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Iowa Supreme Court Attorney Disciplinary Board v. Barry

Supreme Court of Iowa

February 23, 2018

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee,
v.
SEAN JOSEPH BARRY, Appellant.

         On appeal from the report of the Iowa Supreme Court Grievance Commission.

         An attorney appeals a report of the grievance commission recommending we suspend his license to practice law in this state. LICENSE SUSPENDED.

          David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellant.

          Tara van Brederode and Susan A. Wendel, Des Moines, for appellee.

          WIGGINS, Justice.

         The 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.

         Based 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.

         I. Scope of Review.

         We 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." Id.

         II. Background Facts and Proceedings.

         On 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.

         On June 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.

         Stipulations 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.

         Barry 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.

          At the 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.

         On 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.

         From 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.

         At a 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.

         In 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."

         On or 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.

         On July 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.

          On 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.

         Based 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).

         On 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.

         III. Ethical Violations.

         A. Lack of Diligence-Rule 32:1.3.

         This 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.

          Barry 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 petition.

         In 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 the rule.

         Barry's 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 rule 32:1.3.

         B. Keep Client Reasonably Informed-Rule 32:1.4(a)(3).

         This 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 32:1.4(a)(3).

         C. Promptly Comply with Reasonable Requests for Information-Rule 32:1.4(a)(4).

         This 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.

         From 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, ...


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