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Iowa Supreme Court Atty. Disciplinary Board v. Baldwin

Supreme Court of Iowa

December 12, 2014

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
SETH EUGENE BALDWIN, Respondent

Page 196

[Copyrighted Material Omitted]

Page 197

On review of the report of the Grievance Commission of the Supreme Court of Iowa. Grievance commission reports respondent committed numerous violations of the rules of professional conduct and recommends suspension.

Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.

Seth E. Baldwin, Shenandoah, pro se.

OPINION

Page 198

ZAGER, Justice.

The Iowa Supreme Court Attorney Disciplinary Board charged attorney Seth E. Baldwin with violations of numerous Iowa Rules of Professional Conduct in his representation of Candace Johnson (Candace) in several matters. After a hearing, a division of the Grievance Commission of the Supreme Court of Iowa found Baldwin violated a number of our rules of professional conduct. The commission recommended we suspend Baldwin's license indefinitely with no possibility of reinstatement for at least six months. It also recommended that we require him to retake and pass the Multistate Professional Responsibility Exam as a condition of reinstatement, that we order him to immediately return all records and files to Candace, and that we order him to pay restitution for all attorney fees assessed against her in her modification action. Upon our de novo review, we concur in most of the findings of rule violations, but conclude that a three-month suspension is appropriate.

I. Background Facts and Proceedings.

Baldwin was admitted to practice law in Iowa in 2006. fro 2009 to 2012, Baldwin represented Candace in several matters that form the basis of the Board's complaint. These matters included: a dissolution of marriage action between Candace and her former spouse, Randy Johnson (Randy); a subsequent action to modify the decree; a domestic abuse action; a criminal case; and briefly, two child-in-need-ofassistance (CINA) cases concerning Candace and Randy's minor children, T.J. and A.J.

Baldwin's representation of Candace began in July 2009, when he was hired to represent her in a dissolution of marriage

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action filed by Randy. In July 2010, the district court entered a stipulated decree of dissolution of marriage. The decree provided, in part, that the parties have joint legal custody, with shared physical care, of the minor children.

Initially, the shared physical care arrangement worked well. However, over time Candace grew concerned with Randy's behavior, which in her view became threatening towards her and the children. In response to these concerns, on May 9, 2011, Candace filed a petition for relief from domestic abuse against Randy in which she asserted that Randy had been threatening her, the children, and her friends, and that she was concerned for their safety. In her petition, Candace requested the court order Randy to stay away from her home and work; order him not to contact her by any means; and give her temporary primary care of the children, with appropriate visitation for Randy. That same day, the district court entered a temporary protective order in her favor, requiring that Randy stay away from her, that he not try to contact her by any means, and that she have custody of the children pursuant to the terms established in the 2010 dissolution decree. The order further set a hearing for May 23, to decide if a final protective order should be entered.

On May 10, Candace met with Baldwin to discuss the problems she was having with the present shared physical care arrangement. Baldwin suggested they seek to modify the 2010 dissolution decree and seek primary physical care of the children. Candace expressed that her ultimate goal was not to deprive Randy of the ability to spend time with the children, but rather to stop his troubling behavior so that the shared physical care arrangement could proceed amicably. Based on Baldwin's advice, Candace hired Baldwin to represent her in an action to modify the 2010 dissolution decree, and she and Baldwin entered into a written fee agreement concerning the matter.

The fee agreement provided that Baldwin would charge Candace a flat fee of $2500 for the modification action. Under the agreement, the first $1250 would be earned by Baldwin when Baldwin filed a petition or answer in the matter. The remaining fee of $1250 would be earned upon the entry of the final decree or order, or when the action was otherwise completed or dismissed. The agreement further provided that if the action was substantially uncontested, the fee would be reduced to $1500. Candace would be responsible for related expenses, and she was to advance the sum of $250 to Baldwin for these potential future expenses. Finally, the agreement provided that if Candace dismissed the action before its completion, she would be charged at an hourly rate of $150 for all services rendered.

On May 16, rather than filing a petition for modification, Baldwin filed an application for emergency temporary order in the district court, asking that the court temporarily modify custody so that Candace would have sole primary care of the minor children. That same day, the district court scheduled a hearing on the application for May 23.

On May 20, Baldwin entered his appearance in the domestic abuse action. Baldwin, believing the domestic abuse action to be directly related to the modification action, performed this work under the modification agreement. The two did not enter into a new fee agreement.

