Iowa Supreme Court Attorney Disciplinary Board v. Lori Jo Kieffer-Garrison , 847 N.W.2d 489 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 14–0049
Filed May 30, 2014
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
LORI JO KIEFFER-GARRISON,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Review of a report filed by the Grievance Commission
recommending suspension of an attorney’s license. LICENSE
SUSPENDED.
Charles L. Harrington and Wendell J. Harms, Des Moines, for
complainant.
Lori J. Kieffer-Garrison, Davenport, pro se.
2
HECHT, Justice.
The Iowa Supreme Court Disciplinary Board (Board) charged an
attorney with violations of the Iowa Rules of Professional Conduct after
she repeatedly missed appellate deadlines in several criminal cases,
received twenty default notices as a consequence of those missed
deadlines, failed to pay resulting penalties in a timely fashion over a
period of two years, and allegedly made a knowingly false statement to
the court. After a hearing, a division of the Grievance Commission of the
Supreme Court of Iowa found the attorney’s actions violated several
ethical rules and recommended a suspension of her license to practice
law. Upon our review, we find the Board proved the alleged violations,
and we conclude the appropriate sanction is a suspension of the
attorney’s license for a period of six months.
I. Background Facts and Prior Proceedings.
Lori Jo Kieffer-Garrison was first licensed to practice law in Iowa in
2002. 1 She was privately admonished in 2009 and 2010, each time for
failure to cure a notice of default from the clerk of this court. Both
private admonitions were based on violations of Iowa Rules of
Professional Conduct 32:1.3 and 32:8.4(d).
The Board’s complaint in this case alleged Kieffer-Garrison’s
pattern of neglecting her obligation to comply with the deadlines imposed
by our rules of appellate procedure continued in 2011 and 2012. In
particular, the amended complaint alleged and Kieffer-Garrison admitted
she received more than twenty notices of default after failing to meet
various deadlines and timely pay monetary penalties for such defaults in
1She was first licensed to practice law in Illinois in 2001.
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nine separate criminal case appeals. The Board alleged—and Kieffer-
Garrison admitted—these failures and defaults constituted violations of
rules 32:1.3 (lawyer shall act with reasonable diligence and promptness
in representing a client); 32:3.2 (lawyer shall make reasonable efforts to
expedite litigation consistent with the interests of the client); 32:3.4(c)
(lawyer shall not knowingly disobey an obligation under the rules of a
tribunal); and 32:8.4(d) (professional misconduct for a lawyer to engage
in conduct that is prejudicial to the administration of justice).
In a separate count of the amended complaint, the Board alleged
Kieffer-Garrison falsely represented to both her client, Anthony McGee,
and the clerk of this court that she had timely filed by mail an
application for further review in a postconviction appeal. This conduct,
the Board alleged, violated rules 32:1.2(a) (lawyer shall abide by a client’s
decisions concerning the objectives of representation), 32:1.3, 32:3.2,
32:3.3(a)(1) (lawyer shall not knowingly make a false statement of fact to
a tribunal), 32:3.4(c), and 32:8.4(d). Kieffer-Garrison denied the Board’s
allegations in this count and testified before the commission that she
prepared the application for further review and followed her routine office
procedure for timely filing it through the mail.
The commission found the Board met its burden of proving Kieffer-
Garrison violated rules 32:1.3, 32:3.2, 32:3.4(c), and 32:8.4(d) as a
consequence of her serial failures to comply with deadlines imposed by
our rules of appellate procedure. The commission also found Kieffer-
Garrison violated rules 32:1.2(a), 32:1.3, 32:3.2, 32:3.3(a)(1), 32:3.4(c),
and 32:8.4(d) in failing to prepare and timely file the application for
further review, and in falsely representing to McGee and the court that
she had done so.
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The commission recommended a one-year suspension of Kieffer-
Garrison’s license.
II. Scope of Review.
Our review of the commission’s report is de novo. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 366 (Iowa 2005).
“Under this standard of review, we give weight to the factual findings of
the Commission, especially with respect to witness credibility, but we
find the facts anew.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Beckman, 674 N.W.2d 129, 131 (Iowa 2004). “Although we respectfully
consider the discipline recommended by the Commission, the final
decision on the appropriate sanction is for this court.” Howe, 706
N.W.2d at 366. The Board must prove its allegations of misconduct by a
convincing preponderance of the evidence. Id.
