IN THE SUPREME COURT OF IOWA No. 19–1662
Filed January 24, 2020
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
BEAU A. BERGMANN,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
Grievance commission recommends public reprimand and
probation for violations of ethical rules. ATTORNEY REPRIMANDED.
Tara van Brederode, Des Moines, and Andrew J. Boettger, Ames, for
complainant.
Alfredo Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry,
Brown & Bergmann LLP, Des Moines, for respondent. 2
MANSFIELD, Justice.
I. Introduction.
A relatively inexperienced Iowa attorney had too much on his plate
and, as a result, missed court deadlines and appearances. After the Iowa
Supreme Court Attorney Disciplinary Board (Board) filed a complaint
against the attorney, the parties reached a stipulation of facts, violations,
and sanctions. They proposed that the attorney receive a public
reprimand followed by twelve months of probation. The Iowa Supreme
Court Grievance Commission agreed with the joint recommendation and
passed it along to us.
On our review, we conclude that a public reprimand is appropriate
for this case of neglect. Several mitigating factors are present, including
the attorney’s inexperience. But we decline to order probation. In our
view, any such change in our disciplinary system should be instituted via
rulemaking, with an opportunity for public comment.
II. Facts and Procedural History.
A. Our Limited Record. Our factual record is sparse because the
matter was submitted on a stipulation, and the stipulation is rather vague
as to what the facts are. Also, no exhibits accompany the stipulation to
provide additional background. 1
One example of a shortfall in the stipulation is the following
sentence: “Bergmann neglected the dissolution case by failing to keep B.M.
1Iowa Court Rule 36.16(2) provides, The grievance commission must interpret the stipulation of facts with reference to its subject matter and in light of the surrounding circumstances and the whole record, including the state of the pleadings, issues involved, and any additional evidence elicited at a limited hearing. Thus, the rule contemplates that the record will often include more than just the stipulation. 3
reasonably informed of the status of said case.” 2 This is really a stipulation
as to a legal conclusion, not a fact. It would be helpful to know in what
ways Bergmann failed to keep his client informed and for how long the
client remained uninformed.
The next sentences of the stipulation recite, “Bergmann received the
relevant documents late from the client. However, Bergmann concedes he
should have been more diligent in obtaining the information.” For
purposes of our review, it would be helpful to know what the documents
were, when they were obtained, and what their importance to the case was.
Next the stipulation states, “Bergmann admits he did not properly
follow the Rules of Civil Procedure relative to proper notice of service of
process in B.M.’s matter.” What was the deficiency here? What effects did
it have?
The stipulation continues, “Bergmann admits he did not file the
affidavits on behalf of B.M. in a timely fashion and should have done so.
However, a mitigating factor is that B.M. produced these affidavits at a late
hour.” Again, what affidavits are the parties referring to, when should they
have been filed, and when were they in fact filed?
These details matter because not every missed deadline or delay is
an ethical violation. 3 And even when we find an ethical violation, the
2Although the stipulation does not identify Bergmann’s clients, our practice is not to use pseudonyms or initials routinely in our opinions. We do use pseudonyms or initials when the identity of someone is legally confidential, such as a juvenile, or when the nature of the matter calls for confidentiality, such as an allegation of sexual harassment or domestic violence. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Sears, 933 N.W.2d 214, 217 n.1 (Iowa 2019) (“Due to the sensitive nature of the underlying facts, we will use the pseudonym ‘Jane Doe’ in reference to the victim witness.”). 3We have previously said, Generally, a violation of rule 32:1.3 cannot be found if “the acts or omissions complained of were inadvertent or the result of an error of judgment made in good faith.” An attorney does not typically commit neglect by missing a single deadline. Instead, neglect involves a consistent failure to perform obligations the lawyer has assumed or a “conscious 4
sanction often turns on the seriousness of the violation and the attendant
circumstances. The Board has the burden of proof. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Smith, 885 N.W.2d 185, 192 (Iowa 2016)
(discussing the board’s burden of proof in a case heard on stipulation).
Therefore, to the extent our factual record falls short, we cannot hold that
against the attorney. See id.
