Opposition Brief — Harlan v. Committee on Professional Ethics & Conduct

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Supreme Court, U.S.

FILED

1988

JOSEPH F. SPANIOL, JR.

CLERK

In The

Supreme Court of the Unite

October Term, 1988

JANE HARLAN,

Petitioner,

vs.

THE COMMITTEE ON PROFESSIONAL ETHICS AND

CONDUCT OF THE IOWA STATE BAR ASSOCIATION,

and its individual members thereof, Michael H.

Figenshaw, John J. Greer, James L. Tyler, Karen E. Shaff,

Marie Prince-Cohen, D. oe Shull, William C. Davison,

Norman G. Bastemeyer, nore Louise Petersen, and Car-

— Sloan, in their. individual and official capacities;

RRY JACKSON, Deputy Commissioner of the Iowa

Department of Human Services, and GORDON E. ALLEN,

Special Assistant Iowa Attorney General, in their individ-

ual and official capacities,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

James E. GrITZNER

Kasey W. Kincaip

Eric P. SLorer

— oF NyeMAsTER, Goopge, McLAUGHLIN,

Emery & O’Brien, P.C.

699 Walnut Street

1900 Hub Tower |

Des Moines, Iowa 50309

(515) 283-3100

Attorneys for Respondent

The Committee on Professional Ethics and

Conduct of the Iowa State Bar Association

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 Bb AG

we Catt OW 1 OCT LAD 249. 9891 \

QUESTIONS PRESENTED

1. Are the federal courts without subject matter

jurisdiction to consider the issues raised by Harlan’s

complaint?

2. Are the members of the Ethics Committee abso-

lutely immune from Harlan’s claim for compensatory and

punitive damages?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............0 cece eeeeees i

TABLE OF CONTENTS. .........00scsccsssscescsss ii

TABLE OF AUTHORITIES. ..........-secccccssesse iii

OPINIONS BELOW ........csssecseccsccccscccsess 1

JURISDICTION. .....550600005 05a nenn ees 1

PROVISIONS OF RULES INVOLVED .............. 1

STATEMENT OF THE CASE..........ccccccccccccs 1

REASONS FOR DENYING THE WRIT............. 8

I. THE QUESTION OF THE DISTRICT COURT’S

SUBJECT MATTER JURISDICTION IS CON-

TROLLED BY WELL-ESTABLISHED UNITED

STATES SUPREME COURT PRECEDENT,

RAISES NO SPECIAL AND IMPORTANT

REASONS TO GRANT HARLAN’S CER-

TIORARI PETITION, AND WAS PROPERLY

RESOLVED BY THE DISTRICT COURT. ..... 8

A. THE QUESTION OF THE DISTRICT

COURT’S SUBJECT MATTER JURISDIC-

TION IMPLICATES NONE OF THE SPE-

CIAL AND IMPORTANT REASONS FOR

GRANTING A WRIT OF CERTIORARI

IDENTIFIED IN UNITED STATES

SUPREME COURT RULE 17............ 8

B. THE DISTRICT COURT PROPERLY CON-

CLUDED IT WAS WITHOUT SUBJECT

MATTER JURISDICTION TO ENTERTAIN

HARLAN’S COMPLAINT .............5. 9

Il.

iii

TABLE OF CONTENTS-Continued

Page

ASSUMING SUBJECT MATTER JURISDIC-

TION EXISTS, THE DISTRICT COURT PROP-

ERLY CONCLUDED THE MEMBERS OF THE

ETHICS COMMITTEE ARE ABSOLUTELY

IMMUNE FROM HARLAN’S CLAIM FOR

COMPENSATORY AND PUNITIVE DAM-

DRURE TEAS bss oduds Nenaddobedanesecosense 15

A. THE COURT OF APPEALS’ RESOLU-

TION OF THE IMMUNITY ISSUE IMPLI-

CATES NONE OF THE SPECIAL AND

IMPORTANT REASONS FOR GRANT-

ING A WRIT OF CERTIORARI IDENTI-

FIED IN UNITED STATES SUPREME

Sk A ee 15

B. EVEN ASSUMING THE COURT OF

APPEALS ERRED IN NOT ADDRESSING

THE MERITS OF THE IMMUNITY QUES-

TION, THAT ISSUE WAS PROPERLY

ADDRESSED AND RESOLVED BY THE

SEED MMPEPEEES 6.060 cccndccccssccceces 17

nce c ca Vshs beatasesscedessceceess 20

APPENDIX

Il.

III.

IOWA SUPREME COURT RULE 118..... App. 1

RULES OF THE IOWA SUPREME COURT

GRIEVANCE COMMISSION............ App. 25

RULES OF THE COMMITTEE ON PRO-

FESSIONAL ETHICS AND CONDUCT OF

THE IOWA STATE BAR ASSOCIATION App. 34

TABLE OF AUTHORITIES

Page

I. Jupicta, Decisions

Appley v. West, 832 F.2d 1021 (7th Cir. 1987)......... 16

Austin Municipal Sec., Inc. v. National Ass‘n. of Sec.

Dealers, 757 F.2d 676 (Sth Cir. 1985)............... 18

Burough v. Duluth Missabe & Iron Range Ry. Co.,

762 F.2d 66 (8th Cir. 1985).......... cece ee eee eee 16

Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57

EADS GIS ISTEP a oc vcncccvdndaccnceccvcccacs 17, 18

Childs v. Reynoldson, 777 F.2d 1305 (8th Cir. 1985) ....18

Clulow v. Oklahoma, 700 F.2d 1291 (10th Cir. 1983) 12, 19

Collins v. City of San Diego, 841 F.2d 337 (9th Cir.

Wa dns bedi dkawecsdrsvessswedhenechrahsne pie ss 16

Cruza v. Supreme Court of South Carolina, 813 F.2d

TG ye ee -) PPerererrerrerrrerr re Terre 11

District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)

soadendeassde een 6faReuwanta ues 6, 10, 11, 12, 13, 14, 15

Harlan v. The Comm. on Professional Ethics & Con-

duct, No. 87-619-B (S.D. Iowa Oct. 30, 1987)....... 12

Horwitz v. State Board of Medical Examiners, 822

F.2d 1508 (10th Cir.), cert. denied, _. U.S. __,

108 S.Ct. 453, 98 L.Ed.2d 394 (1987)............... 18

In re Randall, 640 F.2d 898 (8th Cir.), cert. denied,

454 U.S. 880, 102 S.Ct. 361, 70 L.Ed.2d 189

NS ee ie. ale al dian aan ean a0'6s 18

TABLE OF AUTHORITIES-Continued

Page

MacKay v. Nesbett, 412 F.2d 846 (9th Cir. 1969), cert.

denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425

CUED 6 Sods cansadassdunedaguelscaanhbanesageaceen 13

McMurphy v. City of Flushing, 802 F.2d 191 (6th Cir.

PR i ccncdscnsWencexncisvadeadsscacceuanundaeaaxe 16

Middlesex County Ethics Comm. v. Garden State Bar

Ass‘n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d

926 CURR oe tisndscteceidscsdeatcavusessiansaws 7, 12

Miller v. Washington State Bar Assn., 679 F.2d 1313

COU GO Wa i nn casks onbeavan cu senese geese 14

Nordgren v. Hafter, 789 F.2d 334 (5th Cir.), cert.

denied, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d

TED CH sn 60 dcdcsnacnensssnzacekawa cis aeann 11, 12

Ohio Civil Rights Comm. v. Dayton Christian Schools,

477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512

CU ac knousndotsncsddscdenskdec Dee 7

Prentis v. Atlantic Coast Lens Co., 211 U.S. 210, 29

BAL: Gr, BS ces Gee Glee vb 'oexbscceeuiouse ei 12

Razatos v. Colorado Supreme Court, 746 F.2d 1429

(10th Cir. 1984), cert. denied, 471 U.S. 1016, 105

S.Ct. 2019, HS L.A SO) CSG). ..w nw asencacccccss 11

Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985),

vacated on other grounds, 477 U.S. 902, 106 S.Ct.

SAD, SE Lan Dee CUM oc cccsccocsadasscraceen 14

Rubek v. Barnhart, 814 F.2d 1283 (8th Cir. 1987)...... 16

Simons v. Bellinger, 643 F.2d 774 (D.C. Cir. 1980)..... 19

State v. Baker, 293 N.W.2d 568 (Iowa 1980) .......... 18

Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55

GUE OOO COMPU so succacustassehssaeesuenien 17, 19

TABLE OF AUTHORITIES-Continued

Page

Thomas v. Kadish, 748 F.2d 276 (5th Cir. 1983), cert.

denied, 473 U.S. 907, 105 S.Ct. 3531, 87 L.Ed.2d

GOD GID cc ccccccccccédenssnssissscleeneet 12

Travelers Indemnity Co. v. Atlantic Express Line, 837

F.2d 187 (5th Cir.), cert. denied, 57 U.S.L.W. 3259

CHGS od ccsecncccvecscvcccanassssacgtecedesadessan 16

Vakas v. Rodriquez, 728 F.2d 1293 (10th Cir.), cert.

denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d

BID GO occ ccccvestsecskeddccacacsncdensueeenens 17

Wood v. Orange County, 715 F.2d 1543 (11th Cir.

1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2398,

Of L.G2d SES CIGSE).....cccvesececsscasvaccesess 14

Worldwide Church of God v. McNair, 805 F.2d 888

ths Cie, NGGBD ioc cccccccsccccésssssccessusvensenas 10

Il. Feperat STATUTES AND RULES

MB UGC. § 12B6 oo cccccccccvcccccccssscoscsecsepsseua 2

MB USC. § 1267 ..ccccccsccccccssccccccevesssecss 4, 18

42 UB. § 19GB. ccccccccccsecvscccscsnanssdscenenens 6

42 UGC. § 19GB oc ccccccccccccccccscssccseccssssescun 6

Fed. R. App. P. 10.....ccccccccsccsccccssscccccceees 16

Sup. Ct. BR. 17 .ccccccccscccsccccscccnsstescseesesesscs 8

III. Iowa CONSTITUTIONAL AND STATUTORY PROVISIONS

lowe Const. Ast. TE, © 400s ccccccedccssiavadensivess 17

Howa Code © GUZ.1S06 CISGZ) oc ccccccccscsccnsacccoss 17

Iowa R. App. P. 27 ...ccccccccccccccccccccccccsevecs 14

vii

TABLE OF AUTHORITIES-Continued

Page

IV. Iowa Attorney Disciptinary Rugs

BE UN Gh Ss WU cc ccceccasccccctcucensesens 3, 4

PG te a ih nn ones dcncsncscccoaves 3, 4, 10

EE MUD. Mi UN coda kadsceedsceeniaacdetasates +

Se EW I oo a dacceerkssvunsanencas eden +

UN asecasrnceandasdedsosecatcnscnr 4

SN Se le Wt MOD p oo bkscacnsceveccsusedsncuie 4

RE OO I ce daecGesedadaedsackceacebuens +

OUND Ds Tats Ee WINE h tin dncacedecscssdscadcasuues 4

SS Se BY DU nncoccctcuccccusdususuanakess 19

Snes SNe SI ME Cea vevscccdudecsccessaakeacenen 17

No. 88-769

In The

Supreme Court of the United States

October Term, 1988

JANE HARLAN,

Petitioner,

vs.

THE COMMITTEE ON PROFESSIONAL ETHICS AND

CONDUCT OF THE IOWA STATE BAR ASSOCIATION,

and its individual members thereof, Michael H.

