Iowa Supreme Court Attorney Disciplinary Board v. Jeffrey K. McGinness , 844 N.W.2d 456 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 13–1213
Filed March 21, 2014
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
JEFFREY K. MCGINNESS,
Appellant.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
The Grievance Commission of the Supreme Court of Iowa
recommends the respondent receive a six-month suspension. LICENSE
SUSPENDED.
Gregory M. Lederer of Lederer Weston Craig PLC, Cedar Rapids, for
appellant.
Charles L. Harrington and Teresa A. Vens, Des Moines, for
appellee.
2
APPEL, Justice.
In this case, we review a recommendation of the Grievance
Commission of the Supreme Court of Iowa to suspend the license of
Jeffrey K. McGinness for six months because he falsified certificates of
service attached to discovery requests sent to opposing counsel and then
defended the validity of the certificates in judicial proceedings. Following
a hearing on a complaint filed by the Iowa Supreme Court Attorney
Disciplinary Board, the commission found McGinness violated Iowa
Rules of Professional Conduct 32:3.3(a)(1) (knowingly making false
statements to a tribunal), 32:8.4(c) (conduct involving dishonesty, fraud,
deceit, or misrepresentation), and 32:8.4(d) (conduct prejudicial to the
administration of justice). McGinness appealed the commission’s
recommended sanction. McGinness admits he engaged in the
misconduct as alleged by the Board, but argues his license should not be
suspended for more than three months.
Upon our de novo review, we agree with the commission that the
Board established by a convincing preponderance of the evidence that
McGinness violated rules 32:3.3(a)(1), 32:8.4(c), and 32:8.4(d). We also
agree with the commission that McGinness should be suspended from
the practice of law with no possibility of reinstatement for six months.
I. Factual and Procedural Background.
The facts are not disputed. McGinness attended the University of
Iowa as an undergraduate where he was a national champion wrestler.
After graduating from the University’s law school in 2001, he passed the
Illinois bar examination and was employed by a law firm in Chicago. He
returned to Iowa in 2007, obtained an Iowa law license through
reciprocity, and was employed by a prominent eastern Iowa law firm.
3
In 2012, McGinness represented the plaintiff in a civil action filed
in the Iowa District Court for Polk County. His client’s deposition had
been scheduled for June 18. Five days before the scheduled deposition,
McGinness realized he had not served discovery requests on opposing
counsel. McGinness believed his failure to obtain responses from the
opposing party prior to his client’s deposition was a strategic mistake.
To cure his oversight, McGinness embarked on a course of
dishonest conduct he will regret for the remainder of his legal career.
Instead of seeking an accommodation from opposing counsel or simply
proceeding with the scheduled deposition, he decided to lie about his
failure to serve discovery. McGinness began by emailing opposing
counsel demanding responses to the discovery requests by the end of the
next day “to avoid the need to reschedule the deposition.” When
opposing counsel responded that he had not received any discovery
requests from McGinness, McGinness replied via an email to which he
attached two discovery requests he had purportedly served March 21.
The discovery requests contained McGinness’s signature as well as
purported certificates of service indicating the requests had been served
March 21 by U.S. Mail. The certificates of service appeared to have been
signed by McGinness’s administrative assistant.
Though McGinness may have prepared the discovery requests at
some prior time, McGinness had not, in fact, served opposing counsel
with those discovery requests on March 21. When he realized his error,
McGinness fabricated false certificates of service by photocopying an old
certificate of service from his response to opposing counsel’s discovery
requests in the same case. McGinness attached the false certificates to
the discovery requests and sent the package to opposing counsel.
4
Finding the circumstances suspicious, opposing counsel examined
electronic data embedded in the discovery documents received from
McGinness. Opposing counsel determined the documents had been
created in June. Documents created in June obviously were not served
in March. Opposing counsel then hired a handwriting expert. After
comparing the certificates of service on the discovery documents emailed
by McGinness with the certificate of service on McGinness’s response to
opposing counsel’s discovery requests, the expert concluded the former
were photocopies of the latter.
