Iowa Supreme Court Attorney Disciplinary Board v. Kathryn S. Barnhill

• Court: Supreme Court of Iowa
• Decided: May 30, 2014
• Docket: 13–1966
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 13–1966

Filed May 30, 2014

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

KATHRYN S. BARNHILL,

Respondent.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

The grievance commission reports respondent committed ethical

violations and recommends a six-month suspension of the attorney’s

license. LICENSE SUSPENDED.

Charles L. Harrington, Wendell J. Harms, and David J. Grace,

Des Moines, for complainant.

Sharon L. Soorholtz Greer and Thomas L. Hillers of Cartwright,

Druker & Ryden, Marshalltown, for respondent. 2

WIGGINS, Justice.

This matter comes before us on a report of a division of the

Grievance Commission of the Supreme Court of Iowa. The Iowa Supreme

Court Attorney Disciplinary Board brought a complaint against the

respondent, Kathryn Barnhill, alleging multiple violations of our ethics

rules based on her actions in four separate legal matters. The

commission found multiple violations occurred and recommended a six-

month suspension of Barnhill’s license to practice law. We are required

to review the commission’s report. See Iowa Ct. R. 35.11(1). Based on

our de novo review, we agree with the commission that the Board

established by a convincing preponderance of the evidence Barnhill

violated our rules. However, we disagree with the recommended

suspension and find a sixty-day suspension is the appropriate sanction.

I. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Stowe, 830 N.W.2d 737, 739 (Iowa

2013). The Board must prove the attorney’s ethical misconduct by a

convincing preponderance of the evidence. Id. “A convincing

preponderance of the evidence is more than a preponderance of the

evidence, but less than proof beyond a reasonable doubt.” Iowa Supreme

Ct. Att’y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 601 (Iowa 2012).

This places a burden on the Board that is higher than the burden in civil

cases but lower than the burden in criminal matters. Stowe, 830 N.W.2d

at 739. We respectfully consider the commission’s recommendations;

however, they are not binding upon us. Id.

When the parties enter into a stipulation in a disciplinary case, we

rely on the stipulation to determine facts. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 804 (Iowa 2010). “Nowhere 3

in our rules have we given the parties the authority to determine what

conduct constitutes a violation of our ethical rules or what sanction an

attorney should receive for such a violation.” Id. Thus, we use the

stipulation to determine the facts and then we determine whether the

facts establish a violation of our rules. Id.

II. Findings of Fact.

Using the stipulation of the parties with our review of the record,

we make the following findings of fact. We admitted Barnhill to practice

law in Iowa in 1989. The ethical complaints against her arise out of four

separate factual matters.

A. The Jerry’s Homes Matter. The Jerry’s Homes matter

involves claims Barnhill violated conflict of interest rules, made

misrepresentations, and improperly included a defendant in the action to

harass the defendant, among other allegations. In March 2001, Barnhill

filed a class action lawsuit against a roofing company that manufactured

shingles and an individual who served as the company’s president and

chief executive officer. The lawsuit class included a construction

company, Jerry’s Homes, as well as homeowners who lived in houses

built by Jerry’s Homes, among other plaintiffs. Barnhill had represented

Jerry’s Homes in prior small claims cases brought by other homeowners.

Barnhill alleged she met with the homeowners in the class action

lawsuit, explained the potential conflict of interest, and the homeowners

signed written waivers of the potential conflict. The district court

certified the class but certified a subclass of members, stating Barnhill

could only represent class members who did not have shingles installed

by Jerry’s Homes.

Barnhill made statements to the district court and in her appeal

brief that all members of the class actually reviewed the roofing 4

company’s promotional materials and acted in reliance on these

materials when purchasing shingles. These statements were

subsequently determined to be false.

Barnhill included the corporate officer as a defendant in the action.

Barnhill pleaded causes of action sounding in breach of express

warranty, breach of implied warranty, fraudulent misrepresentation,

negligent misrepresentation, and rescission. The court of appeals

ultimately granted summary judgment to the corporate officer on all

claims. The corporate officer filed a motion for sanctions against Barnhill

and the named plaintiffs. The district court awarded sanctions against

Barnhill. See Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 279–80 (Iowa

2009) (affirming the award of sanctions against Barnhill for $25,000).

B. The Williams Matter. The Williams matter involves a claim of

fraudulent misrepresentation and assorted trust account violation

claims. Barnhill’s law office manager worked for Barnhill for more than sixteen years. This employee had authority to sign Barnhill’s name to

the trust account checks and the business account checks. Prior to the

Williams matter, the employee charged approximately $55,000 of

personal expenses to the law firm’s American Express account without

authorization. Barnhill discovered the embezzlement in 2005 and agreed

to settle the embezzlement debt. Barnhill was aware the employee

continued to sign trust account checks, but believed the employee would

never take client funds.

In the fall of 2005, the employee began a new embezzlement

scheme. At around the same time, Barnhill took on a new client, Denise

Williams. Barnhill began using the trust account to collect Williams’s

income and to pay Williams’s bills. Williams delivered her financial

records, unpaid business and personal bills, business income, and some 5

child support payments to Barnhill. Barnhill authorized the employee to

pay Williams’s business and personal bills from the money deposited in

the trust account. Barnhill did not provide written receipts for these

transactions prior to February 2007 and did not provide

contemporaneous written notice or an account of disbursements.

The employee wrote at least one check payable to herself from the

trust account during this time. Throughout the time Williams was

Barnhill’s client, there were discrepancies in the trust account regarding

Williams’s funds. Barnhill determined the employee had stolen money

from Barnhill by forging checks and making unauthorized online

transfers. Barnhill eventually informed Williams the employee had been

stealing money, and Barnhill gave Williams the trust account records so

that Williams could determine whether the employee took any of

Williams’s money from the trust account. Barnhill refunded $1363.50 to

Williams when Williams terminated Barnhill as her attorney. Williams filed a lawsuit against Barnhill, Barnhill’s law firm, and

the employee. Following trial, the jury determined Williams proved by a

preponderance of clear, convincing, and satisfactory evidence that

Williams proved her claim of fraud against Barnhill. The district court

awarded a monetary loss to Williams against Barnhill for $53,895 in

actual damages and $10,000 in punitive damages.

C. The Public Safety Group, Inc. Matter. The Public Safety

Group, Inc. (PSG) matter involves claims of knowingly disobeying the

order of a tribunal and professional misconduct, among other

allegations. In August 2005, Barnhill represented PSG as a defendant in

a lawsuit. PSG filed a counterclaim in the action. PSG was successful in

defending the suit and recovered a substantial sum on its counterclaim. 6

The district court entered judgment in favor of PSG. PSG assigned its

interest in the judgment to another person.