Figenshaw, John J. Greer, James L. Tyler, Karen E. Shaff,

Marie Prince-Cohen, D. Carlton Shull, William C.

Davison, Norman G. Bastemeyer, Mary Louise Petersen,

and Carolyn Sloan, in their individual and official capaci-

ties; LARRY JACKSON, Deputy Commissioner of the

Iowa Department of Human Services, and GORDON E.

ALLEN, Special Assistant lowa Attorney General, in their

individual and official capacities,

Respondents.

y NX

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The Iowa State Bar Association Committee on Profes-

sional Ethics and Conduct, on behalf of itself and its

individual members, respectfully opposes the Petition for

Writ of Certiorari to review the opinion and judgment of

the United States Court of Appeals for the Eighth Circuit

entered in the above-captioned case on August 12, 1988.

OPINIONS BELOW

Neither the opinion of the Court of Appeais nor the

opinion of the District Court has been reported. Both

opinions, however, are reproduced in the Appendix to

the Petition for Writ of Certiorari.

JURISDICTION

The Petition for Writ of Certiorari invokes this

Court’s jurisdiction under 28 U.S.C. section 1254.

PROVISIONS OF RULES INVOLVED

Iowa Sup. Ct. R. 118

Rules of the Grievance Commission of the Supreme

Court of lowa

Rules of Procedure of the Committee on Professional

Ethics and Conduct of The Iowa State Bar

Association

These rules are set forth in the Appendix to this brief.

STATEMENT OF THE CASE

The present controversy must be viewed against the

backdrop of the well-defined, extensive, and

unchallenged procedures established by the Iowa

Supreme Court for processing complaints of unethical

behavior on the part of an attorney. Generally, these

procedures, set forth fully in the Appendix to this brief,

are first implicated when a complaint is filed with the

Iowa State Bar Association Committee on Professional

Ethics and Conduct (Ethics Committee or Committee).

The Ethics Committee is a duly constituted arm of the

lowa Supreme Court whose members, upon selection, are

formally appointed commissioners of that Court. Pur-

suant to Iowa Supreme Court Rule, the Committee is

expressly authorized “to initiate or receive, and process

complaints against any attorney licensed to practice law

in Iowa for alleged violations of the lowa Code of Profes-

sional Responsibility for Lawyers and laws of the United

States or the state of Iowa.” Iowa Sup. Ct. R. 118.2.

The Ethics Committee is charged with investigating

potential ethical violations, and upon completion of an

investigation has several courses of action available to it.

Specifically, the Committee may (1) dismiss the com-

plaint, (2) admonish the attorney, or (3) reprimand the

attorney. The Committee may also file a formal complaint

with the Supreme Court Grievance Commission. Iowa

Sup. Ct. R. 118.2.

If the Committee votes to reprimand an attorney,

notice of the Committee’s action must be given to the

attorney through personal service or by restricted certi-

fied mail. The attorney must at the same time be notified

of his or her right to, within thirty days, file exceptions to

the decision of the Ethics Committee. Iowa Sup. Ct. R.

118.3.

The consequences of an attorney’s decision with

respect to filing exceptions have been clearly articulated

by the lowa Supreme Court. First, if an attorney fails to

file an exception, such failure constitutes a waiver of any

further proceedings and establishes the attorney’s con-

sent-_that the reprimand be made final and public. lowa

Sup. Ct. R. 118.3.

By contrast, if an attorney takes timely exception to

the Committee’s reprimand and the Committee deter-

mines that no further action should be taken, the matter

is effectively closed and the record is sealed. No finding

of unethical behavior will be made public and no disci-

plinary action will be imposed. Iowa Sup. Ct. R. 118.3.

Finally, if an attorney files a timely exception to the

Committee’s reprimand and the Committee determines

that further action should be taken, a complaint must be

filed by the Committee with the Iowa Supreme Court

Grievance Commission. Iowa Sup. Ct. R. 118.2. After the

complaint is filed, an attorney is entitled to file an

answer, to engage in a full range of discovery, to partici-

pate in a complete evidentiary hearing, and to file a post-

hearing brief addressing all factual and legal issues

raised in the disciplinary proceeding. See Iowa Sup. Ct. R.

118.5-.9.

The Grievance Commission then issues its decision,

after which an attorney has an absolute right of appeal to

the Iowa Supreme Court. Iowa Sup. Ct. R. 118.11. Review

by the Iowa Supreme Court is de novo, Iowa Sup. Ct. R.

118.11, and may itself be followed by a timely petition for

rehearing, Iowa R. App. P. 27. An attorney dissatisfied

with the final decision of the lowa Supreme Court then

has the right to seek review of that decision in the United

States Supreme Court. 28 U.S.C. § 1257.

It is within the context of this procedural backdrop

that the present controversy had its genesis. On January

27, 1987, two lowa State officials, Larry Jackson and

Gordon Allen, filed a complaint with the Ethics Commit-

tee challenging the conduct of Iowa attorney Jane Harlan.

Jackson and Allen asserted that Harlan had violated var-

ious provisions of the lowa Code of Professional Respon-

sibility when she “pursued extrajudicial remedies in the

Governor’s office and the court of public opinion by

repeatedly requesting assistance with and commenting

upon [an ongoing child custody] case with members of

the local and national media.” Petitioner’s Appendix at

24.

The Ethics Committee notified Harlan of the com-

plaint and requested that she respond to it. Harlan did

respond, asserting that the complaint was frivolous and

represented “an unethical effort to [harass and] silence

[Harlan] in violation of her First Amendment rights.”

Petitioner’s Appendix at 26.

Following its investigation, the Ethics Committee

concluded some of the charges against Harlan were sup-

ported and voted to discipline Harlan by public repri-

mand. Harlan was promptly notified of the Committee’s

decision and of her right to, within thirty days, take

exception to that decision. Harlan was further notified

that “if such exceptions are not filed within [thirty days],

the reprimand will be forwarded to the Clerk of the

Supreme Court and spread upon the records of the Court

as a public reprimand.” Petitioner’s Appendix at 29-30.

Harlan, however, did not challenge the Committee’s

decision.' Instead, only cne week after being notified of

the Committee’s decision, Harlan filed the present law-

suit. Styled as a civil rights claim and brought under 42

U.S.C. sections 1983 and 1985, Harlan sought declaratory

and injunctive relief as well as $1,000,000 in compensa-

tory and punitive damages.

Because Harlan failed to challenge the decision of the

Ethics Committee, a final order of public reprimand was

entered by the Iowa Supreme Court on October 15, 1987.

Following entry of that order, Harlan filed no petition for

rehearing and failed to seek timely review by the United

States Supreme Court.

In response to Harlan’s federal action, the Ethics

Committee filed a motion to dismiss. Central to its

motion was the Committee’s assertion that the District

Court, pursuant to this Court’s ruling in District of Colum-

bia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct.

1303, 75 L.Ed.2d 206 (1983), lacked the jurisdictional

authority to consider Harlan’s complaint. The Committee

also asserted the members of the Committee were enti-

tled to absolute quasi-judicial immunity from Harlan’s

claim for compensatory and punitive damages.

On October 30, 1987, the District Court granted the

Committee’s motion to dismiss, concluding it had no

1 Both the District Court and the Court of Appeals

expressly found that Harlan failed to challenge the decision of

the Ethics Committee. See Petitioner’s Appendix at 4, 10. Har-

lan has not attempted to challenge this finding in her Petition

for Writ of Certiorari.

subject matter jurisdiction to consider Harlan’s com-

plaint. The District Court also concluded the Ethics Com-

mittee and its individual members were absolutely

immune from liability for damages.?

Harlan subsequently prosecuted an appeal in the

Eighth Circuit Court of Appeals. That court affirmed the

District Court’s decision in an unpublished per curiam

opinion. Following the Court of Appeals’ decision, Har-

lan filed the Petition for Writ of Certiorari presently

pending before this Court.

2 At the time the Committee filed its motion to dismiss, no

final order of reprimand had been entered by the Iowa

Supreme Court. Consequently, the Committee’s motion also

raised the issue of abstention. Well established precedent of

this Court, including Middlesex County Ethics Comm. v. Garden

State Bar Ass’n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116

(1982), and Ohio Civil Rights Comm. v. Dayton Christian Schools,

477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), as well as

the total lack of any factual basis to support Harlan’s claim of

bad faith or harassment on the part of the Committee, would

have mandated that the District Court abstain in this case.

Because the state proceedings were concluded prior to the

District Court’s decision, however, the issue of abstention was

mooted and the issue of subject matter jurisdiction became

controlling.

REASONS FOR DENYING THE WRIT

THE QUESTION OF THE DISTRICT

COURT’S SUBJECT MATTER JURISDICTION

IS CONTROLLED BY WELL-ESTABLISHED

UNITED STATES SUPREME COURT PRECE-

DENT, RAISES NO SPECIAL AND IMPOR-

TANT REASONS TO GRANT HARLAN’S

CERTIORARI PETITION, AND WAS PROP-

ERLY RESOLVED BY THE DISTRICT COURT.

THE QUESTION OF THE DISTRICT

COURT’S SUBJECT MATTER JURISDICTION

IMPLICATES NONE OF THE SPECIAL AND

IMPORTANT REASONS FOR GRANTING A

WRIT OF CERTIORARI IDENTIFIED IN

UNITED STATES SUPREME COURT RULE 17.

Rule 17 of this Court provides that a writ of certiorari

will be granted “only when there are special and impor-

tant reasons therefore.” Sup. Ct. R. 17. The rule identifies

several very limited instances in which special and

important reasons might be found to justify the granting

of a certiorari writ. None of these special and important

reasons are implicated with respect to the jurisdictional

issue that lies at the heart of this case.

Here, the District Court, following the closely analo-

gous Feldman decision, dismissed Harlan’s Complaint for

lack of subject matter jurisdiction. The Court of Appeals

affirmed the District Court’s decision in a per curiam

opinion.

Because neither of the opinions issued in this case

was published, neither decision is of any binding prece-

dential value within the Eighth Circuit. Further, even

—

assuming the jurisdictional issue was wrongly decided,

the unpublished, non-precedential nature of these deci-

sions assures that no conflict presently exists between

decisions in the Eighth Circuit and decisions in other

federal and state courts.

An additional reason for denying Harlan’s writ is the

existence of well-established, closely analogous, and con-

trolling United States Supreme Court precedent. Very

simply, the Feldman decision addressed and resolved the

jurisdictional issues involved in this case. The District

Court was obligated to follow the Feldman decision, and,

as detailed below, correctly applied the principles of Feld-

man to the jurisdictional issues raised in this case.

Clearly, no special and important reasons exist to

justify this Court’s review of the jurisdictional issue

raised by Harlan’s complaint. Consequently, this Court

should refuse to accept certiorari with respect to the

jurisdiction issue. Such refusal would conclude this litiga-

tion because all other issues raised in Harlan’s petition

presuppose the existence of subject matter jurisdiction.

THE DISTRICT COURT PROPERLY CON-

CLUDED IT WAS WITHOUT SUBJECT MAT-

TER JURISDICTION TO ENTERTAIN

HARLAN’S COMPLAINT.

The extensive administrative and judicial procedures

established by the lowa Supreme Court entitled Harlan to

litigate all factual and legal issues implicated in the disci-

plinary proceedings instituted against her. Such issues

would have included any federal or state constitutional

questions. By foregoing these extensive procedures, Har-

lan waived all further state court proceedings and con-

sented to the final order of public reprimand filed by the

Iowa Supreme Court. Iowa Sup. Ct. R. 118.3.

