IN THE MATTER OF THE GUARDIANSHIP OF J.W., Minor Child. JACOB VAN CLEAF, Proposed Guardian, Appellant.
No. 21–0348
IN THE SUPREME COURT OF IOWA
Submitted December 15, 2022—Filed May 26, 2023
Oxley, J.
The mother of the proposed protected person in an involuntary guardianship proceeding initiated by the mother’s former attorney seeks further review from the court of appeals’ reversal of the juvenile court’s dismissal of the guardianship petition. DECISION OF COURT OF APPEALS VACATED; JUVENILE COURT JUDGMENT AFFIRMED.
Oxley, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman and McDermott, JJ., joined. Mansfield, J., filed an opinion concurring in part and dissenting in part, in which McDonald, J., joined. May, J., took no part in the consideration or decision of the case.
Jacob van Cleaf (argued), Des Moines, appellant, pro se.
Alexis R. Dahlhauser (argued) of Neighborhood Law Group of Iowa, P.C., West Des Moines, for appellee mother.
OXLEY, Justice.
In
I. Factual and Procedural History.
Mother met attorney Jacob van Cleaf in 2013 through Amelia Wildt, who worked as the office manager for van Cleaf’s law firm. Mother needed legal assistance in a custody dispute with the father of one of her children, and she hired van Cleaf. Over the next three years, van Cleaf or his law partner, Colin McCormack, represented Mother in four more cases: a domestic violence case and three child custody proceedings. In one of those cases, McCormack filed an action on behalf of Mother in March 2016 to establish paternity and custody over the child at issue in this case, J.W., which was resolved by default judgment against the biological father in November. Both van Cleaf’s and McCormack’s representation of Mother ended in all matters in December.
Apparently, though, Mother’s relationship with van Cleaf went beyond that of an attorney and a client. According to the petition for involuntary guardianship that started the instant litigation, Mother often left J.W. in the care of either Wildt or van Cleaf, each of whom eventually made a place for J.W. in their respective homes. Accordingly, the petition alleges Wildt and van Cleaf both acted as a de facto guardian for J.W.—Wildt since 2013 and van Cleaf since 2015 (although van Cleaf later asserted that his actions did not rise to the level of a de facto guardian until 2017). Indeed, van Cleaf asserts that J.W. has resided either with Wildt or, more recently, with him since 2014—that is, except for an eleven-month period from June 2018 through May 2019, and “when not actively prevented from doing so by” Mother. In addition to providing J.W. with a home, Wilt and van Cleaf allegedly arranged for J.W.’s medical care, transported her to daycare, and made educational decisions for her when she reached school age. Mother, on the other hand, parented only when convenient, leaving J.W. in Wildt’s or van Cleaf’s care for months at a time without even visiting J.W.
That all ended on November 30, 2020, when Mother purportedly accosted van Cleaf, took J.W. from his care, and cut off all communications. On December 8, van Cleaf filed the instant petition for involuntary guardianship, identifying himself and Wildt as copetitioners and proposed coguardians.1 The juvenile court appointed
While attempts to serve Mother with the guardianship petition were underway, Mother’s attorney brought to van Cleaf’s attention several “serious ethical concerns regarding [his] involvement with this client and matter,” and asked van Cleaf to alert the court. Van Cleaf did so, and in response, Mother filed a notice identifying eight specific ethics rules2 she believed van Cleaf had, or would, violate if he continued in his role as petitioner in this involuntary guardianship proceeding. Mother sought dismissal of the petition in its entirety as well as “[a]ssurance that [neither] Mr. van Cleaf, nor any current or future firm of his employ, will seek guardianship or represent anyone seeking guardianship of any child of . . . Mother.”
