Friday, January 8, 2021

Iowa Supreme Court Plays "Kindergarten Cop"

The Iowa Supreme Court has rejected findings of  ethical violations in two litigated matters and dismissed the disciplinary proceeding.

The decision is a useful and important tool to explore the line between unprofessional behavior and conduct worthy of bar discipline.

The court employs a de novo standard of review in bar discipline matters.

The court rejected a Rule 3.1 charge 

The commission’s finding is not supported by the record. At the hearing in August 2013, the mother testified there had been instances since March where B.B. initiated or attempted to initiate sexual contact with N.V. According to the mother, there was an instance in July where B.B. tried to convince N.V. to touch tongues. The father admitted he was “aware of the oral sex that’s taken place between [N.V.] and [his] nephew [B.B.].” The father admitted he was aware of a recent allegation that B.B. tried to talk N.V. into “touching tongues and kissing tongues.” Dr. Gillette’s report prepared in July 2013—four months after the first hearing—concluded there was “ongoing sexual abuse,” i.e., continued abuse after the March 2013 order.

Given the new allegations and new evidence, we cannot conclude the renewed application was frivolous within the meaning of the rule. The renewed application was supported by Dr. Gillette’s opinion and the mother’s testimony regarding what she perceived to be ongoing risk of sexual abuse. There was contrary testimony at the hearing. Dr. Stokes testified that the acts, even if true, did not constitute abuse. In Dr. Stokes’s view, the sexual conduct constituted normal sex play that should be addressed appropriately. The district court credited Dr. Stokes’s testimony. However, the fact that Rhinehart did not obtain relief for his client does not make the application frivolous...

As to a false statement charge

The commission found the renewed application included false statements that the father was ignoring the district court’s prior order, that the father was refusing to protect the child, that the father was leaving the child unattended with the abuser, that the child was suffering from PTSD, and that the father was failing to provide adequate supervision to the child. The commission found Rhinehart violated the rule because the testimony at the hearing failed to “substantiate the claims he made in the application.”

We conclude the Board failed to prove the violation by a convincing preponderance of the evidence. The statements at issue here were not false statements of fact. They were allegations Rhinehart believed could be proved at a hearing on the matter. As discussed above, the allegations in the renewed application were made in good faith and supported by new evidence. Whether the evidence substantiated the claims in the renewed application is immaterial with respect to this alleged rule violation. It would be a stretch to say a lawyer can be disciplined for good faith averments in a petition or application that are not borne out by the evidence. See Caghan, 927 N.W.2d at 601 (stating an attorney cannot be disciplined merely because an argument was unsuccessful). While the district court may not have found Rhinehart’s evidence credible or convincing, this does not make the good faith allegations in the renewed application false statements of fact in violation of rule 32:3.3(a)(1).

The mere fact the district court sanctioned Rhinehart for filing the renewed application does not support the conclusion Rhinehart violated the rules of professional conduct as alleged in the Board’s complaint. Not all conduct supporting a litigation sanction violates the rules of professional conduct, and not all conduct violating the rules of professional conduct results in a litigation sanction. Sanctionable conduct and professional misconduct may overlap but are not congruent.

Rather

Rhinehart engaged in zealous advocacy on behalf of his client. It was his duty to do so.

A second bar matter involved the representation of a client in a bitter business dispute and an alleged false statement

Although we agree with the commission that Rhinehart’s statement was incorrect, we cannot conclude the Board proved this violation by a convincing preponderance of the evidence...

The circumstances here do not support an inference Rhinehart had the intent to deceive. Rhinehart made a statement regarding his recollection of the testimony in the case. His recollection was wrong. His recollection was more likely than not colored by his apparently sincere belief that Cardona did in fact divert partnership money into the Excel bank account, an allegation Rhinehart found he was unable to prove without access to the Excel bank records. We think it is unlikely that Rhinehart made the statement with the intent to deceive the district court knowing the district court heard Cardona’s testimony. We are reluctant to sanction an attorney’s statements made in a posttrial motion regarding the evidence at trial when, frequently, the motions are made without a full and complete transcript and the evidence and ultimate fact issues are .disputed.

Alleged false statement about a judge

On de novo review, we conclude the Board failed to prove the violations by a convincing preponderance of the evidence. Fairly read, Rhinehart’s statements do not express a false statement “concerning the qualifications or integrity of a judge.” Iowa R. Prof’l Conduct 32:8.2(a). There is no mention of the district court’s qualifications or integrity. Instead, Rhinehart criticized the district court’s decisions regarding discovery and the district court’s ruling on the merits. Rhinehart argued the judgment rewarded Cardona’s discovery conduct because Koeppe was unable to prove his case against Cardona without the business record.

The statements at issue in this case are simply different in kind from the statements we have found to violate rule 32:8.2(a.

Chief Justice Christensen specially concurred

I join the majority decision but write separately to emphasize that our dismissal of the disciplinary complaint against Rhinehart should not be interpreted as condoning his behavior. In addition to demanding that attorneys maintain ethical behavior as outlined in our rules of professional conduct, we also expect attorneys to behave with civility and professionalism.

He had questioned the mental health of opposing counsel

Opposing counsel also testified before the commission, and nothing in the record supports Rhinehart’s claims about opposing counsel’s mental status. It goes without saying that making flippant, unsubstantiated comments about anyone’s mental status is incredibly offensive. The district court judge testified before the commission that it was Rhinehart’s “language when [he] referenced [opposing counsel was] a liar and should retire” that led the judge to make a referral to the disciplinary board about Rhinehart’s behavior.

Ultimately, Rhinehart’s behavior in the Koeppe case has forced our court into the unenviable position “to act as ‘kindergarten cop’ and [review] a dispute between attorneys caused by one who either never learned or has forgotten the basic good manners others learned before first grade.” Saldana v. Kmart Corp., 84 F. Supp. 2d 629, 640 (D.V.I. 1999), aff’d in part, rev’d in part, 260 F.3d 228 (3d Cir. 2001). This is not the first time Rhinehart’s caustic behavior has come to the attention of our court.

But civility lapses may not amount to bar discipline sanction-worthy conduct

It costs nothing for an attorney to be civil, but, as this case shows, the costs of incivility are high. Let this case serve as a reminder to all attorneys that their “conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms.” Iowa Ct. R. 33.1(1). Rhinehart likely could have avoided these disciplinary proceedings altogether simply by treating opposing counsel  and judges with the sort of basic decency and respect most learn before first grade.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/01/the-iowa-supreme-court-has-rejected-findings-of-ethical-violations-in-two-litigated-matters-and-dismissed-the-disciplinary-pr.html

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