileged communications. Attorney Doe also argues that
Jane’s counsel can properly instruct her prior to the hearing as to how to
assert a privilege and that, if a controversy arises as to whether a
communication is privileged, the commission can determine whether a
privilege is involved and instruct her whether to answer following an in
camera examination. Further, Attorney Doe asserts our court rules
preclude the use of testimony given before the commission in a
subsequent civil action. He cites Iowa Court Rule 36.18(3), which states
that records and papers before the commission are generally “privileged
and confidential and . . . not subject to discovery, subpoena, or other
means of legal compulsion.” He also cites Iowa Code section 147.135(2),
which provides similar protections for medical peer review records.
Therefore, Attorney Doe argues, the risk of adverse action resulting from
an inadvertent disclosure of privileged information is minimal.
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B. Overview of Representation of Witnesses in Legal
Proceedings.
1. Attorney disciplinary procedures in other states. In light of the
lack of express Iowa authority on the issue, we look to the law of other
states to provide illumination on the issues posed here. Like Iowa,
however, the disciplinary rules of most states are silent on the question
of whether witnesses are entitled to legal counsel. Virginia and the
Virgin Islands, however, expressly authorize a complaining witness to
have an attorney present. See Rules of the Supreme Ct. of VA, Pt. 6, § 4,
para. 13–12(E); V.I. Ct. R. 207.1.8(a)(10). The parties have not cited any
case on whether a witness may have counsel in attendance or
participating in an attorney disciplinary proceeding while he or she is
testifying from any jurisdiction that does not have an explicit rule
relating to the presence of counsel for witnesses. Further, in some
states, disciplinary proceedings are open to the public. Where
disciplinary proceedings are open to the public, confidentiality concerns
such as those raised in this case may not be present.
2. State and federal grand jury proceedings. Both parties draw
analogies to support their position from grand jury proceedings. The
Fifth Amendment to the United States Constitution states that “[n]o
persons shall be held to answer for a capital or otherwise infamous
crime, unless on a present or indictment of a Grand Jury.” Ordinarily,
counsel for a witness is not allowed to be present during a federal grand
jury proceeding. See In re Groban, 352 U.S. 330, 333, 77 S. Ct. 510,
513, 1 L. Ed. 2d 376, 380 (1957). Witnesses, however, are permitted to
consult with lawyers before and after grand jury testimony. Further, it
appears to be a common practice to allow a witness to leave the grand
jury room to consult with counsel outside the presence of the grand jury.
11
The exclusion of lawyers for witnesses from federal grand jury
proceedings when their clients testify has been subject to intense debate.
The American Bar Association and the National Association of Criminal
Defense Lawyers have all proposed that counsel for witnesses be allowed
into the grand jury room during questioning. See John F. Decker,
Legislating New Federalism: The Call for Grand Jury Reform in the States,
58 Okla. L. Rev. 341, 367 & nn.243–44 (2005) [hereinafter Decker].
Advocates for this position assert that grand jury proceedings can be
intimidating, that witnesses may be confused by questioning, and that
lay witnesses do not fully understand the implications of questions
implicating constitutional, statutory, or common law privileges. Id. at
386; Gerald B. Lefcourt, Curbing Abuse of the Grand Jury, 81 Judicature
196, 198 (1998) [hereinafter Lefcourt]; see also United States v. Soto, 574
F. Supp. 986, 993 (D. Conn. 1983). These advocates further cite the
shuttling of a witness back and forth from the jury room to meet with
counsel as an inefficient and demeaning process. See Decker at 369;
Lefcourt at 197.
Many states have, by statute, elected to expand the availability of
legal counsel for witnesses in grand jury proceedings beyond the federal
model. According to a recent commentator, twenty-four states have
created a statutory right to counsel of some kind for witnesses in grand
jury proceedings. Decker at 369 & n.266. Additionally, thirteen states
provide for the right to counsel for all witnesses, seven limit the right to
targets of the investigation, two condition the right to counsel on a grant
of immunity, and one conditions the right to counsel on a waiver of
immunity. See id. at 370 & nn.267–70. The Iowa rule does not
expressly provide for the representation of witnesses. See Iowa R. Crim.
P. 2.3.
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3. Administrative proceedings. The Federal Administrative
Procedure Act provides that a subpoenaed witness is “entitled to be
accompanied, represented, and advised by counsel” in an administrative
proceeding. 5 U.S.C. § 555(b) (2013). Many federal agencies, however,
by rule expand on the role of a witness’s counsel in these proceedings.