The plaintiffs in the original action alleged the IRS filed an action

to levy upon the judgment, and the IRS levy motivated PSG to assign its

interest in the judgment. The plaintiffs alleged Barnhill did not notify the

district court of the IRS levy or the assignment of interest, and that

neither the IRS nor the assignee had the opportunity to intervene in the

appeal.

We issued an order on May 2, 2007, requiring Barnhill, counsel for

PSG, to serve a copy of the order containing notification of the

assignment on the assignee and the IRS and to provide proof of service to

our clerk and opposing counsel. Barnhill did not comply with this order.

Subsequently, Barnhill filed a motion to intervene in the appeal on behalf

of another entity and claimed opposing counsel had not complied with

the May 2, 2007 order to serve the assignee or the IRS. Opposing counsel filed a response, pointing out Barnhill’s failure to comply with

our court order.

We issued a second order in January 2008, ordering Barnhill to

serve both the second order and the previous order on the assignee and

the IRS. Barnhill did not comply with the second order. On June 30, we

then authorized opposing counsel to serve the orders on the assignee

and the IRS because Barnhill failed to do so. Barnhill served the orders

on the assignee on July 2 and on the IRS on July 8.

D. The Everly Matter. The Everly matter involves claims of

failure to provide competent representation and alleges Barnhill brought

a frivolous claim, among other allegations. On May 26, 2006, Barnhill

filed a petition and application for writ of certiorari on behalf of Steve

Everly, a resident and taxpayer of a school district, against Musco Sports 7

Lighting, Inc. (Musco), a school district, and the superintendent of the

school district. Musco was a product supplier for the successful bidder

in a construction project involving the school district. After numerous

filings, Barnhill filed an amended petition. She did not name the school

district or the superintendent of the school district as defendants in the

amended petition, leaving Musco as the only defendant. The district

court ultimately dismissed the petition, finding the taxpayer could not

maintain suit against Musco alone and imposed sanctions against

Barnhill. Barnhill appealed the ruling. Barnhill argued her client had

standing, Musco was the proper party, and the district court erred in

sanctioning her. The court of appeals affirmed the dismissal and

sanctions, but disagreed the taxpayer did not have standing.

We granted further review and affirmed the dismissal of the

petition. We determined the district court should not have sanctioned

Barnhill for originally including Musco in the petition because a reasonably competent attorney could make a good faith argument Musco

was a proper party to the original suit provided the school district and

the superintendent were parties to the suit. However, we decided the

district court did not abuse its discretion in sanctioning Barnhill for her

actions in maintaining the suit against Musco after she dismissed the

school district and the superintendent from the suit. See Everly v.

Knoxville Cmty. Sch. Dist., 774 N.W.2d 488, 495 (Iowa 2009) (remanding

the case to the district court to assess sanctions based upon the fact

Barnhill continued the lawsuit after she dismissed the school district and

the superintendent from the suit).

III. Disciplinary Proceedings.

Although Barnhill’s alleged actions in these four legal matters

occurred between 2001 and 2009, the Board did not file a complaint 8

until June 8, 2012. The parties waived a formal hearing and agreed for

the commission to decide the case based on the parties’ stipulation. The

parties stipulated to a nonbinding recommendation of a sixty-day

suspension of Barnhill’s law license. The commission determined

Barnhill violated multiple ethics rules and recommended we suspend

Barnhill’s license with no possibility of reinstatement for six months.

IV. Ethical Violations.

The Board alleges Barnhill violated numerous rules under the Iowa

Rules of Professional Conduct and the Iowa Code of Professional

Responsibility for Lawyers. The Iowa Rules of Professional Conduct took

effect on July 1, 2005, replacing the Iowa Code of Professional

Responsibility for Lawyers. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Curtis, 749 N.W.2d 694, 696 n.1 (Iowa 2008). The Iowa Rules of

Professional Conduct governs all conduct occurring after its effective

date. The Iowa Code of Professional Responsibility for Lawyers governs the allegations regarding the Jerry’s Homes matter because Barnhill’s

conduct in that matter occurred prior to July 1, 2005. In discussing the

alleged rule violations, we will take each rule individually and apply it to

the applicable matters.

A. Misrepresentation: DR 1–102(A)(4). This rule states an

attorney shall not “[e]ngage in conduct involving dishonesty, fraud,

deceit, or misrepresentation.” Iowa Code of Prof’l Responsibility DR 1–

102(A)(4). To prove a violation of this rule, we have held the Board must

establish “(1) that [the attorney’s] statement was not true, and (2) that

[the attorney] made the statement with actual knowledge of falsity or in

reckless disregard for whether the statement was true or not.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 84 (Iowa

2008). Negligent misrepresentation does not violate this rule. Iowa 9

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d 288,

293 (Iowa 2002). A lawyer’s honesty regarding purely personal matters

may remain free from scrutiny. Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Plumb, 546 N.W.2d 215, 217 (Iowa 1996).

We previously distinguished between an attorney’s reckless

disregard for the truth, which would violate this rule, and an attorney’s

negligent misrepresentation, which would not violate this rule. In

Grotewold, an attorney represented to the district court he had filed tax

returns on an estate. Grotewold, 642 N.W.2d at 291. When the district

court questioned him on the absence of certain tax documents in the

court file, the attorney admitted it was likely the IRS had not received

one of the tax returns and stated that he had filed new tax returns. Id.

This information was false. Id. We determined the attorney violated this

rule. Id. at 293. We recognized “misstatements resulting from oversight

or haste do not constitute misrepresentations” in violation of this rule, however misinformation to the court based on a hope or intention that

tasks would eventually be completed showed a casual, reckless disregard

for the truth. Id. We have frequently found violations of this rule for an

attorney’s misrepresentations to clients and the court about the status of

certain activities the attorney is supposed to complete. See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Joy, 728 N.W.2d 806, 814 (Iowa

2007) (finding an attorney violated this rule when he misrepresented to

the court only minimal work needed to be completed on certain estates

and misinformed his clients about the status of their tax returns); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Bjorklund, 725 N.W.2d 1, 8 (Iowa

2006) (finding an attorney violated this rule when he misrepresented to

the court that he had ordered a transcript); Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Daggett, 653 N.W.2d 377, 380 (Iowa 2002) (finding 10

an attorney violated this rule when he stated he had filed an application

for reinstatement but had not in fact done so).

Barnhill repeatedly stated to opposing counsel and the district

court the plaintiffs in the Jerry’s Homes matter actually reviewed the

roofing company’s promotional materials and acted in reliance on these

materials when purchasing shingles. However, the evidence shows the

majority of class members did not see or rely on these materials. The

district court noted even when it confronted Barnhill and asked for

evidence of the class members’ reliance on these representations,

Barnhill made false statements. Barnhill’s appeal brief in this matter

also contained false statements. Barnhill concedes these representations

were false, but argues she was being a zealous advocate.

