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

469 N.W.2d 678, 1991 Iowa Sup. LEXIS 197, 1991 WL 78492
Supreme Court of Iowa·Decided May 15, 1991·No. 91-01·Published·Cited by 28 cases

Opinions

ANDREASEN, Justice.

Attorney James D. Wenger appeals from the recommendation of the Grievance Commission of the Supreme Court of Iowa (commission) that his license to practice law in Iowa be revoked. Wenger admits his conduct was in violation of EC 1-5 and DR 1-102(A)(1), (3), (4) and (6) of the Iowa Code of Professional Responsibility for Lawyers. On appeal he urges disbarment is an unduly harsh sanction for his misconduct. On our de novo review we suspend his license to practice law in Iowa.

Wenger admits that at a prior disciplinary hearing before the commission he falsely testified and offered a false document.

It should not be necessary for us to stress that “[fjundamental honesty is the base line and mandatory requirement to serve in the legal profession.” Committee on Professional Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990). Attorneys must conduct themselves with honesty and truthfulness, and should avoid statements or actions that are calculated to deceive or mislead. Committee on Professional Ethics & Conduct v. Hurd, 325 N.W.2d 386, 390 (Iowa 1982). We have long recognized the fundamental duty of [679] attorneys to bring “truth to light.” Committee on Professional Ethics & Conduct v. Crary, 245 N.W.2d 298, 305 (Iowa 1976). A lawyer who engages in conduct involving dishonesty violates a fundamental ethics canon. See Iowa Code of Prof.Resp. DR 1-102(A)(4). We recognize “[o]ur profession has no place for persons who demonstrate a penchant for distorting the truth.” Committee on Professional Ethics & Conduct v. Postma, 430 N.W.2d 387, 392 (Iowa 1988).

It clearly is an ethical violation to lie to a client, Committee on Professional Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 70 (Iowa 1989), opposing counsel, Hurd, 325 N.W.2d at 390, the court, Committee on Professional Ethics & Conduct v. Seff, 457 N.W.2d 924, 927 (Iowa 1990), or other persons. Committee on Professional Ethics & Conduct v. Hall, 463 N.W.2d 30, 35 (Iowa 1990). It is also an ethical violation to lie to the Committee on Professional Ethics & Conduct of the Iowa Bar Association (committee), Hall, 463 N.W.2d at 35, the Client Security & Attorney Disciplinary Commission (client security), Committee on Professional Ethics & Conduct v. Baudino, 452 N.W.2d 455, 458 (Iowa 1990), or the commission. Committee on Professional Ethics & Conduct v. Shifley, 390 N.W.2d 133, 134 (Iowa 1986). See also annotation Fabrication or Suppression of Evidence as Ground for Disciplinary Action Against Attorney, 40 A.L.R.3d 169 (1971).

Our task is to determine an appropriate sanction under the particular circumstances of this disciplinary proceeding. The commission recommended revocation of Wen-ger’s license to practice law. The commission is made up of lawyers from each judicial district, appointed by the president-elect of the Iowa State Bar Association, and laypersons appointed by this court. Iowa Sup.Ct.R. 118.1. The commission or a division thereof holds hearings and receives evidence concerning ethical violations. Id. At the conclusion of the hearing the commission may dismiss the complaint or may report to this court, in writing, its findings of fact, conclusions of law, and recommendations. Iowa Sup.Ct.R. 118.9. Upon our de novo review, we give respectful consideration to the recommendations of the commission, but we are not bound by them. Seff, 457 N.W.2d at 925. We may impose a lesser or greater sanction than the discipline recommended by the commission. Iowa Sup.CtR. 118.10.

We suspended Wenger’s license to practice on April 18, 1990, because he failed diligently to pursue a matter entrusted to him and because he did not cooperate with an investigation of the complaint. Committee on Professional Ethics & Conduct v. Wenger, 454 N.W.2d 367 (Iowa 1990). At the second disciplinary hearing, the commission found that Wenger had fabricated evidence and had given false testimony while under oath at the initial disciplinary hearing. He did not admit his misconduct until after his appeal had been decided and a second formal complaint had been filed by the committee. The commission concluded his conduct was dishonest and deceitful, prejudicial to the administration of justice and adversely reflected upon his fitness to practice law. Wenger does not challenge the commission’s findings and conclusions; he challenges only the recommendation of disbarment.

Disbarment may be the appropriate sanction when false testimony or false instruments are offered to the committee, the commission, or the court if combined with other serious ethical violations. See Hall, 463 N.W.2d at 30; Shifley, 390 N.W.2d at 133; Committee on Professional Ethics & Conduct v. Hurd, 375 N.W.2d 239 (Iowa 1985); Committee on Professional Ethics & Conduct v. Randall, 285 N.W.2d 161 (Iowa 1979); Crary, 245 N.W.2d at 298.

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Committee on Professional Ethics & Conduct of the Iowa State Bar Ass'n v. Wenger, 469 N.W.2d 678, 1991 Iowa Sup. LEXIS 197, 1991 WL 78492 (iowa 1991).

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