Friday, January 24, 2020

No Probation In Iowa Bar Discipline

The Iowa Supreme Court has reprimanded an attorney but declined an invitation to also require probation

A relatively inexperienced Iowa attorney had too much on his plate and, as a result, missed court deadlines and appearances. After the Iowa  Supreme Court Attorney Disciplinary Board (Board) filed a complaint against the attorney, the parties reached a stipulation of facts, violations, and sanctions. They proposed that the attorney receive a public reprimand followed by twelve months of probation. The Iowa Supreme Court Grievance Commission agreed with the joint recommendation and passed it along to us.

On our review, we conclude that a public reprimand is appropriate for this case of neglect. Several mitigating factors are present, including the attorney’s inexperience. But we decline to order probation. In our view, any such change in our disciplinary system should be instituted via rulemaking, with an opportunity for public comment.

The court noted that the stipulation was "sparse"

From the stipulation and the admitted allegations of the complaint, we can glean some relevant facts. Beau Bergmann has been licensed to practice law in Iowa since 2012—a period of seven years. Bergmann resided first in Des Moines (2012 to 2015) and then later in Mount Pleasant (2015 to present). Until 2018, Bergmann attempted to maintain offices in both Des Moines and Mount Pleasant. Since then, Bergmann has maintained an office only in Mount Pleasant and is focused on building a practice in Henry County and the surrounding area. Bergmann has accepted court appointments through the state public defender in seventeen counties. The disciplinary proceeding concerns Bergmann’s representation of three different clients, one of which involved a court appointment.

The court also cited a number of mitigating factors.

But as to probation

The parties and the commission also recommend that we put Bergmann on probation for one year. As conditions of probation, Bergmann would continue to mentor with his brother; keep using a case management system in his office; take additional continuing legal education hours beyond the requirement (including six hours of ethics); implement a proactive, management-based regulation assessment and any recommended strategies; and certify continued counseling and treatment.

In recent years, we have generally declined to impose terms and conditions in our attorney disciplinary rulings that would require ongoing supervision. 

...we believe that any system of probation for attorneys should be adopted through a formal rule amendment rather than launched in this case. We reach this conclusion for several reasons. First, probation typically comes with consequences for failure to comply with the terms of probation. But in this case, it is unclear what would happen if Bergmann did not meet the terms of his probation. He has already received his reprimand. Second, in the realm of attorney discipline, it is important for attorneys to know in advance what sanctions are potentially available for misconduct. That way, all affected attorneys have notice and stand on equal footing. This is the same reasoning that has led us at times to issue a warning before we ramp up the sanction in a particular area of attorney misconduct...

Third, to the extent possible, there should be criteria for when probation is and is not available and what effect it has on the sanction. This helps assure that discipline is evenhanded across the board. Lastly, probation would be a significant change in our disciplinary system, and we believe that the bar and members of the public should have the chance to weigh in before we make such a change. A rulemaking proceeding would give interested parties in Iowa the opportunity for input.

Several neighboring jurisdictions use probation

We find these examples from our neighbors instructive. While we cannot forecast how probation would look in the Iowa attorney disciplinary system, we believe rulemaking with an opportunity for public comment is the appropriate mechanism for adopting any system of probation in our state.

For all these reasons, we respectfully decline to order probation in this case but remain willing to consider proposed rule amendments from the Board or others.

(Mike Frisch)

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