Iowa Supreme Court Attorney Disciplinary Board Vs. Robert A. Wright, Jr. ( 2008 )


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  •                 IN THE SUPREME COURT OF IOWA
                                  No. 08–0487
    
                             Filed December 5, 2008
    
    
    IOWA SUPREME COURT ATTORNEY
    DISCIPLINARY BOARD,
    
          Complainant,
    
    vs.
    
    ROBERT A. WRIGHT, JR.,
    
          Respondent.
    
    
          On review of the report of the Grievance Commission.
    
    
    
          Grievance Commission reports respondent has committed ethical
    
    misconduct     and   recommends    a    public   reprimand.     ATTORNEY
    
    REPRIMANDED.
    
    
    
          Charles   L.   Harrington   and   David    Grace,   Des   Moines,   for
    
    complainant.
    
    
          Robert A. Wright, Jr., Des Moines, pro se.
                                             2
    
    HECHT, Justice.
    
          The Iowa Supreme Court Attorney Disciplinary Board charged
    
    Robert A. Wright, Jr., with violations of the Iowa Code of Professional
    
    Responsibility for Lawyers based on Wright’s actions in an appeal filed
    
    with this court.     The Grievance Commission of the Supreme Court of
    
    Iowa found Wright’s actions were prejudicial to the administration of
    
    justice   in   violation   of    DR   1–102(A)(5)   and   DR   1–102(A)(1)   and
    
    recommended the imposition of a public reprimand.                  Wright has
    
    appealed from the Commission’s recommendation.             After reviewing the
    
    record, we find Wright committed ethical violations warranting a public
    
    reprimand.
    
          I. Scope of Review.
    
          We review attorney disciplinary proceedings de novo.                   Iowa
    
    Supreme Ct. Att’y Disciplinary Bd. v. Piazza, 
    756 N.W.2d 690
    , 692 (Iowa
    
    2008).    We give weight to the factual findings of the Commission,
    
    especially with respect to the credibility of witnesses, but we find the
    
    facts anew.     Id.; Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
    
    Beckman, 
    674 N.W.2d 129
    , 131 (Iowa 2004). Violations must be proved
    
    by a convincing preponderance of the evidence. Id.
    
          II. Factual Findings.
    
          Wright agreed to represent Samantha Brown in a paternity and
    
    child custody dispute.          Brown and her mother executed an “Attorney
    
    Hourly Contract” in which they agreed to pay Wright a “minimum fee” of
    
    three thousand dollars.          The fee agreement required Brown and her
    
    mother to pay the fee at the rate of one hundred dollars per month.1
    
    
    
          1Brown  and her mother agreed the balance of the fee not paid by monthly
    payments would be paid from the proceeds of a lawsuit in which Wright represented
    Brown’s mother.
                                            3
    
    District Court Judge Arthur Gamble filed a decision denying Brown’s
    
    claim for physical custody of her children. After consulting with Brown,
    
    Wright filed a notice of appeal on March 26, 2004.
    
           Wright knew Brown had failed to make the monthly payments
    
    required by the fee contract for his services in the district court.2
    
    Anticipating Brown would have difficulty funding the out-of-pocket
    
    expenses necessitated by the appeal, Wright contacted Judge Gamble’s
    
    court reporter, Rebecca Tierney, to obtain an estimate of the cost of the
    
    trial transcript.   Tierney estimated the cost of transcription would be
    
    seven hundred fifty dollars, and informed Wright the transcript would be
    
    prepared after she received payment.              Wright communicated this
    
    information to Brown and notified her she must raise the funds in order
    
    to proceed with the appeal. Brown informed Wright that she did not then
    
    have the money to pay for the transcript, but assured him she would
    
    attempt to borrow it.
    
           Wright hired an independent paralegal to prepare the combined
    
    certificate.   When he signed and served the certificate on opposing
    
    counsel on March 30, 2004, Wright certified he would pay for the
    
    transcript in accordance with Iowa Rule of Appellate Procedure 6.10(2)(b)
    
    (deeming the combined certificate the attorney’s professional statement
    
    that payment for the transcript will be made). At the time he executed
    
    the combined certificate, Wright had no intention of completing the
    
    appeal   if    Brown   failed   to   advance   the   cost   of   the   transcript.
    