III. Ethical Violations.
We find the Board proved by a clear preponderance of the evidence
that Kieffer-Garrison violated rules 32:1.3, 32:3.2, 32:3.3(a)(1), 32:8.4(c),
32:1.2(a), and 32:8.4(d) in her repeated failures to comply with the
deadlines imposed by our rules of appellate procedure. Our analysis will
proceed with a discussion of the evidence pertaining to each of the
violations alleged by the Board.
A. Rule 32:1.3: Reasonable Diligence and Promptness. A
lawyer violates rule 32:1.3 in failing to act with reasonable diligence and
promptness in representing a client. Iowa R. Prof’l Conduct 32:1.3.
Kieffer-Garrison violated this rule in repeatedly failing to comply with
deadlines imposed by the rules of this court in nine separate criminal
cases and in failing to promptly pay penalties imposed by the court. The
documentary evidence of more than twenty default notices issued to her
in those cases overwhelmingly supports our finding of this violation.
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B. Rule 32:3.2: Expediting Litigation. This rule is violated
when a lawyer fails to “make reasonable efforts to expedite litigation
consistent with the interests of the client.” Iowa R. Prof’l Conduct 32:3.2.
An attorney violates this rule by failing to appear for status conferences
and respond to court inquiries. Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Johnson, 792 N.W.2d 674, 679–80 (Iowa 2010). Similarly, an attorney
violates this rule in failing to comply with orders compelling discovery
responses. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cunningham, 812
N.W.2d 541, 548 (Iowa 2012). We conclude Kieffer-Garrison’s serial
failures to comply with the requirements of this court’s procedural rules
governing the timely presentation and progression of appeals constituted
a violation of her obligation to demonstrate reasonable efforts to expedite
numerous appeals consistent with her clients’ interests. 2
C. Rule 32:3.4(c): Knowing Disobedience of an Obligation
Under the Rules of a Tribunal. A lawyer’s obligation to act with
fairness to opposing parties and their counsel includes the obligation to
refrain from “knowingly disobey[ing] an obligation under the rules of a
tribunal except for an open refusal based on an assertion that no
obligation exists.” Iowa R. Prof’l Conduct 32:3.4. In this case, there can
be no doubt that Kieffer-Garrison knew the rules of this court imposing
time deadlines pertaining to appeals, and that she persistently violated
them in several criminal appeals. Her violations of the rules occurred
despite her acknowledged receipt of numerous notices of those deadlines
informing her of the specific rules requiring timely filings. Our decisions
2As the Board did not contend Kieffer-Garrison engaged in conduct for the
purpose of frustrating the judicial process, we need not address whether she acted with
such intent. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 530
(Iowa 2011).
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have explained, however, that the purpose of rule 32:3.4(c) is to ensure
“ ‘[f]air competition in the adversary system’ through proper adherence to
discovery and evidence rules.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Dunahoo, 799 N.W.2d at 524, 533 (Iowa 2011) (quoting Iowa R. Prof’l
Conduct 32:3.4(c) cmt. 1). We find the Board failed to meet its burden of
proving Kieffer-Garrison’s conduct undermined the competitive fairness
of the appeals or disadvantaged opposing counsel. Accordingly, we find
no violation of rule 32:3.4(c) by Kieffer-Garrison in this case.
D. Rules 32:8.4(c); 32:3.3(a)(1): Engaging in Dishonesty; Lack
of Candor Toward a Tribunal in the McGee Case. We now turn to the
Board’s claim that Kieffer-Garrison failed to prepare and timely file an
application for further review in the McGee case and falsely represented
to the clerk of this court she had done so. We find Kieffer-Garrison was
appointed on June 23, 2011, as McGee’s counsel in a postconviction
relief appeal. On October 7, the clerk of this court issued a notice of
default informing Kieffer-Garrison she had failed to timely serve McGee’s
proof brief and appendix designation. Kieffer-Garrison subsequently filed
both the proof brief and the appendix designation thirty-six and forty-
three days late, respectively. Another notice of default was issued by the
clerk on February 27, 2012, as a consequence of Kieffer-Garrison’s
failure to timely file the appendix, which was eventually filed twenty-
seven days late.
The court of appeals affirmed the dismissal of McGee’s petition for
postconviction relief on June 13. McGee learned of this development not
from Kieffer-Garrison, but via his receipt of a copy of the decision from
the court. McGee conferred with Kieffer-Garrison who agreed to prepare
and file an application for further review by this court.
