Iowa Supreme Court Attorney Disciplinary Board Vs. Larry J. Cohrt

• Court: Supreme Court of Iowa
• Decided: July 16, 2010
• Docket: 09–1200
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 09–1200

Filed July 16, 2010

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Appellee,

vs.

LARRY J. COHRT,

Appellant.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

Grievance commission reports that respondent committed ethical

misconduct and recommends a suspension. LICENSE SUSPENDED.

Larry J. Cohrt, Waterloo, pro se.

Charles L. Harrington and Wendell J. Harms, Des Moines, for

appellee. 2

CADY, Justice.

The Iowa Supreme Court Attorney Disciplinary Board charged

Larry J. Cohrt with numerous violations of the Iowa Code of Professional

Responsibility for Lawyers mainly stemming from his neglect of client

matters in two cases. The Grievance Commission of the Supreme Court

of Iowa found Cohrt violated the code of professional responsibility. It

recommended Cohrt be suspended from the practice of law for a period of

sixty-one days. On our review, we find Cohrt violated the code of

professional responsibility and impose an indefinite suspension of not

less than three months.

I. Background Facts.

Larry J. Cohrt is an Iowa lawyer. He was admitted to practice law

in Iowa in 1969, after graduating from law school with distinction. He

has practiced law in Waterloo throughout his career and is currently a

sole practitioner. He received a private admonition in 1996 for neglecting

a client matter.

The board initiated a disciplinary action against Cohrt based on

his conduct in representing clients in two separate cases. In the first

case, Cohrt represented a waste disposal business called Black Hawk

Waste Disposal Company, Inc. (Black Hawk) involving a claim against a

business competitor known as Waste Management, Inc. In the second

case, Cohrt represented Travis Schleusner and his father, Ronald

Schleusner, in a claim against the sellers of a lake cabin they had

purchased and a pest control business called A-1 Pest Control.

In the first matter, Cohrt prepared and filed a lawsuit in August

2003 on behalf of Black Hawk against Waste Management, Inc., alleging

claims of tortious interference and defamation. He also sought and

obtained a temporary injunction from the district court. The order 3

enjoined Waste Management, Inc. and its affiliates from interfering with

business relationships between Black Hawk and its customers. The

issuance of the injunction was conditioned upon the filing of a surety

bond by Black Hawk.

Black Hawk obtained the necessary bond from a surety company

and delivered it to Cohrt for filing. Cohrt, however, never filed the bond

with the court. Subsequently, Cohrt repeatedly failed to respond to

interrogatories and requests for production of documents sought by

counsel for Waste Management, Inc. within the deadlines established by

the rules of civil procedure, as well as a later deadline established by the

district court in response to a motion to compel. In response to the

motion to compel, Cohrt asserted he had been unable to complete the

discovery responses due to his trial schedule and workload. After Cohrt

failed to provide discovery within the court-imposed deadline, the district

court scheduled a hearing for the imposition of sanctions. Just hours

before the scheduled hearing on sanctions, Cohrt filed a dismissal of the

lawsuit without prejudice. This dismissal occurred ten days prior to the

scheduled trial date. The dismissal was not signed by a company

representative of Black Hawk.

In the second matter, Cohrt prepared and filed a lawsuit on behalf

of the Schleusners in September 2003 after they discovered the home

they had purchased the previous summer was infested with termites.

The lawsuit claimed the pest control company was negligent in its

presale inspection of the home. As in the other matter, Cohrt failed to

timely respond to interrogatories and other discovery requests

propounded by defense counsel. Defense counsel then moved to compel

discovery after informal attempts to obtain responses failed. In response

to the motion to compel, Cohrt asserted in a resistance filed with the 4

court that he had been unable to provide the discovery due to his trial

schedule. The district court sustained the motion and ordered Cohrt to

respond to the interrogatories within thirty days. After Cohrt failed to

provide discovery within the court-imposed deadline, defense counsel

moved for the imposition of sanctions. Cohrt provided the requested

responses to the interrogatories prior to the hearing on sanctions.