    Unfortunately, Wright failed to discern obvious errors in the certificate
    
    which purported to order transcription of the proceedings from the court
    
    
    
    
           2Brown testified she made no payments to Wright, but disclaimed knowledge as
    
    to whether Wright received payment from proceeds of her mother’s lawsuit.
                                                4
    
    reporter for District Court Judge Glenn Pille, rather than Judge Gamble.3
    
    The certificate also erroneously represented the appeal was not expedited
    
    under Iowa Rule of Appellate Procedure 6.17.4
           Wright paid the docketing fee and Brown’s appeal was docketed on
    
    May 3, 2004. Tierney did not prepare a transcript because the combined
    
    certificate was not mailed to her, and she was not informed that the
    
    certificate had been served. The deadline for filing Brown’s proof brief
    
    and a designation of the contents of the appendix passed. The clerk of
    
    this court notified Wright of his delinquency on October 5, 2004,
    
    assessed a penalty of fifty dollars, and informed counsel the appeal
    
    would be dismissed for want of prosecution if the default were not cured
    
    within fifteen days.5
    
           Wright contacted Brown to inform her of the impending dismissal
    
    of her appeal for failure to prosecute it.6 Brown disclosed she still had
    
    not raised the money required to pay for the transcript, but claimed she
    
    would continue trying to raise the funds. Brown’s efforts to borrow the
    
    funds were unproductive, however, and Wright did not cure the default.
    
           Having heard nothing further from Wright since March of 2004
    
    about whether transcription of the record in Brown’s case would be
    
    
           3The  “Proof of Service and Certificate of Filing” signed by Wright represented the
    document was mailed to opposing counsel and to “Court Reporter c/o The Honorable
    Glenn E. Pille.” Judge Pille’s court reporter was Teresa Kordick. There is no evidence
    that Judge Pille or Kordick received the combined certificate.
    
           4This error was brought to Wright’s attention by the clerk of this court, and
    
    Wright corrected it.
    
           5The notice also warned that if Wright failed to cure the default within the
    prescribed period, a copy of any dismissal order would be forwarded to the Iowa
    Supreme Court Board of Professional Ethics and Conduct.
    
           6Wright   had spoken to Brown on other occasions, as well, after the combined
    certificate was filed and before expiration of the time to cure the default to determine
    whether she had raised the funds to pay for the transcript.
                                            5
    
    required, Tierney placed a call to Wright on November 1, 2004 to inquire
    
    about the status of the case.7 On November 5, 2004, the clerk of this
    
    court entered an order of dismissing Brown’s appeal.
    
          The Board filed a complaint charging Wright with violations of
    
    DR 7–101(A) (failure to seek the lawful objectives of a client), DR 6–101(A)
    
    (neglecting a client’s legal matter), DR 2–110 (improper withdrawal from
    
    employment), DR 1–102(A)(1) (violation of a disciplinary rule), DR 1–
    
    102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit or
    
    misrepresentation),     DR      1–102(A)(5)    (conduct   prejudicial    to   the
    
    administration of justice) and DR 1–102(A)(6) (conduct adversely
    
    reflecting on fitness to practice law). After a hearing on the merits, the
    
    Commission filed its findings of fact and conclusions of law.                 The
    
    Commission found Wright violated DR 1–102(A)(5) (conduct prejudicial to
    
    the administration of justice), and DR 1–102(A)(1) (violation of a
    
    disciplinary rule) when he filed the combined certificate with knowledge
    
    that he would not pursue the appeal if Brown failed to raise the funds
    
    necessary to obtain the transcript, and when he “was aware or should
    
    have been aware” his certification that he would pay for the transcript
    
    might not be honored. The Commission found the Board failed, however,
    
    to meet its burden to prove the other alleged violations by a convincing
    
    preponderance of the evidence. Wright appeals, contending he violated
    
    no   disciplinary   rule   in   representing    Brown,    and   contesting    the
    
    Commission’s bill of costs.
    