From the stipulation and the admitted allegations of the complaint,
we can glean some relevant facts. Beau Bergmann has been licensed to
practice law in Iowa since 2012—a period of seven years. Bergmann
resided first in Des Moines (2012 to 2015) and then later in Mount
Pleasant (2015 to present). Until 2018, Bergmann attempted to maintain
offices in both Des Moines and Mount Pleasant. Since then, Bergmann
has maintained an office only in Mount Pleasant and is focused on building
a practice in Henry County and the surrounding area. Bergmann has
accepted court appointments through the state public defender in
seventeen counties. The disciplinary proceeding concerns Bergmann’s
representation of three different clients, one of which involved a court
appointment.
B. The First Client. In 2014, Bergmann began representing a
client in a dissolution of marriage action that involved children.4
Bergmann failed to appear for a hearing on temporary matters, even
though he acknowledged that the client had delivered to him a copy of the
disregard for the responsibilities a lawyer owes to a client,” and may arise when an attorney repeatedly fails to meet deadlines. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Taylor, 814 N.W.2d 259, 265 (Iowa 2012) (citation omitted) (first quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Joy, 728 N.W.2d 806, 812 (Iowa 2007); and then quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 867 (Iowa 2010)). 4The stipulation says this representation began in 2015. We assume that to be a typographical error. 5
order setting the hearing. Without Bergmann having made an appearance,
the judge entered a ruling on temporary matters on September 26. Five
days later, on October 1, Bergmann filed a motion for suspension and
reconsideration of temporary matters. In that motion, Bergmann told the
court, incorrectly, that the “first filing” he had received on the temporary
matters hearing was the September 26 ruling. Eventually, the client
retained new counsel. On November 14, the new attorney filed a motion
for further hearing. The motion included four affidavits that had been
notarized by Bergmann on October 1.
The parties have also stipulated that Bergmann “believes” his
request for reconsideration was appropriate and timely and “does not feel
he was untruthful in connection with this disciplinary matter but accepts
responsibility.”
C. The Second Client. In 2015, Bergmann was appointed to
defend an individual who had been charged with perjury. The individual
was convicted later that year. Bergmann filed a notice of appeal on
December 21. On January 13, 2016, another attorney, Kenneth Weiland,
likewise filed a notice of appeal. On January 25, both Bergmann and
Weiland were issued notices of default and assessed $150 penalties for
failure to file and serve the combined certificate and pay the appeal fee.
On February 8, Weiland filed the combined certificate and requested a
waiver of the appeal fee. Bergmann took no action. On May 24, both
Bergmann and Weiland were issued notices of default and assessed $150
penalties for failure to file and serve the appellant’s proof brief and
designation of appendix parts. Neither attorney responded to these
notices, and the appeal was dismissed for want of prosecution. See
Iowa R. App. P. 6.1202(1)(a). Later, Weiland moved unsuccessfully for
reinstatement of the appeal. 6
According to the parties’ stipulation, Bergmann erroneously believed
that his court-appointed duties had ended once Weiland filed a notice of
appeal as appellate counsel. Bergmann acknowledges he should have
followed up with the court and with Weiland to ensure the defaults were
cured and the appeal was progressing.
D. The Third Client. The third matter involved a custody
proceeding that unfolded during 2016. Bergmann’s client repeatedly had
difficulty reaching Bergmann. Bergmann admits he received calls and
failed to timely respond. At an August 15 pretrial conference, Bergmann
learned for the first time that his client had reached a settlement in
mediation; before then, Bergmann had been unaware of either the
mediation or the settlement. In late October, Bergmann’s client asked him
to withdraw. In November 2016, Bergmann filed a notice of withdrawal at
the client’s request. The court denied Bergmann permission to withdraw
until a new attorney appeared. Bergmann admits there were
administrative shortcomings with regard to the records he maintained in
the matter.
E. The Complaint and Subsequent Proceedings. The Board filed
a complaint against Bergmann on November 14, 2018, alleging
disciplinary rule violations in the foregoing three matters. Bergmann filed
a motion for a more specific statement and an answer. As already noted,
the parties subsequently reached a stipulation and submitted the matter
to the commission on that basis. See Iowa Ct. R. 36.16(1). The
commission found violations of Iowa Rule of Professional
Responsibility 32:1.3 (requiring the attorney to “act with reasonable
diligence”), rule 32:1.4 (requiring the attorney to “reasonably consult with
the client”), rule 32:3.2 (requiring the attorney to “make reasonable efforts
to expedite litigation”), rule 32:3.4(c) (requiring the attorney not to 7
“knowingly disobey an obligation under the rules of a tribunal”), and
rule 32:8.4(d) (requiring an attorney not to “engage in conduct that is
prejudicial to the administration of justice”).
