appeal from the report of the Iowa Supreme Court Grievance
attorney appeals a report of the grievance commission
recommending we suspend his license to practice law in this
state. LICENSE SUSPENDED.
L. Brown of Hansen, McClintock & Riley, Des Moines, for
van Brederode and Susan A. Wendel, Des Moines, for appellee.
Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against an attorney, alleging numerous violations
of the Iowa Rules of Professional Conduct in the
attorney's representation of a client in a dissolution
proceeding. For fourteen months, the attorney misrepresented
the status of the dissolution proceeding to his client and
his client's brothers. Moreover, the attorney prepared a
fraudulent dissolution decree, to which he attached a
signature page bearing a judge's signature from a
different case. A division of the Iowa Supreme Court
Grievance Commission found the attorney's conduct
violated our ethical rules.
on the attorney's violation of our rules, the commission
recommended we suspend his license to practice law for
eighteen months. On our de novo review, we find the attorney
violated the provisions of our rules. However, we disagree
with the length of the recommended suspension. We suspend the
attorney's license to practice law indefinitely with no
possibility of reinstatement for one year from the date of
filing this opinion.
Scope of Review.
review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att'y Disciplinary Bd. v. West, 901
N.W.2d 519, 522 (Iowa 2017). The Board must prove ethical
violations by a convincing preponderance of the evidence.
Id. "A convincing preponderance of the evidence
is more than the typical preponderance standard in a civil
case but less than proof beyond a reasonable doubt."
Id. We may impose a greater or lesser sanction than
what the commission has recommended upon proof of an ethical
violation. Iowa Supreme Ct. Att'y Disciplinary Bd. v.
Vandel, 889 N.W.2d 659, 662 (Iowa 2017). "While we
respectfully consider the commission's findings and
recommendations, they are not binding on us."
Background Facts and Proceedings.
February 7, 2017, the Board filed a complaint against Sean
Barry alleging multiple ethical violations in his
representation of Richard Miller in a dissolution proceeding.
The Board filed an amended complaint on June 5.
30, the Board and Barry filed a stipulation pursuant to Iowa
Court Rule 36.16, wherein the parties waived a formal hearing
on the matter and agreed to the facts, rule violations, and
mitigating and aggravating circumstances. The commission
approved and accepted the parties' joint stipulation.
of facts bind the parties. Iowa Supreme Ct. Att'y
Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa
2013). We construe factual stipulations "with reference
to its subject matter and in light of the surrounding
circumstances and the whole record, including the state of
the pleadings and issues involved." Iowa Supreme Ct.
Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801,
803-04 (Iowa 2010) (quoting Graen's Mens Wear, Inc.
v. Stille-Pierce Agency, 329 N.W.2d 295, 300 (Iowa
1983)). Because the authority to license and sanction lawyers
rests with us, we are not "bound by a stipulation of a
violation or of a sanction in reaching our final decision in
a disciplinary case." Id. at 804. Based on the
stipulation of the parties and our de novo review of the
record, we make the following findings of fact.
has practiced law in Iowa since April 2008. He also has a
license to practice law in Colorado. However, the Colorado
court suspended his Colorado license on May 1, 2012, for
nonpayment of his inactive fee. His Colorado license is
currently under suspension.
time of the alleged misconduct, Barry practiced law as a
partner in the law office of Montgomery, Barry, Bovee &
Barry, which is located in Spencer. In May 2014, Miller hired
Barry to represent him in dissolving his marriage. Barry met
with Miller and a couple of his brothers to obtain all the
relevant information to draft Miller's dissolution
petition and stipulation. Barry prepared the documents, both
of which Miller signed on May 27. That same day, Barry
notarized Miller's signature on the dissolution petition.
Barry never filed the petition with the court and failed to
have the petition served on Miller's wife.
August 29, Barry notarized a power of attorney that he had
prepared for Miller in which Miller designated his brothers
as agents with general authority to act on his behalf.
May 27, 2014, to the end of July 2015, when Miller or his
brothers asked about the status of the dissolution, Barry
repeatedly lied to them that he had filed the dissolution
petition. On one occasion, Barry falsely informed one of the
brothers that he had Miller's wife served and she had
twenty days to answer. After the end of the twenty-day period
to answer, the brother asked about the next step, to which
Barry falsely informed him that Miller could seek a default
judgment. The brother continued to request updates from Barry
on the status of the dissolution. Barry either failed to
return the brother's phone calls or falsely informed him
the matter was progressing.
meeting, when Miller and his brothers expressed their
concerns about the prolonged dissolution process, Barry
knowingly failed to advise them that he had not yet filed the
dissolution petition or served it on Miller's wife. After
this meeting, they requested updates from Barry almost daily.
Barry either failed to respond to the requests for updates
or, when he did respond, continued to misrepresent the status
of the dissolution.
January 2015, Miller's other brother went to Barry's
office, seeking a status update on the dissolution. Despite
knowing he had not filed the petition, Barry falsely informed
the brother "the Judge had signed the Decree, but there
was a delay in getting them recorded."
about July 8, the same brother went to Barry's office to
request copies of the decree. Barry gave the brother a
document that Barry misrepresented as a copy of an original
dissolution decree that dissolved Miller's marriage. To
create this fraudulent decree, Barry copied a signature page
from an order setting a hearing in an unrelated case bearing
Judge Patrick M. Carr's signature. He altered the case
title and the case number on this signature page. Without
Judge Carr's knowledge or authorization, Barry attached
the signature page to the fraudulent decree. He inserted the
file-stamp data "E-FILED 2015 JAN 14 11:33 AM CLAY -
CLERK OF DISTRICT COURT" on the top of all four pages of
the fraudulent decree. Barry also inserted the case number to
the first page of the fraudulent decree.