Through her federal action, Harlan now seeks to

circumvent the procedures established by the lowa

Supreme Court and litigate in federal court issues she

had every right and opportunity to pursue in the state

court proceedings. In so doing, Harlan effectively seeks

to overturn the finai order of public reprimand entered

by the lowa Supreme Court. This, she very simply cannot

do.

In District of Columbia Court of Appeals v. Feldman, this

Court bluntly stated: “[A] United States District Court

has no authority to review final judgments of a state

court in judicial proceedings. Review of such judgments

may be had only in this Court.” 460 U.S. 462, 482, 103

S.Ct. 1303, 1315, 75 L.Ed.2d 206, 222 (1983). This jurisdic-

tional prohibition is virtually absolute and applies not

only to complaints directly challenging a state court deci-

sion but also to complaints asserting federal constitu-

tional claims that are inextricably intertwined with the

state court decision. Id. at 482-83 n.16, 103 S.Ct. at 1315-16

n.16, 75 L.Ed.2d at 223-24 n.16.3

3 As the Ninth Circuit recently noted in Worldwide Church

of God » McNair:

Claims are “inextricably intertwined” if the district court

must “scrutinize not only the challenged rule itself, but the

[state court’s] application of the rule... .” If, in order to

{Continued on following page)

a ane AEE RAR «AY

The clear dictates of Feldman can be avoided only

with respect to those complaints challenging the facial

validity of “state bar rules, promulgated by state courts

in nonjudicial proceedings, which do not require review

of a final state-court judgment in a particular case.” Id. at

486, 103 S.Ct. at 1317, 75 L.Ed.2d at 225; Cruza v. Supreme

Court of South Carolina, 813 F.2d 644, 646 (4th Cir. 1987).

Even a general constitutional challenge may be pre-

cluded, however, if a state’s res judicata principles would

foreclose litigation of the issue. Feldman, 460 U.S. at

487-89, 103 S.Ct. at 1318, 75 L.Ed.2d at 225-26; Nordgren v.

Hafter, 789 F.2d 334, 338 n.1 (Sth Cir.), cert. denied, 479 U.S.

850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986).

Here, Feldman, as well as the numerous cases apply-

ing its clear dictates, compels the dismissal of Harlan’s

complaint. First, Harlan has never challenged the Com-

mittee’s assertion that the underlying state action as well

as the entire disciplinary process constituted judicial pro-

ceedings. Addressing this question of federal law, the

District Court itself expressly concluded:

(Continued from previous page)

resolve the claim, “the district court would have to go

beyond mere review of the state rule as promulgated, to an

examination of the rule as applied by the state court to the

particular factual circumstances of [the plaintiff’s] case,”

then the court lacks jurisdiction.

805 F.2d 888, 892 (9th Cir. 1986) (quoting Razatos v. Colorado

Supreme Court, 746 F.2d 1429, 1433 (10th Cir. 1984) (emphasis in

original), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d

301 (1985)).

eta eee

The proceedings in this matter involved a judi-

cial inquiry in which the Committee, acting on behalf

of the Iowa Supreme Court, “was called upon to

investigate, declare and enforce ‘liabilities as they

[stood] on present or past facts and under laws sup-

posed already to exist.”

Eee

Harlan v. Comm. on Professional Ethics & Conduct, No.

87-619-B, slip op. at 5 n.3 (S.D. Iowa Oct. 30, 1987) (quot-

ing Feldman, 460 U.S. at 479, 103 S.Ct. at 1313, 75 L.Ed.2d

at 221) (quoting Prentis v. Atlantic Coast Lens Co., 211 U.S.

210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150, 158 (1908)).

The District Court’s conclusion the state’s inquiry

was judicial in nature is clearly consistent with well-

established federal precedent. See, e.g., Feldman, 460 U.S.

at 476-82, 103 S.Ct. at 1311-14, 75 L.Ed.2d at 218-22;

Middlesex County Ethics Comm. v. Garden State Bar Ass‘n.,

457 U.S. 423, 431-34, 102 S.Ct. 2515, 2521-23, 73 L.Ed.2d

116, 124-26 (1982); Nordgren, 789 F.2d at 336-37; Thomas v.

Kadish, 748 F.2d 276, 281-82 (5th Cir. 1983), cert. denied,

473 U.S. 907, 105 S.Ct. 3531, 87 L.Ed.2d 655 (1985); Clulow

v. Oklahoma, 700 F.2d 1291, 1298 (10th Cir. 1983).

Because the lowa Supreme Court’s October 15, 1987,

order completed the state’s judicial inquiry, the United

States Supreme Court and only the United States

Supreme Court could review that decision. See Feldman,

460 U.S. at 482, 103 S.Ct. at 1315, 75 L.Ed.2d at 222. As

Feldman itself made clear:

. [o]rders of a state court relating to the admis-

sion, discipline, and disbarment of members of its

bar may be reviewed only by the Supreme Court of

the United States on certiorari to the state court, and

not by means of an original action in a lower federal

court.

Id. at 483 n.16, 103 S.Ct. at 1316 n.16, 75 L.Ed.2d at 223

n.16 (quoting MacKay v. Nesbet, 412 F.2d 846, 846 (9th Cir.

1969), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d

425 (1970)). This rule controls even in those situations in

which the state court action is itself challenged as uncon-

stitutional. Id. at 486, 103 S.Ct. at 1317, 75 L.Ed.2d at 225.

Second, in contrast with that portion of the complaint

in Feldman that asserted a particular rule was itself

facially unconstitutional, id., Harlan’s complaint makes

no general constitutional challenge to any provision of

the lowa Code of Professional Responsibility. Rather, out-

side of one oblique comment in paragraph 13 of her

complaint, Harlan’s complaint focuses wholly on the

events underlying and giving rise to the state disciplinary

proceedings. Specifically, Harlan’s complaint asserts: (1)

all her actions were protected by the First Amendment

and could not form the basis for disciplinary action; (2)

the disciplinary action was initiated in bad faith, without

any genuine expectation of success, and in retaliation

against her; and (3) the defendants knew or reasonably

should have known their conduct was violative of her

First Amendment rights. See similarly id. at 486-87, 103

S.Ct. at 1317-18, 75 L.Ed.2d at 225.

The very essence of these claims is that Harlan’s

actions were protected by the First Amendment and con-

sequently no disciplinary action could constitutionally be

taken against her. In other words, the relevant provisions

of the Code of Professional Responsibility relied upon by

the Ethics Committee could not constitutionally be

applied to Harlan. This claim is inextricably intertwined

with and would require the District Court to review the

underlying state proceedings. “This the District Court

may not do.” Id. at 483 n.16, 103 S.Ct. at 1315-16 n.16, 75

L.Ed.2d at 223 n.16.

Finally, Harlan does not and clearly could not claim

the administrative and judicial procedures available

under Iowa law failed to provide her a full and fair

opportunity to litigate her First Amendment defense. As

identified above, the lowa Supreme Court has established

extensive procedures under which an attorney is able to

challenge and attack potential disciplinary action. Harlan

points to nothing that would indicate these procedures

preclude the Ethics Committee, the Grievance Commis-

sion, or the Iowa Supreme Court from considering prop-

erly raised issues of federal constitutional law. See by

contrast Robinson v. Ariyoshi, 753 F.2d 1468, 1472 (9th Cir.

1985), vacated on other grounds, 477 U.S. 902, 106 S.Ct.

3269, 91 L.Ed.2d 560 (1986); Wood v. Orange County, 715

F.2d 1543, 1547 (11th Cir. 1983), cert. denied, 467 U.S. 1210,

104 S.Ct. 2398, 81 L.Ed.2d 355 (1984); Miller v. Washington

State Bar Ass’n., 679 F.2d 1313, 1316 (9th Cir. 1982) (in

each of which a party had no reasonable opportunity to

raise and litigate the federal constitutional question in the

state court proceedings).

By jumping to federal court, Harlan simply bypassed

and waived all opportunity to litigate her federal consti-

tutional claim in the state proceedings. As a result, just as

a failure to assert a federal constitutional issue during

state judicial proceedings may bar United States Supreme

Court review of a final state court decision, so too Har-

lan’s deliberate decision to bypass available state pro-

ceedings bars her from relying on an unlitigated question

of federal constitutional law as a basis for establishing

the subject matter jurisdiction of the District Court. See

Feldman, 460 U.S. at 482 n.16, 103 S.Ct. at 1315-16 n.16, 75

L.Ed.2d at 223 n.16.

The District Court properly followed the dictates of

Feldman in dismissing Harlan’s complaint. To conclude

otherwise would seriously undermine Iowa’s attorney

disciplinary process and would allow Harlan to attack

collaterally a final state court decision entered in large

part as a result of her own failure to take advantage of

procedural protections and remedies established by the

Iowa Supreme Court to protect her interests as well as the

interests of the general public.

II.

ASSUMING SUBJECT MATTER JURISDIC-

TION EXISTS, THE DISTRICT COURT PROP-

ERLY CONCLUDED THE MEMBERS OF THE

ETHICS COMMITTEE ARE ABSOLUTELY

IMMUNE FROM HARLAN’S CLAIM FOR

COMPENSATORY AND PUNITIVE

DAMAGES.

THE COURT OF APPEALS’ RESOLUTION OF

THE IMMUNITY ISSUE IMPLICATES NONE

OF THE SPECIAL AND IMPORTANT REA-

SONS FOR GRANTING A WRIT OF CER-

TIORARI IDENTIFIED IN UNITED STATES

SUPREME COURT RULE 17.

The Court of Appeals affirmed the District Court’s

finding that the members of the Committee were immune

from a claim for damages. It did so, however, not on the

imam cain. |

basis of the issue’s merits but because Harlan failed to

raise and address the immunity issue in her appeal.

In reaching this result, the Court followed well-estab-

lished Eighth Circuit precedent. See, e.g., Rubek v. Barn-

hart, 814 F.2d 1283, 1285 (9th Cir. 1987); Burough v. Duluth

Missabe & Iron Range Ry. Co., 762 F.2d 66, 68 n.1 (8th Cir.

1985). That precedent, which simply requires a party

seeking reversal to identify and address issues relied

upon as a basis for reversal, is consistently followed in

the other federal circuits. See, e.g., Collins v. City of San

Diego, 841 F.2d 337, 339 (9th Cir. 1988); Travelers Indemnity

Co. v. Atlantic Express Line. 837 F.2d 187, 188 (5th Cir.),

cert. denied, 57 U.S.L.W. 3259 (1988); Appley v. West, 832

F.2d 1021, 1030 (7th Cir. 1987); McMurphy v. City of Flush-

ing, 802 F.2d 191, 198-99 (6th Cir. 1986). Consequently, the

rule applied by the Court of Appeals to resolve the

immunity question in no way conflicts with the rule

applied in other federal courts, does not implicate an

important, but undecided question, of federal law, and

does not conflict with the decisions of this Court.‘

* The Court of Appeals clearly acted within its discretion

in concluding Harlan had waived the immunity issue. Harlan’s

notice of appeal did not mention the immunity issue. Her

statement of issues filed pursuant to Federal Rule of Appellate

Procedure 10(b)(3) identified only the subject matter jurisdic-

tion issue. Neither Harlan’s initial brief nor her reply brief

raised or addressed the immunity issue. Finally, during oral

argument, Harlan addressed the immunity issue only after the

Court expressly raised the question of waiver.

EVEN ASSUMING THE COURT OF APPEALS

ERRED IN NOT ADDRESSING THE MERITS

OF THE IMMUNITY QUESTION, THAT

ISSUE WAS PROPERLY ADDRESSED AND

RESOLVED BY THE DISTRICT COURT.

