Committee on Professional Ethics & Conduct of the Iowa State Bar Ass'n v. Hurd

360 N.W.2d 96, 1984 Iowa Sup. LEXIS 1311
Supreme Court of Iowa·Decided December 19, 1984·No. 84-1004·Published·Cited by 23 cases

Opinions

McCORMICK, Judge.

Respondent attorney Morris C. Hurd appeals from a report of the Grievance Commission finding that he violated the Iowa Code of Professional Responsibility for Lawyers in several respects and recommending that his license be suspended. The appeal presents questions concerning limitations on discovery, the merits of the commission findings, and the issue of discipline. Upon our de novo review, we find that respondent engaged in unethical conduct and that his license should be suspend[98] ed indefinitely with no possibility of reinstatement for at least six months.

The main complaint against respondent is that he made false statements in a motion for change of judge filed in an Ida County criminal case on March 29, 1982. Respondent represented Jerald C. Steuk who was scheduled to be tried by jury on the following day on a charge of assault with intent to inflict serious injury. In material part the motion alleged:

1. It was not until Wednesday, March 24, 1982, that the Hon. Richard Cooper, one of the Judges of this Court, set the above-captioned case for trial on Tuesday, March 30, 1982.
2. The Defendant, Jerald C. Steuk, respectfully shows to this Court that he is the Defendant in the above-entitled cause; that he fears that he will not receive a fair and impartial trial in said court if said cause will be tried before the Honorable Richard Cooper, because the Judge is prejudiced against him and against his Attorney, Morris C. Hurd, so that he cannot expect a fair trial by said Judge. Petitioner further shows that said prejudice first came to the knowledge of this Defendant on Wednesday, March 24, 1982.
3. The Honorable Richard Cooper threatened to incarcerate Attorney, Morris C. Hurd, on March 30, 1981, one year ago, when a Motion came on for hearing in the Estate of Charles Bruene, Deceased. Morris C. Hurd had filed a Request to Produce Books or Papers in the Estate of Charles Bruene. More specifically, Morris Hurd, representing 9 of the heirs at law of Charles Bruene, Deceased, asked that McGuire Auction Co., James McGuire, Holstein State Bank and Arnold Putensen produce and permit them to inspect and to copy all bank statements, deposit slips and cancelled cheeks of McGuire Auction Co. and of James McGuire, during a certain 18 month period. When that matter came on for hearing before the Honorable Richard Cooper on the 30th day of March, A.D.1981, the Honorable Richard Cooper accused Morris Hurd of grandstanding and threatened to find Morris C. Hurd in contempt if he pursued such discovery and told Morris Hurd that he would put him in jail. Faced with threats of contempt proceedings and jail, Morris C. Hurd suspended his discovery efforts for several months, but in August, 1981, he did seek and obtained a subpoena for such bank statements, deposit slips and cancelled checks, and that subpoena did produce a check written by McGuire Auction Co., Inc., made payable to “Dick Branco” in the amount of $3722.00, copy of which check is attached hereto and made a part of this Motion. “Dick Branco” was then an Attorney, representing the Executor of the Bruene Estate, but is now one of the Judges in this Judicial District. Laurel L. Boerner, then a partner of “Dick Branco” explained that the check in the amount of $3722.00 was unsolicited, but probably represented a part of the real estate commission paid to McGuire. Patrick Forris-tal, an employee of McGuire Auction Co., and brother-in-law of James McGuire, testified that the check in the amount of $3722.00 made payable to “Dick Branco” could be splitting of the brokerage fees, and Forristal went on to explain that the McGuire Auction Co. has participated in dividing real estate brokerage fees on a split fee basis with many, many lawyers for more than 25 years last past. Morris Hurd was doing what an Attorney should do for his clients when he was seeking the whereabouts of the Bruene Estate money and in tracing it through the hands of the McGuire Auction Co. to “Dick Branco” and Morris Hurd should not have been accused of “grandstanding,” and threatened with contempt and jail.
4.On Wednesday, March 24, 1982, Morris Hurd and Ida County Attorney, Robert Belson, attempted to make a plea bargain agreement to dispose of the above-captioned case by agreement, rather than by its submission to a jury. The Hon. Richard Cooper talked to Morris Hurd and to Robert Belson twice on that [99] day, once in the Judge’s chambers in the Ida County Courthouse, and once in the Magistrate’s Courtroom in said Courthouse, asking how said Attorneys were progressing in the plea bargain negotiations. No agreement had been made. Both times, the Honorable Richard Cooper told said Attorneys that it might be helpful for them to know that he intended to incarcerate Defendant, Jerald Steuk, should he be found Guilty of the Crime charged. That threat to incarcerate Jerald C. Steuk was made before any evidence was heard.
5. Because of those threats to jail both Jerald Steuk and his Attorney, Morris C. Hurd, Jerald Steuk is fearful of the prejudice of the Judge against both him and his Attorney, Morris Hurd, and is fearful that he cannot obtain a fair and impartial trial before the Honorable Richard Cooper.
6. There is a substantial likelihood that a fair and impartial trial cannot be had by Jerald Steuk before the Honorable Richard Cooper for all of the reasons heretofore stated.

The motion was signed by respondent and Steuk, and respondent also swore in a verification that the allegations were true and correct.

Judge Cooper did not learn that the motion had been filed until he arrived in Ida Grove to preside at the Steuk trial on the morning of March 30. He had postponed the reporting of the jury from 9:30 to 1:00 p.m. to allow time to address motions for continuance and for discovery filed by respondent on the afternoon of March 26.

In a reported proceeding on March 30 in which county attorney Robert Belson represented the State, statements of counsel established that respondent had taken a deposition of Steuk’s estranged wife, prose-cutrix in the assault case, on March 27 and that no further discovery was required. Respondent nevertheless asked that the criminal case be continued on the ground that a pending decision in the Steuk dissolution case “might make all these issues moot.” He also asked for a continuance based on the motion for change of judge “to see what other people’s responses are.” He said, “If anybody thinks the facts I have stated are incorrect, I guess I would like to have an evidentiary hearing on the matter. If they are correct, I wish the court would grant the motion for change of judge and continue the case for a period.”

Judge Cooper responded that the motion for change of judge came as a complete surprise to him and that respondent’s accusations in the motion were untrue. The judge stated he harbored no prejudice against Steuk whom he had not met until trial of Steuk’s appeal of a magistrate conviction of assault in the afternoon of March 24,1982. That case was still under submission. The judge refused to hold an eviden-tiary hearing on respondent’s charges, stating that the motion revealed a state of mind in respondent that disqualified respondent from trying cases before Judge Cooper and that the merits of respondent’s charges could be investigated and heard by the grievance commission. The Steuk case was continued.

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Committee on Professional Ethics & Conduct of the Iowa State Bar Ass'n v. Hurd, 360 N.W.2d 96, 1984 Iowa Sup. LEXIS 1311 (iowa 1984).

360 N.W.2d 96 (Committee on Professional Ethics & Conduct of the Iowa State Bar Ass'n v. Hurd) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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