Nevertheless, the court ordered Cohrt (or the plaintiffs) to pay attorney

fees of $200 to the pest control company by April 30, 2004, and directed

the case be dismissed against the pest control company in the event the

fees were not timely paid. The fees were not paid as ordered, and the

court dismissed the case against the pest control company on May 7,

2004.

In both cases, the plaintiffs claimed they were unaware of the

ongoing discovery debacles in their lawsuits. Black Hawk asserted Cohrt

never advised company representatives that he decided to dismiss the

lawsuit. It also claimed it never authorized Cohrt to dismiss the lawsuit.

Travis and Ronald Schleusner claimed they had no knowledge of the

$200 attorney-fee award or that their lawsuit was in jeopardy of being

dismissed.

Cohrt asserted he dismissed the Black Hawk lawsuit for two

reasons. He learned, as he had suspected for some time, that he had

named the wrong corporate entity as the defendant. He claimed he

discussed the problem with Black Hawk company representatives and

advised them of the dismissal prior to filing it with the court. He

declined to file the surety bond until he was able to determine the proper

defendant. He also felt the case should be dismissed because Black

Hawk had failed to provide him with the needed information to allow him 5

to properly respond to the discovery requests. He feared the court would

order the case dismissed if the sanction hearing took place.

Cohrt claimed he purposely allowed the Schleusners’ lawsuit to be

dismissed against the pest control company because he determined the

two-page written inspection report at the center of the lawsuit contained

a clause that limited the scope of the inspection only to areas of the

house accessible to visual inspection and included a declaration that the

report was not a warranty against latent infestation. Because the

Schleusners claimed the sellers had taken steps to purposely hide

termite damage to the house at the time of the inspection and sale, Cohrt

felt the clause in the report provided the pest control company with a

complete defense, rendering a lawsuit against the company frivolous.

Consequently, Cohrt claimed his actions in both cases were

consistent with the ethical obligation of lawyers. In the Black Hawk

case, Cohrt asserted he was obligated to dismiss the lawsuit once he

learned he had sued the wrong defendant. In the Schleusner case, Cohrt

maintained he was ethically obligated not to pursue the lawsuit against

the pest control company once he determined it was frivolous.

II. Board Complaint and Commission Decision.

The board ultimately charged Cohrt with multiple violations of the

code of professional responsibility. The violations essentially pertained to

neglect and inaction, failure to communicate, misrepresentation, and

failure to withdraw from employment. In the Black Hawk proceeding, the

violations alleged by the board included DR 1–102(A)(1) (conduct that

violates a disciplinary rule), DR 1–102(A)(4) (conduct involving

misrepresentation), DR 1–102(A)(5) (conduct prejudicial to the

administration of justice), DR 1–102(A)(6) (conduct that adversely reflects

on the fitness to practice law), DR 2–110(A)(1) (withdrawal from 6

employment without tribunal’s permission), DR 2–110(A)(2) (withdrawal

from employment causing prejudice to the client’s rights), DR 2–110(B)(1)

(withdrawal from employment required if lawyer discovers lawsuit is

being brought for the purpose of harassing or maliciously injuring

someone), DR 2–110(B)(2) (withdrawal from employment required when

continued employment will result in violation of disciplinary rule), DR 2–

110(B)(3) (withdrawal from employment required when lawyer’s mental or

physical condition renders lawyer unable to carry out employment),

DR 2–110(B)(4) (withdrawal from employment required when lawyer is

discharged by client), DR 6–101(A)(2) (lawyer shall not handle a legal

matter without adequate preparation), DR 6–101(A)(3) (lawyer shall not

neglect a client matter), DR 7–101(A)(1) (lawyer shall seek lawful

objectives of client), DR 7–101(A)(2) (lawyer shall not intentionally fail to

carry out contract of employment), DR 7–101(A)(3) (lawyer shall not

intentionally prejudice or damage client), DR 7–102(A)(3) (lawyer shall

not conceal or knowingly fail to disclose information to client), DR 7–

102(A)(8) (lawyer shall not knowingly engage in illegal conduct in the

representation of a client), and DR 7–106(A) (lawyer shall not disregard

court rule).