Well-settled precedent of this Court establishes the

absolute immunity from damages of state court judges

and prosecutors. Butz v. Economou, 438 U.S. 478, 509-12,

98 S.Ct. 2894, 2911-13, 57 L.Ed.2d 895, 917-19 (1978);

Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099,

1104-05, 55 L.Ed.2d 331, 338-39 (1978). Members of

administrative boards or commissions who perform judi-

cial or quasi-judicial functions are likewise absolutely

immune from claitns for damages. Butz, 438 U.S. at

512-513, 98 S.Ct. at 2914, 57 L.Ed.2d at 920; Vakas v.

Rodriquez, 728 F.2d 1293, 1296 (10th Cir.), cert. denied, 469

U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).

For a variety of reasons, the members of the Ethics

Committee are also entitled to absolute quasi-judicial

immunity from Harlan’s claim for damages. First, in exer-

cising their authority to take disciplinary action, mem-

bers of the Committee perform qvasi-judicial and quasi-

prosecutorial functions. They also exercise by express

delegation the lowa Supreme Court’s inherent and statu-

tory authority to regulate the bar. See lowa Const. Art. III,

§ 1, lowa Code § 602.1206 (1987); Iowa Sup. Ct. Rule 121.

As such, Committee members serve as an arm of the Iowa

Supreme Court and shoulder much of the work that

would otherwise fall on individual justices of the lowa

Supreme Court.

Second, as in Butz, well defined procedural protec-

tions built into the attorney disciplinary process eliminate

the need for private damage actions as a means of reme-

dying unconstitutional conduct. See Butz, 438 U.S. at

512-13, 98 S.Ct. at 2914, 57 L.Ed.2d at 920. These safe-

guards include the right to take exception to a Committee

reprimand, the right to a full evidentiary hearing, and the

right to de novo review before the Iowa Supreme Court.

See Iowa Sup. Ct. Rules 118.2, 118.7, and 118.11. Further,

any attorney aggrieved by a final disciplinary decision of

the Iowa Supreme Court may seek review in the United

States Supreme Court. 28 U.S.C. § 1257; see In re Randall,

640 F.2d 898, 901 (8th Cir.), cert. denied, 454 U.S. 880, 102

S.Ct. 361, 70 L.Ed.2d 189 (1981).

Finally, and again as in Butz, members of the Com-

mittee, like judges and prosecutors, are likely targets for

those angered by their decisions. To ensure their contin-

ued independence as well as their willingness to serve,

Committee members, who serve voluntarily and without

pay, must be free to exercise their authority and discre-

tion without fear of harassment or intimidation, Butz, 438

U.S. at 512, 98 S.Ct. at 2913, 57 L.Ed.2d at 919, and thus

must be protected from the kind of suit here involved, see

State v. Baker, 293 N.W.2d 568, 576 (Iowa 1980).

The District Court’s conclusion that members of the

Committee are entitled to absolute quasi-judicial immunity is

entirely consistent with analogous circuit court precedent.

See Horwitz v. State Board of Medical Examiners, 822 F.2d 1508,

1513-16 (10th Cir.), cert. denied, _ U.S. __, 108 S.Ct. 453,

98 L.Ed.2d 394 (1987); Childs v. Reynoldson, 777 F.2d 1305,

1306 (8th Cir. 1985); Austin Municipal Sec. Inc. v. National

Ass’n. of Sec. Dealers, 757 F.2d 676, 690-91 (5th Cir. 1985);

Clulow v. Oklahoma, 700 F.2d 1291, 1298 (10th Cir. 1983);

Simons v. Bellinger, 643 F.2d 774, 777-85 (D.C. Cir. 1980).

As a final note, the only recognized exception to the

grant of absolute immunity from a claim for damages

would require Harlan to demonstrate the Committee's

actions were taken in the “clear absence of all jurisdic-

tion.” Sparkman, 435 U.S. at 357, 98 S.Ct. at 1105, 55

L.Ed.2d at 339. Harlan, however, has made no attempt to

rely on this narrow exception and nothing in her com-

plaint even remotely suggests its potential applicability.®

—

5 For purposes of lawsuits filed in lowa state court, the

Iowa Supreme Court has explicitly resolved the immunity

issue. In Iowa Supreme Court Rule 118, the Court provided

that “members of the committee on professional ethics and

conduct shall be immune from suit for any conduct in the

course of their official duties.” lowa Sup. Ct. R. 118.19.

CONCLUSION

As demonstrated, Harlan’s petition identifies no spe-

cial and important reason why a grant of certiorari is

appropriate in this case. Further, the issues of subject

matter jurisdiction and immunity were properly resolved

below and are entirely consistent with well-established

precedents of this Court. Consequently, the Ethics Com-

mittee respectfully requests that this Court deny Harlan’s

Petition for Writ of Certiorari.

Respectfully submitted,

James E. GrITZNER

Kasey W. KINCAID

Eric P. SLOTER

— orf Nyemaster, Goopve, McLAUGHLIN,

Emery & O’Brien, P.C.

699 Walnut Street

1900 Hub Tower

Des Moines, Iowa 50309

(515) 283-3100

Attorneys for Respondent

The Committee on Professional Ethics and

Conduct of the Iowa State Bar Association

App. 1

January 1988

GRIEVANCE COMMISSION

Court Rule 118. Complaint procedure.

Referred to in Rules EC 2-11, DR 2-101, DR 2-105, -

Disciplinary Guidelines; Grievance Commission Rules 3

and 7, Appendix A; Ethics Procedure Rule 3.2; Ct.R. 121.2

“C” (5); 121.3 “d” (9), “i” (8); 121.4; 121.5 “a” (2); 123.5

“b”; Lawyer Mediator Rule 7B

Court Rule 118.1. Grievance Commission. There is

hereby created the Grievance Commission of the

Supreme Court of Iowa whose members shall be the

Committee on Grievances of the Iowa State Bar Associa-

tion, consisting of three lawyers from each judicial elec-

tion district, to be appointed by the President-Elect of The

Iowa State Bar Association, who shall designate one of

them, annually, as chairman of the commission, and not

less than five nor more than thirteen lay persons appoint-

ed by the court, and their successors as confirmed by

order of this court. Such members are appointed commis-

sioners of this court. The grievance commission, or a duly

appointed division thereof shall hold hearings and

receive evidence concerning alleged violations, wherever

such violations occur, of the Iowa Code of Professional

Responsibility for Lawyers or laws of the United States,

and the laws of the state of Iowa or any other state or

territory within their respective jurisdictions by lawyers

who are members of the bar of this court. The grievance

commission shall have such other powers and duties as

are provided in these rules. .

Court Rule 118.2. Processing of complaints. The

members of the Committee on Professional Ethics and

App. 2

Conduct of the Iowa State Bar Association, consisting of

seven lawyers appointed by the President-elect of The

Iowa State Bar Association, who shall designate one of

them, annually, as chairman of the committee, and two

lay persons appointed by the court, and their successors,

as confirmed by order of this court are appointed com-

missioners of this court to initiate or receive, and process

complaints against any attorney licensed to practice law

in this state for alleged violations of the lowa Code of

Professional Responsibility for-Lawyers and laws of the

United States or the state of lowa. Upon completion of

any such investigation the committee on professional

ethics and conduct shall either dismiss the complaint

made, or admonish or reprimand the attorney, or file and

prosecute the complaint before the grievance commission

or any division thereof.

No member appointed to either the Committee on

Professional Ethics and Conduct of the lowa State Bar

Association or the Grievance Commission of the Supreme

Court of Iowa shall undertake to represent, in any stage

of the investigative or disciplinary proceedings, any law-

yer against whom an ethical complaint has been filed. To

avoid even the appearance of impropriety, no member of

the-Committee on Professional Ethics and Conduct of the

Iowa State Bar Association should undertake to represent

any lawyer in any malpractice, criminal, or other matter

where it appears that the filing of an ethical complaint

against that lawyer is reasonably likely. A member of the

Grievance Commission of the Supreme Court of lowa

may represent a lawyer in a malpractice, criminal, or

other matter; however, a member must decline represen-

tation of the lawyer in any stage of the investigative or

App. 3

disciplinary proceedings, and not participate in any hear-

ing or other proceeding before the commission.

Referred to in R.Prob.P.5“d”

Court Rule 118.3. Reprimand. In event an attorney is

reprimanded by the committee on professional ethics and

conduct, a copy of the reprimand shall be filed with the

clerk of the grievance commission who shall forthwith

cause a copy of the reprimand to be served on the attor-

ney by personal service in the manner of an original

notice in civil suits or by restricted certified mail, with a

notice attached stating that the attorney has thirty days

from the date of completed service to file exceptions to

the reprimand with the clerk of the grievance commis-

sion. Service shall be deemed completed on the date of

personal service or the date shown by the postal receipt

of delivery of the notice to the attorney. If the attorney

fails to file an exception such failure shall constitute a

waiver of any further proceedings and a consent that the

reprimand be final and public. In that event, the clerk of

the grievance commission shall cause a copy of the repri-

mand to be forwarded to the clerk of this court, together

with proof of the aforesaid service thereof and a state-

ment that no exceptions had been filed within the time

prescribed. This court shall thereupon cause the repri-

mand to be spread upon the records of the court as a

public document. In event, however, the attorney con-

cerned files timely exception to the reprimand, no report

of the reprimand shall be made to the clerk of this court

and the reprimand shall be stricken from the records. The

committee on professional ethics and conduct may, how-

ever, proceed further with any complaint against such

a oe

App. 4

attorney before the grievance commission. When a repri-

mand has been filed but exception is duly taken thereto

such reprimand shall not be admissible in evidence in

any hearing before the grievance commission.

Court Rule 118.4. Rules. The grievance commission

and the committee on professional ethics and conduct

shall each adopt reasonable rules prescribing the pro-

cedure to be followed in all disciplinary proceedings

before each such body, which rules shall be subject to

approval by this court.

Court Rule 118.5. Complaints. Every complaint filed

against an attorney with the grievance commission shall

be signed and sworn to by the chairman of the committee

on professional ethics and conduct and served upon the

attorney concerned as provided by the rules of the griev-

ance commission. Such complaints shall be sufficiently

clear and specific in their charges to reasonably inform

the attorney against whom the complaint is made of the

misconduct he or she is alleged to have committed. All

complaints, motions, pleadings, records, reports, exhibits,

evidence and all other documents or things filed under

this rule or received in evidence in a hearing before the

grievance commission shall be filed with and preserved

by the secretary of the grievance commission in Des

Moines, Iowa, all of which shall at all times be available

to this court or anyone designated by this court.

Referred to in Grievance Commission Rule 5

Court Rule 118.6. Discovery. In any disciplinary pro-

ceeding or action taken by the committee on professional

ethics and conduct, discovery shall be permitted as pro-

vided in R.C.P. 121 to 134 inclusive; 140 and 141; and in

App. 5

154 to 158. the attorney against whom a complaint has

been filed, in addition to the restriction stated in R.C.P.