Zealous advocacy does not justify violating our disciplinary rules.

Rather, an attorney must confine her zeal within the boundaries of our

disciplinary rules. Comm. on Prof’l Ethics & Conduct v. Hurd, 360 N.W.2d 96, 104 (Iowa 1984). Here, the facts do not indicate haste or oversight

led to Barnhill’s comments that would suggest mere negligent

misrepresentations. Rather, Barnhill’s conduct shows her hope the facts

would be something other than what they were. Barnhill’s actions show

a reckless disregard for the truth of the statements she made; thus, we

find the Board proved Barnhill violated this rule.

B. Knowingly Making a False Statement: DR 7–102(A)(5). This

rule states an attorney shall not “[k]nowingly make a false statement of

law or fact” in the representation of a client. Iowa Code of Prof’l

Responsibility DR 7–102(A)(5). We have recognized the word “knowingly”

in the context of this rule requires actual knowledge, and we may infer

an attorney’s knowledge from the circumstances. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Ouderkirk, 845 N.W.2d 31, 45 (Iowa 2014). We have 11

consistently found a violation of this rule when we have determined the

attorney’s actions could only have been done deliberately. See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Nelsen, 807 N.W.2d 259, 266 (Iowa

2011) (finding a violation of this rule when an attorney stated he would

deposit certain funds into his trust account, while knowing that not only

had he sent these funds to other individuals, but that he would continue

to do so with future checks); Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Lesyshen, 585 N.W.2d 281, 286 (Iowa 1998) (finding a

violation of this rule when an attorney forged her client’s signature and

falsely notarized the signature); Comm. on Prof’l Ethics & Conduct v.

O’Donohoe, 426 N.W.2d 166, 168–69 (Iowa 1988) (finding a violation of

this rule when an attorney deliberately backdated a deed).

We disagree the Board met its burden to prove Barnhill violated

this rule. Barnhill’s concession in her brief that she made false

statements does not show Barnhill had actual knowledge her statements were false at the time. Rather, as the district court stated, “[I]t was as

though Barnhill said whatever needed to be said at each step to just get

past the moment, whether there was a legitimate basis for saying it or

not.” Barnhill, 765 N.W.2d at 278. This shows a reckless disregard for

the truth, but does not show Barnhill could only have acted deliberately.

Thus, we find the Board did not meet its burden to prove Barnhill

violated this rule.

C. Other Conduct Adversely Reflecting on the Fitness to

Practice Law: DR 1–102(A)(6). This rule states an attorney shall not

“[e]ngage in any other conduct that adversely reflects on the fitness to

practice law.” Iowa Code of Prof’l Responsibility DR 1–102(A)(6). We

have previously recognized “[a]ny violation of the Code of Professional

Responsibility necessarily reflects adversely on the fitness of an attorney 12

to practice law” and have noted our own hesitancy to find a violation of

this rule depending on the degree of the attorney’s noncompliance with

the rule. Comm. on Prof’l Ethics & Conduct v. Durham, 279 N.W.2d 280,

285 (Iowa 1979). We do not look to the attorney’s intent for this rule, but

rather we look to the attorney’s conduct and the surrounding

circumstances. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Barry, 762

N.W.2d 129, 138 (Iowa 2009). Our primary concern is with attorney

conduct that lessens the public confidence in the legal profession. Id.

We have previously found an attorney violates this rule when he or she

acts truly egregiously and those actions negatively affect the public’s

perception of our profession. See id. (finding an attorney violated this

rule when, as county attorney, his actions in treating certain persons

favorably caused persons to question his sense of justice and he was

ultimately removed from office for breaching his duties); Weaver, 750

N.W.2d at 79 (finding an attorney violated this rule when the attorney was arrested for second-offense drunk driving, lied to the police officer,

and attempted to get out of the arrest).

The Board alleges Barnhill’s general handling of the Jerry’s Homes

matter showed her lack of fitness to practice law in violation of this rule.

We find on our review of the facts Barnhill’s conduct in the Jerry’s

Homes matter rises to the level of egregious behavior to support this rule

violation. Her conduct was so egregious the district court sanctioned her

conduct by imposing a $25,000 sanction. On appeal, we affirmed the

sanction. See Barnhill, 765 N.W.2d at 279. Thus, we find the Board

proved Barnhill violated this rule. 13

D. Acceptance of Employment: DR 2–109. This rule states:

(A) A lawyer shall not accept employment on behalf of a person if it is known or it is obvious that such person wishes to:

(1) Bring a legal action, conduct a defense, or assert a position in litigation, or otherwise have steps taken merely for the purpose of harassing or maliciously injuring any person.

(2) Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law.

Iowa Code of Prof’l Responsibility DR 2–109.

The commission concluded Barnhill did not violate DR 2–109(A)(1)

or DR 2–109(A)(2) because the record did not show any evidence of the

motives of Barnhill’s clients in the Jerry’s Homes matter. We agree. The

facts do not indicate Barnhill knew or it should have been obvious to her

that her clients were hiring her to bring the claims for the purpose of

harassing or maliciously injuring someone. Further, it is not clear from

the facts Barnhill’s clients wanted to bring a claim that was not

warranted under existing law in the absence of a good faith argument.

Thus, we find the Board did not meet its burden to prove Barnhill

E. Refusing to Accept or Continue Employment if the

Interests of Another Client May Impair the Independent Professional

Judgment of the Lawyer: DR 5–105(B) and DR 5–105(C). Both DR 5–

105(B) and DR 5–105(C) are conflict of interest rules. DR 5–105(B) states

[a] lawyer shall decline proffered employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5–105(D). 14

Id. DR–105(B). DR 5–105(C) states

[a] lawyer shall not continue multiple employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the representation of another client, except to the extent permitted under DR 5–105(D).

Id. DR 5–105(C). DR 5–105(D) provides an attorney may represent

clients that would ordinarily fit under these rules if each client “consents

to the representation after full disclosure of the possible effect of such

representation on the exercise of the lawyer’s independent professional

judgment on behalf of each” and it is clear the lawyer can adequately

represent each client’s interest. Id. DR 5–105(D).

The attorney must make “a full disclosure of the possible

consequences of dual representation.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Clauss, 711 N.W.2d 1, 3 (Iowa 2006). We have

recognized any person is entitled to complete loyalty from his or her legal

counsel. Comm. on Prof’l Ethics & Conduct v. Oehler, 350 N.W.2d 195, 199 (Iowa 1984). The burden falls on the attorney to establish he or she

discharged his or her duties by ensuring the client either received

independent advice or received advice from the attorney such as the client could have expected from an independent attorney. Id.

