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Iowa Supreme Court Attorney Disciplinary Bd. v. Attorney Doe No. 762

Supreme Court of Iowa

November 8, 2013

ATTORNEY DOE NO. 762, Respondent, Jane Doe and John Doe, Appellants.

Charles L. Harrington and Amanda K. Robinson, Des Moines, for complainant.

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Max E. Kirk and Eashaan Vajpeyi of Ball, Kirk & Holm, P.C., Waterloo, and Heather A. Prendergast of Roberts, Stevens, Prendergast & Guthrie, P.L.L.C., Waterloo, for respondent.

Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des Moines, for appellants.

APPEL, Justice.

We are called upon to consider whether a witness testifying before the Grievance Commission of the Supreme Court of Iowa is entitled to the presence of counsel. In this case, the commission president entered an order which, among other things, quashed the appearance of an attorney for a witness before the commission. We conclude a person called upon to be a witness before our grievance commission may be represented by counsel for the limited purpose of protecting rights personal to the witness in the proceeding.

I. Factual Background and Proceedings.

A client, Jane Doe, filed a complaint with the Iowa Supreme Court Attorney Disciplinary Board alleging she was subjected to sexual misconduct by an attorney, Attorney Doe, when she and her husband were Attorney Doe's clients. The Board subsequently filed a complaint against Attorney Doe on the basis of Jane's allegations. A division of the grievance commission was appointed to hear the complaint. The commission scheduled a hearing for June 24, 2013.

On May 16, attorney Roxanne Conlin filed an appearance on behalf of Jane before the commission and requested a continuance of the scheduled hearing. Conlin advised the commission that Jane had filed a civil lawsuit in Black Hawk County related to events alleged in the complaint and that it would be unfair to require her to testify before the commission without her counsel present. Conlin further advised she would be out of the state when the hearing was scheduled to receive treatment to ensure full recovery from a recent stroke. She asked that the hearing be continued so that she could be present when her client testified before the commission.

On May 23, Attorney Doe responded by objecting to the appearance and request for continuance. Attorney Doe noted the hearing was originally scheduled for February 13, 2013, and was continued at the Board's request so further discovery could take place. Attorney Doe emphasized that attorney disciplinary proceedings are intended to be held within a short time after the complaint has been filed. See Iowa Ct. R. 35.7(1) (stating hearings should not be held more than ninety days after complaint has been served). Attorney Doe noted that Jane filed her civil action on September 10, 2012, and that Conlin had ample time to file an appearance sooner.

Attorney Doe took no position on whether Conlin should be allowed to enter an appearance on behalf of Jane as the complaining witness, except to state that he " objects to attorney Conlin participating in any capacity resembling that of an attorney representing the Board or aiding in the Board's prosecution of the matter." Attorney Doe urged that Conlin be " precluded from acting as counsel or co-counsel on behalf of the Board during the hearing on the matter."

In its response, the Board did not object to Conlin's appearance or request for a continuance. The Board remarked the requested continuance was not lengthy and noted Attorney Doe had previously moved for an indefinite stay of the proceedings pending the outcome of the civil suit. According to the Board, in light of Attorney

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Doe's request for a more lengthy delay, Conlin's request for a brief delay seemed reasonable. The Board observed that Conlin's stroke and subsequent recovery were not predictable and that, even if Conlin had filed an earlier appearance, the parties would still have had to address the scheduling conflict.

On the same day Attorney Doe and the Board filed their responses, the commission president issued an order. The order stated that hearings before the commission were confidential and that there was no rule entitling a witness to have an attorney present or to have an attorney participate in proceedings before the commission. The order noted that while Jane argued it would be unfair to require her to testify without counsel present, she had not set forth the specific nature of the alleged unfairness. Further, the order indicated the commission had not found authority supporting Jane's position. The order indicated fairness to the respondent was the paramount concern before the commission and the rules requiring confidentiality of the proceedings were for the benefit and protection of the respondent. The order found the absence of her attorney from the hearing would cause no unfairness to Jane. Based on the above reasoning, the order quashed Conlin's appearance and denied her request for a continuance. The order also admonished Conlin that to the extent she had already participated in commission proceedings, they were confidential under Iowa Court Rule 36.18 and were not to be disclosed to third parties except in very limited circumstances.

Jane sought interlocutory review of the commission's order, which we granted.

II. Standard of Review.

We review rulings of the grievance commission de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. K.G.T., 722 N.W.2d 787, 789 (Iowa 2006).

III. Discussion.

A. Context of Issues Raised on Appeal.

1. Overview of Iowa attorney disciplinary process and related caselaw.

This court bears the responsibility of ensuring that Iowa lawyers comply with the Iowa Rules of Professional Conduct. We fulfill this responsibility employing a process established through our court rules. See generally Iowa Ct. Rs. chs. 34-36 (containing the rules governing the Board, attorney discipline process, and commission).

Under the established process, the Iowa Supreme Court Attorney Disciplinary Board may investigate complaints regarding attorney misconduct. Id. r. 34.8(1)( c ). When, based on the investigation, the Board determines prosecution is warranted, the Board may file a complaint against the attorney with the commission. Id. rs. 34.11(5), 36.3. A panel of commissioners is then selected to hear the evidence, see id. r. 36.14(1), and may either dismiss the case, issue a private admonition, or recommend that we reprimand the attorney or suspend or revoke the attorney's license to practice law, id. r. 35.10. In any case in which the commission recommends a reprimand, suspension, or revocation, the commission files findings of fact, conclusions of law, and recommendations in this court. Id. While we are respectful of the commission's findings, conclusions, and recommendations, we engage in a de novo review of the record. E.g., Io ...

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