IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD vs. ROBERT A. WRIGHT, JR.
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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
and
David
reprimand.
ATTORNEY
Grace,
Moines,
REPRIMANDED.
Charles
L.
Harrington
complainant.
Robert A. Wright, Jr., Des Moines, pro se.
Des
for
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)
recommended the imposition of a public reprimand.
appealed from the Commission’s recommendation.
and
Wright has
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.
N.W.2d at 563; Gallner, 621 N.W.2d at 188.
McKittrick, 683
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.
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