122(a) shall not be required to answer an interrogatory

pursuant to R.C.P. 126; a request for admission pursuant

to R.C.P. 127; a question upon oral examination pursuant

to R.C.P. 140; or a question upon written interrogatories,

pursuant to R.C.P. 150; if the answer would be self-

incriminatory. In addition thereto, evidence and testi-

mony may be perpetuated as provided in R.C.P. 159 to

166. If either party is to utilize discovery, it must be

commenced within thirty days after service of the com-

plaint. The commission may permit amendments to the

complaint to conform to the proof or to raise new matters

as long as the respondent has notice thereof and a reason-

able time to prepare his defense thereto prior to the date

set for hearing. The grievance commission, or any divi-

sion thereof, shall receive an application and may enter

an order to enforce discovery or to perpetuate any evi-

dence. [Correction March 1983]

Court Rule 118.7. Hearing. After a complaint has

been filed with the grievanc@ commission and an answer

filed thereto pursuant to its rules or the time provided for

such answer has expired, the grievance commission shall

immediately upon the expiration of thirty days from the

date of service of the complaint set the matter for hearing

and notify all parties therof at least ten days prior to the

date of service of the complaint set the matter for hearing

and notify all parties thereof at least ten days prior to the

date set for such hearing, by restricted certified mail or

personal service. If neither party has commenced any

discovery within thirty days of the date of service of the

complaint, the hearing shall be not less than forty-five

days nor more than sixty days after the service of the

App. 6

complaint. If a party has commenced discovery, the hear-

ing shall be not less than sixty days nor more than

seventy-five days after the service of the complaint. The

commission may grant reasonable continuances but only

upon written application supported by affidavit. Proceed-

ings and hearings before the grievance commission or

any division thereof shall be confidential unless the attor-

ney involved requests otherwise.

In the event an attorney previously has been publicly

reprimanded; or an attorney’s license has been sus-

pended, revoked, or he or she has been disbarred, a

certified copy of said action shall be admitted into evi-

dence at any hearing involving disciplinary proceedings

without the necessity of a bifurcated hearing. The griev-

ance commission and this court shall consider this evi-

dence along with al! other evidence in the case in

determining the attorney’s fitness or unfitness to practice

law in the state of lowa.

Court Rule 118.8. Subpoenas. The clerk of the dis-

trict court of the county in which any disciplinary hear-

ing is to be held shall issue subpoenas of all kinds upon

request of the grievance commission, the complainant, or

the attorney against whom a complaint has been filed.

Any member of the grievance commission is hereby

empowered to administer oaths to all witnesses, and shall

cause such testimony to be officially reported by a court

reporter. The grievance commission shall report to the

response to any subpoena or any ruling of said

commission.

Court Rule 118.9. Decision. At the conclusion of a

hearing upon any complaint against an attorney, the

App. 7

grievance commission shall dismiss the complaint, or

recommend to this court that the attorney be repri-

manded or the license to practice law of the accused

attorney be suspended or revoked. If the grievance com-

mission recommends reprimand of the attorney or recom-

mends suspension or revocation of the attorney’s license,

it shall report to this court, in writing, its findings of fact,

conclusions of law, and recommendations. A copy of this

report shall also be filed with the client security and

attorney disciplinary commission. The grievance commis-

sion may permit a reasonable time for the parties to file

post-hearing briefs and arguments. The disposition or

report of the commission shall be made or filed with this

court within thirty days of the date set for the filing of

the last responsive brief and argument. If the commission

cannot reasonably make its determination or file its

report within such time limit, it shall report that fact and

the reasons therefor to the parties and the clerk of this

court. Any determination or report of the commission

need only be concurred in by a majority of the commis-

sioners sitting. Any commissioner has the right to file

with this court his or her dissent from the majority deter-

mination or report. Such matter shall then stand for final

disposition in this court. If the grievance commission

dismisses the complaint, no report shall be made to this

court, except as provided in rule 118.20, however, the

grievance commission shall, within ten days of its deter-

mination to dismiss, notify the complainant in writing of

its report. If no appeal is applied for by the complainant

within ten days after such notice, the grievance commis-

sion dismissal shall be final. Any report of reprimand or

recommendations for license suspension or revocation

App. 8

shall be a public document upon the filing thereof with

the clerk of this court.

Referred to in Ct.R. 118.11; Grievance R. 14

Court Rule 118.10. Disposition by the supreme

court. Any report filed by the grievance commission with

this court shall be served upon the attorney concerned as

provided by the rules of the grievance commission. Such

report shall be entitled in the name of the complainant

versus the accused attorney as the respondent. Within

fourteen days after a report is filed with the clerk of this

court, the secretary of the grievance commisssion shall

transmit to the clerk of this court the entire record made

before the commission. If no appeal is taken or applica-

tion for permission to appeal is filed within ten days as

provided in court rule 118.11, the court shall proceed to

review de novo the record made before the commission

and determine the matter without oral argument or fur-

ther notice to the parties. Upon such review de novo the

court may impose a lesser or greater sanction than the

discipline recommended by the grievance commission.

This court may revoke or suspend the license of an

attorney admitted to practice in Iowa upon any of the

following grounds: conviction of a felony, conviction of a

misdemeanor involving moral turpitude, violation of any

provision of the lowa Code of Professional Responsibility

for Lawyers, or any cause now or hereafter provided by

statute or these rules.

Referred to in Ct.R. 118.11

Court Rule 118.11. Appeal. The respondent may

appeal from the report filed by the grievance commission

pursuant to rule 118.9 to this court. Respondent's notice

App. 9

of appeal must be filed with the secretary of the griev-

ance commission within ten days after the report is filed

with the clerk of this court. The respondent shall serve a

copy of the notice of appeal on the complainant or its

counsel pursuant to Iowa rule of appellate procedure 30.

Promptly after filing notice of appeal with the secretary

of the grievance commission respondent shall mail or

deliver a copy of the notice of appeal to the clerk of the

supreme court.

The complainant, within ten days after filing of final

disposition of a case by the grievance commission, may

apply to this court for permission to appeal from a ruling,

report, or recommendation of the grievance commission.

This court may grant such appeal in a manner similar to

the granting of interlocutory appeals in civil cases under

the Iowa rules of appellate procedure. The filing fee and

the docket fee shall be waived upon complainant’s writ-

ten requests. If such appeal is from the grievance com-

mission’s dismissal of a complaint, or of any charge

contained therein, such appeal shall remain confidential.

In making such application the complainant shall refer to

the respondent’s initials, rather than respondent’s name.

All references to the respondent in briefs and oral argu-

ments shall be by respondent’s initials. In the event this

court reverses or modifies the report of the grievance

commission, such court order of reversal or modification

shall become a public record.

After the filing of a notice of appeal or the granting

of permission to appeal, the appeal shall proceed pur-

suant to the Iowa rules of appellate procedure to the full

extent those rules are not inconsistent with this rule.

Appellant shall cause the apppeal to be docketed within

App. 10

ten days after the filing of notice of appeal or the grant-

ing of permission to appeal. The matter shall be docketed

under the title given to the action before the grievance

commission with the appellant identified as such pur-

suant to Iowa rule of appellate procedure 12(a). The

abbreviated time limi:s specified in Iowa rule of appellate

procedure 17 shall apply. Enlargements of time are not

favored and shall not be granted except upon a verified

showing of the most unusual and compelling circum-

stances. Review shall be de novo. If a respondent’s

appeal is dismissed for lack of prosecution pursuant to

Iowa rule of appellate procedure 19 or for any other

reason, this court shall proceed to review and decide the

matter pursuant to court rule 118.10 as if no appeal had

been taken.

Referred to in R. App. P. 12; Ct.R. 118.10; Grievance

R. 14

Court Rule 118.12. Suspension. In event an order of

this court provides for the suspension of the license of an

attorney to practice law, such suspension shall continue

for the minimum time specified in such order and until

this court has approved the attorney’s written application

for reinstatement. In the order of suspension or by order

at any time before reinstatement, this court may require

the suspended attorney to meet reasonable conditions for

reinstatement including, but not limited to, passing the

Multistate Professional Responsibility Examination.

Any attorney suspended shall refrain, during such

suspension, from all facets of the ordinary law practice

including, but not limited to, the examination of

abstracts; consummation of real estate transactions; prep-

aration of legal briefs, deeds, buy and sell agreements,

App. 11

contracts, wills, and tax returns; and acting as a fiduciary.

Such suspended attorney may, however, act as a fiduciary

for the estate, including a conservatorship or guardian-

ship, of any person related to the suspended attorney

within the second degree of affinity or consanguinity.

Nothing in this rule shall preclude an attorney, law

firm, or professional association from employing a sus-

pended attorney to perform such services only as may be

ethically performed by lay persons employed in attor-

neys’ offices, under the following conditions:

(a) The place of performance of such services shall

be not less than one hundred miles from the suspended

attorney’s former law practice; and

(b) Notice of employment, together with a full job

description, shall be provided to the committee on pro-

fessional ethics and conduct of the Iowa State Bar Asso-

ciation before employment commences; and

and employee, shall be submitted quarterly to the com-

mittee on professional ethics and conduct of the Iowa

State Bar Association. Such reports shall contain a certi-

fication that no aspect of the employee’s work has

involved the unauthorized practice of law; and

(d) No suspended attorney shall have direct or per-

sonal association with any client, or shall disburse or

otherwise handle funds or property of a client.

Typo corrected in paragraph (b) - “will” to “with” in

November 87 Supp.

Court Rule 118.13. Application for reinstatement.

An application for reinstatement from any suspension

App. 12

shall be filed with the clerk of this court not more than

sixty days prior to expiration of such suspension or time

fixed for making application therefor in accordance with

the provisions of court rule 117. In addition thereto the

applicant shall state, in said application, that he or she

has complied in all respects with the orders and judg-

ments of this court relating to the suspension. The appli-

cant shall also submit to this court satisfactory proof that

he or she, at time of the application, is of good moral

character and in all respects worthy of the right to prac-

tice law.

Court Rule 118.14. Conviction of a crime. Upon

receipt by this court of satisfactory evidence that an

attorney had pled guilty to, or nolo contendere to, or has

been convicted of a crime which would be grounds for

license suspension or revocation, such attorney may be

temporarily suspended from the practice of law by this

court regardless of the pendency of an appeal. Not less

than twenty days prior to the effective date of such

suspension, the attorney concerned shall be notified, in

writing directed by restricted certified mail to his last

address as shown by the records accessible to this court,

that he has a right to appear before one or more justices

of this court at a specified time, at a designated place and

show cause why such suspension should not take place.

Any hearing so held shall be informal and the strict rules

of evidence shall not apply. The decision rendered may

simply state the conclusion and decision of the participat-

ing justice or justices and may be orally delivered to the

attorney at the close of the hearing or sent to him in

written form at a later time.

App. 13

Any attorney suspended pursuant to this rule shall

refrain, during such suspension, from all facets of the

ordinary law practice including, but not limited to, the

examination of abstracts; consummation of real estate

transactions; preparation of legal briefs, deeds, buy and

sell agreements, contracts, wills and tax returns; and

acting as a fiduciary. Such suspended attorney may, how-

ever, act as a fiduciary for the estate, including a conser-

vatorship or guardianship, of any person related to the

suspended attorney within the second degree of affinity

or consanguinity.

For good cause shown, this court may set aside an

order temporarily suspending an attorney from the prac-

tice of law as hereinabove provided, upon application by

such attorney and hearing thereon in accordance with

court rule 117, but such reinstatement shall neither termi-

nate a disciplinary proceeding then pending nor stand as

a bar to any such proceeding thereafter instituted against

such attorney.

An attorney temporarily suspended under the

aforesaid provisions of this rule shall be promptly reins-

tated upon the filing of a good and sufficient certificate

disclosing the underlying conviction of a crime has been

finally reversed or set aside, but such reinstatement shall

neither terminate a disciplinary proceeding then pending

nor stand as a bar to any such proceeding thereafter

instituted against such attorney.