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No such application was received by the clerk of this court in due
course, however, and procedendo was therefore issued on July 11.
Thereafter, McGee called the clerk’s office to check on the status of his
appeal. He was informed that an application for further review had not
been filed in his case.
McGee went to Kieffer-Garrison’s office to inquire. After Kieffer-
Garrison assured McGee an application had been filed, McGee called the
clerk’s office. He handed his cell phone to Kieffer-Garrison who spoke
with a deputy clerk. Kieffer-Garrison told the deputy she had sent an
application to the clerk via the postal service but could not supply
tracking confirmation. When the deputy asked Kieffer-Garrison if she
possessed a copy of the application, Kieffer-Garrison said she was unable
to locate a copy that could be promptly transmitted to the clerk’s office
by email or fax. The deputy informed Kieffer-Garrison that her only
remaining option was to file a motion to reconsider and reinstate the
appeal.
Kieffer-Garrison’s opposing counsel, an assistant attorney general
representing the state in McGee’s appeal, never received a copy of the
application from Kieffer-Garrison. On August 13—four weeks after
procedendo issued—Kieffer-Garrison faxed to the clerk of this court a
motion to reconsider and reinstate McGee’s appeal and request further
review. The motion asserted she had “filed a request for further review,”
but no application for further review was attached.
This court’s clerk finally received an application for further review
from Kieffer-Garrison pertaining to McGee’s case on December 5. The
application included a certificate of mailing signed by Kieffer-Garrison
certifying the document had been filed on July 2 by mailing it to the clerk
and to opposing counsel at the attorney general’s office.
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Upon our review of this evidence, we find Kieffer-Garrison violated
rules 32:3.3(a)(1) and 32:8.4(c) when, after failing to prepare and timely
file the application for further review, she falsely represented to McGee
and this court that she had done so.
In making these findings, we give weight to and agree with the
commission’s finding as to Kieffer-Garrison’s lack of credibility. Although
she persisted at the hearing before the commission in claiming she
prepared the McGee application and placed it in the mail for filing and
service, her testimony on this point is unsupported by the credible
evidence. Neither the clerk of this court nor Kieffer-Garrison’s opposing
counsel received the application through the mail before procedendo
issued in the appeal. Furthermore, after McGee confronted Kieffer-
Garrison with the fact that the clerk of this court had not received the
application, she was unable to produce a copy of the document from her
office computer system or paper files before she was notified of the
ethical complaint. 3 Even more salient, in our view, is the fact that her
billing records submitted in support of her request for compensation in
the McGee case did not include an entry for time spent in preparing the
application.
E. Rule 32:1.2(a): Failing to Abide by a Client’s Decisions
Concerning Objectives of Representation. This rule provides a lawyer
shall, subject to limitations not applicable here, “abide by a client’s
decisions concerning the objectives of representation.” Iowa R. Prof’l
Conduct 32:1.2(a). We find the board proved by a convincing
3Kieffer-Garrisondid later provide the Board with a copy of an application for
further review in McGee’s case, but the credible evidence supports our finding this
document was prepared and mailed after Kieffer-Garrison was notified of the default
and ethical complaint.
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preponderance of the evidence that Kieffer-Garrison failed to abide by
McGee’s objective and her agreement to prepare and timely file the
application for further review.
F. Rule 32:8.4(d): Conduct Prejudicial to the Administration
of Justice. A lawyer’s conduct violates rule 32:8.4(d) if “it impedes ‘the
efficient and proper operation of the courts or of ancillary systems upon
which the courts rely.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Taylor, 814 N.W.2d 259, 267 (Iowa 2012) (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 103 (Iowa 2012)).
Violations of this rule impede the efficient operation of the courts and
waste judicial resources. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Kallsen, 814 N.W.2d 233, 238–39 (Iowa 2012). We find Kieffer-Garrison’s
conduct was, by a convincing preponderance of the evidence, prejudicial
to the administration of justice because it caused the court to waste
judicial resources in addressing a motion falsely asserting she filed an
application for further review on behalf of McGee.