Opposing counsel confronted McGinness with his beliefs
McGinness had not served the discovery requests in March and the
certificates of service were falsified. To support his allegations, opposing
counsel noted McGinness had never before mentioned the discovery
requests despite repeated communications about discovery, the
documents themselves indicated they were not created in March, and
inspection of the documents revealed the signatures were identical.
McGinness did not fess up; he embellished. He told opposing counsel he
specifically recalled preparing and signing the discovery requests at the
same time he responded to opposing counsel’s discovery requests and
may have served them the same day. He further informed opposing
counsel that, because he did not sign the certificate of service, he could
not speak to the allegation of identical signatures and that his secretary,
who signs many certificates of service each week, had no recollection of
signing it.
Opposing counsel filed a motion for sanctions with the district
court. Once again, McGinness embellished instead of fessing up.
McGinness filed a response with the district court in which he
maintained neither he nor his assistant photocopied nor duplicated
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previously used certificates of service. McGinness added a new layer to
his fraudulent conduct by hiring an expert at his own expense to defend
the position he knew to be false. McGinness represented to the district
court that his own expert found the signatures were not identical.
Finally, McGinness attempted to discredit opposing counsel’s theory that
he was motivated by a desire to delay the deposition.
McGinness communicated with his client about the pending
sanctions motion. In an email, McGinness noted opposing counsel had
alleged McGinness had fabricated certificates of service dates in an
attempt to delay the client’s deposition. McGinness informed his client
that he did “not take these allegations lightly” and that he had discussed
the motion with opposing counsel. McGinness also informed his client
he had hired, at his own expense, “a forensic document examiner who is
willing to testify that the certificates are not fabricated.”
The district court scheduled a hearing on the sanctions motion. At
the hearing, McGinness once again chose not only to maintain the lie,
but to embellish. He insisted the certificates of service were not
fabrications. He also attacked the conclusions of opposing counsel’s
handwriting expert. After the district court expressed its opinion to
McGinness it did not think it needed a handwriting expert to see the
fabricated certificates of service matched the one on the response to
opposing counsel’s discovery requests, McGinness asserted there was no
evidence to explain why the certificates of service were identical.
McGinness acknowledged his administrative assistant’s signature was on
the certificates of service, but stressed that she signs a significant
number of documents each week. He further stressed that he has
multiple administrative assistants and that any of them could have
prepared the documents.
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The district court rejected McGinness’s now elaborate deceit. The
district court found McGinness intentionally and knowingly affixed false
certificates of service to discovery requests to cause unnecessary delay in
the progression of the litigation. The district court further noted,
“McGinness’s behavior is so shocking and egregious that it is hard even
to know what to say about it.” The district court continued, “It is deeply
disappointing to find that a member of the bar has engaged in such
elaborate, calculated, and premeditated deceit.” The district court
sanctioned McGinness pursuant to Iowa Rule of Civil Procedure 1.413(1).
The district court ordered McGinness to pay $5152 to opposing counsel
and $2348 to the Iowa Judicial Branch. 1 The district court forwarded a
copy of the sanctions order to the state court administrator.
After receiving the district court order, McGinness disclosed his
conduct to his law firm. While a senior partner testified he urged
McGinness to report his misconduct to the Board, McGinness testified he
had received an inquiry from the Board shortly after he received the
court order, which nullified his ability to self-report. McGinness’s firm
told McGinness he had betrayed their trust. At this point, McGinness
voluntarily withdrew from the firm and began a solo practice in Iowa
City. While expressing shock at McGinness’s behavior, at least one
senior partner regarded his conduct as an aberration and referred
business to McGinness as a solo practitioner.
After receiving a complaint from the district court, the Board
requested a response from McGinness. McGinness filed with the Board a
1A court may order the amount of a monetary sanction that exceeds the amount
of direct financial injury to the harmed litigants to be paid to the judicial system to
avoid any party from receiving a windfall and to at least partially reimburse the judicial
system for unnecessary costs incurred. Roewedder v. Anderson, 814 N.W.2d 585, 592–
93 (Iowa 2012).
