The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant,
Donald E. GARTIN, Respondent.
Lee H. Gaudineer, Jr., and Roger J. Kuhle, Des Moines, for complainant.
Thomas M. Walter, Ottumwa, for respondent.
Considered en banc.
This disciplinary proceeding was initiated by the filing of an application for order requiring respondent Donald E. Gartin to show cause why he should not be held in contempt of court for failing to comply with an order of suspension heretofore entered, and to have his license to practice accordingly revoked.
The respondent was licensed to practice law in the various courts of this state, and maintained an office in Mt. Pleasant until November 10, 1976, on which date an order was entered by this court temporarily suspending his license to practice law on the grounds that he had been convicted of a crime, to-wit: perjury. The order of suspension under Supreme Court Rule 118.14 was reaffirmed on December 14, 1976, at which time this court ordered the respondent to refrain from any activity including all facets of the ordinary law practice including, but not limited to, examination of abstracts, consummation of real estate transactions and preparations of deeds, buy and sell agreements, contracts, wills and tax returns.
On August 29, 1977 the complainant Committee on Professional Ethics and Conduct of the Iowa State Bar Association filed with this court an application for an order requiring respondent to show cause why he should not be held in contempt and have his license to practice law in this state revoked, alleging that respondent had continued to practice law and hold himself out to be a lawyer in violation of the suspension order entered on November 10, 1976 and reaffirmed on December 14, 1976. The complainant alleges in its application for order to show cause that respondent has engaged in conduct which constitutes the practice of law in violation of the court's order and specifically alleges that such activities include: (1) the preparation and certification of abstracts affecting title to real estate; (2) the preparation and execution of a court officer's deed and an affidavit of possession as to real estate over which he was conservator; (3) a failure to withdraw as attorney of record as to all litigation in which he was counsel as of November 10, 1976; (4) the continuation of his lawyer professional liability insurance; (5) accompanying former clients to real estate closings; (6) continuing to use his letterhead stationery, statement forms and envelopes which identify the respondent as an attorney in correspondence with both clients and nonclients, as well as continuing to be listed in the yellow pages of the telephone directory and using the same office which he had previously used as a law office; (7) filing a probation report with the Henry County court to discharge a former client from probation; (8) filing a notice of attorney's lien in the district court for fees generated prior to his suspension; (9) appearing pro se as an intervenor in the matter of an estate which respondent had represented prior to his suspension;
and (10) the preparation of articles of incorporation, certificates of stock, and corporate bylaws in connection with a corporation of which respondent is an incorporator and shareholder with two lay persons who reside in Mt. Pleasant.
A more detailed elaboration of the factual situations involved with each of the foregoing allegations will be discussed in detail below.
I. As a preliminary matter, we note this court has inherent constitutional power to discipline attorneys within the State of Iowa, this power extending to attorneys who are under suspension from the practice of law. Committee on Professional Ethics and Conduct of Iowa State Bar Association v. Toomey, 253 N.W.2d 573 (Iowa). An attorney may be found in contempt and liable to disbarment for violating a suspension order. Toomey, supra.
II. The first issue for our consideration is whether the preparation and certification of abstracts of title constitutes an ordinary part of the practice of law. It is undisputed that the respondent prepared and certified some 32 abstracts during the time of his suspension. It is also undisputed that the preparation and examination of abstracts is not done solely by lawyers in this state, although such is commonly part of the general practice of law in Iowa. The complainant contends that since such acts constitute an ordinary part of the practice of law, an attorney under suspension is barred from preparing or certifying them even though he might otherwise have done so as a lay person. In support, complainant cites In re Lizotte, 32 R.I. 386, 79 A. 960, in which a suspended attorney was found in contempt for having searched records and certified abstracts. In Lizotte, the court commented at page 961 of 79 A.:
"The matters above enumerated are regular, legitimate, and recognized parts of a lawyer's profession, . . . . Members of bar who are under suspension will be required to comply with the terms of the decree suspending them in such a manner that there may be no ground for suspicion on the part of other members of the bar or of the public that the decrees of this court are not being exactly observed in their letter and their spirit. A failure to so act will be a cause for further punishment."
We have reached a similar conclusion regarding the preparation of income tax returns. See Toomey, supra. Applying a similar rule to the preparation of abstracts would seem to be appropriate. To allow an attorney to continue in either of such activities while under suspension would permit a continuance of the practice of law as far as would be discernable to the remainder of the bar and the public at large.