The juvenile court held an evidentiary hearing limited to the issue of the ethical concerns raised by Mother. Both J.W.’s court-appointed attorney and her court visitor agreed with Mother that van Cleaf had violated obligations owed to Mother as his former client and urged that the proper remedy was dismissal without prejudice so that “either the State of Iowa or another interested party without any ethical obligations to . . . Mother . . . may bring an action on behalf of the minor child to determine the merits of whether or not an actual guardianship is, in fact, appropriate.” The juvenile court concluded that van Cleaf violated his duties to Mother as a former client under
We transferred van Cleaf’s appeal to the court of appeals, which reversed, finding no legal authority for the juvenile court to order dismissal as a remedy even if van Cleaf had violated, or would violate, the Iowa Rules of Professional Conduct. The court of appeals noted that dismissal would raise “general concerns about” restricting a party’s access to the courts and, in any event, the petition sufficiently stated a claim for relief to preclude dismissal as a remedy at the preanswer stage of the proceedings.
We granted Mother’s application for further review.
II. Motion to Strike.
On appeal, Mother moved to strike from the appellate record references to certain
III. Analysis.
We face two related issues: whether van Cleaf’s actions do, or could, violate any rules of professional conduct, and if they do, what can or should be done to remedy any possible violations. We address each issue but in reverse order.
A. Is Dismissal an Available Remedy? The court of appeals faulted the juvenile court’s failure to identify the legal authority that supported its dismissal of the guardianship petition as a proper remedy for van Cleaf’s alleged rule violations, concluding that the court essentially granted a preanswer motion to dismiss. At that stage, the court of appeals reasoned, the court should have taken all allegations in the petition as true and could not have considered facts outside the petition, including Mother’s assertion (assuming it to be legally correct) that van Cleaf’s role as her former lawyer prevented both him and Wildt from serving as J.W.’s guardian. The court of appeals is mistaken for two distinct reasons.
First, the court of appeals’ assessment of the procedural posture of this case misses that the juvenile court held an evidentiary hearing on (and limited to) the effect of the alleged ethical issues. Even if we analogize Mother’s enumeration of alleged ethical violations to a preanswer motion to dismiss, holding an evidentiary hearing on that issue was thus also analogous to construing the “motion to dismiss” as one for summary judgment, since at such hearings the parties present, and the court considers, evidence beyond that contained in the petition. Cf. George v. D.W. Zinser Co., 762 N.W.2d 865, 867 (Iowa 2009) (“As the motion to dismiss in this case relied on 201 matters outside the pleadings and both parties and the court treated it as a motion for summary judgment, we will do so as well.“); Stotts v. Eveleth, 688 N.W.2d 803, 812 (Iowa 2004) (treating a motion to dismiss as a motion for summary judgment to conserve judicial resources).
We faced a similar situation in Troester v. Sisters of Mercy Health Corp., 328 N.W.2d 308 (Iowa 1982). There, a plaintiff-administrator brought a wrongful-death action against a health center and other defendants on behalf of the decedent’s estate. Id. at 309–10. In the meantime, separate proceedings in probate court caused the estate to be closed and then reopened, along with the administrator being discharged and then reappointed. Id. at 311. The defendants filed a motion to dismiss the wrongful-death action, asserting that once the estate was closed the plaintiff-administrator lacked the capacity to maintain the suit on behalf of the estate and the court lacked subject matter jurisdiction to hear the case. Id. at 310. The plaintiff resisted on the basis that the petition, required to be taken as true, identified her as the acting administrator. Id. We held that where the motion challenged the
Mother is essentially challenging whether van Cleaf’s ethical obligations prevent him from acting as the petitioner in this proceeding. Because this challenge is separate from the merits, the proceeding before the juvenile court was analogous to the challenge in Troester, and the court properly considered the evidence presented at the evidentiary hearing, similar to what it would have considered had this been brought as a summary judgment proceeding.
