Wednesday, June 21, 2017 Litigation

Rooms: 312-313 ADB Update: Building Your

Ethics Safety Net

8:00 a.m. – 9:00 a.m.

Presented by Tara van Brederode

Assistant Director Office of Professional Regulation

Administrator, Attorney Disciplinary Board 1111 East Court Avenue

Des Moines, Ia 50319 Phone: 515-725-8017

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TARA VAN BREDERODEASSISTANT DIRECTOR FOR ATTORNEY DISCIPLINEOFFICE OF PROFESSIONAL REGULATION OF THE IOWA SUPREME COURTISBA ANNUAL MEETINGDES MOINES, IOWAJUNE, 2017

• Overview of Lawyer Regulation in Iowa

• Iowa Attorney Disciplinary BoardTrends and Observations

• Tips and suggestions to create your “ethics safety net” and prevent avoidable complaints

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• Iowa Supreme Court (not the Iowa Bar) exercises supervisory authority over all Iowa attorneys

• Oversight of over 9,500 active Iowa attorneys

• All aspects of licensure and professional regulation are handled through Office of Professional Regulation (“OPR”)

• EXCELLENCE + ACCOUNTABILITY

• Help maintain and ensure the professional competence of Iowa attorneys

• Help maintain and enhance the professional responsibility of Iowa attorneys

• Compensate persons monetarily damaged through dishonesty of Iowa attorneys

• Help support legal services for low-income persons and law-related education

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• Attorney Disciplinary Board investigates complaints; may dismiss, privately admonish, publicly reprimand (with Court concurrence) or prosecute complaint before the Grievance Commission

• Grievance Commission hears prosecuted complaints; may dismiss, privately admonish, or recommend discipline up to revocation of license to the Court

• Court reviews and imposes or approves all discipline above private admonition

• All discipline (including reprimands) is reported in a public opinion

• 389 complaints were opened in 2015. 199 or so were not opened pursuant to Rule 34.4 (now 35.4/discretion of Assistant Director). 316 complaints were resolved.

• 426 complaints were opened in 2016. 248 or so were not opened pursuant to Rule. 319were resolved by the Board.

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199

248

389

426

316 319

2015 2016

Not OpenedOpenedResolved

579

494

547

501

465

554

516 520 524

588

674

579

494

547

501

465

554

373 366337

389

426

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Complaints Filed Complaints Opened

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• Dispositions of 319 complaints reaching Board determination during 2016:• 39% dismissed (123

matters)• 17% private admonition (53

matters)• 14% public reprimand (46

matters)• 19% referred for filing with

Grievance Commission (61 matters)

• Dispositions of 234 matters reaching file closure in 2016:• 53% dismissed (125 matters)• 15% private admonition (34 matters)

• 9% public reprimand (21 matters)

• 8% suspension or disbarment (19 matters)

• Also 5 reinstatements, 7 trusteeships, and 23 closures without adjudication

• 234 file closures = 190 respondents

• 319 Board dispositions = 235 respondents

• 426 files opened = 317 respondents• The 3 respondents with the highest numbers of complaints accounted for a total of

38 files opened between them

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• Most frequent allegations (2016):

• neglect or incompetence (54%)

• mishandling of money or other property (14%)

• dishonesty or misrepresentation (26%)

• litigation misconduct (7%)

• excessive or unlawful fee (14%)

• conflict of interest (9%)

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• One in, one out.

• Ensure that every matter receives a timely response; pursue SC suspensions for failure to respond.

• Reduce investigative times.

• Reduce pre-prosecution delay times.

• Integrate investigative and prosecution phases of case handling for all matters to be prosecuted.

• Use case-management system to create efficiencies in document preparation and correspondence.

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• Rule 32:1.4: A lawyer shall . . .• promptly inform . . .• reasonably consult . . .• keep the client reasonably informed

. . .• promptly comply with reasonable

requests. . .• consult about relevant limitations on

lawyer’s conduct . . .• explain to extent reasonably

necessary to permit informed decisions . . .