For instance, a number of federal agencies allow an attorney to advise a
witness during the proceeding, make objections on the record in
connection with the examination of the attorney’s client, briefly question
the client at the conclusion of the client’s examination for clarification
purposes, and make summary notes during the testimony for the use
and benefit of the witness. See, e.g., 12 C.F.R. § 308.148(b) (2013)
(Federal Deposit Insurance Corporation); id. § 622.105(b) (Farm Credit
Administration); 17 C.F.R. § 11.7(c)(1) (Commodity Futures Trading
Commission); id. § 203.7(c) (Securities and Exchange Commission); see
also 47 C.F.R. § 1.27 (Federal Communications Commission). Some
agencies provide fairly elaborate regulations regarding the participation
of counsel for a witness. See, e.g., 16 C.F.R. § 2.9(b) (prohibiting, in a
proceeding before the Federal Trade Commission, a witness’s counsel
from consulting with his or her client while a question to the client is
pending, except with respect to questions involving “protected status,”
elaborating on the procedure to follow in the event of an objection, and
elaborating on the hearing official’s role in presiding over a proceeding in
which there is an objection); id. § 1605.8 (elaborating on the procedure to
follow in making objections before the Consumer Product Safety
Commission).
The Iowa Administrative Procedure Act does not contain a
provision comparable to the federal provision relating to the right of
witnesses to be represented by counsel. However, the Iowa Division of
13
Credit Unions grants witnesses testifying during formal investigative
proceedings the right to be “represented and advised by counsel” in
much the same manner as federal agencies who allow an attorney to
advise a witness before, during, and after the conclusion of the
examination, to ask clarifying questions, and to make summary notes.
Iowa Admin. Code r. 189—14.6(5)(b). Similarly, the Office of Citizens’
Aide/Ombudsman grants witnesses the right to be “accompanied and
advised by counsel.” Iowa Admin. Code r. 141—2.10(4). That provision
further provides that “only counsel may speak or raise objections to
questions on behalf of the witness” and that “objections to questions
shall be noted but the witness shall answer all questions, except when a
privilege or immunity accorded to the witness has been asserted.” Id.
4. Civil trials. There is very little authority regarding the
representation of witnesses at civil trials. There are cases, however, that
indicate a witness may be represented by counsel at trial in order to
object to questions calling for testimony about privileged matters or
questions deemed abusive or harassing. See, e.g., In re Petition to Quash
Subpoena Ad Testificandum, No. 102660/2012, 2012 WL 5187328, at *6
(N.Y. Sup. Ct. Oct. 15, 2012) (unreported decision); see also Graves v.
State, 489 S.W.2d 74, 82 (Tenn. Crim. App. 1972); State v. Barker, 86 P.
387, 388 (Wash. 1906). There is some authority for the proposition,
however, that an attorney for a witness in a civil trial has no general
right to participate in the proceeding or to make routine objections that a
party might make. See State v. Newman, 568 S.W.2d 276, 282–83 (Mo.
Ct. App. 1978).
C. Analysis of Issues in this Case. Through our attorney
disciplinary system, we seek to provide a broad channel for clients and
others to file complaints regarding alleged misconduct of Iowa lawyers
14
and to provide a procedure for fair and efficient resolution of these
complaints. We have no interest in erecting barriers that tend to deter
the filing of potentially meritorious complaints. At the same time, we
recognize that not all complaints are meritorious and that disputes of
fact or law must be vetted through an adversarial process. We further
recognize that in order to prevent needless and potentially irreparable
harm to an attorney’s reputation when serious violations are not
founded, our rules generally provide for the confidentiality of disciplinary
hearings. See State v. Baker, 293 N.W.2d 568, 576 (Iowa 1980).
The commission president’s order quashing Conlin’s appearance
offers several reasons for the decision. The order noted that while our
rules authorize an attorney for the respondent to participate in the
proceedings, the rule does not expressly authorize an attorney for a
witness to attend a disciplinary hearing. The order also indicated the
ability of the commission to protect the confidentiality of the proceedings
would be impaired by the presence of counsel for a witness. Finally, the
order suggested Jane failed to indicate why it would be unfair to prohibit
her from having counsel present during her testimony.
To determine whether the order was proper, we first analyze the
nonconstitutional question of whether our rules prohibit a witness from
having a lawyer in a disciplinary proceeding. If our rules do not, we
must determine whether we should permit a witness to have an attorney
in the disciplinary proceeding. Finally, if a witness is entitled to the
presence of counsel, we must determine the scope of the attorney’s
participation in the hearing.
