Iowa Supreme Court Attorney Disciplinary Board Vs. Robert A. Wright, Jr.

• Court: Supreme Court of Iowa
• Decided: December 5, 2008
• Docket: 08–0487
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 08–0487

Filed December 5, 2008

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

ROBERT A. WRIGHT, JR.,

Respondent.

On review of the report of the Grievance Commission.

Grievance Commission reports respondent has committed ethical

misconduct and recommends a public reprimand. ATTORNEY

REPRIMANDED.

Charles L. Harrington and David Grace, Des Moines, for

complainant.

Robert A. Wright, Jr., Des Moines, pro se. 2

HECHT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board charged

Robert A. Wright, Jr., with violations of the Iowa Code of Professional

Responsibility for Lawyers based on Wright’s actions in an appeal filed

with this court. The Grievance Commission of the Supreme Court of

Iowa found Wright’s actions were prejudicial to the administration of

justice in violation of DR 1–102(A)(5) and DR 1–102(A)(1) and

recommended the imposition of a public reprimand. Wright has

appealed from the Commission’s recommendation. After reviewing the

record, we find Wright committed ethical violations warranting a public

reprimand.

I. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Piazza, 756 N.W.2d 690, 692 (Iowa

2008). We give weight to the factual findings of the Commission,

especially with respect to the credibility of witnesses, but we find the

facts anew. Id.; Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Beckman, 674 N.W.2d 129, 131 (Iowa 2004). Violations must be proved

by a convincing preponderance of the evidence. Id.

II. Factual Findings.

Wright agreed to represent Samantha Brown in a paternity and

child custody dispute. Brown and her mother executed an “Attorney

Hourly Contract” in which they agreed to pay Wright a “minimum fee” of

three thousand dollars. The fee agreement required Brown and her

mother to pay the fee at the rate of one hundred dollars per month.1

1Brown and her mother agreed the balance of the fee not paid by monthly payments would be paid from the proceeds of a lawsuit in which Wright represented Brown’s mother. 3

District Court Judge Arthur Gamble filed a decision denying Brown’s

claim for physical custody of her children. After consulting with Brown,

Wright filed a notice of appeal on March 26, 2004.

Wright knew Brown had failed to make the monthly payments

required by the fee contract for his services in the district court.2

Anticipating Brown would have difficulty funding the out-of-pocket

expenses necessitated by the appeal, Wright contacted Judge Gamble’s

court reporter, Rebecca Tierney, to obtain an estimate of the cost of the

trial transcript. Tierney estimated the cost of transcription would be

seven hundred fifty dollars, and informed Wright the transcript would be

prepared after she received payment. Wright communicated this

information to Brown and notified her she must raise the funds in order

to proceed with the appeal. Brown informed Wright that she did not then

have the money to pay for the transcript, but assured him she would

attempt to borrow it.

Wright hired an independent paralegal to prepare the combined

certificate. When he signed and served the certificate on opposing

counsel on March 30, 2004, Wright certified he would pay for the

transcript in accordance with Iowa Rule of Appellate Procedure 6.10(2)(b)

(deeming the combined certificate the attorney’s professional statement

that payment for the transcript will be made). At the time he executed

the combined certificate, Wright had no intention of completing the

appeal if Brown failed to advance the cost of the transcript.

Unfortunately, Wright failed to discern obvious errors in the certificate

which purported to order transcription of the proceedings from the court

2Brown testified she made no payments to Wright, but disclaimed knowledge as

to whether Wright received payment from proceeds of her mother’s lawsuit. 4

reporter for District Court Judge Glenn Pille, rather than Judge Gamble.3

The certificate also erroneously represented the appeal was not expedited

under Iowa Rule of Appellate Procedure 6.17.4 Wright paid the docketing fee and Brown’s appeal was docketed on

May 3, 2004. Tierney did not prepare a transcript because the combined

certificate was not mailed to her, and she was not informed that the

certificate had been served. The deadline for filing Brown’s proof brief

and a designation of the contents of the appendix passed. The clerk of

this court notified Wright of his delinquency on October 5, 2004,

assessed a penalty of fifty dollars, and informed counsel the appeal

would be dismissed for want of prosecution if the default were not cured

within fifteen days.5

Wright contacted Brown to inform her of the impending dismissal

of her appeal for failure to prosecute it.6 Brown disclosed she still had

not raised the money required to pay for the transcript, but claimed she

would continue trying to raise the funds. Brown’s efforts to borrow the

funds were unproductive, however, and Wright did not cure the default.