27, members of Miller's family went to the office of the
Clay County Clerk of Court to search for the records relating
to Miller's dissolution of marriage. The staff of the
clerk's office could not locate Miller's dissolution
decree in the court records. The staff contacted Barry's
law office and, in Barry's absence, spoke with other
members of the law office to inquire about the dissolution
case. The staff subsequently sought assistance from the
electronic data management system support office in Des
Moines concerning the fraudulent decree Barry had presented
to the Miller family.
July 30, the clerk emailed Chief Judge Duane E. Hoffmeyer to
inform him of the situation. Chief Judge Hoffmeyer called the
Board and subsequently provided affidavits from the Clay
County Clerk of Court, a letter from the Miller family, and a
copy of the forged decree. In a letter dated August 6, Barry
reported his ethical violations for neglecting the
dissolution matter and engaging in dishonest conduct.
on Barry's conduct, the Board alleged six violations of
the Iowa Rules of Professional Conduct-(1) 32:1.3 (lack of
diligence); (2) 32:1.4(a)(3) (failure to keep client
reasonably informed); (3) 32:1.4(a)(4) (failure to promptly
comply with reasonable requests for information); (4)
32:8.4(b) (criminal act that reflects adversely on honesty,
trustworthiness, or fitness as a lawyer); (5) 32:8.4(c)
(conduct involving dishonesty, fraud, deceit, or
misrepresentation); and (6) 32:8.4(d) (conduct prejudicial to
the administration of justice).
September 5, 2017, the commission entered its findings of
fact, conclusions of law, and recommendation. The commission
found Barry violated all the rules alleged in the Board's
complaint and recommended an eighteen-month suspension of
Barry's license. Barry appealed. We discuss additional
facts as needed.
Lack of Diligence-Rule 32:1.3.
rule provides, "A lawyer shall act with reasonable
diligence and promptness in representing a client." Iowa
R. Prof'l Conduct 32:1.3. An attorney must "handle a
client matter in a 'reasonably timely manner.' "
Vandel, 889 N.W.2d at 667 (quoting Iowa Supreme
Ct. Att'y Disciplinary Bd. v. Netti, 797 N.W.2d 591,
598 (Iowa 2011)). "[W]hen an attorney fails to appear at
scheduled court proceedings, does not make the proper
filings, or is slow to act on matters[, ]" the attorney
violates rule 32:1.3. Nelson, 838 N.W.2d at 537.
failed to exercise due diligence by never filing the
completed dissolution petition despite the lapse of fourteen
months. Barry had all the necessary information to draft the
petition and stipulation. Miller signed both documents, and
Barry notarized Miller's signature on the petition. Thus,
to commence the dissolution process, all Barry had to do was
simply file the petition. Barry admitted in his letter to the
Board that Miller's dissolution case was
"simple" because there were no children and no
assets of any significant value. Yet he failed to file the
Iowa Supreme Court Attorney Disciplinary Board v.
Weiland, we held a lawyer violated rule 32:1.3 because
he delayed filing a dissolution petition for four months. 885
N.W.2d 198, 208-09 (Iowa 2016). It logically follows that
Barry's wholesale failure to file the petition violates
lack of diligence extended the case into a fourteen-month
ordeal when it could have been resolved much sooner. Miller
eventually retained new counsel who completed the dissolution
in less than six months. Accordingly, the Board proved by a
convincing preponderance of the evidence that Barry violated
Keep Client Reasonably Informed-Rule 32:1.4(a)(3).
rule requires an attorney to "keep the client reasonably
informed about the status of the matter[.]" Iowa R.
Prof'l Conduct 32:1.4(a)(3). Barry not only failed to
reasonably inform the Millers about the status of the
dissolution but also misled them about the filing status of
the petition and service of process on Miller's wife.
See Weiland, 885 N.W.2d at 209 (holding the attorney
failed to keep his client updated about the status of the
client's dissolution and made misrepresentations about
the filing status of the petition and service of process on
the client's spouse). Moreover, Barry created and
presented a fraudulent dissolution decree to the Millers.
Instead of keeping them reasonably informed, Barry actively
misinformed. We conclude the Board proved by a convincing
preponderance of the evidence that Barry violated rule
Promptly Comply with Reasonable Requests for Information-Rule
rule requires a lawyer to "promptly comply with
reasonable requests for information[.]" Iowa R.
Prof'l Conduct 32:1.4(a)(4). "A lawyer's regular
communication with clients will minimize the occasions on
which a client will need to request information concerning
the representation." Id. r. 32:1.4 cmt. 4.
"When a client makes a reasonable request for
information, " this rule "requires prompt
compliance with the request, or if a prompt response is not
feasible, that the lawyer, or a member of the lawyer's
staff, acknowledge receipt of the request and advise the
client when a response may be expected." Id.
May 27, 2014, to the end of July 2015, when Miller or his
brothers repeatedly asked about the status of the
dissolution, Barry failed to communicate to them that he had
not filed the petition and had not served it on Miller's
wife. Clearly, because Barry failed to communicate regularly
with the Millers, ...