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Iowa Supreme Court Attorney Disciplinary Bd. v. Weiland

Supreme Court of Iowa

May 1, 2015

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
KENNETH J. WEILAND, JR., Respondent

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Page 630

On review of the report of the Grievance Commission of the Supreme Court of Iowa. The grievance commission reports an attorney committed ethical misconduct and recommends a public reprimand.

Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for complainant.

Kenneth J. Weiland, Jr., Des Moines, Pro se.

ZAGER, Justice. All justices concur except Wiggins, J., who dissents.

OPINION

Page 631

ZAGER, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) charged attorney Kenneth J. Weiland Jr. with violations of several of our ethical rules based on his actions in an appeal filed with this court. After a hearing, a division of the Grievance Commission of the Supreme Court of Iowa found Weiland's conduct was prejudicial to the administration of justice in violation of Iowa Rule of Professional Conduct 32:8.4(d), and recommended we impose a public reprimand. Upon our de novo review, we concur in the commission's finding that Weiland's conduct was prejudicial to the administration of justice in violation of rule 32:8.4(d). Additionally, we conclude Weiland failed to make reasonable efforts to expedite litigation consistent with the interests of his client in violation of Iowa Rule of Professional Conduct 32:3.2. Ultimately, we agree with the commission that a public reprimand is appropriate.

I. Factual Background and Proceedings.

Weiland was admitted to practice law in Iowa in 1994. He currently works in Des Moines, as a solo practitioner. His practice includes representing clients in a variety of matters, including family law. The Board's complaint in this case stems from Weiland's representation of Ryan Pierce in an appeal from a domestic relations case.

Weiland's representation of Pierce began in 2012 when Weiland agreed to represent Pierce in a domestic relations case. The case proceeded to trial on December 17, 2012. The district court entered a decree in the matter on January 2, 2013. After reviewing the decree, Weiland concluded the district court failed to address an issue he believed it was required to address. Accordingly, Weiland informed Pierce that there were sufficient grounds to appeal the case. Based on Weiland's advice, Pierce elected to appeal the case. Weiland filed a notice of appeal on January 31.

After filing the notice of appeal, Weiland failed to file and serve a combined certificate or pay the filing fee as required by our rules of appellate procedure. See Iowa R. App. P. 6.702(1)(a) (establishing the filing fee for appeals and requiring the appellant to " pay the fee . . . within seven days after filing the notice of appeal" ); Id. r. 6.804(1) (requiring the appellant to complete and file a combined certificate " within seven days after filing the notice of appeal," and further requiring the appellant to " serve the combined certificate on all parties to the appeal and on each court reporter from whom a transcript was ordered" ). On March 8, the clerk of the Iowa Supreme Court sent Weiland a notice of default informing him of the deficiency and assessing a $150 penalty against him. The notice further informed Weiland that if he failed to remedy the default within

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fifteen days, the clerk would dismiss the appeal for want of prosecution. See id. r. 6.1202(1)( a ) (" If the appellant fails to cure the default, the clerk shall enter an order dismissing the appeal." ).

On the morning of March 25, Weiland called the court reporter that had reported the trial, Lisa McCarville, and requested a transcript of the Pierce trial. Later that morning, McCarville sent Weiland a follow-up email in which she stated that after their phone conversation, she reviewed her records and determined the transcript would cost $220.50. The email further stated that she would need a copy of the combined certificate. Additionally, the email stated, " I will get to work on the transcript as soon as I receive your deposit." That same day, Weiland filed a combined certificate with the clerk in which he certified that " the Transcript ha[d] been ordered." He did not serve McCarville with the combined certificate.

On June 4, the clerk sent both Weiland and McCarville a notice of failure to timely file transcript notifying them that McCarville had not filed the transcript by the deadline. See id. r. 6.803(3)( c ) (establishing the deadline for filing transcript as forty days after service of the combined certificate). On June 5, McCarville filed a reporter's application for an extension of time to file a transcript. In the application, she certified that she " ha[d] not received an order for transcript from . . . Weiland" because he had not served her with a copy of the combined certificate. See id. r. 6.803(1) (requiring the " appellant [to] use the combined certificate to order in writing from the court reporter a transcript" ). The application also noted that she had not received a deposit for the transcript.

