Iowa Supreme Court Attorney Disciplinary Board Vs. Larry J. Cohrt ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 09–1200
Filed July 16, 2010
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
LARRY J. COHRT,
Appellant.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission reports that respondent committed ethical
misconduct and recommends a suspension. LICENSE SUSPENDED.
Larry J. Cohrt, Waterloo, pro se.
Charles L. Harrington and Wendell J. Harms, Des Moines, for
appellee.
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CADY, Justice.
The Iowa Supreme Court Attorney Disciplinary Board charged
Larry J. Cohrt with numerous violations of the Iowa Code of Professional
Responsibility for Lawyers mainly stemming from his neglect of client
matters in two cases. The Grievance Commission of the Supreme Court
of Iowa found Cohrt violated the code of professional responsibility. It
recommended Cohrt be suspended from the practice of law for a period of
sixty-one days. On our review, we find Cohrt violated the code of
professional responsibility and impose an indefinite suspension of not
less than three months.
I. Background Facts.
Larry J. Cohrt is an Iowa lawyer. He was admitted to practice law
in Iowa in 1969, after graduating from law school with distinction. He
has practiced law in Waterloo throughout his career and is currently a
sole practitioner. He received a private admonition in 1996 for neglecting
a client matter.
The board initiated a disciplinary action against Cohrt based on
his conduct in representing clients in two separate cases. In the first
case, Cohrt represented a waste disposal business called Black Hawk
Waste Disposal Company, Inc. (Black Hawk) involving a claim against a
business competitor known as Waste Management, Inc. In the second
case, Cohrt represented Travis Schleusner and his father, Ronald
Schleusner, in a claim against the sellers of a lake cabin they had
purchased and a pest control business called A-1 Pest Control.
In the first matter, Cohrt prepared and filed a lawsuit in August
2003 on behalf of Black Hawk against Waste Management, Inc., alleging
claims of tortious interference and defamation. He also sought and
obtained a temporary injunction from the district court. The order
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enjoined Waste Management, Inc. and its affiliates from interfering with
business relationships between Black Hawk and its customers. The
issuance of the injunction was conditioned upon the filing of a surety
bond by Black Hawk.
Black Hawk obtained the necessary bond from a surety company
and delivered it to Cohrt for filing. Cohrt, however, never filed the bond
with the court. Subsequently, Cohrt repeatedly failed to respond to
interrogatories and requests for production of documents sought by
counsel for Waste Management, Inc. within the deadlines established by
the rules of civil procedure, as well as a later deadline established by the
district court in response to a motion to compel. In response to the
motion to compel, Cohrt asserted he had been unable to complete the
discovery responses due to his trial schedule and workload. After Cohrt
failed to provide discovery within the court-imposed deadline, the district
court scheduled a hearing for the imposition of sanctions. Just hours
before the scheduled hearing on sanctions, Cohrt filed a dismissal of the
lawsuit without prejudice. This dismissal occurred ten days prior to the
scheduled trial date. The dismissal was not signed by a company
representative of Black Hawk.
In the second matter, Cohrt prepared and filed a lawsuit on behalf
of the Schleusners in September 2003 after they discovered the home
they had purchased the previous summer was infested with termites.
The lawsuit claimed the pest control company was negligent in its
presale inspection of the home. As in the other matter, Cohrt failed to
timely respond to interrogatories and other discovery requests
propounded by defense counsel. Defense counsel then moved to compel
discovery after informal attempts to obtain responses failed. In response
to the motion to compel, Cohrt asserted in a resistance filed with the
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court that he had been unable to provide the discovery due to his trial
schedule. The district court sustained the motion and ordered Cohrt to
respond to the interrogatories within thirty days. After Cohrt failed to
provide discovery within the court-imposed deadline, defense counsel
moved for the imposition of sanctions. Cohrt provided the requested
responses to the interrogatories prior to the hearing on sanctions.
Nevertheless, the court ordered Cohrt (or the plaintiffs) to pay attorney
fees of $200 to the pest control company by April 30, 2004, and directed
the case be dismissed against the pest control company in the event the
fees were not timely paid. The fees were not paid as ordered, and the
court dismissed the case against the pest control company on May 7,
2004.
