Friday, October 9, 2020

Tickler System

The Iowa Supreme Court has reprimanded an attorney for the second time

Lawyers shouldn’t use default notices from the supreme court clerk as a tickler system for appellate briefing deadlines. Eric D. Tindal did so; and in 2018, we publicly reprimanded him for default notices he received in sixteen appeals. We now decide the sanction for his default notices in another thirteen appeals. Importantly, all but four of the new default notices at issue preceded his 2018 public reprimand. The Iowa Supreme Court Attorney Disciplinary Board seeks “at least” a two-month suspension. A division of the Iowa Supreme Court Grievance Commission that heard the evidence recommends a one-month suspension. It is undisputed that Tindal cured all of the defaults without any appeal being dismissed, and he personally paid every penalty assessment. Tindal, by all accounts a competent criminal defense trial lawyer, has agreed to forgo handling court-appointed criminal and postconviction appeals. For these reasons, we impose a second public reprimand rather than suspending his license.

The court on sanction

We must determine the sanction for Tindal’s conduct resulting in default notices in thirteen appeals during 2018–19, mindful that nine of those preceded his October 2018 public reprimand for default notices in sixteen appeals during 2016–17. The commission recommended a thirty day suspension premised on its belief that our court would have suspended Tindal in 2018 had the Board charged him with another nine default notices. We disagree with that premise. In our view, given Tindal’s nearly unblemished disciplinary history in 2018 (he had one prior private admonishment), he still would have received a public reprimand for the series of default notices with no client harm, whether in sixteen or twenty five appeals.

Sequence matters. See id. (“We believe the timing of the present violations has bearing on the sanction.”). In Iowa Supreme Court Attorney Disciplinary Board v. Noel, we imposed a public reprimand instead of the suspension recommended by the board and commission because the conduct at issue preceded the discipline imposed for earlier misconduct. Id. at 205–06. We concluded the prior sanction, a public reprimand, would have remained the same had we been aware then of the additional misconduct, and we therefore declined “to enhance Noel’s sanction in the present case.” Id. at 206. We reach the same conclusion here...

Tindal’s suspension is not needed to protect the public. Tindal has discontinued taking criminal or postconviction appeals for the State Public Defender. We consider a lawyer’s voluntary practice restrictions in mitigation.

Justice McDonald dissented in part on a procedural issue

I concur in all parts of the majority opinion with the exception of division III.D regarding the issue of whether the Iowa Supreme Court Attorney Disciplinary Board waived its challenges to the Iowa Supreme Court Grievance Commission’s findings and conclusions. The relevant court rules and controlling precedent require the attorney disciplinary board to file a cross-appeal to challenge the grievance commission’s findings. Because the Board failed to file a cross-appeal, I would hold it waived its challenges to the commission’s findings. I thus respectfully concur in part and dissent in part.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/10/tickler-system.html

Bar Discipline & Process | Permalink

Comments

Post a comment