That same day, counsel for Randy, Joseph Nugent, filed a motion to dismiss the application for emergency temporary order. He asserted that such an application was inappropriate and that the district court was without authority to enter a

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temporary order modifying physical care when neither party had yet filed a petition to modify the dissolution decree.

On May 23, the day of the hearing on the application for emergency temporary order, Nugent filed an amended motion to dismiss the application. Nugent reasserted his prior position on the dismissal and asserted an additional ground for dismissal, namely that the application failed to comply with Iowa Rule of Civil Procedure 1.413(3)[1] because it did not contain an affidavit " of the person or persons knowing the facts requisite to such relief." Baldwin quickly filed an affidavit in support of the application for emergency temporary order, wherein Candace attested to the facts underlying the application.

The hearing proceeded as scheduled. Despite the fact that neither party had yet filed a petition to modify the dissolution decree--usually a prerequisite to obtaining an emergency temporary custodial order--the district court reached the merits on the assumption that one of the parties would file a petition to modify soon thereafter. On the merits, the court denied the application, noting, in reference to the pending domestic abuse action, " this matter is probably more appropriately going to be taken up on the permanent protective order issue." [2]

Also on May 23, Nugent filed a petition to modify the 2010 dissolution decree. In the petition, Nugent requested the court grant Randy primary physical care of the minor children. On June 23, Baldwin filed an answer to the petition to modify and additionally filed a cross-petition to modify the 2010 dissolution decree, requesting the court grant Candace primary physical care of the minor children.

On July 7, the district court filed its amended protective order in the domestic abuse action. As part of its order, the court extended its prior order requiring Randy to stay away from Candace and not try to contact her by any means. However, the district court continued the shared physical care arrangement for the children pursuant to the 2010 dissolution decree.

In early August, Candace was charged with possession of drug paraphernalia, in violation of Iowa Code section 124.414. See Iowa Code § 124.414 (2011). Candace and Baldwin met to discuss the charge, and Baldwin agreed to represent Candace. The two entered into a second fee agreement whereby Baldwin would charge Candace a flat fee of $500. Under the agreement, the first $250 would be earned by Baldwin when Baldwin filed an appearance, or a written arraignment and not guilty plea. The remaining $250 would be earned when the action was completed or dismissed. The agreement also provided that Candace would be responsible for all related expenses.

On October 12, the Montgomery County Attorney filed two CINA petitions concerning the minor children, T.J. and A.J. The petitions were based on an assessment conducted by the Iowa Department of Human Services (DHS) in which DHS alleged Candace was engaged in drug dealing and drug use in her home while her children were present. The petitions further alleged that T.J. and A.J. were likely to suffer mental injury as a result of Candace's

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conduct and that Candace had failed to exercise a reasonable degree of care in supervising the children, making them children in need of assistance under Iowa Code section 232.2(6)(c)(1) and (2).[3]

On October 27, the juvenile court held an adjudicatory hearing in the CINA cases. Baldwin briefly attended the hearing and offered two affidavits in support of Candace, each claiming that she had not been in possession of drug paraphernalia in August 2011 and that her children were not children in need of assistance. Baldwin then told the juvenile court he would not be representing Candace in the CINA proceedings, which came as a surprise to Candace. Baldwin then left the hearing, and the juvenile court appointed another attorney to represent Candace in the CINA cases.

As part of the modification proceedings, Baldwin wanted to learn the identity of the person or persons who had alerted law enforcement and DHS to suspected drug activity by Candace. On October 28, Baldwin issued two subpoenas duces tecum, one to the sheriff and one to DHS, each prepared under the dissolution of marriage caption and case number. Each subpoena commanded the production of information regarding the identity of and statements made by any and all informants against Candace regarding allegations of any type of suspected wrongdoing over the past five years. This information was to be produced by November 10. Iowa Rule of Civil Procedure 1.305(13)[4] discusses service of process on a state agency, and Iowa Rule of Civil Procedure 1.1701(3)(a)[5] discusses notice of service of process on interested parties. Baldwin complied with neither of these rules as he had the DHS subpoena served on an employee working in the local DHS office, and he did not serve a notice of these subpoenas on either Randy or Nugent.

On November 8, the juvenile court filed an adjudicatory order in the CINA cases. Based on a report that numerous drug paraphernalia items had been confiscated from Candace's residence, the juvenile court concluded that T.J. and A.J. were children in need of assistance and placed the children in the care, custody, and control of Randy, subject to DHS supervision. It also authorized Candace to visit the children as arranged and approved by DHS. The juvenile court further granted a motion for concurrent jurisdiction previously filed by Randy, which allowed the modification action to proceed. Also on this date, the district court dismissed the

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paraphernalia charge against Candace, noting that the State acknowledged the alleged paraphernalia may have belonged to someone other than Candace.