In both cases, the plaintiffs claimed they were unaware of the
ongoing discovery debacles in their lawsuits. Black Hawk asserted Cohrt
never advised company representatives that he decided to dismiss the
lawsuit. It also claimed it never authorized Cohrt to dismiss the lawsuit.
Travis and Ronald Schleusner claimed they had no knowledge of the
$200 attorney-fee award or that their lawsuit was in jeopardy of being
dismissed.
Cohrt asserted he dismissed the Black Hawk lawsuit for two
reasons. He learned, as he had suspected for some time, that he had
named the wrong corporate entity as the defendant. He claimed he
discussed the problem with Black Hawk company representatives and
advised them of the dismissal prior to filing it with the court. He
declined to file the surety bond until he was able to determine the proper
defendant. He also felt the case should be dismissed because Black
Hawk had failed to provide him with the needed information to allow him
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to properly respond to the discovery requests. He feared the court would
order the case dismissed if the sanction hearing took place.
Cohrt claimed he purposely allowed the Schleusners’ lawsuit to be
dismissed against the pest control company because he determined the
two-page written inspection report at the center of the lawsuit contained
a clause that limited the scope of the inspection only to areas of the
house accessible to visual inspection and included a declaration that the
report was not a warranty against latent infestation. Because the
Schleusners claimed the sellers had taken steps to purposely hide
termite damage to the house at the time of the inspection and sale, Cohrt
felt the clause in the report provided the pest control company with a
complete defense, rendering a lawsuit against the company frivolous.
Consequently, Cohrt claimed his actions in both cases were
consistent with the ethical obligation of lawyers. In the Black Hawk
case, Cohrt asserted he was obligated to dismiss the lawsuit once he
learned he had sued the wrong defendant. In the Schleusner case, Cohrt
maintained he was ethically obligated not to pursue the lawsuit against
the pest control company once he determined it was frivolous.
II. Board Complaint and Commission Decision.
The board ultimately charged Cohrt with multiple violations of the
code of professional responsibility. The violations essentially pertained to
neglect and inaction, failure to communicate, misrepresentation, and
failure to withdraw from employment. In the Black Hawk proceeding, the
violations alleged by the board included DR 1–102(A)(1) (conduct that
violates a disciplinary rule), DR 1–102(A)(4) (conduct involving
misrepresentation), DR 1–102(A)(5) (conduct prejudicial to the
administration of justice), DR 1–102(A)(6) (conduct that adversely reflects
on the fitness to practice law), DR 2–110(A)(1) (withdrawal from
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employment without tribunal’s permission), DR 2–110(A)(2) (withdrawal
from employment causing prejudice to the client’s rights), DR 2–110(B)(1)
(withdrawal from employment required if lawyer discovers lawsuit is
being brought for the purpose of harassing or maliciously injuring
someone), DR 2–110(B)(2) (withdrawal from employment required when
continued employment will result in violation of disciplinary rule), DR 2–
110(B)(3) (withdrawal from employment required when lawyer’s mental or
physical condition renders lawyer unable to carry out employment),
DR 2–110(B)(4) (withdrawal from employment required when lawyer is
discharged by client), DR 6–101(A)(2) (lawyer shall not handle a legal
matter without adequate preparation), DR 6–101(A)(3) (lawyer shall not
neglect a client matter), DR 7–101(A)(1) (lawyer shall seek lawful
objectives of client), DR 7–101(A)(2) (lawyer shall not intentionally fail to
carry out contract of employment), DR 7–101(A)(3) (lawyer shall not
intentionally prejudice or damage client), DR 7–102(A)(3) (lawyer shall
not conceal or knowingly fail to disclose information to client), DR 7–
102(A)(8) (lawyer shall not knowingly engage in illegal conduct in the
representation of a client), and DR 7–106(A) (lawyer shall not disregard
court rule).