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letter in which he admitted he engaged in the alleged misconduct and
expressed remorse for his actions. In particular, McGinness cited his
“extreme disappointment” in himself and recognized his actions reflected
“a severe lapse in judgment.” Acknowledging there was no excuse for his
actions, McGinness stated that in falsifying the certificates of service he
was “motivated by a misguided loyalty and attempt to protect a client”
and that instead he should have admitted the oversight and requested an
extension. McGinness further noted his belief that submitting his client
for a deposition without the benefit of the discovery responses could have
compromised his client’s case. Finally, he noted that while it would take
significant time to regain the lost trust of his friends and law partners, he
believed the disciplinary process and the process of mending damaged
relationships would make him a better person and attorney.
After receiving McGinness’s response, the Board filed a complaint
with the commission alleging his conduct violated Iowa Rules of
Professional Conduct 32:3.3(a)(1), 32:8.4(c), and 32:8.4(d). At the
subsequent hearing, McGinness again admitted to engaging in the
misconduct and expressed his remorse. McGinness offered live
testimony and affidavits from a senior partner in his former firm, an
administrator at the University of Iowa College of Law, a family friend,
and other lawyers as character witnesses. McGinness offered evidence
showing he had served on a local school board, local municipal boards,
and in various organizations and had coached wrestling, soccer, and
baseball.
Based on the undisputed evidence, the commission found
McGinness violated rules 32:3.3(a)(1), 32:8.4(c), and 32:8.4(d). The
commission determined aggravating factors included McGinness’s failure
to self-report, repeated failure to tell the truth, and failure to turn to the
8
numerous friends and colleagues comprising his support system for
advice. The commission also noted the presence of several mitigating
factors, including McGinness’s sincere and straightforward admission to
the commission, his lack of prior discipline, and his community service.
In light of the infractions, the commission recommended this court
suspend McGinness’s license to practice law for six months.
II. Standard of Review.
We review the record before the commission de novo. Iowa Ct. R.
35.11(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Liles, 808 N.W.2d
203, 205–06 (Iowa 2012). The Board must prove misconduct by a
convincing preponderance of the evidence. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Earley, 774 N.W.2d 301, 304 (Iowa 2009). Proof by a
convincing preponderance of the evidence is a more demanding standard
than proof by preponderance of the evidence, but less demanding than
proof beyond a reasonable doubt. Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Adams, 809 N.W.2d 543, 545 (Iowa 2012). We give respectful
consideration to the commission’s finding of fact and recommended
sanction, but we are not bound by them. Earley, 774 N.W.2d at 304.
III. Discussion.
A. Ethical Violations.
1. Introduction. We begin our substantive review of this matter by
determining whether McGinness engaged in misconduct under our
ethical rules. Although the facts are largely undisputed, we still
independently determine whether the commission’s determination that
McGinness violated our rules of ethics are supported in fact and law.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596,
601 (Iowa 2012) (noting that even when parties enter into a stipulation of
9
facts and ethical violations, this court must still determine whether a
violation occurred).
2. Dishonest, fraudulent, deceitful, or misrepresentative conduct.
Iowa Rule of Professional Conduct 32:8.4(c) provides that “[i]t is
professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.” To violate this rule, a
lawyer must act with some level of scienter, which means the
misrepresentation must be more than a negligent misrepresentation.
E.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 591,
605 (Iowa 2011). A lawyer may violate this rule by making a
misrepresentation to opposing counsel, see, e.g., Comm. on Prof’l Ethics &
Conduct v. Chipokas, 493 N.W.2d 414, 418 (Iowa 1992) (finding a lawyer
violated the predecessor rule, Iowa Code of Professional Responsibility for
Lawyers DR 1–102(A)(4), by misrepresenting to opposing counsel that he
had authority to settle for a specific amount), or to the court, see, e.g.,
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Schall, 814 N.W.2d 210, 213–
14 (Iowa 2012) (finding a violation where a lawyer filed a written
arraignment and plea of not guilty after making an unauthorized
alteration to the form to waive speedy trial, and after signing it as an
attorney falsely representing he had discussed the right to a speedy trial
with his client and as a notary falsely representing his client had signed
the document in his presence). We found a violation of the predecessor
to rule 32:8.4(c), DR–102(A)(4), when a lawyer, in an attempt to conceal
his neglect, falsely certified on his combined certificate that he had
several days earlier served a combined certificate on opposing counsel,
mailed it to the clerk of the supreme court, and personally delivered it to
the district court clerk. See Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Stein, 586 N.W.2d 523, 525–26 (Iowa 1998).