We first consider whether our rules, which authorize the presence
of an attorney for a respondent, but not for a witness, should be read to
bar a witness from having an attorney present when the witness testifies
15
in a disciplinary proceeding. All parties agree there is no express rule
authorizing a witness to have legal counsel present at a disciplinary
proceeding.
Our rule relating to the right of a respondent to have legal counsel,
however, ensures that a respondent has the right to have counsel
participate in the entire proceeding. See Iowa Ct. R. 36.14(3) (“The
respondent may defend and shall have the right to participate in the
hearing in person and by counsel . . . .”). We agree with the commission
that the rule does not authorize an attorney for a witness to participate
in the entire proceeding. Such a rule would be cumbersome and difficult
to manage in a disciplinary action potentially involving many witnesses.
It would be contrary to the established practice in many other types of
adversarial proceedings in which attorneys for witnesses are allowed only
limited participation. Further, we decline to require a respondent’s
attorney to respond to multiple lawyers playing what could amount to a
tag-team prosecutorial role in a disciplinary proceeding. To the extent
the commission’s order refuses to allow Conlin to participate as an
attorney for her client throughout the entire proceeding based upon our
existing rules, we believe the order is on solid ground.
But the issue in this appeal is not whether Conlin may participate
in the entire disciplinary hearing. Conlin specifically, and we think
wisely, eschews this approach. Instead, she seeks only to be present in
the disciplinary hearing as an attorney when her client testifies. We do
not think the rule authorizing a respondent to have an attorney
participate in the entire proceeding should be read to preclude this
limited role sought by Conlin. On this more discrete issue, our rules are
silent.
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We now turn to the question of whether our rules related to
confidentiality should be construed to bar participation of an attorney for
a witness in a disciplinary proceeding. Our rules contain provisions
designed to protect the confidentiality of attorney disciplinary
proceedings. Iowa Ct. Rs. 35.7(1), 36.14(1), 36.14(2), 36.18. Further, as
the commission’s order correctly points out, confidentiality is for the
protection of a respondent. See Baker, 293 N.W.2d at 576.
Yet, we do not think the presence of an attorney for a witness
during the disciplinary proceeding should be disallowed based upon
confidentiality concerns. Like counsel for a respondent, counsel for a
witness is subject to the confidentiality requirements of our court rules.
While our rules only require witnesses to take an oath of confidentiality
and there is no similar provision pertaining to an attorney, we think it is
clear that a witness’s counsel is bound by the confidentiality provisions
of our court rules and, as a result, any oath would be redundant. See
State ex rel. Individual Subpoenaed to Appear at Waukesha Cnty. v.
Davis, 697 N.W.2d 803, 810–11 (Wis. 2005) (holding the requirement
that an attorney take a secrecy oath was redundant in light of an order
requiring secrecy); see also Disciplinary Counsel v. Pullins, 940 N.E.2d
952, 958–59 (Ohio 2010) (noting the fact that attorneys are not required
to take a confidentiality oath does not exempt them from their obligation
to maintain the privacy of a disciplinary grievance under the Supreme
Court Rules for the Government of the Bar of Ohio). We expect that
attorneys, who regularly deal with confidential client matters, will honor
the confidentiality established by our court rules. They violate the
confidentiality rules at their peril.
Having concluded that our rule does not bar the limited
participation proposed by Conlin and that our confidentiality rules do not
17
prohibit such limited participation, we now consider whether there are
sufficient reasons to allow Conlin to be present when Jane testifies. We
think there are substantial reasons to allow her such limited
participation.
We agree with the Board that Jane has not made a detailed
presentation regarding the unfairness of depriving her of legal counsel at
the disciplinary proceeding. However, the benefits of having legal
counsel present when a witness provides testimony under oath are clear.
For example, counsel for a witness can ensure legal privileges personal to
the witness, such as the attorney–client, physician–patient, or spousal
privileges, are asserted and protected in the proceeding. While it is true
that testimony in disciplinary proceedings is confidential and
inadmissible in other civil proceedings, even limited disclosure of the
information involves an invasion of personal interests, could give rise to
subsequent waiver issues, and gives rise to fruit-of-the-poisonous-tree
problems when, as here, there is pending litigation related to the subject
matter of the proceeding.1 Further, while an attorney may be able to
provide general instruction regarding privileges prior to the hearing, the
nuances of the law of evidentiary privileges can be complex, particularly
for a layperson. The presence of an attorney for a witness will make it
more likely that personal privileges will be protected. See Groban, 352
U.S. at 345, 77 S. Ct. at 520, 1 L. Ed. 2d at 388 (Black, J., dissenting)
1We note that while the proceedings are confidential, they do not provide
immunity from prosecution. See Iowa Ct. R. 36.18(7) (granting the commission the
right to release information pertaining to possible criminal violations to law enforcement
authorities); see also State v. Baker, 293 N.W.2d 568, 576 (Iowa 1980) (noting the intent
of the rule granting immunity in disciplinary proceedings “is to protect complainants,
witnesses, members of the grievance commission and members of the [Board] and their
respective staffs from retaliatory litigation by investigated lawyers, not to protect
lawyers from prosecution for criminal offenses”).