The clerk of any court in this state in which an

attorney has pled guilty or nolo contendere to, or been

convicted of a crime as aforesaid shall, within ten days

sinensis

App. 14

thereafter transmit a certificate thereof to the clerk of this

court.

Court Rule 118.15. Disbarment on consent. An attor-

ney subject to investigation or a pending proceeding

involving allegations of misconduct subject to disciplin-

ary action may acquiesce in his or her disbarment, but

only by delivering to the grievance commission an affi-

davit stating he or she consents to disbarment and that

(1) The consent is freely and voluntarily given

absent any coercion or duress, with full recognition of all

implication attendant upon such consent;

(2) He or she is aware of a presently pending inves-

tigation inte, or proceeding involving allegations that

there exist grounds for discipline the nature of which

shall be specifically set forth;

(3) He or she acknowledges the material facts so

alleged are true; and

(4) In event proceedings were instituted upon the

matters under investigation, or if existent proceedings

were pursued, he or she could not successfully defend

against same.

Upon receipt of such affidavit the grievance commis-

sion shall cause same to be filed with the clerk of this

court whereupon this court shall enter an order disbar-

ring such attorney on consent.

Any order disbarring an attorney on consent shall be

a matter of public record. However, the affidavit required

as aforesaid shall not be publicly disclosed or made avail-

able for use in any other proceeding except upon order of

this court.

App. 15

Court Rule 118.16. Disability suspension. In event

an attorney shall at any time in any jurisdiction be duly

adjudicated a mentally incapacitated person, or an alco-

holic, or a drug addict, or shall be committed to an

institution or hospital for treatment thereof, the clerk of

any court in Iowa in which any such adjudication or

commitment is entered shall, within ten days thereafter,

certify same to the clerk of this court.

Upon the filing of any such certificate or a like certifi-

cate from another jurisdiction or upon determination by

this court pursuant to a sworn application on behalf of a

county bar association or the Committee on Professional

Ethics and Conduct of the Iowa State Bar Association,

that an attorney is not discharging professional respon-

sibilities due to disability, incapacity, abandonment of

practice, or disappearance, this court may enter an order

suspending the license of such attorney to practice law in

this state until further order of this court. Not less than

twenty days prior to the effective date of such suspen-

sion, the attorney concerned or his er her guardian and

the director of the insitution or hospital to which such

attorney has been committed, if any, shall be notified, in

writing directed by restricted certified mail to his or her

last address as shown by the records accessible to this

court, that the attorney has a right to appear before one

or more justices of this court at a specified time, at a

designated place and show cause why such suspension

should not take place; provided, however, that, upon a

showing of exigent circumstances, emergency or other

compelling cause, the court may reduce or waive the

twenty-day period and the effective date of action above

referred to. Any hearing so held shall be informal and the

App. 16

strict rules of evidence shall not apply. The decision

rendered may simply state the conclusion and decision of

the participating justice or justices and may be orally

delivered to the attorney at the close of the hearing or

sent to the attorney in written form at a later time. A copy

of such suspension order shall be given the suspended

attorney, or to his or her guardian and the director of the

insitution or hospital to which such suspended attorney

has been committed, if any, by restricted mail or personal

service as this court may direct.

Any attorney suspended pursuant to this rule shall

refrain, during such suspension, from all facets of the

ordinary law practice including, but not limited to, the

examination of abstracts; consummation of real estate

transactions; preparation of legal briefs, deeds, buy and

sell agreements, contracts, wills and tax returns; and

acting as a fiduciary. Such suspended attorney may, how-

ever, act as a fiduciary for the estate, including a conser-

vatorship or guardianship, of any person related to the

suspended attorney within the second degree of affinity

or consanguinity.

No attorney suspended due to disability under the

aforesaid provisions of this rule may engage in the prac-

tice of law in this state until reinstated by order of this

court.

Upon being notified of the suspension of the attor-

ney, the chief judge in the judicial district in which the

attorney practiced shall appoint a lawyer or lawyers to

serve as trustee to inventory the files, sequester client

funds, and take any other appropriate action to protect

the interests of the clients and other affected persons.

App. 17

Such appointment shall be subject to confirmation by the

supreme court. The appointed lawyer shall serve as a

special member of the Committee on Professional Ethics

and Conduct of the Iowa State Bar Association and as a

commissioner of the supreme court for the purposes of

the appointment. The trustee may seek reasonable fees

and reimbursement of costs of the trust from the sus-

pended attorney. If reasonable efforts to collect such fees

and costs are unsuccessful, the trustee may submit a

claim for payment from the Clients’ Security Trust Fund

of the Bar of lowa. The Client Security and Attorney

Disciplinary Commission, in the exercise of its sole dis-

cretion, shall determine the merits of the claim and the

amount of any payment from the fund. When the sus-

pended attorney is reinstated to practice law in this state,

or all pending representation of clients has been com-

pleted, or the purposes of the trust have been accom-

plished, the trustee may apply to the appointing chief

judge for an order terminating the trust.

Any attorney so suspended shall be entitled to apply

for reinstatement to active status once each year or at

such shorter intervals as this court may, in the suspension

order, provide or specify. An attorney suspended due to

any aforesaid disability may be reinstated by this court

upon a showing, by clear and convincing evidence, that

the attorney’s disability has been removed and he or she

is fully qualified to resume the practice of law. Upon the

filing of an application for reinstatement this court may

take or direct any action deemed necessary or proper to

determine whether such suspended attorney’s disability

has been removed, including a direction for an examina-

tion of the applicant by such qualified medical experts as

ema es |

App. 18

this court shall designate. In its discretion this court may

direct that the expenses of such an examination be paid

by the petitioning attorney.

The filing of an applicaiton for reinstatement to

active status by an attorney suspended due to disability

shall constitute a waiver of any doctor-patient privilege

with regard to any treatment of the petitioning attorney

during the period of his or her disability. Such attorney

shall also set forth in his or her application for reinstate-

ment the name of every psychiatrist, psychologist, physi-

cian and hospital or any other insitution by whom or in

which the petitioning attorney has been examined or

treated since his or her suspension due to disability, and

shall also furnish to this court written consent that any

such psychiatrist, psychologist, physician and hospital or

other institution by whom or in which the petitioner has

been examined or treated as aforesaid may divulge any

and all information and records requested by this court

or any court-appointed medical experts.

Where an attorney has been suspended due to any

aforesaid disability and thereafter, in proceedings duly

had, he or she shall be judicially held to be competent or

cured, this court may dispense with further evidence

regarding removal of his or her disability and may order

his or her reinstatement to active status upon such terms

as are deemed reasonably proper and advisable.

Court Rule 118.16A. Death or suspension of practic-

ing attorney. Upon a sworn application on behalf of a

county bar asociation or the Committee on Professional

Ethics and Conduct of the Iowa State Bar Association

a eB

App. 19

showing that a practicing attorney has died or been sus-

pended or disbarred from the practice of law, and a

reasonable necessity exists, the chief judge in the judicial

district in which the attorney practiced shall appoint a

lawyer or lawyers to serve as trustee to inventory the

files, sequester client funds, and take any other appropri-

ate action to protect the interests of the clients and other

affected persons. Such appointment shall be subject to

confirmation by the supreme court. The appointed lawyer

shall serve as a special member of the Committee on

Professional Ethics and Conduct of the Iowa State Bar

Association as a commissioner of the supreme court for

the purposes of the appointment. The trustee may seek

reasonable fees and reimbursement of costs of the trust

from the deceased attorney’s estate or the attorney whose

license to practice law has been suspended or revoked. If

reasonable efforts to collect such fees and costs are unsuc-

cessful, the trustee may submit a claim for payment from

the Clients’ Security Trust Fund of the Bar of Iowa. The

Client Security and Attorney Disciplinary Commission, in

the exercise of its sole discretion, shall determine the

merits of the claim and the amount of any payment from

the fund. When all pending representation of clients has

been completed or the purposes of the trust have been

accomplished, the trustee may apply to the appointing

chief judge for an order terminating the trust.

App. 20

Court Rule 118.17. Reciprocal discipline. Any attor-

ney admitted to practice in this state, upon being sub-

jected to professional disciplinary action in another

jurisdiction or in any federal court, shall promptly advise

the grievance commission, in writing, of such action.

Upon being informed that an attorney admitted to prac-

tice in this state has been subjected to discipline in

another jurisdiction or any federal court, the grievance

commission shall obtain a certified copy of such disci-

plinary order and cause same to be filed in the office of

the clerk of this court.

Upon receipt of a certified copy of an order disclos-

ing an attorney admitted to practice in this state has been

disciplined in another jurisdiction or any federal court,

this court shall promptly give notice thereof by restricted

certified mail or personal service directed to such attor-

ney containing: (1) A copy of said disciplinary order from

the other jurisdiction or federal court, and (2) an order

directing that such disciplined attorney inform this court,

within thirty days after receipt of said notice, of any

claim by such attorney that imposition of identical disci-

pline in this state would be too severe, too lenient or

otherwise unwarranted, giving the specific reasons there-

for. A like notice shall be mailed to the committee on

professional ethics and conduct of the lowa State Bar

Association. If either party so informs this court, the

matter shall be set for hearing before five or more justices

of this court and the parties notified thereof by restricted

certified mail at least ten days prior to the date set. At

such hearing a certified copy of the testimony, tran-

scripts, exhibits, affidavits and other matters introduced

into evidence in such jurisdiction or federal court shall be

App. 21

admitted into evidence as well as any findings of fact,

conclusions of law, decision and orders decided or

issued. Any such findings of fact shall be conclusive and

not subject to readjudication. Thereafter, the court shall

enter such findings, conclusions and orders that it deems

appropriate. If neither party so informs this court within

thirty days from service of notice issued pursuant to the

foregoing provisions hereof, this court may impose the

identical discipline, unless this court finds that on the

face of the record upon which the discipline is predicated

it clearly appears: (1) The disciplinary procedure was so

lacking in notice and opportunity to be heard as to

constitute a deprivation of due process; or (2) there was

such infirmity of proof establishing misconduct as to give

rise to the clear conviction that this court could not,

conscientiously, accept as final the conclusion on that

subject; or (3) the misconduct established warrants sub-

stantially different discipline in this state.

Where this court determines that any of the aforesaid

factors exist, such order as is deemed appropriate may be

entered by this court. Rule 117 shall apply to any subse-

quent reinstatement or reduction or stay of discipline.

Court Rule 118.18. Notification of clients and coun-

sel. In every case in which a respondent is ordered to be

disbarred or suspended, the respondent shall:

(a) Within fifteen days in the absence of co-counsel,

notify his or her clients in all pending matters to seek

legal advice elsewhere, calling attention to any urgency

in seeking the substitution of another lawyer;

App. 22

(b) Within fifteen days deliver to all clients being

represented in pending matters any papers or other prop-

erty to which they are entitled or notify them and any

cocounsel of a suitable time and place where the papers

and other property may be obtained, calling attention to

any urgency for obtaining the papers or other property;

paid in advance that have not beer earned;

(d) Within fifteen days notify opposing counsel in

pending litigation or, in the absence of such counsel, the

adverse parties, of the respondent’s disbarment or sus-

pension and consequent disqualification to act as a law-

yer after the effective date of such discipline or transfer

to disability inactive status;

(e) Within fifteen days file with the court, agency, or

tribunal before which the litigation is pending a copy of

the notice to opposing counsel or adverse parties;

(f) Keep and maintain records of the steps taken to

accomplish the foregoing; and

(g) Within thirty days file proof with this court and

with the committee on professional ethics and conduct of

complete performance of the foregoing, and this shall be

a condition for application for readmission to practice.