          III. Ethical Violations.
    
          Wright’s alleged misconduct occurred prior to July 1, 2005, and is
    
    therefore governed by the Iowa Code of Professional Responsibility for
    
    
          7Tierney could not recall at the time of her testimony on October 31, 2007,
    
    whether she spoke directly to Wright, or merely left a message of inquiry for him.
                                          6
    
    Lawyers.    Iowa Supreme Ct. Att’y Disciplinary Bd. v. Tompkins, 
    733 N.W.2d 661
    , 666 (Iowa 2007).
    
          “[T]here is no typical form of conduct that prejudices the
          administration of justice.” Generally, acts that have been
          deemed prejudicial to the administration of justice have
          “hampered 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. Borth, 
    728 N.W.2d 205
    , 211
    
    (Iowa 2007) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
    
    Steffes, 
    588 N.W.2d 121
    , 123 (Iowa 1999)).
    
          Wright acknowledges this court has on several occasions imposed
    
    discipline on lawyers who failed to prevent administrative dismissal of
    
    appeals.   See Tompkins, 733 N.W.2d at 670; Iowa Supreme Ct. Att’y
    
    Disciplinary Bd. v. McCarthy, 
    722 N.W.2d 199
    , 205–06 (Iowa 2006); Iowa
    
    Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Daggett, 
    653 N.W.2d 377
    ,
    
    380 (Iowa 2002); Comm. on Prof’l Ethics & Conduct v. Thomas, 
    495 N.W.2d 684
    , 687 (Iowa 1993). He contends, however, we should not find
    
    his conduct prejudicial to the administration of justice in violation of
    
    DR 1–102(A)(5) because the dismissal of Brown’s appeal was not the
    
    result of neglect or a deliberate decision to allow dismissal.       Wright
    
    asserts the sole cause of the dismissal was instead Brown’s failure to
    
    raise the funds for the transcript.
    
          As we have already noted, Wright spoke with Brown on several
    
    occasions after filing the combined certificate, monitoring whether she
    
    had raised the funds to pay for the transcript.      He wanted to proceed
    
    with his client’s appeal, but was unwilling and not contractually
    
    obligated to advance the cost of the transcript.     Brown attested in an
    
    affidavit it was her failure to pay for the transcript, not Wright’s actions,
    
    that prevented her from proceeding with the appeal.        Under the facts
                                         7
    
    presented here, we find the Board failed to prove Wright neglected
    
    Brown’s interests.     Wright in fact protected Brown’s interest by
    
    commencing and maintaining the appeal notwithstanding her failure to
    
    pay his fee as she had agreed, and by allowing her time through
    
    October 20, 2004 to raise the funds to pay for the transcript.
    
          Our determination that Wright did not neglect Brown’s interests is
    
    not, however, dispositive on the question whether Wright’s conduct was
    
    prejudicial to the administration of justice in violation of DR 1–102(A)(5).
    
    Even if Brown did not wish to proceed with her appeal, Wright was not
    
    relieved “from taking steps to end the matter.” Iowa Supreme Ct. Att’y
    
    Disciplinary Bd. v. Lesyshen, 
    712 N.W.2d 101
    , 105 (Iowa 2006). “Our
    
    case law makes it clear that an attorney cannot use a default notice to
    
    dismiss an appeal in lieu of the attorney’s obligation to comply with our
    
    appellate rules.” Tompkins, 733 N.W.2d at 669 (citing Iowa Supreme Ct.
    