The commission determined Barnhill violated this rule because the

class she represented in the Jerry’s Homes matter included both Jerry’s

Homes and homeowners with potential claims against Jerry’s Homes.

The commission further determined Barnhill did not receive proper

conflict waivers from the class members.

We agree Barnhill violated this rule. First, we recognize a potential

conflict existed between the class members. Barnhill previously

represented Jerry’s Homes against lawsuits from homeowners for 15

negligent shingle installment. Barnhill’s representation of both Jerry’s

Homes and homeowners who had shingles installed by Jerry’s Homes

with this potential claim created a conflict.

Further, the record does not show either Barnhill’s clients received

independent advice or Barnhill provided the same sort of advice an

independent attorney would have given. The evidence before us is

insufficient to conclude Barnhill received waivers from all class members.

Although Barnhill claims she met with the individual homeowners and

received written waivers, Barnhill no longer had copies of these

documents. The stipulation on this issue only agrees Barnhill alleged

the homeowners signed waivers. It does not stipulate the homeowners

actually signed the waivers. Further, although this rule does not require

a written waiver, a valid waiver must show the client received a full

explanation of the effect of the representation. See Iowa Code of Prof’l

Responsibility DR 7–105(D). The most the record shows is affidavits from the named plaintiffs that each named plaintiff signed a conflict

waiver. This does not show all class members signed a waiver. Finally,

even if we assumed all class members signed a waiver, the record does

not establish Barnhill made a full disclosure of possible issues with dual

representation because we do not know what information the waiver

contained. Thus, we conclude the Board proved Barnhill violated these

rules.

F. Actions that Serve Merely to Harass or Maliciously Injure

Another: DR 7–102(A)(1). This rule states an attorney shall not

[f]ile a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of a client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another. 16

Id. DR 7–102(A)(1). We have previously found a violation of this rule

when an attorney’s conduct was a “dogged pursuit of substantial

judgments in the face of compelling legal and factual evidence dictating a

contrary course.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Wanek, 589 N.W.2d 265, 271 (Iowa 1999). In Wanek, an attorney

represented a newspaper business filing for Chapter 13 reorganization.

Id. at 266. The attorney sought discovery from three other newspaper

businesses. Id. These businesses did not receive the informal discovery

requests because the attorney mailed the requests to incorrect

addresses. Id. The attorney subsequently mailed a motion and a court’s

order compelling discovery to incorrect addresses for these businesses.

Id. at 267. The attorney then moved for sanctions against all three

newspapers. Id.

Upon learning of the informal discovery requests, one of the

businesses contacted the attorney to ask that, given the mailing error, the attorney withdraw the motion for sanctions. Id. at 267. The attorney

declined. Id. It was later determined during this time the attorney had

learned of the incorrect addresses and admitted he had received the

returned incorrectly addressed mail. Id. at 268–69. Further, the

attorney continued his course of action, even after his clients had settled

their tax issues with the IRS and the attorney no longer needed the

requested documentation from the businesses. Id. at 268.

We found the attorney violated DR 7–102(A)(1) for several reasons.

While we recognized the attorney was originally justified in relying on

certain principles of law to support his actions, we also recognized the

facts subsequently changed. Id. at 270. At the point when the attorney

disregarded mailings returned as undeliverable, ignored the businesses’

claims the documents were not received, and failed to change his course 17

of action, the attorney was not acting as a reasonable attorney. Id. at

270–71. His failure to change his pursuit of the materials despite

compelling legal and factual evidence indicating his position was

incorrect violated this rule. Id. at 271.

Here, Barnhill’s action in naming the corporate officer as a

defendant in the Jerry’s Homes matter was never justified and was

legally and factually unreasonable. Accordingly, we agree with the Board

that Barnhill’s continued pursuit of the lawsuit against the corporate

officer as a defendant in the Jerry’s Homes matter showed Barnhill knew

or it should have been obvious to her that her actions were merely

harassing the corporate officer. Thus, we find the Board has proven

Barnhill violated this rule.

G. Advancing an Unwarranted Claim: DR 7–102(A)(2). This rule

states an attorney shall not

[k]nowingly advance a claim or defense that is unwarranted under existing law, except that a lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.

Iowa Code of Prof’l Responsibility DR 7–102(A)(2).

The Board alleged Barnhill advanced several contract claims in the

Jerry’s Homes matter against the corporate officer in his personal

capacity and it was clear under existing law Barnhill could not sue this

person with these claims. Barnhill continued to advance these claims for

months. The district court found and we affirmed Barnhill’s arguments

did not support a good faith argument for an extension, modification, or

reversal of existing law. Barnhill, 765 N.W.2d at 273–77. Thus, we find

the Board has proven Barnhill violated this rule. 18

H. Conduct Prejudicial to the Administration of Justice: DR

1–102(A)(5). This rule states an attorney shall not “[e]ngage in conduct

that is prejudicial to the administration of justice.” Iowa Code of Prof’l

Responsibility DR 1–102(A)(5). “The Board is not required to prove

intent, knowledge, or motive to establish a violation of this rule,” and we

recognize there is no ordinary or typical conduct that violates this rule.

Barry, 762 N.W.2d at 137. Rather, we recognize the commonality in our

decisions considering this rule violation is that “ ‘the attorney’s act

hampered the efficient and proper operation of the courts or of ancillary

systems upon which the courts rely.’ ” Id. (quoting Iowa Supreme Ct. Bd.

of Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa 1999)).

Though the Board was not required to prove intent, we previously

recognized Barnhill’s intent in keeping the corporate officer in the Jerry’s

Homes matter was to force or coerce a settlement. Barnhill, 765 N.W.2d

at 279. Her persistence in advancing claims against the corporate officer for this purpose required multiple judges to consider these claims and

ultimately dismiss these claims. Barnhill’s conduct in continuing to

pursue these claims against the corporate officer triggered a series of

unnecessary court proceedings. Thus, we agree the Board proved

Barnhill’s conduct violated this rule.

I. Communicating with One of Adverse Interest: DR 7–

104(A)(1). This rule states in relevant part:

(A) During the course of representing a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party known to be represented by a lawyer in that matter except with the prior consent of the lawyer representing such other party or as authorized by law. 19

Iowa Code of Prof’l Responsibility DR 7–104(A)(1). One purpose of this

rule is to protect the represented person from the presumed imbalance in

legal skills between the lawyer and the person. Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Herrera, 626 N.W.2d 107, 113 (Iowa 2001). A

second purpose is to prevent “efforts by lawyers in their representation of

their clients to drive a wedge between other lawyers and their clients.”