In the Schleusner proceeding, the violations alleged by the board

included DR 1–102(A)(1) (conduct that violates a disciplinary rule), DR 1–

102(A)(4) (conduct involving misrepresentation), DR 1–102(A)(5) (conduct

prejudicial to the administration of justice), DR 1–102(A)(6) (conduct that

adversely reflects on the fitness to practice law), DR 2–110(A)(1)

(withdrawal from employment without tribunal’s permission), DR 2–

110(A)(2) (withdrawal from employment causing prejudice to the client’s

rights), DR 2–110(B)(1) (withdrawal from employment required if lawyer

discovers lawsuit is being brought for the purpose of harassing or 7

maliciously injuring someone), DR 2–110(B)(2) (withdrawal from

employment required when continued employment will result in violation

of disciplinary rule), DR 2–110(B)(3) (withdrawal from employment

required when lawyer’s mental or physical condition renders lawyer

unable to carry out employment), DR 2–110(B)(4) (withdrawal from

employment required when lawyer is discharged by client), DR 6–

101(A)(2) (lawyer shall not handle a legal matter without adequate

preparation), DR 6–101(A)(3) (lawyer shall not neglect a client matter),

DR 7–101(A)(1) (lawyer shall seek lawful objectives of client), DR 7–

101(A)(2) (lawyer shall not intentionally fail to carry out contract of

employment), DR 7–101(A)(3) (lawyer shall not intentionally prejudice or

damage client), DR 7–102(A)(3) (lawyer shall not conceal or fail to disclose

information to client), DR 7–102(A)(8) (lawyer shall not knowingly engage

in illegal conduct in the representation of a client), and DR 7–106(A)

(lawyer shall not disregard court rule).

Cohrt and the complainants testified at the grievance commission

hearing consistent with their claims. The commission found the board

established Cohrt’s conduct in the Black Hawk proceeding violated DR 1–

102(A)(1), DR 1–102(A)(4), DR 1–102(A)(5), DR 1–102(A)(6), and DR 6–

101(A)(3). Additionally, the commission found Cohrt violated the

withdrawal provisions of DR 2–110(B)(2) in the event he felt the case was

required to be dismissed. With respect to the Schleusners’ proceedings,

the commission found the board established that Cohrt’s conduct

violated DR 1–102(A)(1), DR 1–102(A)(5), DR 1–102(A)(6), DR 6–101(A)(2),

DR 6–101(A)(3), DR 7–101(A)(1), DR 7–101(A)(2), and DR 7–101(A)(3).

Additionally, the commission found Cohrt violated the withdrawal

provisions of DR 2–110(A)(2) and DR 2–110(B)(2). It recommended Cohrt

be suspended for sixty-one days. 8

III. Scope of Review.

We review attorney disciplinary matters de novo. Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa

2002).

IV. Violations.

The commission implicitly rejected the evidence presented by Cohrt

that he maintained adequate communication with his clients and

explained his decisions that resulted in the dismissal of the lawsuits.

We, of course, are not bound by the findings of the commission, but we

do give them weight. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen,

779 N.W.2d 757, 759 (Iowa 2010). Moreover, our review of the evidence

presented at the commission hearing does not support Cohrt’s claims

that the dismissals were the result of thoughtful lawyering, rather than

neglect and the failure to maintain client communication. The

convincing preponderance of the evidence reveals Cohrt’s claims were

merely an afterthought to cover for his neglect. Both cases were replete

with classic earmarks of neglect, including numerous requests by

opposing counsel for Cohrt to take action, numerous demands by the

court for Cohrt to take action, and court filings by Cohrt offering excuses

for inaction based on a busy trial schedule or other demands of the

practice of law. The timing of the dismissals and the events preceding

the dismissals were also inconsistent with Cohrt’s claims. In the end,

Cohrt’s claims stand alone, without support, far removed from the

evidence and logic. A convincing preponderance of the evidence supports

a finding that Cohrt neglected client matters.