On June 17, this court filed an order requiring Weiland to " serve court reporter McCarville with the combined certificate and pay her required deposit" by June 27. The order further stated, " [F]ailure to pay [for] the transcript should be reported by the court reporter to this court, and will result in [the] appeal being dismissed for appellant's failure to comply with the appellate rules." On July 8, eleven days after the deadline, McCarville filed a reporter's report of nonpayment in which she certified that as of July 3, Weiland had not sent her a combined certificate or paid the deposit. Accordingly, on July 18, this court filed an order dismissing the appeal for failure to comply with our appellate rules and instructing the clerk to forward a copy of the order to the Board for further action. See id. r. 6.1202(3) (" Following the dismissal of an appeal for failure to comply with an appellate deadline where the appellant was represented by an attorney, the clerk . . . shall forward certified copies of the docket, the notice of default which resulted in dismissal, and the order of dismissal to the . . . Board." ).

Based on these facts, the Board filed a complaint on August 11, 2014. In its complaint, the Board alleged Weiland violated Iowa Rules of Professional Conduct 32:1.3 (requiring diligence), 32:3.2 (requiring reasonable efforts to expedite litigation), 32:3.3(a)(1) (prohibiting false statements to a tribunal), 32:3.4(c) (requiring compliance with the rules of a tribunal),[1] and 32:8.4(d) (prohibiting conduct prejudicial to the administration of justice). Weiland filed his answer on September 10. In his answer,

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he admitted all the factual allegations in the Board's complaint. However, he denied that his conduct violated any ethical rules. Additionally, Wieland asserted that he communicated to Pierce the need for Pierce to provide him with funds for the transcript on multiple occasions, but that Pierce had failed to do so. He also asserted that the reason he failed to dismiss the appeal was that he wanted to give Pierce " every opportunity to appeal his case."

The commission conducted an evidentiary hearing in November. At the hearing, the following witnesses testified: Christine Mayberry, deputy clerk for the Iowa appellate courts; McCarville; and Weiland. Mayberry testified that between 1998 and 2014 Weiland has received forty notices of default for failing to comply with deadlines in various appeals. She testified that based on her fifteen years of experience as deputy clerk, this is an excessive number of notices of default. She further testified that when the clerk's office is required to send default notices, it causes " a significant drain on [the office's] workload." [2]

McCarville testified that when a party files an appeal, the court reporter in the underlying matter typically receives a copy of the combined certificate. This combined certificate notifies the court reporter that a party has filed an appeal for which a transcript is needed and provides the court reporter with details as to the dates of future deadlines. She testified that in Pierce's case she did not receive a combined certificate. Instead, Weiland called her to request a transcript. She testified that after receiving the call from Weiland, she found the appeal online and discovered that Weiland had recently filed the combined certificate. She then emailed Weiland and requested that he send her a copy of the combined certificate and informed him of the cost of the transcript.

McCarville gave conflicting testimony as to whether she considered the transcript ordered after speaking with Weiland on the phone on March 25. Initially, she testified that she requires the deposit to be paid prior to considering the transcript ordered. She testified that she typically requires a deposit in advance because doing so ensures that she receives payment for her services. However, she then testified that after her conversation with Weiland, she " considered [Weiland to have] ordered the transcript verbally." She further testified that although she was waiting for both the combined certificate and her deposit, she probably began doing some preliminary work on the transcript to ensure she did not miss any deadlines.

Weiland admitted that he failed to serve McCarville with the combined certificate. However, he maintained that he did not know our appellate rules required him to do so. Additionally, he testified that when he spoke with McCarville on the phone on March 25, he believed he had ordered the transcript. He testified that when he certified in the combined certificate that he had ordered the transcript, he knew he had not paid McCarville. However, he believed that ordering the transcript and paying for the transcript were distinct concepts. Accordingly, in certifying on the ...


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