18
(“The average witness has little if any idea when or how to raise any of
his constitutional privileges.”); Ianniello, 235 N.E.2d at 443 (noting a
variety of confusing rules relating to the existence and scope of
privileges); Smays, 594 N.Y.S.2d at 105 (noting witnesses should be able
to consult with counsel about matters of privilege).
While Attorney Doe asserts Board counsel may protect the
privileges of a witness, we do not agree. Board counsel lacks standing to
assert rights personal to a witness. See, e.g., State v. McDowell, 247
N.W.2d 499, 500 (Iowa 1976) (noting a Fifth Amendment privilege is
personal to the witness); State v. Knight, 204 Iowa 819, 823–24, 216 N.W.
104, 107 (1927) (noting privilege of witness not to disclose confidential
communication to physician is personal and cannot be asserted by
opposing counsel); see also 1 Kenneth S. Broun, McCormick on Evidence
§ 73.1, at 470–71 (7th ed. 2013) (noting that while other persons present
at trial may call to the court’s attention the existence of a privilege, only
the party vested with the privilege has the right to make an objection
based on the privilege); id. § 119, at 705–06 (discussing the meaning of a
privilege “personal in nature” in the context of the privilege against
compelled self-incrimination). Further, the interests of the Board and a
witness may well be in conflict on the question of whether the witness’s
privileges should be waived. For example, the Board’s interest may be
advanced by testimony otherwise covered by attorney–client privilege,
spousal privilege, or physician–patient privilege. In addition, Board
counsel may not be in a position to understand the interests of the
witness or the scope of privileges the witness may wish to assert.
In addition, the presence of a personal attorney may tend to ensure
that a lay witness has a greater confidence he or she will be treated with
dignity and respect in the confidential proceeding. In connection with
19
grand jury proceedings, it has been observed that lay witnesses are often
unfamiliar with legal proceedings and may have largely unjustified fears
or concerns about potential overreaching or intimidation that will be
allayed by counsel’s presence. See Decker at 369; see also Soto, 574 F.
Supp. at 993. While an attorney disciplinary proceeding is not quite the
equivalent of a grand jury proceeding, the setting of giving testimony
under oath in the presence of trained lawyers can be an unsettling
experience for laypersons.
It is conceivable we could adopt the approach of many jurisdictions
in the grand jury setting—namely, that a witness may consult with
counsel outside the room where the commission is conducting the
hearing. We reject this approach as cumbersome and unnecessary. An
attorney physically present in the hearing room will be in a substantially
better position to advise a client than an attorney sitting outside who
necessarily must rely upon the layperson’s limited understanding of the
nature of the question and its context. In addition, such a procedure
would likely cause more delays than an approach allowing counsel to be
present throughout a witness’s testimony.
We now turn to the degree to which counsel for a witness is
entitled to participate in a disciplinary proceeding before the commission.
As in most confidential proceedings where a witness is entitled to
counsel, counsel may be present only when a client testifies. Further,
the only participation of counsel for a witness in the proceeding must
relate to a personal interest of the witness. In other words, the parties
themselves—the Board and the respondent—are responsible for the
development of the record in the proceeding. The role of a witness’s
counsel is to protect rights personal to his or her client. Objections by
counsel for the nonparty witness related to the development of the
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record, such as those related to foundation, the form of the question, or
hearsay, are not permissible. Except to prevent a misstatement from
entering the record, thereby exposing a witness to a potential perjury
charge and triggering attorney obligations under rule 32:3.3 of our rules
of professional conduct,2 counsel for a witness is not entitled to examine
his or her own witness. The commission, through its chair, has the
authority to ensure the hearing proceeds in a fashion consistent with
this opinion.3 See Iowa Ct. R. 36:14(4).
IV. Conclusion.
For the above reasons, the commission’s order in this case is
reversed. The case is remanded for further proceedings.
REVERSED AND REMANDED.
2Under Iowa Court Rule 32:3.3(a)(3), an attorney must take reasonable remedial
measure in the event a client testifies in a fashion the lawyer knows is false.
3Because of our disposition, we need not consider any constitutional issues that
may be present in this case.