In the Schleusner proceeding, the violations alleged by the board
included DR 1–102(A)(1) (conduct that violates a disciplinary rule), DR 1–
102(A)(4) (conduct involving misrepresentation), DR 1–102(A)(5) (conduct
prejudicial to the administration of justice), DR 1–102(A)(6) (conduct that
adversely reflects on the fitness to practice law), DR 2–110(A)(1)
(withdrawal from employment without tribunal’s permission), DR 2–
110(A)(2) (withdrawal from employment causing prejudice to the client’s
rights), DR 2–110(B)(1) (withdrawal from employment required if lawyer
discovers lawsuit is being brought for the purpose of harassing or
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maliciously injuring someone), DR 2–110(B)(2) (withdrawal from
employment required when continued employment will result in violation
of disciplinary rule), DR 2–110(B)(3) (withdrawal from employment
required when lawyer’s mental or physical condition renders lawyer
unable to carry out employment), DR 2–110(B)(4) (withdrawal from
employment required when lawyer is discharged by client), DR 6–
101(A)(2) (lawyer shall not handle a legal matter without adequate
preparation), DR 6–101(A)(3) (lawyer shall not neglect a client matter),
DR 7–101(A)(1) (lawyer shall seek lawful objectives of client), DR 7–
101(A)(2) (lawyer shall not intentionally fail to carry out contract of
employment), DR 7–101(A)(3) (lawyer shall not intentionally prejudice or
damage client), DR 7–102(A)(3) (lawyer shall not conceal or fail to disclose
information to client), DR 7–102(A)(8) (lawyer shall not knowingly engage
in illegal conduct in the representation of a client), and DR 7–106(A)
(lawyer shall not disregard court rule).
Cohrt and the complainants testified at the grievance commission
hearing consistent with their claims. The commission found the board
established Cohrt’s conduct in the Black Hawk proceeding violated DR 1–
102(A)(1), DR 1–102(A)(4), DR 1–102(A)(5), DR 1–102(A)(6), and DR 6–
101(A)(3). Additionally, the commission found Cohrt violated the
withdrawal provisions of DR 2–110(B)(2) in the event he felt the case was
required to be dismissed. With respect to the Schleusners’ proceedings,
the commission found the board established that Cohrt’s conduct
violated DR 1–102(A)(1), DR 1–102(A)(5), DR 1–102(A)(6), DR 6–101(A)(2),
DR 6–101(A)(3), DR 7–101(A)(1), DR 7–101(A)(2), and DR 7–101(A)(3).
Additionally, the commission found Cohrt violated the withdrawal
provisions of DR 2–110(A)(2) and DR 2–110(B)(2). It recommended Cohrt
be suspended for sixty-one days.
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III. Scope of Review.
We review attorney disciplinary matters de novo. Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa
2002).
IV. Violations.
The commission implicitly rejected the evidence presented by Cohrt
that he maintained adequate communication with his clients and
explained his decisions that resulted in the dismissal of the lawsuits.
We, of course, are not bound by the findings of the commission, but we
do give them weight. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen,
779 N.W.2d 757, 759 (Iowa 2010). Moreover, our review of the evidence
presented at the commission hearing does not support Cohrt’s claims
that the dismissals were the result of thoughtful lawyering, rather than
neglect and the failure to maintain client communication. The
convincing preponderance of the evidence reveals Cohrt’s claims were
merely an afterthought to cover for his neglect. Both cases were replete
with classic earmarks of neglect, including numerous requests by
opposing counsel for Cohrt to take action, numerous demands by the
court for Cohrt to take action, and court filings by Cohrt offering excuses
for inaction based on a busy trial schedule or other demands of the
practice of law. The timing of the dismissals and the events preceding
the dismissals were also inconsistent with Cohrt’s claims. In the end,
Cohrt’s claims stand alone, without support, far removed from the
evidence and logic. A convincing preponderance of the evidence supports
a finding that Cohrt neglected client matters.
Cohrt also misrepresented the reason the claim against the pest
control company was dismissed. The claim was dismissed because the
attorney-fee sanction imposed by the court was not paid as directed.