Id. at 114. We have previously found an attorney violates this rule when

he or she contacts a represented party without prior communication with

the party’s attorney regarding the subject of the representation. See

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Box, 715 N.W.2d 758, 765

(Iowa 2006) (finding an attorney violated this rule when the attorney

conducted a real estate transaction with a represented party without

discussing the transaction with the party’s attorney); Comm. on Prof’l

Ethics & Conduct v. Shepler, 519 N.W.2d 92, 93 (Iowa 1994) (finding an

attorney violated this rule when the attorney was aware an elderly

woman with diminished capacity had a lawyer, had been instructed to

contact the lawyer or the woman’s daughter about business dealings,

and subsequently had the woman sign subordination agreements in the

absence of her attorney).

The Board alleged Barnhill violated this rule in relation to the

Jerry’s Homes matter. On our review of the facts, we find there is no

indication Barnhill communicated with an opposing party in the absence

or without the knowledge of that party’s attorney. Thus, we find the

Board has failed to prove Barnhill violated this rule.

J. Trial Conduct: DR 7–106(A). This rule states:

(A) A lawyer shall not disregard or advise a client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but a lawyer 20 may take appropriate steps in good faith to test the validity of such rule or ruling.

Iowa Code of Prof’l Responsibility DR 7–106(A). We have primarily

recognized an attorney violates this rule when an attorney fails to obey a

court order. Iowa Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 710

N.W.2d 226, 234 (Iowa 2006) (finding an attorney violated this rule when

he intentionally disregarded a court order to provide other parties with

proper notice of a property sale); Comm. on Prof’l Ethics & Conduct v.

Zimmermann, 522 N.W.2d 619, 620–21 (Iowa 1994) (finding an attorney

violated this rule by failing to seek clarification of a court order).

The Board alleged Barnhill violated this rule in relation to the

Jerry’s Homes matter, and in particular that she violated Iowa Rule of

Civil Procedure 1.413(1). See Iowa R. Civ. P. 1.413(1) (recognizing

counsel’s signature to various documents certifies counsel has read the

document and to the best of counsel’s knowledge, it is well grounded in

fact). The commission concluded Barnhill did not violate this rule

because the record did not contain sufficient evidence. We agree the

K. Trial Conduct: DR 7–106(C)(1) and DR 7–106(C)(7). This

rule states an attorney shall not “[s]tate or allude to any matter that the

lawyer has no reasonable basis to believe is relevant to the case or that

will not be supported by admissible evidence” when appearing in a

professional capacity before the tribunal. Iowa Code of Prof’l

Responsibility DR 7–106(C)(1). DR 7–106(C)(7) states an attorney shall

not “[i]ntentionally or habitually violate any established rule of procedure

or of evidence” when appearing in a professional capacity before the

tribunal. Id. DR 7–106(C)(7). 21

We find the context of the rule indicates it was not intended to

apply in the circumstances of the Jerry’s Homes matter. This particular

subsection of the rule discusses an attorney’s conduct in the course of a

trial, including conduct such as asking questions intended to degrade a

witness and asserting personal opinions as to the credibility of a witness.

See id. DR 7–106(C). Thus, it appears the rule is intended to discourage

certain conduct when the lawyer appears before a tribunal in the course

of a trial.

The commission determined Barnhill violated this rule in the

Jerry’s Homes matter for the same reasons she violated DR 7–102(A)(2).

We decline to find Barnhill violated this rule. It does not appear

Barnhill’s conduct was habitual or an intentional violation during a trial

proceeding. Thus, we find Barnhill did not violate either subsection of

this rule.

L. Safekeeping Property: Rule 32:1.15(a) and 32:1.15(f). This rule provides:

(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of the representation.

....

(f) All client trust accounts shall be governed by chapter 45 of the Iowa Court Rules.

Iowa R. of Prof’l Conduct 32:1.15(a), (f).

First, we find Barnhill violated rule 32:1.15(a). Barnhill did not

safeguard Williams’s money deposited in the trust account as this rule

requires. She failed to supervise her employee properly in light of the 22

prior problems she had with that employee’s handling of firm funds.

Additionally, Barnhill did not check to see if the expenditures made out

of the trust account were for legitimate expenses.

Second, we find Barnhill violated several rules in chapter 45 of the

Iowa Court Rules. Iowa Court Rule 45.2(2) provides:

Except as stated in this chapter or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and shall promptly render a full accounting regarding such property.

Iowa Ct. R. 45.2(2). We find Barnhill violated this rule by not being able

to give Williams a full accounting of her funds. Instead, Williams had to

bring a lawsuit to determine what she was entitled to from the trust

account.

Further, Iowa Court Rule 45.2(3) requires:

a. A lawyer who practices in this jurisdiction shall maintain current financial records as provided in these rules and required by Iowa R. of Prof’l Conduct 32:1.15 and shall retain the following records for a period of six years after termination of the representation:

(1) Receipt and disbursement journals containing a record of deposits to and withdrawals from client trust accounts, specifically identifying the date, source, and description of each item deposited, as well as the date, payee and purpose of each disbursement.

Id. r. 45.2(3)(a)(1). Barnhill did not keep complete records of the source,

date, or amount of Williams’s income deposited into the trust account.

The only accounting of Williams’s money was the trust account register.

There were no running balances kept in the trust account register, and

Barnhill did not reconcile the trust account bank statements. Thus, we

find the Board proved Barnhill violated this rule. 23

M. Responsibilities Regarding Nonlawyer Assistants: Rule

32:5.3. This rule provides:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Iowa Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Iowa R. of Prof’l Conduct 32:5.3. We have previously recognized an attorney does not violate this rule when a nonlawyer makes a mistake

that is not a direct consequence of the attorney’s inattentive supervision

or instruction. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo,

799 N.W.2d 524, 534 (Iowa 2011).

The commission found Barnhill violated this rule based on the

stipulations of fact. We agree Barnhill violated this rule in the Williams

matter. Barnhill had supervisory authority over her employee and was

aware her employee had previously embezzled money from the law firm

when Barnhill entered into the arrangement with Williams. Barnhill 24

specifically authorized and directed the employee to pay Williams’s bills

and continued to allow the employee to sign Barnhill’s name on trust

account checks. The employee completed these acts without Barnhill’s

supervision. The employee subsequently wrote at least one check

payable to herself from the trust account, and Barnhill eventually fired

her for her unauthorized use of the law firm’s line of credit.

We can hardly characterize the employee’s conduct as a mere

mistake. It was not accidental that the employee wrote a check to herself

from the trust account. Nor can we characterize Barnhill’s conduct as

making reasonable efforts to ensure the employee’s conduct was

compatible with the professional obligations of a lawyer. Barnhill knew

her employee had previously embezzled money from the law firm and let

her continue to handle the funds without reasonable supervision.

