Friday, November 20, 2020

Video Testimony (Pre-COVID) Rejected By Iowa Supreme Court

The Iowa Supreme Court has reprimanded an attorney and affirmed the right to confront witnesses in-person

This attorney disciplinary case with interstate dimensions involves an Iowa-licensed attorney who practiced immigration law in Texas. The attorney received payments totaling $4000 from a client on a flat-fee representation. He put those payments directly in his operating account. After the attorney had worked on the case for a while, the client changed her mind and decided not to go forward with the representation. The attorney refused to refund any of the payments or to provide an accounting. The client filed a complaint with the Iowa Supreme Court Attorney Disciplinary Board. The Board charged various violations of the Texas Attorney Disciplinary Rules of Professional Conduct. The matter went to a hearing before a division of the Iowa Supreme Court Grievance Commission. At the hearing, which occurred prior to the COVID-19   pandemic, the client was allowed to testify by video over the attorney’s objection. The commission found a number of violations and recommended a suspension.

On our review, we find that the attorney violated the Texas rules when he failed to deposit client payments in his trust account, took those payments as income before they were earned, and failed to provide accountings to his client. We are not persuaded, however, that the attorney violated Texas’s prohibition on “unconscionable” fees when he collected $4000 for the work performed, which included many hours spent trying to get information from his client. We also believe the Board failed to show a sufficient basis for the admission of video testimony. As a sanction, we impose a public reprimand

The right of confrontation under Iowa rules

Perhaps most importantly, rule 36.17(5) provides that the respondent attorney has the right “to be confronted by witnesses.” Id. r. 36.17(5). This language echoes the phrasing of the Confrontation Clause of the Sixth Amendment and article I, section 10 of the Iowa Constitution. As a matter of English and as a matter of Latin, the word “confrontation” refers to a face-to-face meeting.

The court considered the case de novo without the client's testimony. 

In a footnote , the court makes clear that the right is rule-based rather than Constitutional. 

Justice Appel agreed with the majority on the confrontation issue but dissented on sanction in favor of suspension.

Nonetheless, to me, this file has a stronger aroma than that which emanates from the majority opinion. The low social status of immigration clients does not allow lawyers to charge fees mostly for driving around town when the fee contract certainly is an integrated contract stating that attorney representation and fee entitlements arise on February 23, 2016. And even if travel time could properly be charged at an hourly rate after February 23, the client was entitled to know this through contemporaneous statements from the lawyer...

At the end of the day, Villatoro paid $4000, spending a lot of money on windshield time, but with little to show for it. She had no idea that most of her payments were chewed up in travel time. Whether sharp or sloppy, such practices should not be permitted in the practice of law.

I would suspend Akpan’s license for thirty days based on the above considerations.

(Mike Frisch)

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