    Bd. of Prof’l Ethics & Conduct v. Moorman, 
    683 N.W.2d 549
    , 552 (Iowa
    
    2004)).   Wright contends nonetheless his conduct does not rise to the
    
    level of a violation of DR 1–102(A)(5) because he intended to dismiss the
    
    appeal and did not deliberately allow the appeal to terminate through
    
    administrative dismissal. We are not persuaded. The clerk of this court
    
    notified Wright his default must be cured by October 20, 2004 to avoid
    
    dismissal of the appeal.    Wright knew conclusively by that date that
    
    Brown was unable to pay for the transcript, yet he took no action to
    
    dismiss the appeal. His inaction caused the clerk to prepare and file an
    
    order two weeks later accomplishing the dismissal, and constituted
    
    conduct prejudicial to the administration of justice in violation of DR 1–
    
    102(A)(5). Wright’s violation of DR 1–102(A)(5) supports, and we adopt as
    
    our own, the Commission’s finding that Wright also violated DR 1–
    
    102(A)(1).
                                           8
    
          Although the Commission did not recommend discipline on the
    
    other alleged violations, we review them as well. Iowa Supreme Ct. Att’y
    
    Disciplinary Bd. v. Howe, 
    706 N.W.2d 360
    , 365 (Iowa 2005). Upon our de
    
    novo review, we find the Board failed to prove Wright violated DR 7–
    
    101(A), DR 6–101(A), DR 2–110, DR 1–102(A)(4), or DR 1–102(A)(6).
    
          IV. Sanction.
    
          We    are   free   to   adopt,   increase,   or   reduce    the    sanction
    
    recommended by the Commission. Iowa Supreme Ct. Bd. of Prof’l Ethics
    
    & Conduct v. Eich, 
    652 N.W.2d 216
    , 217 (Iowa 2002). “In the end, we
    
    impose discipline based on the particular facts of each case.”              Iowa
    
    Supreme Ct. Att’y Disciplinary Bd. v. Hall, 
    728 N.W.2d 383
    , 387 (Iowa
    
    2007).     We consider aggravating circumstances in determining the
    
    appropriate sanction for violation of disciplinary rules.               See Iowa
    
    Supreme Ct. Bd. of Prof’l Ethics & Conduct v. McKittrick, 
    683 N.W.2d 554
    ,
    
    563 (Iowa 2004); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
    
    Gallner, 
    621 N.W.2d 183
    , 188 (Iowa 2001).          A lawyer’s record of prior
    
    disciplinary action is an aggravating circumstance.              McKittrick, 683
    
    N.W.2d at 563; Gallner, 621 N.W.2d at 188.               Wright was publicly
    
    reprimanded by the Board in 2001 for violations of disciplinary rules in
    
    two cases, and he was admonished by the Board on two other occasions
    
    before he undertook the representation of Brown. We also consider the
    
    fact that Wright, who has been practicing since 1981, is an experienced
    
    lawyer. See Gallner, 621 N.W.2d at 188.
    
          Under the circumstances presented here, we conclude the sanction
    
    recommended by the Grievance Commission is appropriate.
    
          V. Costs.
    
          Under our rules, if a “public reprimand results from formal charges
    
    of misconduct, [this court] shall assess against the respondent attorney
                                        9
    
    the costs of the proceeding.” Iowa Ct. R. 35.26(1). The Commission filed
    
    an amended bill of costs on March 31, 2008 claiming total costs of
    
    $646.36, including $594.45 for the transcript and $51.91 for postage.
    
    Wright contends the claimed cost for the transcript exceeds the taxable
    
    amount authorized under our rules.         See Iowa Ct. R. 22.28(1)(a)
    
    (prescribing a court reporter’s maximum compensation for an “ordinary
    
    transcript” at “$3.50 per page for the original”). The transcript in this
    
    case is one hundred eleven pages in length.      The taxable cost of the
    
    transcript is therefore $388.50.
    
          Wright also contends the costs should be equitably apportioned
    
    because several of the alleged violations were not proved by the Board.
    
    He claims apportionment of the costs should be ordered because Iowa
    
    Court Rule 35.26(1) limits taxable costs in disciplinary actions to “those
    
    expenses normally taxed as costs in state civil actions pursuant to . . .
    
    Iowa Code chapter 625.”        Wright notes Iowa Code section 625.3
    
    authorizes the court to make an equitable apportionment of the costs
    
    where a party “is successful as to a part of the party’s demand, and fails
    
    as to part . . . .” Although the Board did not prove all of the violations
    
    alleged against Wright, we find apportionment of the costs is not
    
    appropriate under the circumstances presented here. Accordingly, costs
    
    of $440.41 incurred in the proceeding before the Commission shall be
    
    taxed to Wright. The costs of this appeal are also taxed to Wright.
    
          ATTORNEY REPRIMANDED.