We note it appears Barnhill attempted to supervise her employee.

Barnhill purportedly limited her employee’s authority to sign Barnhill’s name on business checks to only circumstances when no other

authorized signer was available. However, these measures were

inadequate. Barnhill knew the employee continued to sign Barnhill’s

name on trust account checks. Barnhill also failed to keep a separate

client ledger for Williams’s funds, failed to ensure there was a running

balance of the trust account register, failed to reconcile the bank

statements, and utterly failed to have any idea what the employee was

doing with Williams’s funds. In fact, Barnhill subsequently gave the

trust account records to Williams so that Williams could attempt to

figure out whether the employee had taken any of Williams’s money.

Barnhill failed to reasonably supervise her employee. Barnhill

could have prevented the employee’s conduct of stealing money from the

trust account with reasonable supervision, particularly when she was 25

aware of her employee’s prior embezzlement. Thus, we find the Board

has proven Barnhill violated this rule.

N. Professional Misconduct: Rule 32:8.4(c). This rule states “[i]t

is professional misconduct for a lawyer to . . . engage in conduct

involving dishonesty, fraud, deceit, or misrepresentation.” Iowa R. of

Prof’l Conduct 32:8.4(c). Regarding the Williams’s matter, the

commission found Barnhill violated this rule because the Board had

proved issue preclusion under Iowa Court Rule 35.7(3). Rule 35.7(3)

states:

Principles of issue preclusion may be used by either party in a lawyer disciplinary case if all of the following conditions exist:

a. The issue has been resolved in a civil proceeding that resulted in a final judgment, or in a criminal proceeding that resulted in a finding of guilt, even if the Iowa Supreme Court Attorney Disciplinary Board was not a party to the prior proceeding.

b. The burden of proof in the prior proceeding was greater than a mere preponderance of the evidence.

c. The party seeking preclusive effect has given written notice to the opposing party, not less than ten days prior to the hearing, of the party’s intention to invoke issue preclusion.

Iowa Ct. R. 35.7(3).

The issue of Barnhill’s fraudulent misrepresentation in the

Williams matter was resolved in a civil trial. A jury determined Williams

proved Barnhill committed fraud by clear, convincing, and satisfactory

evidence. These facts meet the first two conditions of issue preclusion.

See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. D.J.I., 545 N.W.2d

866, 877 (Iowa 1996) (barring an attorney from relitigating the issues of

fraud and misrepresentation, among other issues, in a disciplinary case

under the doctrine of issue preclusion). We also find the Board properly 26

gave Barnhill notice to meet the third condition. Therefore, we find the

Board met its burden in proving issue preclusion applied to Barnhill’s

violation of this rule and that Barnhill violated this rule.

O. Advance Fee and Expense Payments: Rules 45.7(3) and

45.7(4). The relevant portions of rule 45.7 state:

45.7(3) Deposit and withdrawal. A lawyer must deposit advance fee and expense payments from a client into the trust account and may withdraw such payments only as the fee is earned or the expense is incurred.

45.7(4) Notification upon withdrawal of fee or expense. A lawyer accepting advance fee or expense payments must notify the client in writing of the time, amount, and purpose of any withdrawal of the fee or expense, together with a complete accounting. The attorney must transmit such notice no later than the date of the withdrawal.

Iowa Ct. R. 45.7(3)–(4). Advance fee payments and advance expense

payments have specific definitions under this rule. An advance fee

payment is payment “for contemplated services that are made to the

lawyer prior to the lawyer’s having earned the fee.” Id. r. 45.7(1). An

advance expense payment is a payment “for contemplated expenses in

connection with the lawyer’s services that are made to the lawyer prior to

the incurrence of the expense.” Id. r. 45.7(2).

In the Williams matter, the commission concluded Barnhill did not

violate rule 45.7(3) or rule 45.7(4). We agree. Our review of the facts

shows the transactions of Williams’s money into and out of the trust

account related to the payment of Williams’s expenses to third parties.

These transactions did not relate to Barnhill’s services, and thus do not

meet the definition of either an advance fee payment or an advance

expense payment. Thus, these rules do not apply to Barnhill’s conduct.

We find the Board did not meet its burden to prove Barnhill violated this

rule. 27

P. Diligence: Rule 32:1.3. This rule states “[a] lawyer shall act

with reasonable diligence and promptness in representing a client.” Iowa

R. of Prof’l Conduct 32:1.3. Accordingly, an attorney must handle a

client matter in a reasonably timely manner. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Netti, 797 N.W.2d 591, 598 (Iowa 2011). We have

found a violation of this rule when an attorney was slow to act on

matters or did not keep clients properly informed on their cases. See

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ackerman, 786 N.W.2d 491,

495 (Iowa 2010) (holding attorney’s dilatory handling of two estates

violated this rule); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774

N.W.2d 301, 307 (Iowa 2009) (finding the attorney violated this rule when

he failed to provide services and keep his clients informed about their

cases).

Our review of the facts shows Barnhill failed to act promptly on our

orders in the PSG matter concerning her service upon the assignee and

the IRS. Even if we were to find Barnhill’s failure to serve our May 2,

2007 order on the assignee and the IRS was due to her mistaken

understanding of the order, we issued a second order in January 2008

requiring her to serve the assignee and the IRS. It was not until after we

issued a third order ordering the opposing counsel to serve the assignee

and the IRS that Barnhill served the assignee and the IRS. Thus, we find

the Board met its burden to prove Barnhill violated this rule.

Q. Expediting Litigation: Rule 32:3.2. This rule states “[a]

lawyer shall make reasonable efforts to expedite litigation consistent with

the interests of the client.” Iowa R. of Prof’l Conduct 32:3.2. An attorney

violates this rule when he or she fails to appear at hearings and fails to

participate in discovery. Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Cunningham, 812 N.W.2d 541, 548 (Iowa 2012). An attorney violates 28

this rule when the attorney uses tactics that unreasonably delay the

litigation. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793 N.W.2d

525, 530 (Iowa 2011). The Board is only required to prove the attorney’s

intent if the sole allegation is an attorney engaged in particular conduct

for the purpose of frustrating the judicial process. See id. (recognizing

the Board failed to prove an attorney’s conduct violated this rule when it

would be speculative to conclude the attorney’s actions were solely for

his convenience or for an unreasonable purpose).

In the PSG matter, the commission concluded Barnhill did not

violate rule 32:3.2 because the evidence did not show Barnhill had the

intent to slow the proceedings by failing to serve the court order or that

her failure to serve the order was done for her convenience or for an

unreasonable purpose. We agree with the commission. Thus, we find

the Board did not meet its burden to prove Barnhill violated this rule.