Court Rule 118.19. Immunity. Complaints submit-

ted to the grievance commission, or to the committee on

professional ethics and conduct, or testimony with

respect thereto shall be privileged and no lawsuit predi-

cated thereon may be instituted.

Members of the grievance commission, members of

the committee on professional ethics and conduct, and

App. 23

their respective staffs shall be immune from suit for any

conduct in the course of their official duties.

A true copy of any complaint against a member of

the grievance commission or the committee on

professional ethics and conduct involving alleged viola-

tions of an attorney’s oath of office or of the lowa Code of

Professional Responsibility for Lawyers and laws of the

United States or state of Iowa shall be promptly for-

warded to the chief justice of this court.

Court Rule 118.20. Reports. The chairperson of the

grievance commission and the chairperson of the commit-

tee on professional ethics and conduct shall, on July 1 of

each year, submit to this court a report of the number of

complaints received and processed during the prior

period, a synopsis of each such complaint, and the dispo-

sition thereof. The name of the attorney charged and the

name of the complainant shall be omitted, but a synopsis

of the charges made and a report of disposition shall be

included.

Referred to in Ct.R. 118.9; R.Prob.P 5 “d”

Court Rule 118.21. Effective dates. These rules

shall have prospective and retrospective application to all

alleged violations, complaints, hearings, and dispositions

thereof on which a hearing has not actually been com-

menced before the grievance commission prior to the

effective date of these rules.

Court Rule 118.22. Costs. In the event that an order

of revocation, suspension, or public reprimand results

from formal charges of misconduct, the court shall assess

App. 24

against the respondent attorney the costs of the proceed-

ing. For the purposes of this rule costs shall include those

expenses normally taxed as costs in state civil actions

pursuant to the provisions of Iowa Code chapter 625.

If there is no appeal from the report and recommen-

dation of the grievance commission, the complainant

shall file a bill of costs with the clerk of the supreme

court within twenty days of the filing of said commission

report. If there is an appeal, the complainant shall file

such bill of costs with the clerk of the supreme court

simultaneously with the filing of the complainant's last

appellate brief.

Concurrently with the filing of the final decision of

the supreme court, the court shall order restitution paid

by the respondent to the complainant of such costs as the

court may approve. No suspended or disbarred attorney

may file application for reinstatement or readmission

until the amount of such restitution for costs assessed

under this rule has been fully paid, or waived by the

supreme court.

[Court Order June 10, 1964; October 8, 1970; Novem-

ber 8, 1974; 118.10 January 15, 1975; 118.12, 118.14 and

118.16 November 21, 1977; 118.12 January 15, 1979; 118.1,

118.2 and 118.7 July 30, 1981; 118.16 and 118.16A March

30, 1982; 118.16A May 19, 1982; August 27, 1982 (amend-

ment to rule 118.7 to clarify, not change, the meaning);

118.2 October 20, 1982; February 9, 1983; 118.6 March 15,

1983; 118.3 June 15, 1983; 118.1 June 24, 1983; 118.10 and

118.11 July 18, 1983; 118.9 July 17, 1984; 118.9 September

26, 1984, effective October 10, 1984; 118.7 September 27,

1984, effective October 10, 1984; 118.16 November 14,

App. 25

1984, effective November 26, 1984; 118.12, 118.14, 118.16

April 25, 1985; 118.10 July 1, 1985; 118.9 October 25, 1985,

effective November 1, 1985; 118.12 October 25, 1985,

effective November 1, 1985; 118.2 January 22, 1986, effec-

tive February 3, 1986; 118.22 September 15, 1986, effective

October 1, 1986; 118.19 July 31, 1987, effective September

1, 1987; 118.11 August 14, 1987, and Nunc Pro Tunc

August 24, 1987, effective September 1, 1987; 118.20 Octo-

ber 16, 1987, effective December 1, 1987]

November 1981

GRIEVANCE COMMISSION RULES

RULES OF THE GRIEVANCE COMMISSION

OF THE SUPREME COURT OF IOWA

[Adopted by Supreme Court Order June 23, 1975]

The following shall be the rules of the grievance

commission of the supreme court of Iowa:

1. The grievance commission of the supreme court

of Iowa is hereafter referred to as the commission, and

the members thereof are referred to as the commissioners.

The commissioners shall elect from their members one to

serve as chairman and one as vice chairman and shall

appoint a clerk and assistant clerk who shall serve as

secretary and assistant secretary of the commission. In

the absence or inability to act, of the chairman, the vice

chairman shall perform all duties of the chairman.

2. The commissioners may act as a body or in such

divisions as the chairman may direct. Until otherwise

directed the commission shall consist of four divisions

designated first, second, third and fourth, and each divi-

sion shall consist of five members. The personnel of each

0 OQOOQM™?OW)QG,. . ———————V—V vo

App. 26

division shall be selected and designated by the chairman

for each complaint as required. He shall appoint one of

said members to serve as president of said division. One

additional member shall be selected as an alternate.

3. All complaints made in accordance with court

rule 118 shall be filed with the secretary, who shall refer

the same to the committee on professional ethics and

conduct, hereafter referred to as the committee.

4;.. Any complaint filed by the committee shall be

filed in the name of the committee as complainant and

against the attorney named in said charges as respon-

dent. Thereafter such complaint and charges referred to

therein shall be prosecuted by said committee before the

commission until final disposition thereof.

5. The secretary shall cause each such complaint to

be separately numbered and filed and all subsequent

motions, pleadings, orders or other documents relating

thereto shail be made part of such file. The secretary shall

also provide for a permanent docket to be kept as

required by court rule 118.5. All complaints filed by or on

behalf of the committee shall be docketed therein and

such file and docket shall be kept in substantially the

same manner as the records relating to civil action in

district court.

6. The secretary shall report the filing of each such

complaint to the chairman of the commission, who shall

thereupon by written order filed in the cause direct that

the same be heard by the commission as a whole or

specified division thereof.

App. 27

7. Upon the filing of such complaint, the secretary

Shall also cause a written notice thereof with a copy of

said complaint, a copy of court rule 118, and a copy of

these rules attached to be served upon the respondent by

personal service in the manner of an original notice in

civil suits or by restricted certified mail. Said notice shall

also notify said respondent to file a written answer to

said complaint within fifteen days after completed ser-

vice of said notice. Written return of service shall be

made by the person making the service if by personal

service, or by the secretary with postal receipts attached

if by restricted certified mail, and such return of service

shall be filed in the cause. Service shall be deemed com-

plete on the date of personal service or date shown by the

postal receipt of delivery of said notice to the respondent.

Said notice shall be deemed sufficient if substantially in

the form set out in Appendix “A”, made a part hereof.

[Amendment approved by Court Order November 20,

1981]

8. The respondent shall file a written answer to

such complaint within fifteen days from the completed

service of said notice. If he fails or refuses to file such

answer within the time specified, the allegations of said

complaint shall be considered denied and the commission

or a division thereof may proceed as if a formal denial

were filed.

9. The chairman of the commission or the president

of any division thereof to which a complaint has been

referred, shall direct a hearing to be held upon such

complaint within a reasonable time, in the county of

respondent’s residence or at the discretion of the chair-

man within any other judicial district as shall most nearly

App. 28

serve the convenience of the parties, and shall designate

by written order the time and place for such hearing and

the personnel of the commission or division. The secre-

tary shall mail a copy of said order to all parties and

attorneys at least ten days before the date set for said

hearing. If the respondent files written objections to the

hearing of said complaint in the county of his residence,

the hearing shall be held at such other place as the

chairman or division president shall direct by written

order in which case a new notice shall be given as above

prescribed.

10. No hearing shall be continued except for good

cause. Except in case of emergency, any motion for con-

tinuance shall be filed at least seven days before the day

of hearing. Any objections to continuance shall be filed

promptly thereafter.

11. The chairman of the commission or president or

any member of a division to which a complaint has been

referred, or any attorney against whom a complaint has

been filed, may request the clerk of the district court of

the county in which any disciplinary hearing is held to

issue subpoenas of every kind in all matters pending

before the commission or division thereof and the clerk

shall issue same. Any member of the grievance commis-

sion is hereby empowered to administer oaths to all

witnesses and shall cause such testimony to be officially

reported by a court reporter.

12. All answers, motions, applications, petitions,

and pleadings in connection with a complaint shall be

filed in duplicate with the secretary at his office in Des

Moines, Iowa, and the secretary shall prepare and mail

App. 29

copies thereof to the respondent, the chairman of the

committee, attorneys of record, and to the chairman of

the commission if sitting as a whole, or to the president

of a division thereof to whom such complaint has been

referred; provided, however, that on and after the day

fixed for hearing any such papers may be filed in dupli-

cate with the chairman of the commission or the presi-

dent of the division, as the case may be, who shall notify

all parties and attorneys of the filing thereof and a copy

shall be filed with the secretary.

13. If prompt written request is filed by or on behalf

of any party for a hearing upon any preliminary motion

or application filed in connection with a complaint, the

chairman of the commission sitting as a whole or the

president of the division to whom such complaint has

been referred shall by written order fix a time and place

of hearing upon such motion or application and shall

notify all parties and attorneys. After such hearing or if

none is requested, such chairman or president of a divi-

sion as the case may be, or any member of the commis-

sion or division designated by such chairman or

president, shall file his written ruling upon such motion

or application and thereafter all parties shall promptly

comply? with the terms and conditions thereof.

14. The respondent may challenge the impartialit:

of any member of the commission or division by motion

setting forth the grounds therefor and filed within the

time allowed for filing answer to the complaint. Said

motion shall be disposed of as provided in rule 13 and if

the challenge is sustained the vacancy thus created shall

be filled as provided in rule 17.

App. 30

With the consent of the complainant and the respon-

dent, a division of the grievance commission may consist

of four members. In the event the four-member division

is evenly divided between a recommendation of sanction

and dismissal, the division shall enter a dismissal of the

complaint pursuant to the provisions of court rule 118.9.

Upon such dismissal the complainant may apply for per-

mission to appeal pursuant to court rule 118.11.

15. At the time and place fixed for the hearing upon

any complaint, the commission or division thereof shall

proceed to hear the evidence, briefs of authorities and

arguments in connection therewith. The hearing shall be

private unless a written request for a public hearing is

filed by the respondent. All witnesses shall be sworn by a

person authorized by law to adminster oaths or any

member of the grievance commission and their testimony

shall be taken in writing by a duly qualified reporter. The

rules governing procedures and the order and admis-

sibility of evidence in causes tried in district court with-

out a jury shall be adhered to as nearly as practicable. All

questions of procedure, including objections to evidence,

shall be determined by the chairman of the commission

or president of the division, as the case may be.

16. At the conclusion of a hearing upon any com-

plaint against an attorney before such commissioners, the

commissioners are empowered to dismiss such complaint

or to reprimand the accused, and in the event of such

reprimand, the commissioners shall promptly file their

report of such action with the clerk of the supreme court,

or if action by the supreme court of suspension or revoca-

tion of the license of such attorney to practice in the

courts of this state is recommended, the commissioners

App. 31

shall make a report to the supreme court of their recom-

mendations and conclusions of fact and law concerning

the complaint, answer and proof within a reasonable time

of the date of the last responsive brief and argument and

thereupon such matters shall stand for consideration and

disposition in the supreme court. Any member of the

commission has the right to file with the supreme court

his or her dissent from the majority determination or

report.

The secretary shall promptly cause a copy of any

such report to be served on the respondent in the manner

prescribed by rule 30 of the Iowa rules of appellate pro-

cedure. Such report of the commissioners shall be filed

with the supreme court, together with proof of service of

a copy thereof upon the respondent, as provided by rule

30 of the Iowa rules of appellate procedure.