IV. Sanction.
“In considering an appropriate sanction, this court considers all
the facts and circumstances, including the nature of the violations, the
attorney’s fitness to practice law, deterrence, the protection of society,
the need to uphold public confidence in the justice system, and the need
to maintain the reputation of the bar.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 463 (Iowa 2014). We
consider mitigating and aggravating circumstances as we calibrate the
sanction. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d
498, 502 (Iowa 2008) (per curiam). We give respectful consideration to
the commission’s findings and conclusions, but “may impose a greater or
lesser sanction than that recommended by the commission.” Iowa
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Supreme Ct. Att’y Disciplinary Bd. v. Wheeler, 824 N.W.2d 505, 509–10
(Iowa 2012). We also seek to “achieve consistency with our prior cases
when determining the proper sanction.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010).
“When neglect is the primary violation, the sanction generally
ranges from a public reprimand to a six-month suspension.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa
2007). When neglect is accompanied by other misconduct, however, the
sanction imposed will likely be more severe than when neglect stands
alone. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d
683, 685 (Iowa 2006). A brief review of this court’s recent disciplinary
cases will illustrate factors influencing our determination of the
appropriate sanction in this case.
In Iowa Supreme Court Board of Professional Ethics & Conduct v.
Stein, 586 N.W.2d 523 (Iowa 1998), we concluded an attorney’s neglect of
two medical negligence cases and his numerous misrepresentations
made to cover up his neglect warranted a suspension of six months.
Stein, 586 N.W.2d at 526. In Walker, we imposed a suspension of six
months as the sanction for an attorney’s neglect of four clients’ cases
and misrepresentations calculated to conceal his neglect. Walker, 712
N.W.2d at 686. In Earley, we suspended for four months the license of
an attorney who neglected the interests of three clients, failed to deposit
retainers from two clients in a trust account, and failed to promptly
return a file to a client. Earley, 729 N.W.2d at 442–44. In Iowa Supreme
Court Attorney Disciplinary Bd. v. Conroy, 845 N.W.2d 59 (Iowa 2014), we
imposed a suspension of six months as a consequence of an attorney’s
neglect of appeals in six criminal cases and one postconviction relief
case. Conroy, 845 N.W.2d 59, 67–68. Although Conroy made no
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misrepresentations to hide his neglect, we counted his history of two
prior admonitions, three temporary suspensions, and one suspension of
sixty days as aggravating factors affecting our determination of the
appropriate sanction. Id. at 67.
Sanctions for violations involving dishonesty have ranged from a
brief suspension of two months to revocation. Van Ginkel, 809 N.W.2d at
110–11 (imposing a suspension of two months for filing interlocutory
report with a false statement and other violations); Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 382 (Iowa 2007)
(revoking the license of a lawyer for multiple instances of dishonest
conduct including forging an executor’s name on a probate report
submitted to the court after previous suspension for similar dishonest
conduct).
Kieffer-Garrison’s neglect of legal matters and her persistent
misrepresentations were serial acts of misconduct, rather than an
isolated misadventure. “Normally, a pattern of misconduct gives rise to
enhanced sanctions.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Gallner, 621 N.W.2d 183, 187 (Iowa 2001). Kieffer-Garrison’s persistent
perpetuation of a falsehood is a “remarkable aggravating factor.”
McGinness, 844 N.W.2d at 466–67 (noting attorney’s persistence in
asserting misrepresentation was “a remarkable aggravating factor” and
suspending attorney’s license for six months).
In determining the appropriate sanction in this case, however, we
also consider Kieffer-Garrison’s depression during the relevant period
and her appropriate pursuit of medical treatment. Depression, while not
excusing the disciplinary violations, may have a bearing on our
determination of the appropriate severity of sanction. See Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 292–96
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(Iowa 2002) (considering major depression as a factor influencing the
sanction). Having considered the relevant factors affecting our
determination of an appropriate sanction, we conclude Kieffer-Garrison’s
license should be suspended with no possibility of reinstatement for six
months.
V. Conclusion.
We suspend Kieffer-Garrison’s license to practice law in this state
with no possibility of reinstatement for a period of six months from the
date of the filing of this opinion. This suspension shall apply to all facets
of law. Iowa Ct. R. 35.13(3). She must establish prior to any
reinstatement that she has not practiced law during the suspension
period, that she has conformed with the rules and procedures governing
reinstatement found in Iowa Court Rule 35.14, and that she has satisfied
the notification requirements set forth in Iowa Court Rule 35.23. The
costs of this proceeding are taxed to Kieffer-Garrison. See Iowa Ct. R.
35.27.
LICENSE SUSPENDED.