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As in Stein, McGinness intentionally made repeated
misrepresentations of material fact to opposing counsel. He photocopied
old certificates of service in an attempt to deceive opposing counsel into
believing McGinness had served him with discovery requests when
McGinness had not done so. When confronted about the matter by
opposing counsel, McGinness attempted to cover his tracks with more
fabrication. Accordingly, we find the Board established by a convincing
preponderance of the evidence that McGinness violated rule 32:8.4(c).
3. Candor toward the tribunal. Iowa Rule of Professional Conduct
32:3.3(a)(1)(A) provides that “[a] lawyer shall not knowingly . . . make a
false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the
lawyer.” Because the lawyer must knowingly make the false statement,
the lawyer must have “actual knowledge of the fact in question.” Iowa R.
Prof’l Conduct 32:1.0(f) (defining the term “knowingly”).
Our cases reveal that false statements to the court can be made
both orally and in writing. We have found violations when a lawyer filed
falsely notarized documents with the court, when a lawyer forged a guilty
plea for a defendant he was representing, and when a lawyer filed a
document with the court misrepresenting the marital status of a
decedent. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Palmer, 825
N.W.2d 322, 325 (Iowa 2013) (falsely notarized document); Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Kallsen, 814 N.W.2d 233, 238 (Iowa 2012)
(forged guilty plea); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761
N.W.2d 53, 60 (Iowa 2009) (misrepresentation of marital status of
decedent). We have also found a violation of this rule when a lawyer
orally made a false statement to the court. See Iowa Supreme Ct. Att’y
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Disciplinary Bd. v. Hearity, 812 N.W.2d 614, 621 (Iowa 2012) (false
statement that lawyer had not received notice of his suspended license).
We have no trouble finding McGinness violated rule 32:3.3(a)(1).
In his response to the motion for sanctions, which McGinness signed and
filed with the court, McGinness stated, “Neither present counsel nor his
assistant photocopied or duplicated previously used certificates of
service.” He further stated that when he looked in his discovery file to
verify he had responded to opposing counsel’s discovery requests, he
noted the presence of his discovery requests bearing a March 21 service
date.
One week later, at the hearing on the motion for sanctions,
McGinness presented an argument that opposing counsel had failed to
prove the certificates of service were photocopies. When the district
court informed McGinness it did not need a handwriting expert to see the
certificates of service were the same and asked McGinness for an
explanation, McGinness indicated he was unable to find any explanation
based upon his review of his firm’s document management system and
his discussions with his assistant. He continued to hide from the district
court what he knew to be the truth.
Given the undisputed facts and McGinness’s admissions, we find
the Board proved McGinness violated rule 32:3.3(a)(1) in both his written
filing with the district court and his oral statements to the district court
by a convincing preponderance of the evidence.
4. Conduct prejudicial to the administration of justice. Iowa Rule of
Professional Conduct 32:8.4(d) provides that “[i]t is professional
misconduct for a lawyer to . . . engage in conduct that is prejudicial to
the administration of justice.” Conduct violates this rule if “it impedes
‘the efficient and proper operation of the courts or of ancillary systems
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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, 102–03 (Iowa 2012)). A
lawyer violates this ethical rule by engaging in misconduct that impedes
the efficient operation of the courts and wastes judicial resources.
Kallsen, 814 N.W.2d at 238–39.
We also have no trouble finding a violation of rule 32:8.4(d) on the
undisputed facts. McGinness caused the district court to schedule a
completely unnecessary hearing about a collateral matter completely
unrelated to the merits of the underlying lawsuit. By persisting in his
course of conduct, he plainly impaired the efficient operation of the court
system and caused a waste of judicial resources. Therefore, we find the
Board proved a violation of rule 32:8.4(d) by a convincing preponderance
of the evidence.
