Friday, April 28, 2017

The Ties That Don't Bind

The Iowa Supreme Court imposed a six-month suspension for misconduct in a domestic matter

In this disciplinary case, attorney Theodore Sporer appeals the findings and recommendations of the Iowa Supreme Court Grievance Commission recommending his law license be suspended for a period of six months. The alleged ethical violations occurred in the aftermath of a divorce decree. In a contempt proceeding arising from the divorce decree, the district court found Sporer falsely testified that he rejected the terms of a settlement letter sent by the opposing lawyer by immediately writing handwritten notes on the letter and sending it back to the opposing lawyer on the same day. The district court also found Sporer falsely and frivolously asserted that the secretary’s signature on the bottom of a settlement letter bound the client to the terms of a settlement agreement.

...we affirm the findings of the grievance commission. We also affirm most of the grievance commission’s conclusions. We suspend Sporer’s license to practice law for six months.

The attorney had one prior reprimand in 31 years of practice.

At issue was a document in divorce litigation that opposing counsel's secretary (Young) had signed in his office

 But the district court concluded that the September 24 settlement letter with Sporer’s handwritten note was “a fraud.” The court cited the tone, substance, and circumstances of the note. The court emphasized that it would be absurd for Linda to give up her retirement benefit of more than $100,000, plus an unknown value of a share of a defined benefit pension, in exchange for $3000. Further, the court noted that it would be extremely unlikely that Linda would surrender the retirement award in settlement of the contempt action against Gary.

Further, the district court reasoned that there was no plausible motivation for Linda to accept “such a ridiculous agreement.” According to the court, there was no prospect of the district court’s award of retirement benefits to be eliminated on appeal. The only argument  presented by Gary was a fault-based argument unlikely to result in any adjustment of the amount of the retirement account award.

The court

We begin by observing that Sporer’s assertion that it was “unfathomable” to him that Young was anything other than a full agent is objectively absurd. Every lawyer knows that clerical staff provide essential support to a legal practice and make significant contributions to the lawyers and clients for whom they perform administrative services. Yet no lawyer, let alone a highly experienced lawyer, reasonably believes that clerical staff performing routine tasks such as retrieval of documents have authority, actual or apparent, to bind clients of the firm. We are not surprised that neither Sporer nor we have found legal authority supporting the proposition that legal secretaries generally have authority to bind clients of the attorneys for whom they work... 

On this subjective issue, we give respectful consideration to the findings of Judge Staskal in the contempt hearing and the commission in this proceeding. The commission and Judge Staskal did not believe Sporer actually believed his extraordinary assertion that secretaries have authority to bind clients to settlement agreements. We too simply find it hard to accept the notion that an experienced lawyer would believe a secretary dispatched on a routine mission of picking up legal documents had the authority to bind a client to the terms of a settlement agreement, particularly one in which a party was required to surrender a substantial legal claim. We thus conclude that the Board proved by a convincing preponderance of the evidence that Sporer knowingly made a false statement of fact or law to the tribunal in violation of rule 32:3.3(a)(1)...

There are a number of features in the record that make Sporer’s assertions with respect to the annotation of the September 24 settlement letter difficult to believe. As Sporer himself concedes, lawyers do not ordinarily respond to settlement letters by scribbling handwritten annotations and returning them to the sending party by multiple means in nonemergency situations. Sporer responds by claiming he was “in a hurry” and angry at Duffy upon receipt of the September 24 settlement letter and was trying to make a point by responding in handwriting with exclamation marks...

Sporer defends his conduct in part by suggesting that it would make no sense for him to testify falsely about an inconsequential document. But the marked-up version of the September 24 settlement letter and its claimed delivery to Duffy were not inconsequential. If Sporer had sent the marked-up September 24 settlement letter to Duffy on September 27—well before Linda cashed the settlement check on October 10—the case for accord and satisfaction or ratification would have been enhanced. The last communication on the settlement would not have been from Duffy but from Sporer. Sporer would thus have a better shot at establishing accord and satisfaction or ratification because he could argue that Duffy and Linda knew that Gary still insisted that the payment of the $27,000 would be made only with a full release of all claims, including the award of retirement assets and benefits in the divorce decree.

In light of all the above, we thus find that the Board has proved by a clear and convincing preponderance of the evidence that the September 24 settlement letter with the Sporer notations was not generated on September 27 and was not provided to Duffy on that date. False statements to a tribunal, of course, may be orally made to the court.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/04/the-iowa-supreme-court-in-this-disciplinary-case-attorney-theodore-sporer-appeals-the-findings-and-recommendations-of-the-i.html

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Comments

I think you meant to say: "False statements to a tribunal, of course, may NOT be orally made to the court."

Posted by: Elizabeth Quinlan | May 1, 2017 8:06:57 AM

Upon learning of Mr. Sporer's suspension I wrote a very lengthy complaint detailing his conduct in my divorce it has been brought to my attention Mr. Sporer knows of my letter to the Ethics Committee. He has threatened a lawsuit indicating I have slandered him before his peers. How is it Mr. Sporer has seen the complaint letter before I even have a follow up opinion from the committee? Seems like the deck is stacked against the rank and file.

Posted by: Steve Danielson | Aug 16, 2017 12:21:02 PM

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