Second, identified or not, the juvenile court had the inherent authority to address the implications of ethical violations (actual or potential) by those appearing before it. See State v. Vanover, 559 N.W.2d 618, 628 (Iowa 1997) (explaining that “a trial court has the authority and duty to enquire on its own into potential conflicts of interest” that might require disqualification of the defendant’s attorney after he was identified as a potential state witness); see also United States ex rel. Bumbury v. Med–Care Diabetic & Med. Supplies, Inc., No. 10–81634–CIV, 2016 WL 4154699, at *2 (S.D. Fla. Feb. 8, 2016) (“The ability to remedy a violation of the ethical code regulating attorney conduct through disqualification, dismissal, or other means comes from the Court’s inherent power ‘to protect the orderly administration of justice and to preserve the dignity of the tribunal.’ ” (quoting Kleiner v. First Nat‘l Bank of Atlanta, 751 F.2d 1193, 1209 (11th Cir. 1985))); Slater v. Rimar, Inc., 338 A.2d 584, 589–91 (Pa. 1975) (holding that attorney for shareholders in shareholder derivative suit who had previously served as an officer and director for companies being sued had a clear conflict of interest requiring, at a minimum, disqualification, and affirming trial court’s order disqualifying the attorney and dismissing the case). It is this inherent authority that allows courts to, for instance, disqualify an attorney whose representation in a case creates a clear conflict of interest.
A court’s inherent authority to dismiss an action based on a conflict of interest has been recognized and applied in other jurisdictions. See Slater, 338 A.2d at 589–91 (holding that dismissal of a shareholder derivative action was “appropriate where the information on which the suit is bottomed has been supplied altogether by the” shareholder’s lawyer’s prior representation of the defendant); see also United States v. Quest Diagnostics Inc., 734 F.3d 154, 154, 162, 166 (2d Cir. 2013) (“[T]he District Court granted defendants’ motion to dismiss [a qui tam action brought by defendants’ former general counsel], presumably pursuant to the ‘inherent power . . . necessarily vested in courts to manage their own affairs.’ ” (omission in original) (citation omitted) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 49 (1991)))). In fact, in Ennis v. Ennis, 276 N.W.2d 341, 342–43, 347–48 (Wis. Ct. App. 1979) the Wisconsin Court of Appeals reversed a district court’s denial of a motion to dismiss premised on ethical violations, correcting the district court’s misperception that the ethical issues could only be addressed by the Wisconsin State Bar (which oversaw attorney discipline), not the court. Id. at 341, 342–43, 347–48 (holding that “the trial court had the power
True, as the court of appeals noted, the professional rules’ preamble cautions restraint in addressing violations: “[V]iolation of a rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation.”
While we recognize that there are competing, legitimate interests on both sides of the dismissal equation—van Cleaf’s statutory right to bring this petition, see
The interests which warrant and necessitate this power [to remedy professional misconduct through disqualification or dismissal] in the [district] court are broader than those of the individual litigants. The interests of the public and of the profession are also involved. . . . [T]his issue goes to “the heart of our attorney system.” Attorneys and judges alike have a responsibility to protect that system from abuse.
276 N.W.2d at 347. We conclude that dismissal of a case based on the ethical implications of a party-attorney’s conduct is within a court’s inherent authority in the proper circumstances. That said, we recognize that dismissal is a serious remedy. In the context of disqualifying counsel based on ethical considerations arising from the representation, we have explained that “[b]ecause of the potential for abuse by opposing counsel, ‘disqualification motions should be subjected to particularly strict [judicial] scrutiny.’ ” Liquor Bike, LLC v. Iowa Dist. Ct., 959 N.W.2d 693, 696 (Iowa 2021) (quoting Macheca Transp. Co. v. Phila. Indem. Ins., 463 F.3d 827, 833 (8th Cir. 2006)). “It is not a time to ‘paint with broad strokes‘, but to carefully examine the specific conduct of each particular case.” Hoffmann v. Internal Med., P.C. of Ottumwa, 533 N.W.2d 834, 836 (Iowa Ct. App. 1995) (quoting United States v. Standard Oil Co., 136 F. Supp. 345, 367 (S.D.N.Y. 1955)); see also Quest Diagnostics Inc., 734 F.3d at 166 (“[W]hen dealing with ethical principles, we cannot paint with broad strokes.” (quoting Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 227 (2d Cir. 1977))).