F. Other Considerations. Bergmann has had many stressors in
his life. Some are work-related. Bergmann has practiced primarily in the
area of indigent criminal defense. This practice requires considerable
travel, much of which has not been compensated in Bergmann’s case.
Bergmann used to have an associate, but the associate left suddenly, and
Bergmann has been unable to hire another.
Bergmann also has sources of stress in his personal life. He and his
wife lost a child due to a miscarriage. Bergmann suffers from persistent
depressive disorder in the mild range. His wife has suffered from
depression as well. Bergmann is currently undergoing personal and
marriage counseling.
Bergmann has begun using office management software and has
instituted regular staff meetings to improve office procedures and ensure
work is done in a timely manner.
Bergmann has been a member of the executive council of the Young
Lawyers Division of the Iowa State Bar Association since 2015. He serves
as a volunteer judge at mock trial competitions. He has worked on pro
bono cases.
Bergmann has responded to all correspondence from the Board. He
volunteered for a psychiatric evaluation after these matters arose and has
been receiving mentoring from his brother, also an Iowa attorney.
III. Standard of Review.
“We review attorney disciplinary matters de novo.” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Earley, 933 N.W.2d 206, 213 (Iowa 2019)
(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lynch, 901 N.W.2d 501, 8
506 (Iowa 2017)); see Iowa Ct. R. 36.21(1). “The Board must prove
attorney misconduct by a convincing preponderance of the evidence, a
burden greater than a preponderance of the evidence but less than proof
beyond a reasonable doubt.” Earley, 933 N.W.2d at 213 (quoting Lynch,
901 N.W.2d at 506).
“When the parties enter into a stipulation, . . . they are bound by the
stipulated facts, which we interpret with reference to their subject matter
and in light of the surrounding circumstances and the whole record.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Humphrey, 922 N.W.2d 601, 604
(Iowa 2019) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson,
884 N.W.2d 772, 777 (Iowa 2016)). “However, ‘[w]e are not bound by
stipulations as to ethical violations or the appropriate sanctions.’ ” Id.
(alteration in original) (quoting Johnson, 884 N.W.2d at 777). “We
respectfully consider the commission’s recommendations as to
sanction . . . .” Earley, 933 N.W.2d at 213.
IV. Rule Violations.
Notwithstanding our misgivings about the stipulated record in this
case, we agree with the parties and the commission that Bergmann
violated several rules of professional conduct. In the future, we remind
parties to comply with rule 36:16(1)(a) when entering into stipulations in
attorney disciplinary proceedings. That rule provides,
A stipulation submitted pursuant to this rule must include:
a. For each rule violation stipulated, a separate paragraph stating supporting facts sufficient to allow the grievance commission and the supreme court to find a factual basis for concluding the violation occurred.
Had the parties gone through the exercise of “stating supporting facts,” it
is likely that the facts necessary to sustain each asserted rule violation 9
would have been much more developed. Still, the record allows us to draw
the following conclusions.
A. Rule 32:1.3—Diligence. Rule 32:1.3 provides, “A lawyer shall
act with reasonable diligence and promptness in representing a client.”
Iowa R. Prof’l Conduct 32:1.3. “An attorney violates this rule when the
attorney ‘fails to appear at scheduled court proceedings, does not make
the proper filings, or is slow to act on matters.’ ” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Noel, 933 N.W.2d 190, 198–99 (Iowa 2019) (quoting
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 537
(Iowa 2013)).
Although a single missed deadline does not ordinarily violate
rule 32:1.3, there is enough for us to conclude that Bergmann had a
pattern of letting things slide in the first and third matters. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Baldwin, 857 N.W.2d 195, 206 (Iowa
2014) (“A violation of [rule 32:1.3] arises not from inadvertent acts or
omissions or from missing a single deadline, but from consistently failing
to perform functions required of an attorney or from repeatedly missing
deadlines.” (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conroy, 845
N.W.2d 59, 64 (Iowa 2014))); see also Iowa R. Prof’l Conduct 32:1.3.