Having heard nothing further from Wright since March of 2004

about whether transcription of the record in Brown’s case would be

3The “Proof of Service and Certificate of Filing” signed by Wright represented the document was mailed to opposing counsel and to “Court Reporter c/o The Honorable Glenn E. Pille.” Judge Pille’s court reporter was Teresa Kordick. There is no evidence that Judge Pille or Kordick received the combined certificate.

4This error was brought to Wright’s attention by the clerk of this court, and

Wright corrected it.

5The notice also warned that if Wright failed to cure the default within the prescribed period, a copy of any dismissal order would be forwarded to the Iowa Supreme Court Board of Professional Ethics and Conduct.

6Wright had spoken to Brown on other occasions, as well, after the combined certificate was filed and before expiration of the time to cure the default to determine whether she had raised the funds to pay for the transcript. 5

required, Tierney placed a call to Wright on November 1, 2004 to inquire

about the status of the case.7 On November 5, 2004, the clerk of this

court entered an order of dismissing Brown’s appeal.

The Board filed a complaint charging Wright with violations of

DR 7–101(A) (failure to seek the lawful objectives of a client), DR 6–101(A)

(neglecting a client’s legal matter), DR 2–110 (improper withdrawal from

employment), DR 1–102(A)(1) (violation of a disciplinary rule), DR 1–

102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit or

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

administration of justice) and DR 1–102(A)(6) (conduct adversely

reflecting on fitness to practice law). After a hearing on the merits, the

Commission filed its findings of fact and conclusions of law. The

Commission found Wright violated DR 1–102(A)(5) (conduct prejudicial to

the administration of justice), and DR 1–102(A)(1) (violation of a

disciplinary rule) when he filed the combined certificate with knowledge

that he would not pursue the appeal if Brown failed to raise the funds

necessary to obtain the transcript, and when he “was aware or should

have been aware” his certification that he would pay for the transcript

might not be honored. The Commission found the Board failed, however,

to meet its burden to prove the other alleged violations by a convincing

preponderance of the evidence. Wright appeals, contending he violated

no disciplinary rule in representing Brown, and contesting the

Commission’s bill of costs.

III. Ethical Violations.

Wright’s alleged misconduct occurred prior to July 1, 2005, and is

therefore governed by the Iowa Code of Professional Responsibility for

7Tierney could not recall at the time of her testimony on October 31, 2007,

whether she spoke directly to Wright, or merely left a message of inquiry for him. 6

Lawyers. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Tompkins, 733

N.W.2d 661, 666 (Iowa 2007).

“[T]here is no typical form of conduct that prejudices the administration of justice.” Generally, acts that have been deemed prejudicial to the administration of justice have “hampered 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. Borth, 728 N.W.2d 205, 211

(Iowa 2007) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Steffes, 588 N.W.2d 121, 123 (Iowa 1999)).

Wright acknowledges this court has on several occasions imposed

discipline on lawyers who failed to prevent administrative dismissal of

appeals. See Tompkins, 733 N.W.2d at 670; Iowa Supreme Ct. Att’y

Disciplinary Bd. v. McCarthy, 722 N.W.2d 199, 205–06 (Iowa 2006); Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Daggett, 653 N.W.2d 377,

380 (Iowa 2002); Comm. on Prof’l Ethics & Conduct v. Thomas, 495

N.W.2d 684, 687 (Iowa 1993). He contends, however, we should not find

his conduct prejudicial to the administration of justice in violation of

DR 1–102(A)(5) because the dismissal of Brown’s appeal was not the

result of neglect or a deliberate decision to allow dismissal. Wright

asserts the sole cause of the dismissal was instead Brown’s failure to

raise the funds for the transcript.

As we have already noted, Wright spoke with Brown on several

occasions after filing the combined certificate, monitoring whether she

had raised the funds to pay for the transcript. He wanted to proceed

with his client’s appeal, but was unwilling and not contractually

obligated to advance the cost of the transcript. Brown attested in an

affidavit it was her failure to pay for the transcript, not Wright’s actions,

that prevented her from proceeding with the appeal. Under the facts 7

presented here, we find the Board failed to prove Wright neglected

Brown’s interests. Wright in fact protected Brown’s interest by

commencing and maintaining the appeal notwithstanding her failure to

pay his fee as she had agreed, and by allowing her time through

October 20, 2004 to raise the funds to pay for the transcript.