• IRPC 32:3.1: “shall not bring or defend a proceeding…unless there is a basis in law and fact…not frivolous.”• Trend (and Restatement position) is toward an objective standard: “lawyer of

ordinary competence.”• Most ethics committees recommend a “reasonable pre-filing inquiry” by attorney to

ensure the there is a non-frivolous basis for the claim (some committees agree that this may be deferred until after filing if SoL is about to run).

• Iowa cases have included suspension or even disbarment for malicious or multiple frivolous suits.

• Note that disagreement with client over merits of case may require attorney to recommend other counsel and withdraw.

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• Insurance company retained attorney to represent defendant after traffic accident.• Defendant admitted to attorney that she hit plaintiff’s car, and her accident report

confirmed this.• Attorney admitted this in answer.• Attorney later noted that police officer’s report incorrectly stated the opposite.• Attorney moved to amend answer, denying that defendant struck plaintiff’s car.

• At trial, plaintiff testified that defendant hit her. Defendant did not appear.• Iowa Supreme Court held (under former—but similar—disciplinary rules) that

attorney was justified in making plaintiff prove the case, but not in persisting in a position that was patently frivolous.

• 3-month suspension.• But note: a lawyer may generally rely on the objectively reasonable representations

of the client as to the facts (see also IRPC 32:3.3, comment [3]).Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Hohnbaum, 554 N.W.2d 550 (Iowa 1996).

• IRPC 32:3.2 requires reasonable efforts to expedite litigation consistent with the interests of the client.

• Review comment…personal postponements okay if not routine.

• Financial benefit from improper delay is not a legitimate interest of the client.

• Negligent AND intentional delays may result in discipline.

• Often prosecuted along with IRPC 32:1.3 (diligence) and 32:1.4 (keeping client reasonably informed)

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• IRPC 32:3.3 covers 4 general duties:• Making false statements or offering false evidence (includes oral misrepresentation, false

testimony, inaccurate affidavits, falsehoods in discovery materials, forged signatures)• Omissions as misrepresentations (recurring situations include death of client, secret

settlement between opposing parties, fake identity, submission of incomplete records, ghostwriting, and secret fee deals)

• Affirmative duty to disclose adverse legal authority and to fully disclose (even adverse facts) when properly ex parte

• Remedial action required (lawyer must correct material misstatements if later discovered, must disclose crime or fraud)

• These duties apply even if compliance requires disclosure of confidential information (see IPRC 32:1.6)

• Role of “officer of the Court” requires honesty and truthfulness in all dealings with Court.

• Client perjury (see IRPC 32:3.3 (candor), 32:1.2 (scope of representation), 32:1.4 (communication), 32:1.16 (declining or terminating representation))

• Lawyer as witness (see IRPC 32:3.7)• Fairness to opposing parties and counsel (see IRPC 32:3.4)

• No tampering with evidence• No concealing or obstructing access• No falsifying evidence/counseling falsehoods• No procuring absence of witness/dissuading witness from testifying/discouraging cooperation

with opposing counsel/offering prohibited inducements• No frivolous discovery requests/failure to comply with discovery requests• No defying court orders

• Communicating with Judge or jurors (see IRPC 32:3.5–impartiality and decorum of tribunal)

• Trial publicity (IRPC 32:3.6)

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• Adopt PMBR in Iowa?• Probation as alternative to suspension?• Trust Account School?• Law Practice Management School?• CLE and Outreach• Deferrals of Discipline• Partnership with ILAP

• Lawyers abuse alcohol and experience depression at higher rates than the general population• ABA/Hazleden Betty Ford Foundation study (February 2016) indicates that 21%

of current practitioners qualify as problem drinkers, 28% experience depression, and 19% demonstrate symptoms of anxiety

• Much higher percentages in first years of practice

• High percentage of disciplinary cases involve lawyers with substance abuse or mental health issues

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• Funded primarily with fees paid to support disciplinary system

• Confidential assistance to Iowa lawyers

• Not just drug/alcohol problems—also mental health issues, compassion fatigue, and stress concerns

• Contact:

• Hugh Grady, Director

• Tel. (800) 243-1533, Cell (515) 360-1011

• http://www.iowalap.org