Bergmann missed an important hearing on temporary matters in a
dissolution case that involved children. Bergmann did not attend a
mediation in a child custody case. He therefore violated rule 32:1.3.
B. Rule 32:1.4—Communication. Rule 32:1.4 requires an
attorney to “keep the client reasonably informed about the status of the
matter” and to “promptly comply with reasonable requests for
information.” Iowa R. Prof’l Conduct 32:1.4(a)(3), (4). “We have concluded
attorneys violate both subsections (a)(3) and (a)(4) [of rule 32:1.4] by failing
to keep their clients informed about the status of their case and neglecting 10
to respond to client inquiries.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Capotosto, 927 N.W.2d 585, 588 (Iowa 2019). In the third matter, the
record is minimally adequate for us to conclude that Bergmann violated
this rule. He admits that his client had trouble reaching him, that he
received phone calls from the client, and that he failed to respond to the
phone calls. See Noel, 933 N.W.2d at 199–200. This conduct establishes
a violation of rule 32:1.4(a).
C. Rule 32:3.2—Expediting Litigation. Rule 32:3.2 requires an
attorney to “make reasonable efforts to expedite litigation consistent with
the interests of the client.” Iowa R. Prof’l Conduct 32:3.2. Failure to meet
appellate deadlines and the triggering of default notices can violate
rule 32:3.2. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weiland, 862
N.W.2d 627, 637 (Iowa 2015). That occurred here with respect to the
second matter. Although Bergmann had not been appointed to handle the
appeal, he should have known that he remained responsible for the case
until there was an order of withdrawal in place. See Iowa R. Crim.
P. 2.29(6) (“Trial counsel shall continue as defendant’s appointed appellate
counsel unless the trial court or supreme court orders otherwise.”).
Bergmann violated rule 32:3.2.
D. Rule 32:3.4(c)—Knowingly Disobeying a Court
Order. Rule 32:3.4(c) makes it a violation to “knowingly disobey an
obligation under the rules of a tribunal except for an open refusal based
on an assertion that no valid obligation exists.” Iowa R. Prof’l
Conduct 32:3.4(c). We have found violations of this rule in the past when
an attorney fails to comply with a court order to provide discovery
responses. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hedgecoth,
862 N.W.2d 354, 362 (Iowa 2015). However, the Board has not identified
a court order that it claims Bergmann knowingly failed to follow. We are 11
unable to conclude by a convincing preponderance of the evidence that
Bergmann knowingly disobeyed a court order in any of the three matters
at issue.
E. Rule 32:8.4(d)—Conduct Prejudicial to the Administration of
Justice. Rule 32:8.4(d) prohibits “conduct that is prejudicial to the
administration of justice. “We have consistently held an attorney’s
misconduct causing prolonged or additional court proceedings violates
this rule.” Capotosto, 927 N.W.2d at 589. Here Bergmann’s conduct
necessitated additional court action and proceedings in the first and
second matters. We find that he violated rule 32:8.4(d).
V. Discipline.
“There is no uniform sanction for a particular ethical violation.”
Earley, 933 N.W.2d at 213 (quoting Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Bauermeister, 927 N.W.2d 170, 174 (Iowa 2019)). Yet, “[w]e seek to
‘achieve consistency with prior cases when determining the proper
sanction.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Crotty, 891 N.W.2d
455, 466 (Iowa 2017) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Templeton, 784 N.W.2d 761, 769 (Iowa 2010)).
A. A Public Reprimand Is the Appropriate Sanction Here. The
case before us is essentially one of neglect. Typically, the sanction in a
neglect case ranges from a public reprimand to a six-month suspension.
See Noel, 933 N.W.2d at 205 (discussing the range of sanctions); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Kingery, 871 N.W.2d 109, 123 (Iowa
2015) (same); Hedgecoth, 862 N.W.2d at 365 (same).
Several considerations drive us toward the low end of that range,
consistent with the parties’ joint recommendation. Although three
separate client matters are involved, this appears to be purely a neglect
case. It is not neglect compounded with other misconduct. Also, 12
numerous mitigating factors are present. These include Bergmann’s
inexperience, his personal health issues, his acceptance of responsibility,
his cooperation with the Board, his public service, and his willingness to
take proactive measures to correct the problems that led to his disciplinary
rule violations. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Jacobsma,
920 N.W.2d 813, 821 (Iowa 2018) (finding that cooperation with the board
and community service can be mitigating factors); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Turner, 918 N.W.2d 130, 155–56 (Iowa 2018)
(characterizing inexperience, depression, acceptance of responsibility, and
efforts to correct the problems that led to the disciplinary rule violations
as mitigating factors).