Respondent points out that the Supreme Court of New Jersey reached a contrary result in In re Stoldt, 37 N.J. 364, 181 A.2d 364. Stoldt is partially distinguishable in that it involved a specific rule concerning the employment of suspended attorneys in providing services in law offices in the practice of law. None of the activities there challenged took place in law offices. Even so, the court found that Stoldt's work as an "abstractor" did not constitute the practice of law. We find to the contrary based on the reasoning found in Lizotte, supra, which is also enunciated in State ex rel. Nebraska State Bar Association v. Butterfield, 172 Nebraska 645, 111 N.W.2d 543. An extensive quote from Butterfield which appears at page 546 of 111 N.W.2d applies to the matter before us:
". . . Admittedly, respondent performed such work prior to his suspension. Some were performed in relation to real estate transactions in which he was the real estate broker, but in others he was not. It seems clear to us that the doing of such work is within the province of a lawyer to do. It is properly identified as the practice of law, whether or not it might under some circumstances be properly performed by others not admitted to the bar. An order of suspension deprives the suspended lawyer from performing any service recognized as the practice of law and which is usually performed by lawyers in the active practice of law. It is the contention of respondent that these
services were performed in his capacity as a licensed real estate broker, notary public, abstracter, and loan agent. It is not necessary for us to determine in this case if and under what circumstances others might perform such services, although not admitted to the bar. A suspended lawyer, who in connection with his law office engages in other activities, is in no different position than the active lawyer who confines himself solely to the practice of law in determining if the suspension order was violated. Where one is generally known in a community as a lawyer, it might well be impossible to divorce two occupations closely related if the rule were otherwise. A suspended lawyer will not be heard to say that services recognized as within the practice of law were performed in some other capacity when he is called to account." (Emphasis supplied).
Respondent also notes that the title standards of the Henry County Bar Association were changed in 1977 to allow acceptance of abstracts which were not prepared by other attorneys. This provides little consolation to the respondent for the title standards were changed only after a member of the local bar had inquired as to the proper reception to be accorded an abstract prepared and certified by respondent. Thus a portion of the respondent's conduct in preparing abstracts clearly antedated the change in the local title standards. Regardless of the effective date of the amendment to the title standards, respondent's conduct both preceding and following the amendment would seem to be covered by the rationale of the Lizotte case, and followed by the Nebraska Court in Butterfield.
III. With respect to the complainant's allegation that respondent prepared and executed a court officer's deed and an affidavit of possession in the fiduciary position of guardian and conservator, there appears to be some conflict in the record as to whether respondent actually prepared the instruments in question. At the hearing before the commissioner, the respondent testified that if he had prepared the documents, it was on the advice of his counsel. At the direction of a judge of the district court, respondent engaged independent counsel to represent him in the guardianship-conservatorship. In light of the factual uncertainty with respect to respondent's action in this regard, and in view of the fact he had retained counsel for the guardianship, we deem it improper to lay any emphasis on this allegation in the complaint. In fact, this instance does not appear to have been argued by the complainant in its brief as an isolated violation of the suspension order, but only as a "part of the overall circumstances" to be considered.
The complainant does claim the respondent was appointed guardian-conservator because of his expertise as a lawyer, and therefore continuing in that capacity after his suspension is subject to criticism. The engagement of independent counsel for the guardianship-conservatorship, however, would seem to indicate an intention on the part of the respondent to comply with the direction of the court. We place no emphasis on this circumstance.
IV. The complainant contends Gartin failed to withdraw as attorney of record from all litigation in which he was counsel as of November 10, 1976, the date of his suspension. This contention stems from the fact Gartin's name remained on the listing of cases pending in Henry County. Complainant did not argue this point in its brief and argument.
Gartin stated under oath there was only one case "still active" which he had not transferred to other counsel, and in that case he had given notice to the party he had represented that he could not continue in the case in light of the suspension order. The transcript of testimony further indicates Gartin had been informed by some source that he did not have to formally withdraw from all cases, and a reading of the transcript indicates this source might have been District Judge Bainter, who had ordered the office of the clerk of the court to send out several notices of withdrawal to parties Gartin had been representing. Such conduct on Gartin's part would seem to
indicate a good faith effort to comply with the suspension order, leaving his name associated only with inactive cases in the district court.
The foregoing analysis may be subject to one qualification it is unclear what Gartin meant by an "active" case. If he had reference to a case which would soon be coming to trial, then there would be reason for him to withdraw. If he meant a case that would not be coming to trial until a later date, at a time which he hoped would be subsequent to the restoration of his license and when he would wish to continue to represent one of the parties involved, then he would in fact continue to be of counsel during the period of his suspension and it would then be arguable that he violated ...