R. Fairness to Opposing Party and Counsel: Rule 32:3.4(c). This rule states “[a] lawyer shall not . . . 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. of Prof’l Conduct

32:3.4(c). The attorney must have actual knowledge of the court order to

violate this rule. Cunningham, 812 N.W.2d at 548. If an attorney has

knowledge of the court order, and yet fails to obey the court order, the

attorney violates this rule. Id.

The commission found Barnhill violated this rule by failing to serve

our court orders after we issued numerous court orders in the PSG

matter. We agree Barnhill had knowledge of our court orders and

violated this rule by failing to comply with our May 2, 2007 order and

subsequent orders. We find the Board proved Barnhill violated this rule. 29

S. Conduct Prejudicial to the Administration of Justice: Rule

32:8.4(d). This rule states “[i]t is professional misconduct for a lawyer to

. . . engage in conduct that is prejudicial to the administration of justice.”

Iowa R. of Prof’l Conduct 32:8.4(d). Such conduct includes an attorney’s

actions that hamper “ ‘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. Templeton, 784 N.W.2d 761, 768 (Iowa 2010)

(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d

360, 373 (Iowa 2005)). We have previously recognized an attorney

violates this rule “ ‘when his [or her] misconduct results in additional

court proceedings or causes court proceedings to be delayed or

dismissed.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 841

N.W.2d 114, 124 (Iowa 2013) (quoting Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Rhinehart, 827 N.W.2d 169, 180 (Iowa 2013)). The commission found Barnhill violated this rule in both the PSG

matter and the Everly matter. On our review of the facts, we conclude

Barnhill violated this rule when she caused delays in the PSG matter by

not serving the orders and in the Everly matter by continuing to pursue

an unwarranted claim. Thus, we find the Board proved Barnhill violated

T. Competence: Rule 32:1.1. This rule states “[a] lawyer shall

provide competent representation to a client. Competent representation

requires the legal knowledge, skill, thoroughness, and preparation

reasonably necessary for the representation.” Iowa R. of Prof’l Conduct

32:1.1. The Board may prove an attorney violated this rule by the

attorney’s failure “to make a competent analysis of the factual and legal

elements of a client’s legal problem.” Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Wright, 840 N.W.2d 295, 300 (Iowa 2013). We recognized in Everly 30

that there was no authority to support Barnhill’s position she could bring

a certiorari action without naming a government entity. 774 N.W.2d at

495. We find Barnhill did not make a competent analysis of the facts

and law when she continued the lawsuit after dismissing the government

entity and the superintendent. In fact, we upheld sanctions against her

for this conduct. Id. at 495–96. Therefore, we find the Board proved

U. Declining or Terminating Representation: 32:1.16(a)(1).

This rule states in relevant part:

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Iowa Rules of Professional Conduct or other law.

Iowa R. of Prof’l Conduct 32:1.16(a)(1). We have found an attorney

violates this rule when he or she helps a party with conduct that is a

fraudulent transaction. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Engelmann, 840 N.W.2d 156, 162–63 (Iowa 2013) (finding an attorney

violated this rule when he misrepresented information in property

transactions and failed to withdraw despite numerous opportunities to

do so).

The stipulated facts do not allow us to find Barnhill violated this

rule in the Everly matter. While we have found Barnhill’s continued

pursuit of the case against Musco violates other rules, it is not clear from

the facts her clients asked her to engage in this conduct. Further, it

does not appear Barnhill’s conduct related to whether she could

represent her clients. Rather, it appears the choices Barnhill made in

her representation led to her violation of other rules. Thus, we find the

Board did not meet its burden to prove Barnhill violated this rule. 31

V. Meritorious Claims and Contentions: Rule 32:3.1. This rule

states in relevant part:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.

Iowa R. of Prof’l Conduct 32:3.1. In analyzing this rule, we have

previously identified the alleged offending conduct and analyzed whether

there was legal authority to support the attorney engaging in this

conduct. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Daniels, 838

N.W.2d 672, 678 (Iowa 2013) (determining there was legal support for an

attorney to file a petition for relief under the circumstances, thus the

attorney did not violate this rule).

The conduct at issue here is Barnhill’s continued pursuit of a

lawsuit against Musco in the Everly matter after dismissing the school

district and the superintendent from the lawsuit. In Everly, we

recognized we knew “of no authority for the proposition that a

disappointed taxpayer [could] bring a certiorari action solely against a

supplier to a successful bidder who allegedly improperly procured a

government contract without naming a government entity.” 774 N.W.2d

at 495. Thus, we conclude there was no authority to support Barnhill’s

conduct in pursuing the lawsuit. Therefore, we find the Board has

proven Barnhill violated this rule.

W. Candor Towards the Tribunal: Rule 32:3.3(a)(1). This rule

states in relevant part, “A lawyer shall not knowingly: (1) 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.” Iowa

R. of Prof’l Conduct 32:3.3(a)(1). The word “knowingly” has a specific 32

meaning under our rules. The Iowa Rules of Professional Conduct

defines “knowingly” as “actual knowledge of the fact in question. A

person’s knowledge may be inferred from circumstances.” Id. r. 32:1.0(f).

We will not infer an attorney made a misrepresentation knowingly simply

because the misrepresentation occurred. Netti, 797 N.W.2d at 603.

Further, it is not enough that an attorney admits he or she

misrepresented facts or that the attorney filed a motion containing false

information to prove the attorney violated this rule. See id.

For the Everly matter, the Board argues Barnhill falsely

represented to the district court that Musco was in a contractual

relationship with the school district. The commission concluded Barnhill

did not violate this rule because Barnhill subsequently corrected the

statement. Our review of the facts shows the Board has not met its

burden to prove Barnhill knowingly made this misrepresentation. At

most, Barnhill acknowledged her petition contained false information.

Thus, we find the Board did not meet its burden to prove Barnhill

V. Sanction.

To determine the appropriate sanction in an attorney disciplinary

case, we consider

“the nature of the violations, the attorney’s fitness to continue in the practice of law, the protection of society from those unfit to practice law, the need to uphold public confidence in the justice system, deterrence, maintenance of the reputation of the bar as a whole, and any aggravating or mitigating circumstances.”

Iowa Supreme Ct. Disciplinary Bd. v. Marks, 814 N.W.2d 532, 541 (Iowa

2012) (quoting Iowa Supreme Ct. Disciplinary Bd. v. Ireland, 748 N.W.2d

498, 502 (Iowa 2008)). 33

In this case, the Board and Barnhill stipulated to a nonbinding

recommendation of a sixty-day suspension. The commission

recommended a six-month suspension.

This case presents both mitigating and aggravating factors.