Our determination that Wright did not neglect Brown’s interests is

not, however, dispositive on the question whether Wright’s conduct was

prejudicial to the administration of justice in violation of DR 1–102(A)(5).

Even if Brown did not wish to proceed with her appeal, Wright was not

relieved “from taking steps to end the matter.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 105 (Iowa 2006). “Our

case law makes it clear that an attorney cannot use a default notice to

dismiss an appeal in lieu of the attorney’s obligation to comply with our

appellate rules.” Tompkins, 733 N.W.2d at 669 (citing Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 552 (Iowa

2004)). Wright contends nonetheless his conduct does not rise to the

level of a violation of DR 1–102(A)(5) because he intended to dismiss the

appeal and did not deliberately allow the appeal to terminate through

administrative dismissal. We are not persuaded. The clerk of this court

notified Wright his default must be cured by October 20, 2004 to avoid

dismissal of the appeal. Wright knew conclusively by that date that

Brown was unable to pay for the transcript, yet he took no action to

dismiss the appeal. His inaction caused the clerk to prepare and file an

order two weeks later accomplishing the dismissal, and constituted

conduct prejudicial to the administration of justice in violation of DR 1–

102(A)(5). Wright’s violation of DR 1–102(A)(5) supports, and we adopt as

our own, the Commission’s finding that Wright also violated DR 1–

102(A)(1). 8

Although the Commission did not recommend discipline on the

other alleged violations, we review them as well. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Howe, 706 N.W.2d 360, 365 (Iowa 2005). Upon our de

novo review, we find the Board failed to prove Wright violated DR 7–

101(A), DR 6–101(A), DR 2–110, DR 1–102(A)(4), or DR 1–102(A)(6).

IV. Sanction.

We are free to adopt, increase, or reduce the sanction

recommended by the Commission. Iowa Supreme Ct. Bd. of Prof’l Ethics

& Conduct v. Eich, 652 N.W.2d 216, 217 (Iowa 2002). “In the end, we

impose discipline based on the particular facts of each case.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Hall, 728 N.W.2d 383, 387 (Iowa

2007). We consider aggravating circumstances in determining the

appropriate sanction for violation of disciplinary rules. See Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. McKittrick, 683 N.W.2d 554,

563 (Iowa 2004); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Gallner, 621 N.W.2d 183, 188 (Iowa 2001). A lawyer’s record of prior

disciplinary action is an aggravating circumstance. McKittrick, 683

N.W.2d at 563; Gallner, 621 N.W.2d at 188. Wright was publicly

reprimanded by the Board in 2001 for violations of disciplinary rules in

two cases, and he was admonished by the Board on two other occasions

before he undertook the representation of Brown. We also consider the

fact that Wright, who has been practicing since 1981, is an experienced

lawyer. See Gallner, 621 N.W.2d at 188.

Under the circumstances presented here, we conclude the sanction

recommended by the Grievance Commission is appropriate.

V. Costs.

Under our rules, if a “public reprimand results from formal charges

of misconduct, [this court] shall assess against the respondent attorney 9

the costs of the proceeding.” Iowa Ct. R. 35.26(1). The Commission filed

an amended bill of costs on March 31, 2008 claiming total costs of

$646.36, including $594.45 for the transcript and $51.91 for postage.

Wright contends the claimed cost for the transcript exceeds the taxable

amount authorized under our rules. See Iowa Ct. R. 22.28(1)(a)

(prescribing a court reporter’s maximum compensation for an “ordinary

transcript” at “$3.50 per page for the original”). The transcript in this

case is one hundred eleven pages in length. The taxable cost of the

transcript is therefore $388.50.

Wright also contends the costs should be equitably apportioned

because several of the alleged violations were not proved by the Board.

He claims apportionment of the costs should be ordered because Iowa

Court Rule 35.26(1) limits taxable costs in disciplinary actions to “those

expenses normally taxed as costs in state civil actions pursuant to . . .

Iowa Code chapter 625.” Wright notes Iowa Code section 625.3

authorizes the court to make an equitable apportionment of the costs

where a party “is successful as to a part of the party’s demand, and fails

as to part . . . .” Although the Board did not prove all of the violations

alleged against Wright, we find apportionment of the costs is not

appropriate under the circumstances presented here. Accordingly, costs

of $440.41 incurred in the proceeding before the Commission shall be

taxed to Wright. The costs of this appeal are also taxed to Wright.

ATTORNEY REPRIMANDED.