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Cohrt told his clients the case was dismissed because he believed the
pest control company had a complete defense to the claim. While we
reject the notion that Cohrt made the statement in good faith, Cohrt’s
statements misrepresented the reason the case was dismissed, whether
made in good faith or not. The case was dismissed because Cohrt failed
to comply with a court order. This reason was never explained to the
Schleusners, and Cohrt’s efforts to substitute his purported motive for
failing to comply with the court order as a reason for the dismissal
constituted purposeful misrepresentation. A convincing preponderance
of the evidence revealed Cohrt engaged in conduct involving
misrepresentation.
We do not further consider the grounds for misconduct based on
the charges that Cohrt failed to timely and properly withdraw from
representing his clients once he allegedly formulated his misgivings
about the propriety of the claims. The commission concluded Cohrt
violated the withdrawal provisions of the code in the event he believed in
good faith that the claims alleged in the lawsuits were required to be
dismissed under governing law and professional ethics. We refrain from
finding violations of our code of professional responsibility based on
unsupported, hypothetical propositions.
We conclude Cohrt violated DR 6–101(A)(3) by neglecting client
matters. He violated DR 1–102(A)(4) by misrepresenting to his clients the
grounds for dismissal of a party to their lawsuit. This same conduct
undoubtedly violated other related disciplinary rules, but these two
provisions best capture the unethical conduct that occurred and provide
a basis to consider discipline for his conduct.
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V. Discipline.
We have repeatedly discussed our general principles governing the
imposition of discipline for attorneys who violate the code of professional
responsibility. See Marzen, 779 N.W.2d at 767. We consider both
aggravating and mitigating circumstances in the imposition of discipline.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 308
(Iowa 2009). In this case, three aggravating circumstances are present.
First, Cohrt has been admonished on a prior occasion for neglecting a
client matter. A prior admonition is properly considered in determining
discipline, especially when it involves the same type of conduct as the
conduct subject to discipline. Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Sprole, 596 N.W.2d 64, 66 (Iowa 1999). Second, some of
Cohrt’s statements and claims made before the board were false and
asserted to circumvent discipline. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 503 (Iowa 2008) (false
assertions to the board constitute aggravating circumstances). Third,
Cohrt engaged in two separate, but similar counts of neglect. See id.
(multiple incidents of neglect warrant a more severe sanction).
The sanction for neglect of client matters “generally ranges from a
public reprimand to a six-month suspension.” Id. at 502.
Misrepresentation can give rise to more serious discipline. See Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Stein, 603 N.W.2d 574, 575–
76 (Iowa 1999) (two-year suspension for dishonestly concealing neglect to
client, compounded by prior deceitful conduct); see also Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Clauss, 530 N.W.2d 453, 454–55
(Iowa 1995) (imposing three-year suspension for dishonesty in court
filings); Comm. on Prof’l Ethics & Conduct v. Conzett, 476 N.W.2d 43, 45–
46 (Iowa 1991) (four-month suspension for misrepresentation to client).
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When neglect of a client is accompanied by misrepresentation, harsher
discipline is imposed. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Daggett, 653 N.W.2d 377, 381–82 (Iowa 2002) (“When neglect is
compounded by an attorney’s misrepresentation, however, a more severe
sanction is necessary.”).
Considering all the circumstances, we conclude Cohrt should be
suspended for a period of not less than three months. Cohrt engaged in
two separate instances of neglect, compounded by a misrepresentation to
his clients and a past history of client neglect. Instead of acknowledging
his neglect, he sought obfuscation, which was not only directed at his
clients but also seeped into his dealings with the board and the
commission. Cohrt’s claims and assertions were largely unsupported by
evidence or logic, and his conduct was unbecoming of an Iowa lawyer.
VI. Conclusion.
We suspend Cohrt’s license to practice law with no possibility of
reinstatement for three months from the date of the filing of this opinion.
This opinion shall apply to all facets of the practice of law. Iowa Ct. R.
35.12(3).
Upon application for reinstatement, Cohrt shall have the burden to
show he has not practiced law during the period of suspension and that
he meets the requirements of Iowa Court Rule 35.13. Costs are taxed to
the respondent pursuant to Iowa Court Rule 35.26(1).
LICENSE SUSPENDED.