Cohrt also misrepresented the reason the claim against the pest

control company was dismissed. The claim was dismissed because the

attorney-fee sanction imposed by the court was not paid as directed. 9

Cohrt told his clients the case was dismissed because he believed the

pest control company had a complete defense to the claim. While we

reject the notion that Cohrt made the statement in good faith, Cohrt’s

statements misrepresented the reason the case was dismissed, whether

made in good faith or not. The case was dismissed because Cohrt failed

to comply with a court order. This reason was never explained to the

Schleusners, and Cohrt’s efforts to substitute his purported motive for

failing to comply with the court order as a reason for the dismissal

constituted purposeful misrepresentation. A convincing preponderance

of the evidence revealed Cohrt engaged in conduct involving

misrepresentation.

We do not further consider the grounds for misconduct based on

the charges that Cohrt failed to timely and properly withdraw from

representing his clients once he allegedly formulated his misgivings

about the propriety of the claims. The commission concluded Cohrt

violated the withdrawal provisions of the code in the event he believed in

good faith that the claims alleged in the lawsuits were required to be

dismissed under governing law and professional ethics. We refrain from

finding violations of our code of professional responsibility based on

unsupported, hypothetical propositions.

We conclude Cohrt violated DR 6–101(A)(3) by neglecting client

matters. He violated DR 1–102(A)(4) by misrepresenting to his clients the

grounds for dismissal of a party to their lawsuit. This same conduct

undoubtedly violated other related disciplinary rules, but these two

provisions best capture the unethical conduct that occurred and provide

a basis to consider discipline for his conduct. 10

V. Discipline.

We have repeatedly discussed our general principles governing the

imposition of discipline for attorneys who violate the code of professional

responsibility. See Marzen, 779 N.W.2d at 767. We consider both

aggravating and mitigating circumstances in the imposition of discipline.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 308

(Iowa 2009). In this case, three aggravating circumstances are present.

First, Cohrt has been admonished on a prior occasion for neglecting a

client matter. A prior admonition is properly considered in determining

discipline, especially when it involves the same type of conduct as the

conduct subject to discipline. Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Sprole, 596 N.W.2d 64, 66 (Iowa 1999). Second, some of

Cohrt’s statements and claims made before the board were false and

asserted to circumvent discipline. See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 503 (Iowa 2008) (false

assertions to the board constitute aggravating circumstances). Third,

Cohrt engaged in two separate, but similar counts of neglect. See id.

(multiple incidents of neglect warrant a more severe sanction).

The sanction for neglect of client matters “generally ranges from a

public reprimand to a six-month suspension.” Id. at 502.

Misrepresentation can give rise to more serious discipline. See Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Stein, 603 N.W.2d 574, 575–

76 (Iowa 1999) (two-year suspension for dishonestly concealing neglect to

client, compounded by prior deceitful conduct); see also Iowa Supreme

Ct. Bd. of Prof’l Ethics & Conduct v. Clauss, 530 N.W.2d 453, 454–55

(Iowa 1995) (imposing three-year suspension for dishonesty in court

filings); Comm. on Prof’l Ethics & Conduct v. Conzett, 476 N.W.2d 43, 45–

46 (Iowa 1991) (four-month suspension for misrepresentation to client). 11

When neglect of a client is accompanied by misrepresentation, harsher

discipline is imposed. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Daggett, 653 N.W.2d 377, 381–82 (Iowa 2002) (“When neglect is

compounded by an attorney’s misrepresentation, however, a more severe

sanction is necessary.”).

Considering all the circumstances, we conclude Cohrt should be

suspended for a period of not less than three months. Cohrt engaged in

two separate instances of neglect, compounded by a misrepresentation to

his clients and a past history of client neglect. Instead of acknowledging

his neglect, he sought obfuscation, which was not only directed at his

clients but also seeped into his dealings with the board and the

commission. Cohrt’s claims and assertions were largely unsupported by

evidence or logic, and his conduct was unbecoming of an Iowa lawyer.

VI. Conclusion.

We suspend Cohrt’s license to practice law with no possibility of

reinstatement for three months from the date of the filing of this opinion.

This opinion shall apply to all facets of the practice of law. Iowa Ct. R.

35.12(3).

Upon application for reinstatement, Cohrt shall have the burden to

show he has not practiced law during the period of suspension and that

he meets the requirements of Iowa Court Rule 35.13. Costs are taxed to

the respondent pursuant to Iowa Court Rule 35.26(1).

LICENSE SUSPENDED.