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Iowa Supreme Court Atty. Disciplinary Bd. v. McGinness

Supreme Court of Iowa

March 21, 2014


Page 457

On review of the report of the Grievance Commission of the Supreme Court of Iowa. The Grievance Commission of the Supreme Court of Iowa recommends the respondent receive a six-month suspension.

Gregory M. Lederer of Lederer Weston Craig PLC, Cedar Rapids, for appellant.

Charles L. Harrington and Teresa A. Vens, Des Moines, for appellee.

Waterman and Mansfield, JJ., take no part.


Page 458

APPEL, Justice.

In this case, we review a recommendation of the Grievance Commission of the Supreme Court of Iowa to suspend the license of Jeffrey K. McGinness for six months because he falsified certificates of service attached to discovery requests sent to opposing counsel and then defended the validity of the certificates in judicial proceedings. Following a hearing on a complaint filed by the Iowa Supreme Court Attorney Disciplinary Board, the commission found McGinness violated Iowa Rules of Professional Conduct 32:3.3(a)(1) (knowingly making false statements to a tribunal), 32:8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 32:8.4(d) (conduct prejudicial to the administration of justice). McGinness appealed the commission's recommended sanction. McGinness admits he engaged in the misconduct as alleged by the Board, but argues his license should not be suspended for more than three months.

Upon our de novo review, we agree with the commission that the Board established by a convincing preponderance of the evidence that McGinness violated rules 32:3.3(a)(1), 32:8.4(c), and 32:8.4(d). We also agree with the commission that McGinness should be suspended from the practice of law with no possibility of reinstatement for six months.

I. Factual and Procedural Background.

The facts are not disputed. McGinness attended the University of Iowa as an undergraduate where he was a national champion wrestler. After graduating from the University's law school in 2001, he passed the Illinois bar examination and was employed by a law firm in Chicago. He returned to Iowa in 2007, obtained an Iowa law license through reciprocity, and was employed by a prominent eastern Iowa law firm.

In 2012, McGinness represented the plaintiff in a civil action filed in the Iowa District Court for Polk County. His client's deposition had been scheduled for June 18. Five days before the scheduled deposition, McGinness realized he had not served discovery requests on opposing counsel. McGinness believed his failure to obtain responses from the opposing party prior to his client's deposition was a strategic mistake.

Page 459

To cure his oversight, McGinness embarked on a course of dishonest conduct he will regret for the remainder of his legal career. Instead of seeking an accommodation from opposing counsel or simply proceeding with the scheduled deposition, he decided to lie about his failure to serve discovery. McGinness began by emailing opposing counsel demanding responses to the discovery requests by the end of the next day " to avoid the need to reschedule the deposition." When opposing counsel responded that he had not received any discovery requests from McGinness, McGinness replied via an email to which he attached two discovery requests he had purportedly served March 21. The discovery requests contained McGinness's signature as well as purported certificates of service indicating the requests had been served March 21 by U.S. Mail. The certificates of service appeared to have been signed by McGinness's administrative assistant.

Though McGinness may have prepared the discovery requests at some prior time, McGinness had not, in fact, served opposing counsel with those discovery requests on March 21. When he realized his error, McGinness fabricated false certificates of service by photocopying an old certificate of service from his response to opposing counsel's discovery requests in the same case. McGinness attached the false certificates to the discovery requests and sent the package to opposing counsel.

Finding the circumstances suspicious, opposing counsel examined electronic data embedded in the discovery documents received from McGinness. Opposing counsel determined the documents had been created in June. Documents created in June obviously were not served in March. Opposing counsel then hired a handwriting expert. After comparing the certificates of service on the discovery documents emailed by McGinness with the certificate of service on McGinness's response to opposing counsel's discovery requests, the expert concluded the former were photocopies of the latter.

Opposing counsel confronted McGinness with his beliefs McGinness had not served the discovery requests in March and the certificates of service were falsified. To support his allegations, opposing counsel noted McGinness had never before mentioned the discovery requests despite repeated communications about discovery, the documents themselves indicated they were not created in March, and inspection of the documents revealed the signatures were identical. McGinness did not fess up; he embellished. He told opposing counsel he specifically recalled preparing and signing the discovery requests at the same time he responded to opposing counsel's discovery requests and may have served them the same day. He further informed opposing counsel that, because he did not sign the certificate of service, he could not speak to the allegation of identical signatures and that his secretary, who signs many certificates of service each week, had no recollection of signing it.

Opposing counsel filed a motion for sanctions with the district court. Once again, McGinness embellished instead of fessing up. McGinness filed a response with the district court in which he maintained neither he nor his assistant photocopied nor duplicated previously used certificates of service. McGinness added a new layer to his fraudulent conduct by hiring an expert at his own expense to defend the position he knew to be false. McGinness represented to the district court that his own expert found the signatures were not identical. Finally, McGinness attempted to discredit opposing counsel's theory that he was motivated by a desire to delay the deposition.

Page 460

McGinness communicated with his client about the pending sanctions motion. In an email, McGinness noted opposing counsel had alleged McGinness had fabricated certificates of service dates in an attempt to delay the client's deposition. McGinness informed his client that he did " not take these allegations lightly" and that he had discussed the motion with opposing counsel. McGinness also informed his client he had hired, at his own expense, " a forensic document examiner who is willing to testify that the certificates are not fabricated."

The district court scheduled a hearing on the sanctions motion. At the hearing, McGinness once again chose not only to maintain the lie, but to embellish. He insisted the certificates of service were not fabrications. He also attacked the conclusions of opposing counsel's handwriting expert. After the district court expressed its opinion to McGinness it did not think it needed a handwriting expert to see the fabricated certificates of service matched the one on the response to opposing counsel's discovery requests, McGinness asserted there was no evidence to explain why the certificates of service were identical. McGinness acknowledged his administrative assistant's signature was on the certificates of service, but stressed that she signs a significant number of documents each week. He further stressed that he has multiple administrative assistants and that any of them could have prepared the documents.

The district court rejected McGinness's now elaborate deceit. The district court found McGinness intentionally and knowingly affixed false certificates of service to discovery requests to cause unnecessary delay in the progression of the litigation. The district court further noted, " McGinness's behavior is so shocking and egregious that it is hard even to know what to say about it." The district court continued, " It is deeply disappointing to find that a member of the bar has engaged in such elaborate, calculated, and premeditated deceit." The district court sanctioned McGinness pursuant to Iowa Rule of Civil Procedure 1.413(1). The district court ordered McGinness to pay $5152 to opposing counsel and $2348 to the Iowa Judicial Branch.[1] The district court forwarded a copy of the sanctions order to the state court administrator.

After receiving the district court order, McGinness disclosed his conduct to his law firm. While a senior partner testified he urged McGinness to report his misconduct to the Board, McGinness testified he had received an inquiry from the Board shortly after he received the court order, which nullified his ability to self-report. McGinness's firm told McGinness he had betrayed their trust. At this point, McGinness voluntarily withdrew from the firm and began a solo practice in Iowa City. While expressing shock at ...

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