Iowa Supreme Court Attorney Disciplinary Board Vs. Mark A. Newman ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 47 / 07-1692
Filed May 2, 2008
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellant,
vs.
MARK A. NEWMAN,
Appellee.
Appeal from report of the Grievance Commission.
Board appeals Grievance Commission’s private admonishment of
an attorney. ATTORNEY REPRIMANDED.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
appellant.
Mark McCormick of Belin Lamson McCormick Zumbach Flynn,
P.C., Des Moines, for appellee.
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STREIT, Justice.
An attorney presented a judge with two orders to approve. The
judge agreed to both orders but overlooked signing one of them. The
attorney realized what had happened when he returned to his office. He
forged the judge’s signature on the unsigned-but-approved order and
filed it with the clerk of court. When confronted, the attorney admitted
the forgery and apologized. The Grievance Commission privately
admonished the attorney for this ethical violation. The Board appealed
arguing forgery is a serious violation and warrants public discipline. We
agree and publicly reprimand the attorney.
I. Facts and Prior Proceedings.
In 1994, Mark A. Newman graduated from law school and was
admitted to the Iowa bar at the age of forty. He and his family moved to
Forest City where he has been a solo practitioner since that time. His
practice involves real estate, criminal defense, probate, and corporate
work.
In October 2006, Newman agreed to assist a Davenport attorney
with a conservatorship in Winnebago County. The Davenport attorney
sent Newman certain documents to be filed as well as two proposed
orders to be presented for a judge’s signature. One day in January 2007,
Newman drove to Garner, Iowa for court service day. Newman presented
the two proposed orders to Judge James M. Drew. One order approved
Newman’s appointment as guardian ad litem. The second order
approved a wrongful death settlement. Judge Drew and Newman
discussed the case, and Judge Drew agreed to sign the orders. Judge
Drew dated and signed the order appointing Newman as guardian ad
litem. He dated but did not sign the order approving the wrongful death
settlement. He returned the orders to Newman for filing.
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Newman returned to his office, forged the judge’s signature, and
filed the order. Two days later, Judge Drew telephoned Newman and told
him he had an order in his hand with a signature he did not recognize.
Newman admitted signing the judge’s name. Thereafter, both Judge
Drew and Newman reported the incident to the Board. Judge Drew
stated his failure to sign the order was an oversight. He also noted
Newman was remorseful and apologetic.
The Board filed a complaint against Newman as a result of this
incident. Newman’s answer admitted the facts and ethical violations
alleged in the complaint. The Commission held a hearing to determine
the appropriate sanction. The Commission found Newman to have a
“record of a life of service and integrity” before this incident. It found
Newman’s forgery of Judge Drew’s signature to be “an isolated instance
of unethical conduct.” The Commission privately admonished Newman
and requested he accept 120 hours of court-appointed criminal cases
with pay by the end of 2008.
The Board subsequently applied for permission to appeal the
Commission’s decision. See Iowa Ct. R. 35.11(2). It argued due to the
serious nature of Newman’s misconduct, a suspension of his law license
would be the more appropriate sanction. We sustained the Board’s
application and now publicly reprimand Newman for his actions.
II. Scope of Review.
We review the findings of the Commission de novo. Iowa Ct. R.
35.10(1). We give weight to the Commission’s findings, but we are not
bound by those findings. Iowa Supreme Ct. Attorney Disciplinary Bd. v.
McGrath, 713 N.W.2d 682, 695 (Iowa 2006). The Board has the burden
to prove disciplinary violations by a convincing preponderance of the
evidence. Iowa Supreme Ct. Attorney Disciplinary Bd. v. D’Angelo, 710
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N.W.2d 226, 230 (Iowa 2006). This burden is “ ‘less than proof beyond a
reasonable doubt, but more than the preponderance standard required
in the usual civil case.’ ” Id. (quoting Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).
III. Sanction.
We find the Board proved by a convincing preponderance of the
evidence Newman violated Iowa Rule of Professional Conduct 32:8.4(c),
which prohibits an attorney from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation. See Iowa Supreme Ct.
Attorney Disciplinary Bd. v. Thompson, 732 N.W.2d 865, 867 (Iowa 2007)
(stating forging a signature on a court document is conduct involving
dishonesty, fraud, deceit, and misrepresentation). We now must
determine the appropriate sanction. We consider “the nature of the
violations, protection of the public, deterrence of similar misconduct by
others, the lawyer’s fitness to practice, and our duty to uphold the
integrity of the profession in the eyes of the public.” Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Fleming, 602 N.W.2d 340, 342 (Iowa
1999) (citing Comm. on Prof’l Ethics & Conduct v. Havercamp, 442 N.W.2d
67, 69 (Iowa 1989)). We also consider both aggravating and mitigating
circumstances. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth,
656 N.W.2d 93, 99 (Iowa 2002) (citing Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Sherman, 637 N.W.2d 183, 187 (Iowa 2001)).
Ultimately, the form and extent of a disciplinary sanction “must be
tailored to the specific facts and circumstances of each individual case.”
Comm. on Prof’l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa
1981).
Based on the record, Newman appears to be a person of good
moral character who committed a serious lapse in judgment. He has
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never been subjected to attorney discipline before this occasion. Several
people either testified or provided affidavits attesting to his good
character. He accepted responsibility for his actions and is very
remorseful. Nevertheless, forgery is a serious ethical violation. See Iowa
Supreme Ct. Attorney Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375,
382 (Iowa 2007) (revoking the license of an attorney who, among other
things, forged his clients’ signatures and was previously disciplined for
fabricating documents and forging a judge’s signature); Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Rylaarsdam, 636 N.W.2d 90, 93 (Iowa
2001) (suspending an attorney’s license for six months for forging clients’
signatures and falsifying a court document); Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Clauss, 530 N.W.2d 453, 455 (Iowa 1995)
(suspending an attorney’s license for three years because he, among
other things, forged and notarized a signature on a return of service).
The Board notes Newman’s conduct was similar to the conduct in
Thompson. There, we suspended an attorney’s license for nine months
for forging a judge’s signature on an order “without the knowledge or
authorization of the judge.” Thompson, 732 N.W.2d at 866. However,
unlike Newman, Thompson had a history of prior discipline which
included a sanction for altering a court document. Id. Thompson also
forged the judge’s signature and filed the order without ever presenting it
to a judge. We find the totality of the circumstances in this case less
egregious than those in Thompson. Nevertheless, we believe a public
reprimand is necessary to signal Iowa lawyers and the citizens of Iowa
that forging a judge’s signature is a serious ethical violation under any
circumstances.
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IV. Conclusion.
Newman is hereby publicly reprimanded for forging Judge Drew’s
signature on an approved-but-unsigned order. Costs are taxed to
Newman pursuant to Iowa Court Rule 35.25(1).
ATTORNEY REPRIMANDED.