In addition, we have not been directed to any aggravating factors.
The Board alleges in its complaint—and Bergmann admits—that he has
received three prior private admonitions. Although a private admonition
is not discipline, we can consider it an aggravating factor because it puts
the attorney on notice of his or her ethical requirements. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519, 528 (Iowa
2017) (treating a private admonition for failing to keep a client reasonably
informed to be an aggravating factor in a neglect case). But here, neither
the stipulation nor the rest of the record discloses what the private
admonitions were for. Therefore, we do not know what notice they
conveyed to Bergmann or what relevance they bear to the present case.
In sum, we believe this case falls in line with other precedents where
we have issued a public reprimand. See Weiland, 862 N.W.2d at 642–43
(imposing a public reprimand for neglect allowing an appeal to be
dismissed despite some aggravating factors); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 663 (Iowa 2007) (holding
that a public reprimand was appropriate where an attorney neglected two 13
client matters and failed to respond to notices from the board); Iowa
Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Parker, 558 N.W.2d 183, 184,
186 (Iowa 1997) (concluding a public reprimand was an appropriate
sanction for failure to close two estates for many years). We find that a
public reprimand is the appropriate discipline for Bergmann’s rules
violations.
B. Probation Should Await Formal Rulemaking. The parties and
the commission also recommend that we put Bergmann on probation for
one year. As conditions of probation, Bergmann would continue to mentor
with his brother; keep using a case management system in his office; take
additional continuing legal education hours beyond the requirement
(including six hours of ethics); implement a proactive, management-based
regulation assessment and any recommended strategies; and certify
continued counseling and treatment.
In recent years, we have generally declined to impose terms and
conditions in our attorney disciplinary rulings that would require ongoing
supervision. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Waterman, 890
N.W.2d 327, 333 (Iowa 2017) (declining to require that an attorney remain
in therapy “in part because we do not have a mechanism for supervising .
. . performance”); Hedgecoth, 862 N.W.2d at 366–67 (gathering cases on
this issue).
Nonetheless, in its statement regarding sanction in this case, the
Board advises us that it is prepared to monitor all of the conditions it
proposes. The Board also notes that over half of other jurisdictions
imposed probation as a component of attorney discipline in 2017, the last
year for which data are available. Finally, the Board observes rule 36.19
authorizes 14 additional or alternative sanctions such as restitution, costs, practice limitations, appointment of a trustee or receiver, passage of a bar examination or the Multistate Professional Responsibility Examination, attendance at continuing legal education courses, or other measures consistent with the purposes of attorney discipline.
Iowa Ct. R. 36.19. In the Board’s view, this gives us leeway to establish
probationary terms and conditions.
Still, we believe that any system of probation for attorneys should
be adopted through a formal rule amendment rather than launched in this
case. We reach this conclusion for several reasons. First, probation
typically comes with consequences for failure to comply with the terms of
probation. But in this case, it is unclear what would happen if Bergmann
did not meet the terms of his probation. He has already received his
reprimand. Second, in the realm of attorney discipline, it is important for
attorneys to know in advance what sanctions are potentially available for
misconduct. That way, all affected attorneys have notice and stand on
equal footing. This is the same reasoning that has led us at times to issue
a warning before we ramp up the sanction in a particular area of attorney
misconduct. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nine, 920
N.W.2d 825, 830 (Iowa 2018) (“In the future, we may need to implement
harsher sanctions to deter attorneys from engaging in sexual relationships
with clients.”). Third, to the extent possible, there should be criteria for
when probation is and is not available and what effect it has on the sanction. This helps assure that discipline is evenhanded across the
board. Lastly, probation would be a significant change in our disciplinary
system, and we believe that the bar and members of the public should
have the chance to weigh in before we make such a change. A rulemaking
proceeding would give interested parties in Iowa the opportunity for input. 15
We are aware that several neighboring jurisdictions—Illinois,
Minnesota, Missouri, Nebraska, and South Dakota—utilize probation in
attorney disciplinary proceedings. 5 See Ill. Sup. Ct. R. 772; Minn. R. Law.