Aggravating factors in this case include Barnhill’s extensive legal

experience, Barnhill’s misconduct causing financial harm to Williams,

Barnhill’s multiple violations, and Barnhill’s two prior admonitions from

the Board.

Mitigating factors include Barnhill’s involvement in pro bono work

with the Polk County Bar Association Volunteer Lawyers Program,

Barnhill’s volunteerism at a halfway house and jail, and her activity in

her community. Barnhill also acknowledged multiple violations through

her stipulations. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson,

838 N.W.2d 528, 542 (Iowa 2013) (“An attorney’s acknowledgment of

ethical violations is a mitigating factor.”). Barnhill argues we should consider additional mitigating factors.

She argues that since this conduct last occurred she has instituted

practices to help manage her trust account. We agree corrective

measures to address previous misconduct are a mitigating factor and

that her effort to correct previous issues with her trust account is a

mitigating factor. See id. at 543 (recognizing corrective measures such

as improving accounting practices and employing additional help are

mitigating factors).

Barnhill also requests that we consider the award of punitive

damages in one of the matters and the previous sanctions imposed by

the courts under Iowa Rule of Civil Procedure 1.413(1) in two of these

matters as mitigating factors. In the Williams matter, the jury awarded a

judgment against Barnhill in the amount of $53,895, as well as punitive 34

damages against Barnhill in the amount of $10,000. In the Jerry’s

Homes matter, the district court sanctioned Barnhill for $25,000.

Barnhill, 765 N.W.2d at 279–80. We affirmed the district court’s decision

to sanction. Id. at 280. In the Everly matter, we affirmed sanctions in

part. Everly, 774 N.W.2d at 495–96.

We have considered an attorney’s interim suspension when

determining the proper sanction for an attorney disciplinary matter. See

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell, 830 N.W.2d 355, 359–

60 (Iowa 2013) (recognizing the commission recommended a public

reprimand because the attorney had previously served a seven-month

suspension, but ultimately concluding an additional suspension was

necessary). A suspension promptly protects the public and upholds

public confidence in our justice system. See id. at 360. Monetary

sanctions, such as a requirement of only restitution, may convey

attorneys have the ability to buy their way out of professional difficulties. See D’Angelo, 710 N.W.2d at 235 (recognizing a concern with allowing

the public to believe an attorney may use financial means to address

disciplinary problems).

Courts do not award punitive damages for restitution purposes.

See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.

Ct. 1513, 1519, 155 L. Ed. 2d 585, 600 (2003) (recognizing a difference

between compensating a person for a concrete loss and awarding

punitive damages). The purpose of punitive damages is to punish a

person for their civil wrongdoing and to protect the public by deterring

the defendant and others from engaging in similar future conduct. See

McClure v. Walgreen Co., 613 N.W.2d 225, 232 (Iowa 2000). We have

previously stated one of the primary goals of rule 1.413 “is to maintain a

high degree of professionalism in the practice of law.” Barnhill, 765 35

N.W.2d at 273. The rule prevents abusive filing by attorneys caused by

professional incompetence. Id.

The primary goal of attorney discipline is to protect the public, not

to punish the attorney. Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Hauser, 782 N.W.2d 147, 154 (Iowa 2010). Although punitive damages

and attorney discipline have different purposes as to punishment, both

have an element of protecting the public by deterring future conduct.

Thus, where a court awarded punitive damages or sanctions against an

attorney arising out of the same facts and transactions we deem

unethical, we can consider the award of punitive damages or the levy of

sanctions as mitigating factors.

We find all of Barnhill’s violations to be serious. We have

previously recognized that “ ‘honesty is the base line and mandatory

requirement to serve in the legal profession.’ ” Iowa Supreme Ct.

Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 465 (Iowa 2014) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kallsen, 814 N.W.2d 233, 239

(Iowa 2012)). In our cases involving similar conduct, we have imposed

sanctions ranging from sixty days to revocation. Cunningham, 812

N.W.2d at 548–54 (imposing an eighteen-month suspension when an

attorney failed to obey a court order, failed to contact his client,

misrepresented to a client he had filed a petition, neglected clients, failed

to appear at hearings and participate in discovery, and his conduct

resulted in the court rescheduling proceedings); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102, 105, 111 (Iowa 2012)

(concluding a sixty-day suspension was appropriate when the attorney

made false statements to a tribunal, failed to perform necessary work on

an estate, took early receipt of probate fees, and procrastinated on

closing an estate for several years); Dunahoo, 799 N.W.2d at 531–35 36

(suspending an attorney’s license for one year when the attorney

intentionally disobeyed a court order, failed to take action in a

foreclosure matter, failed to communicate with his client, failed to

provide contemporaneous accounting or notice regarding trust account

withdrawals, intentionally filed a petition in the wrong district, and

wasted judicial resources); Netti, 797 N.W.2d at 598–607 (suspending an

attorney’s license for two years when the attorney failed to properly

administer an estate, failed to handle estate proceedings and tax issues

in a reasonably timely manner, did not keep his client informed or

respond to client requests, did not give his client contemporaneous

notice of withdrawals from the client trust account, misrepresented to

the court he had authority to represent a client, and his conduct resulted

in additional unnecessary proceedings); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 382 (Iowa 2007)

(revoking an attorney’s license when, among other ethical infractions, the attorney fabricated documents and forged a judge’s signature); Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Isaacson, 565 N.W.2d 315,

318 (Iowa 1997) (imposing a six-month suspension when an attorney

committed fraud and failed to disclose potential conflicts of interest). We

recently suspended an attorney’s license for six months for falsifying

certificates of service attached to discovery requests. McGinness, 844

N.W.2d at 460, 467.

We have considered all the factors in this case. These include the

aggravating and mitigating factors and the overall nature of the

violations, which primarily involve overzealousness and sloppy practices.

We have also taken into account the extent to which courts have already

punished Barnhill by levying sanctions and imposing punitive damages

against her. Weighing all of these considerations, we believe the 37

appropriate sanction in this matter is a sixty-day suspension as

stipulated by Barnhill and the Board.

VI. Disposition. We suspend Barnhill from the practice of law for sixty days. This

suspension applies to all facets of the practice of law, including but not

limited to advertising her services. See Iowa Ct. R. 35.13(3). Barnhill

must also comply with Iowa Court Rule 35.23, addressing the

notification of clients and counsel. We tax the costs of this action to

Barnhill, pursuant to Iowa Court Rule 35.27. Absent an objection by the

Board, we shall reinstate Barnhill’s license to practice law on the day

after the sixty-day suspension period expires. See Iowa Ct. R. 35.13(2).

LICENSE SUSPENDED.

All justices concur except Appel, J., who takes no part.