B. Sanction.
1. Overview of sanctions in disciplinary cases. 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. E.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Dunahoo, 799 N.W.2d 524, 534–35 (Iowa 2011). We also consider
mitigating and aggravating circumstances. E.g., Van Ginkel, 809 N.W.2d
at 109; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d
498, 502 (Iowa 2008). The court gives respectful consideration to the
findings and recommendations of the commission, but “may impose a
greater or lesser sanction than that recommended by the commission.”
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wheeler, 824 N.W.2d 505, 509–
10 (Iowa 2012).
Though a one-size-fits-all approach to professional discipline is
inappropriate, we seek to “achieve consistency with prior cases when
determining the proper sanction.” Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010). We recognize,
however, that “consistency is achieved through the difficult process of
carefully considering and balancing all the relevant circumstances in
each case, not by lumping conduct into broad categories of sanctions.”
Wheeler, 824 N.W.2d at 511. Further, as noted by Board counsel at the
hearing before the commission, we rarely encounter cases where the
exact same conduct has occurred previously.
2. Positions of the parties. In this appeal, McGinness largely falls
on his sword. He unequivocally concedes the record supports the ethics
violations we have found. He further recognizes “fundamental honesty is
the base line and mandatory requirement to serve in the legal
profession.” Kallsen, 814 N.W.2d at 239 (internal quotation marks
omitted). He does not attempt to explain away his misconduct by
blaming others or citing vague mitigating circumstances that usually fail
to persuade.
Yet, McGinness asserts a six-month suspension is too harsh. He
notes that while we have imposed six-month suspensions in other cases
involving false representations to opposing counsel and to the court,
these cases often involve other aggravating factors not present in this
case or a lack of mitigating factors. He notes, for example, that in Iowa
Supreme Court Attorney Disciplinary Board v. Wagner, 768 N.W.2d 279
(Iowa 2009), an attorney who ultimately received a six-month suspension
for his conduct in a probate matter not only made numerous
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misrepresentations to the district court, but also neglected the matter,
prematurely took probate fees, failed to deposit unearned fees in his
trust account, failed to promptly return unearned fees, and failed to
cooperate with the disciplinary board. McGinness notes that in his case,
these additional violations are not present. He uses similar reasoning to
distinguish other misrepresentation cases involving six-month
suspensions. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Isaacson,
750 N.W.2d 104, 110 (Iowa 2008) (six-month suspension for
misrepresentations to partner and to the disciplinary board in addition to
trust account violations); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Powell, 726 N.W.2d 397, 408 (Iowa 2007) (six-month suspension for
harm to clients in addition to misrepresentations to clients for purpose of
obtaining payment of fees).
McGinness further argues an assessment of the balance of
mitigating and aggravating circumstances should tip this court in the
direction of a suspension of less than six months. McGinness asserts
that while he committed multiple offenses, they did not arise out of
separate, unrelated incidents but were, in essence, part of a single
course of conduct. McGinness challenges the assertion of the
commission that the existence of a “strong support” system in his firm
was an aggravating factor. He points out that he has suffered a
significant financial loss as a result of court sanctions and his departure
from a prestigious law firm. He further asserts that he has suffered
substantial intangible losses to his professional and personal reputation.
He notes that he will essentially have to start over in his legal practice
once any suspension has run its course.
The Board, in contrast, urges us to follow the recommendation of
the commission and suspend McGinness’s license for six months. The
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Board cites a number of cases involving misrepresentation where a six-
month suspension was imposed. For instance, in Committee on
Professional Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa
1990), we suspended the license of an attorney who altered and
backdated documents for a client and falsely notarized them even though
the attorney had an “otherwise excellent record.” Similarly, in Iowa
Supreme Court Board of Professional Ethics & Conduct v. Rylaarsdam,
636 N.W.2d 90, 91–93 (Iowa 2001), we suspended an attorney for six
months for misrepresentations when the attorney had no prior
disciplinary history, received no financial benefit, was sincere and
remorseful, accepted responsibility, and made no attempt to blame
others.