Based on the grant of concurrent jurisdiction, a scheduling conference was held in the modification action on November 28. Baldwin participated in this scheduling conference on behalf of Candace. At the scheduling conference, the district court scheduled a two-day trial to begin on May 3, 2012, and established April 26, 2012, as the deadline for the parties to file their respective witness and exhibit lists.

On December 8, the juvenile court held a dispositional hearing in the CINA cases. On December 20, the juvenile court filed its order which continued the CINA proceedings and the placement of T.J. and A.J. in the care, custody, and control of Randy. The order also allowed Candace to continue visiting the children as arranged and approved by DHS.

By the middle of April, neither the sheriff nor DHS had complied with the subpoenas duces tecum previously issued by Baldwin. Therefore, on April 20, Baldwin filed two motions to compel compliance with those subpoenas. Neither motion was served on any party or counsel, and neither motion contained certificates of service, despite the requirements of Iowa Rule of Civil Procedure 1.442.[6] The district court granted the motions to compel that same day, ex parte.

On April 26, Nugent filed a motion to quash the subpoenas duces tecum previously issued to the sheriff and DHS. Nugent alleged that Baldwin had not complied with Iowa Rule of Civil Procedure 1.1701(3)(a), which requires service of notice of these subpoenas on Nugent. Nugent also filed a motion in limine to prevent the use of any documents or presentation of any testimony regarding documents obtained through the improperly issued subpoenas.

On April 27, six days prior to the scheduled start of the modification trial, and after the deadline to exchange witness and exhibit lists, Candace met with Baldwin to prepare for trial and to deliver documents to Baldwin. At this meeting, Baldwin and Candace discussed the testimony and evidence to be presented at trial. Baldwin assured Candace that a number of experts would be testifying on her behalf.

On April 30, DHS filed a motion resisting the motion to compel, requesting the district court reconsider the April 20 order to compel, and requesting that it quash the subpoena duces tecum. This motion alleged that Baldwin had failed to have DHS properly served pursuant to Iowa Rule of Civil Procedure 1.305(13). The motion further asserted that DHS was prohibited from disclosing the information requested in the subpoena duces tecum by Iowa Code section 232.71B(2),[7] which protects informants

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in CINA cases. Finally, the motion alleged that the district court had erroneously granted the motion to compel without providing DHS an opportunity to be heard.

On April 30, the district court held a hearing on the various motions regarding the improperly issued subpoenas. On May 1, the district court filed its order granting the various motions. In its order, the court found that neither Randy nor Nugent received a service copy of the subpoenas issued to the sheriff or DHS. The court also found that service of the subpoena on a DHS employee working in the local DHS office was not proper service pursuant to rule 1.305(13) and that the subpoena served on DHS sought information which DHS is prohibited from releasing under Iowa Code section 232.71B(2). Accordingly, the district court vacated its April 20 order, quashed the subpoenas issued to the sheriff and DHS, granted Nugent's motion in limine, and awarded Randy attorney fees for his motion to quash subpoena, which totaled $1260.40.

On May 2, Baldwin prepared witness and exhibit lists for the modification trial, which he purportedly faxed to Nugent that same day. On May 3, the day of the modification trial, Nugent advised the district court that he had not received Baldwin's witness or exhibit lists. Accordingly, Nugent filed a motion in limine to prevent Candace from presenting any documents or witness testimony due to the failure to comply with the April 26 disclosure deadline. Baldwin told the court that he had sent these lists to Nugent, but failed to bring them with him to court. After hearing arguments of counsel, the district court found that Candace had failed to timely provide her witness or exhibit lists. The court gave Candace the option of either having the motion in limine granted and proceeding to trial as scheduled, or having the trial continued with the court ordering her to pay all of Randy's costs and attorney fees. Candace chose to have the trial continued. The court rescheduled the trial for August 16, ordered Candace to pay Randy's attorney fees and expenses totaling $1874.90, and ordered Candace to have her witness and exhibit lists submitted by May 9.

Sometime between May 4 and May 7, Candace decided to discharge Baldwin as her attorney and stopped payment on a check she had written to Baldwin on May 2. In this time period, Candace spoke with Baldwin and told him that she would be discharging him and that she had ...


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