If the charges are dismissed by the commissioners,

no publicity shall be given to any of the proceedings

except at the request of the respondent. All reports and

recommendations of the commissioners shall be con-

curred in by at least three members of the division or at

least twelve members of the commission as the case may

be, all of whom shall have been present throughout the

proceedings. [Amendment approved by Court Order

December 10, 1982; July 18, 1983]

17. In case of the absence or inability of the chair-

man and vice chairman of the commission sitting as a

whole to perform any of the duties provided for herein,

said commission may designzte some other member to

perform such duties as acting chairman. In case of the

absence or inability of the president of a division to

EEO eee.

App. 32

perform any of the duties provided for herein, said divi-

sion may designate some other member thereof as acting

president to perform such duties. If a vacancy occur in

any division from any cause, the same shall be filled by

the chairman, vice chairman or acting chairman of the

commission.

18. No omission, irregularity or other defect in pro-

cedure shall render void or ineffective any act of the

commission or a division or any member thereof unless

substantial prejudice is shown to have resulted

therefrom.

APPENDIX “A”

BEFORE THE GRIEVANCE COMMISSION OF

THE SUPREME COURT OF IOWA

Committee on Professional )

Ethics and Conduct of The )

lowa State Bar Association, )

Complainant, NOTICE OF

vs. COMPLAINT

John Doe, Attorney at Law,

of __, lowa,

ee ee

Respondent.

To John Doe,

Respondent above named:

You are hereby notified that there is now on file with

the Secretary of the Grievance Commission of the

Supreme Court of Iowa at his office at 1101 Fleming

Building in the City of Des Moines, Iowa, a complaint

alleging that you have committed unethical practices as

an attorney and counselor at law as described therein.

EE AT, TM

App. 33

A copy of said complaint, a copy of Court Rule 118,

and a copy of the rules of said commission relating to

hearing said complaint are attached hereto and made a

part of this notice.

You are further notified to file your written answer to

said complaint within fifteen days from the completed

service of this notice and to abide by the further orders of

said commission made in accordance with said rules.

You are further notified that said commission will

hear said complaint in accordance with said rules and

will take such action thereon as may be warranted by the

facts and circumstances disclosed at the hearing thereon.

Dated this ___ day of __, 19__

Secretary of the Grievance

Commission

1101 Fleming Building

Des Moines, Iowa 50309

[Court Order June 23, 1975; November 20, 1981; June 25,

1987, effective August 3, 1987]

App. 34

RULES OF PROCEDURE OF THE

COMMITTEE ON PROFESSIONAL ETHICS

AND CONDUCT OF THE

IOWA STATE BAR ASSOCIATION

1.1. Complaints. Complaint forms shall be avail-

able to the public from the secretary of the lowa State Bar

Association, the chairperson of the committee, or the

chairperson’s designee. [Court Order December 12, 1974;

October 30, 1985, effective November 1, 1985]

1.2. Filing. Complaints shall be accepted from any

person, firm or other entity believing that an lowa lawyer

has been guilty of a disciplinary infraction.

a. Complaint must be sworn to, except when filed

by an officer of the court.

b. Complaints shall include whatever exhibits com-

plainant desires to submit.

c. They shall be filed, without charge, with the sec-

retary of the lowa State Bar Association.

d. The committee may, upon its own motion, initi-

ate any investigation or disciplinary action. [Court Order

December 12, 1974; June 20, 1980]

2.1. Secretary’s procedure. Upon receiving a com-

plaint in proper form as provided in section 1 hereof, the

secretary of the Iowa State Bar Association, or the secre-

tary’s designee, shall:

a. Make a card record indicating the date filed,

name and address of complainant, name and address of

respondent lawyer, with a brief statement of the charges

made. This card ultimately also shall show the final dis-

position of the matter when it is completed.

App. 35

b. Forward the original and a duplicate for each

lawyer charged in such complaint to the chairperson of

the committee, or the chairperson’s designee.

c. The secretary, or the secretary’s designee, shall

keep all files in permanent form and confidential, unless

otherwise provided or directed in writing by the chair-

person of the committee, or the chairperson’s designee,

for disciplinary purposes or by a specific rule of the

supreme court of Iowa. All such files shall be available

for examination and for reproduction therefrom, by the

designated officer or agent of the client security and

attorney disciplinary commission, pursuant to proceed-

ings under supreme court rule 121.

d.—Any such files, except for the work product of

staff counsel, investigators, or administrators of the com-

mittee, shall be open to the inspection of the lawyer

complained against. [Court Order December 12, 1974;

November 2, 1981; October 30, 1985, effective November

1, 1985}

3.1. Committee procedure. Upon receipt of any

complaint the chairperson of the committee, or the chair-

person's designee, shall notify the complainart in writing

that the complaint has been received and will be acted

upon. [Court Order December 12, 1974; October 30, 1985,

effective November 1, 1985]

3.2. The chairperson, or the chairperson’s designee,

shall forward to the respondent by restricted certified

mail, marked “Confidential”, or by personal service in

the manner of an original notice in civil suits, a copy of

the complaint, requesting a written response thereto, and

copies of the committee rules and of supreme court rule

App. 36

118. [Court Order Decer Ser 12, 1974; May 13, 1983; Octo-

ber 30, 1985, effective November 1, 1985]

3.3. If after twenty days, no such response has been

received, the respondent shall be notified by restricted

certified mail that unless a response is made within ten

days from receipt of notice, the committee may file a

complaint with the grievance commission for failure to

respond, and concerning all or any portion of the matter

about which the original complaint was made. [Court

Order December 12, 1974; November 16, 1984, effective

November 26, 1984]

3.4. Upon receipt of response the committee shall:

a. Dismiss the complaint, and so notify complainant

and respondent in writing, or

b. Cause the case to be docketed for consideration

of the committee at its next hearing-meeting, or

c. Arrange for investigation of the complaint either

by a member of the young lawyers section of the lowa

State Bar Association, the committee counsel, or another

person, whichever in the judgment of the chairperson, or

the chairperson’s designee, is appropriate. [Court Order

December 12, 1974; October 30, 1985 effective November

1, 1985]

3.5. When the report and recommendation of inves-

tigator is returned to the committee, which shall be

within a reasonable time, the committee shall:

a. Dismiss the complaint, and so notify complainant

and respondent, or

App. 37

b. Cause the case to be docketed for consideration

of the committee at its next hearing-meeting. [Court

Order December 12, 1974]

3.6. If either witnesses or the respondent or com-

plainant or any of them is required to give testimony

before the committee, such person or persons shall be

given at least seven days’ written notice in advance of the

hearing-meeting at which they are requested to attend

and testify. (Court Order December 12, 1974]

4.1. Hearing-meetings. Hearing-meetings shall be

held quarterly, as nearly as possible. A majority of the

committee shall constitute a quorum. The chairperson, or

the chairperson’s designee, shali see to the preparation of

a record of such meetings which shall become a part of

the permanent files of the Iowa State Bar Association.

Any evidence taken shall be under oath and may be

made of record. Upon completion of the consideration of

any matter before the committee, the members, by major-

ity vote of those present shall:

a. Continue the matter, if necessary, for appropriate

reasons or purposes; or

b. Dismiss the complaint; or

c. Admonish the lawyer who shall be notified in

writing that he or she has thirty days from the date of

mailing thereof to file exceptions with the administrator

of the committee, who shall then refer the admonition to

the committee, which may dismiss, admonish, repri-

mand, or file formal complaint with the grievance com-

mission; or

d. Reprimand the lawyer or lawyers involved; or

App. 38

e. As complainant, file a complaint before the griev-

ance commission of the supreme court of Iowa, and there-

after shall:

(1) In cases of dismissal, so notify complainant and

respondent; or

(2) In cases of admonition, notify complainant of

the committee’s opinion concerning the matter and its

communication with the lawyer involved; or

(3) In cases where a complaint is filed before the

grievance commission, prosecute said complaint to final

determination. [Court Order December 12, 1974; October

20, 1982; February 9, 1983; October 30, 1985, effective

November 1, 1985]

5.1. Any member of the bar desiring to expand the

information authorized for disclosure pursuant to the

provisions of DR 2-101 or DR 2-105, Iowa Code of Profes-

sional Responsibility for Lawyers, or to provide for its

dissemination through forums other than therein autho-

rized or otherwise to change those rules, may apply to

the committee. Such application shall be made in writing

by restricted certified mail, and shall include such docu-

mentation as the applicant deems appropriate. The com-

mittee thereafter shall determine, on the basis of

documentation at hand, further investigation, or what-

ever hearings it deems to be necessary, whether all or any

part of the proposal is necessary in the light of existing

provisions of the code, accords with the standard of

accuracy, reliability, and truthfulness, and would facili-

tate the process of informed selection of lawyers by

potential consumers of legal services. [Court Order May

18, 1978]

App. 39

5.2. If the committee is of the opinion that no relief

should be granted in response to any such application

and no changes are necessary, it shall make a determina-

tion to that effect and then shall proceed as provided

hereinafter. [Court Order May 18, 1978]

5.3. If the committee concludes that relief should be

granted in response to such application, it shall make its

determination to that effect and submit the same to the

supreme court by filing the same with the clerk of the

court as a recommended amendment to the lowa Code of

Professional Responsibility for Lawyers, universally

applicable to all lawyers admitted to practice in Iowa.

[Court Order May 18, 1978]

5.4. Within ten days after the committee has made

its determination under paragraphs 5.1 and 5.2 here-

inabove, it shall notify applicant of its determination by

furnishing said applicant a copy thereof by restricted

certified mail. Applicant shall have thirty days from the

date of the said mailing by the committee to the applicant

to take exception to all or any part of the determination

of the committee. Said exceptions shall be taken by filing

with the committee within said thirty-day period, com-

plete written notice and documentation of the exceptions

and the reasons therefor, which shall be forwarded to the

committee by restricted certified mail. [Court Order May

18, 1978]

5.5. Within thirty days from the receipt of the

exceptions, the committee shall file with the clerk of the

court a copy of said exceptions and documentations

attached thereto, together with any written response

which the committee seeks to make to the court together

App. 40

with a certification of its mailing to the applicant a copy

of its response to the exceptions, in order that the court

may determine the whole matter, with or without hear-

ing, as to the court may appear appropriate and desir-

able. [Court Order May 18, 1978]

5.6. Nothing herein contained shall permit any pub-

lication other than provided in DR 2-101 or DR 2-105

unless and until said DR 2-101 or DR 2-105 shall be

amended by the court. No applicant for expanded infor-

mation for disclosure or other publication under the said

rules shall make such disclosure or publication until the

same specifically has been approved by rule of the court.

[Court Order May 18, 1978]

6.1. Upon written request from an officer of the

Iowa court, the committee by majority vote may, if it

deems appropriate, issue formal advisory opinions as to

the propriety of proposed actions by members of the bar

in their practice under the Iowa Code of Professional

Responsibility for Lawyers. Such formal advisory opin-

ions shall be effective unless and until modified in any

way by decision of the supreme court, by amendment of

the Iowa Code of Professional Responsibility for Law-

yers, or by a superseding formal advisory opinion. [Court

Order October 30, 1985, effective November 1, 1985]

6.2. Such formal advisory opinions issued by the

committee shall be in writing and catalogued annually, as

nearly as possible, and shall be available for distribution

at the committee’s office to members of the bar upon

written request. [Court Order October 30, 1985, effective

November 1, 1985]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.