The Board recognizes the taking of responsibility and remorse are
mitigating factors, but points to the presence of certain aggravating
factors. The Board notes that McGinness lied on numerous occasions to
both opposing counsel and the district court and that McGinness went
so far as to hire an expert in an attempt to cover his falsehoods. Further,
the Board notes McGinness did not self-report to the Board.
3. Analysis of appropriate sanction. At the outset, we note the
unusual nature of this case. McGinness did not serve the discovery
requests in an optimal fashion, but McGinness’s neglect to serve the
requests was hardly an insurmountable problem for him or his client.
McGinness could have asked for an accommodation from the opposing
lawyer, sought protection from the court, or simply taken additional time
to thoroughly prepare his client for the scheduled deposition. Moreover,
McGinness’s failure to serve the discovery requests might not have been
entirely to his client’s disadvantage, as the process of responding to
discovery requests can sharpen opposing counsel’s knowledge of the case
16
and lead to a more informed interrogation during the deposition.
McGinness’s solution—a course of unethical conduct—is striking in light
of the minor problem he faced. In any event, we note, as McGinness now
recognizes, that “honesty is the base line and mandatory requirement to
serve in the legal profession.” Kallsen, 814 N.W.2d at 239 (internal
quotation marks omitted). We expect honesty in all aspects of the
practice of law. There can be no doubt McGinness fell far short of what
we expect of our lawyers, day in and day out, who practice law in this
state.
Our cases show a range of sanctions for misconduct involving
dishonesty where lawyers have made misrepresentations. See, e.g., id. at
240 (one-year suspension for forging guilty plea document); Van Ginkel,
809 N.W.2d at 110–11 (two-month suspension for filing interlocutory
report with a false statement and other violations); Bauerle, 460 N.W.2d
at 454 (six-month suspension for alteration and backdating of
partnership documents with false notarization); see also Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 378, 382 (Iowa
2007) (revoking the license of a lawyer who made multiple
misrepresentations, including forging an executor’s name on a probate
report submitted to the court, after the lawyer had been previously
suspended for forging a judge’s signature). Further, as pointed out by
McGinness, a number of our disciplinary cases involving dishonesty or
misrepresentation and resulting in six-month suspensions involve
additional unethical conduct. See Wagner, 768 N.W.2d at 281 (six-
month suspension for misrepresentations as well as neglect and other
violations); Powell, 726 N.W.2d at 408 (six-month suspension for
misrepresentation and various other disciplinary violations); Stein, 586
N.W.2d at 525–26 (six-month suspension for intentional
17
misrepresentations and neglect). In the end, the level of sanction is
individually crafted based upon the nature of the violation and the
mitigating and aggravating circumstances, to which we now turn.
Surely the persistence of McGinness in perpetuating his falsehood
is a remarkable aggravating factor. This case does not involve an
isolated false statement, in itself a serious offense. See Van Ginkel, 809
N.W.2d at 111. Instead, McGinness repeatedly lied to opposing counsel
and to the district court. He also attempted to justify his conduct in
communications with his client. McGinness had numerous
opportunities to withdraw from his perilous course, but instead simply
dug himself into a progressively deeper ethical pit. We have not regarded
such repeated misconduct as irrelevant because it is part of an ongoing
unethical course of conduct. See Kallsen, 814 N.W.2d at 238 (noting
filing of forged plea agreement was “merely the last step in a dishonest
scheme”); Rylaarsdam, 636 N.W.2d at 93 (noting in imposing a six-
month suspension that “Rylaarsdam’s misconduct went beyond lying to
clients; he actually forged his clients’ signatures and, in an even more
calculated and unscrupulous attempt to hide his neglect, falsified a court
document”). McGinness did not stop digging until after the district court
entered an order imposing sanctions and notified the Board. At this
point, McGinness was left, almost literally, with no remaining options.
Only when cornered did McGinness abandon his dishonest scheme.
The commission also believed McGinness’s failure to self-report
was an aggravating factor. McGinness claimed he received the letter
from the Board shortly after receiving the sanctions order. The sanctions
order indicates it had been forwarded to the state court administrator.