Prof’l Responsibility 15(a)(4); Mo. Sup. Ct. R. 5.225(a)(2); Neb. Sup. Ct. R.
§ 3-304; S.D. Codified Laws § 16-19-22 (Westlaw current through 2019
Sess. Laws & Sup. Ct. R. 19-18). All of these jurisdictions have adopted
rules governing probation. See Ill. Sup. Ct. R. 772 (“The court may order
that an attorney be placed on probation if the attorney has demonstrated
that he: (1) can perform legal services and the continued practice of law
will not cause the courts or profession to fall into disrepute; (2) is unlikely
to harm the public during the period of rehabilitation and the necessary
conditions of probation can be adequately supervised; (3) has a disability
which is temporary or minor and does not require treatment and transfer
to disability inactive status; and (4) is not guilty of acts warranting
disbarment.”); Minn. R. Law. Prof’l Responsibility 15(a)(4) (“Upon
conclusion of the proceedings, this Court may . . . [p]lace the lawyer on a
probationary status for a stated period, or until further order of this Court,
with such conditions as this Court may specify and to be supervised by
the Director . . . .”); Mo. Sup. Ct. R. 5.225(a)(2) (“A lawyer is eligible for
probation if the lawyer: (A) [i]s unlikely to harm the public during the
period of probation and can be adequately supervised; (B) [i]s able to
perform legal services and is able to practice law without causing the
courts or profession to fall into disrepute; and (C) [h]as not committed acts
warranting disbarment.”); Neb. Sup. Ct. R. § 3-304 (“Misconduct shall be
grounds for . . . [p]robation by the Court in lieu of or subsequent to
5Wisconsin does not impose probation for violations of ethical rules. See In re Disciplinary Proceedings Against Stoltman, 915 N.W.2d 176, 180 (Wis. 2018) (indicating that probation is “a form of discipline that this court does not impose”). 16
suspension, on such terms as the Court may designate . . . .”); S.D.
Codified Laws § 16-19-35 (“Discipline for misconduct may be imposed as
. . . [p]lacement on a probationary status by the Supreme Court for such
period and with such conditions as the Supreme Court may specify . . . .”).
In most of these jurisdictions, a rule sets forth procedures for
revoking probation and specified consequences if the attorney violates the
terms of probation. See, e.g., Ill. Sup. Ct. R. 772(c) (“Where appropriate,
the Administrator shall report to the court the probationer’s failure to
comply with the conditions of probation and may request that the court
modify the conditions, extend the probation, or issue a rule to show cause
why the probation should not be revoked and the stay of suspension
vacated.”); Minn. R. Law. Prof’l Responsibility 12(a) (“When a lawyer is
subject to a probation ordered by this Court and the Director concludes
that the lawyer has breached the conditions of the probation or committed
additional serious misconduct, the Director may file with this Court a
petition for revocation of probation and further disciplinary action with
proof of service.”); Mo. Sup. Ct. R. 5.225(f)(2) (“If the chief disciplinary
counsel receives information during the period of probation that any
condition may have been violated, the chief disciplinary counsel may file a
motion in this Court specifying the alleged violation and seeking an order
requiring the lawyer to show cause why the probation should not be
revoked and further discipline imposed. Further discipline may include
additional probation, suspension, or disbarment.”); State ex rel. Counsel
for Discipline of the Neb. Supreme Ct. v. Pierson, 798 N.W.2d 580, 585 (Neb.
2011) (“If respondent commits further violations of the Nebraska Rules of
Professional Conduct, he shall be subject to revocation of his probation
and the imposition of other discipline as outlined in disciplinary rule § 3-
304”). 17
We find these examples from our neighbors instructive. While we
cannot forecast how probation would look in the Iowa attorney disciplinary
system, we believe rulemaking with an opportunity for public comment is
the appropriate mechanism for adopting any system of probation in our
state.
For all these reasons, we respectfully decline to order probation in
this case but remain willing to consider proposed rule amendments from
the Board or others.
VI. Disposition.
We impose a public reprimand on Bergmann. We tax the costs of
this action to Bergmann pursuant to Iowa Court Rule 36.24(1). 6
ATTORNEY REPRIMANDED.
6We have received a submission indicating that Bergmann has already paid these costs.