McGinness could have terminated his conduct, of course, and self-
reported prior to the district court’s ruling. He did not do so. On the
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other hand, once he received the district court’s ruling that was
forwarded to judicial branch authorities, it was reasonable for
McGinness to assume the matter was already reported. Perhaps he
should have self-reported anyway, but after the district court’s ruling,
any self-reporting would be more self-serving than material. We view the
root problem here as not so much McGinness’s failure to report his
misconduct after the district court’s ruling, but instead McGinness’s
remarkable persistence in pursuing his dishonest course, which we have
already identified as an aggravating factor in this case.
The commission found the presence of a support system
surrounding McGinness was an aggravating factor. McGinness did have
ready access to experienced lawyers to help him work through problems
of legal practice. When he realized he had failed to timely serve
discovery, he could have consulted other more experienced lawyers in the
firm regarding the best method of handling the problem. Certainly a trip
down the hall and a consultation with a senior attorney would have led
to a different result in this case. Yet, the failure to access a support
system might have more bearing in a borderline case where a
conscientious but inexperienced lawyer would seek good advice on a
difficult ethical dilemma. In this case, even an inexperienced lawyer
would know that the path chosen violated our ethical rules. We view the
problem here not so much as a failure to access a mentor but more as a
profoundly wrong judgment any lawyer should avoid regardless of the
presence of a support system.
We now turn to mitigating factors. It is true, of course, that
McGinness expressed remorse and cooperated with the Board, which are
potentially mitigating factors. See Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Khowassah, 837 N.W.2d 649, 657 (Iowa 2013) (cooperation with
19
the disciplinary board); In re Meldrum, 834 N.W.2d 650, 654 (Iowa 2013)
(remorse as mitigating factor). McGinness’s remorse and cooperation,
however, arose only after the district court entered its order imposing
sanctions and he was contacted by the Board regarding a complaint
about his misconduct. Without the impetus provided by the district
court’s sanctions order and referral of the matter to the Board, there is
nothing in the record to suggest McGinness was prepared to abandon his
deception. The chronology tends to deflate consideration of remorse and
cooperation as mitigating factors.
There are, however, other mitigating factors. In particular, we note
McGinness has an exemplary history of service to the community. We
have recognized such service as a mitigating factor, see, e.g., Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Ackerman, 786 N.W.2d 491, 497–98
(Iowa 2010) (citing extensive community service as a mitigating factor),
and we take it into account in this case. We also note that McGinness
has no prior disciplinary history. See, e.g., Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Bieber, 824 N.W.2d 514, 527 (Iowa 2012) (lack of a
prior disciplinary record regarded a mitigating factor). Finally, the record
establishes no substantial harm to the client, although the need to find
successor counsel was certainly an inconvenience. See Van Ginkel, 809
N.W.2d at 110 (lack of harm to client a mitigating factor).
In the end, however, we find the commission’s recommendation of
a six-month suspension is appropriate. The seriousness of the violation
simply outweighs, in our judgment, the mitigating circumstances. Our
citizens generally, and this court particularly, rely upon the honesty and
integrity of lawyers to ensure the fair operation of our adversary system
of justice. In the arena of civil discovery, the honesty of lawyers is an
essential component. While McGinness’s conduct may be an
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extraordinary one-time occurrence that is out of character for him, we
must protect the integrity of the judicial system and the lawyers who
work within it.
IV. Conclusion.
For the above reasons, we suspend McGinness’s license to practice
law in this state with no possibility of reinstatement for six months from
the date of this opinion. The suspension applies to all facets of the
practice of law, as provided by Iowa Court Rule 35.13(3), and requires
McGinness to notify his clients, as provided by Iowa Court Rule 35.23.
Upon any application for reinstatement, McGinness must establish that
he has not practiced law during the suspension period and that he has
complied with the requirements of Iowa Court Rule 35.14. The costs of
this proceeding are assessed to McGinness pursuant to Iowa Court Rule
35.27(1).
LICENSE SUSPENDED.
Waterman and Mansfield, JJ., take no part.