We review the juvenile court’s use of its inherent authority in this context for an abuse of discretion. See Liquor Bike, 959 N.W.2d at 696 (reviewing order disqualifying attorney for abuse of discretion). “A district court ‘abuses its discretion when its ruling is based on clearly untenable grounds.’ ” Id. (quoting NuStar Farms, LLC v. Zylstra, 880 N.W.2d 478, 482 (Iowa 2016)). We turn to the claimed violations of
B. Was Dismissal Warranted Here? The juvenile court based its decision to dismiss the petition on its conclusion that van Cleaf’s conduct did, or at least would, violate Iowa Rules of Professional Conduct 32:1.8 and 32:1.9. Van Cleaf contends that rule 32:1.8 is not implicated because Mother is not a current client. He further contends that rule 32:1.9(a) does not disqualify attorneys from representing themselves against former clients and that, even if it does, he should not be disqualified here because his claim is not substantially related to his and McCormack’s4 prior representation of Mother.
1. Rule 32:1.8. Taking as true van Cleaf’s unchallenged testimony at the evidentiary hearing that he did not become a de facto guardian of J.W. until 2017, after he was no longer representing Mother, van Cleaf still admits that Wildt, his office manager, was acting as a de facto guardian beginning in 2013—i.e., while Mother was van Cleaf’s current client. Rule 32:5.3 makes a lawyer responsible for certain conduct of nonlawyer assistants that would violate the rules of professional conduct if engaged in by the lawyer.
We do not disagree with the juvenile court that seeking guardianship of a client’s child raises concerns at least as serious as entering into financial dealings with a client. But rule 32:1.8(a) is specific to financial transactions. It is not just that rule 32:1.8(a) is often thought of in that regard; its language is expressly limited to such dealings: “A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless” the terms are fair and fully disclosed to the client, the client is advised to seek outside counsel, and the client provides written consent.
2. Rule 32:1.9(a). Under subsection (a) of Rule 32:1.9, a lawyer also owes obligations to former clients:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
At the heart of every “side-switching attorney” case is the suspicion that by changing sides, the attorney has breached a duty of fidelity and loyalty to a former client, a client who had freely shared with the attorney secrets and confidences with the expectation that they would be disclosed to no one else. It is for this reason that the “appearance of impropriety doctrine” was adopted to protect the public, our profession, and those it serves. In short, this much maligned doctrine exists to engender, protect and preserve the trust and confidence of clients.
Id. (quoting Cardona v. Gen. Motors Corp., 942 F. Supp. 968, 975 (D.N.J. 1996)).
Rule 32:1.9(a) has been described as “a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Koch v. Koch Indus., 798 F. Supp. 1525, 1532 (D. Kan. 1992) (quoting In re Corn Derivatives Antitrust Litig. (MDL 414), 748 F.2d 157, 162 (3d Cir. 1984)) (discussing Kansas’s version of rule 32:1.9(a)). Without such a rule, clients may be reluctant to confide completely in their attorneys. The rule helps maintain “public confidence in the integrity of the bar,” and it helps protect a client’s “right to expect the loyalty of his attorney in the matter for which he is retained.” Id. (quoting In re Corn Derivatives Antitrust Litig. (MDL 414), 748 F.2d at 162).
Van Cleaf’s position—that this rule is not implicated because he is not representing “another person” in a substantially similar matter when he represents himself—is not without support. See In re Wood, 634 A.2d 1340, 1343 (N.H. 1993) (“We hold that ‘another person’ in Rule 1.9(a) is synonymous with ‘another client’ and does not encompass a lawyer’s pro se activities.“). In re Wood involved an attorney’s representation of a commercial developer seeking to develop land in Enfield, New Hampshire, for a mall. Id. at 1340–41. Wood’s partner also represented the developer when it considered property in nearby Lebanon, New Hampshire, for the same mall project. Id. at 1341. When it was discovered that the Lebanon property abutted Wood’s personal property, the firm withdrew its representation. Id. Wood publicly opposed the development, and the Supreme Court Committee on Professional Conduct claimed that Wood’s opposition violated duties he owed to the developer as his former client in the Enfield project. Id. at 1341–42. The New Hampshire Supreme Court concluded that Wood’s pursuit of his preexisting personal interests in opposing his former client’s mall project did not violate New Hampshire’s version of rule 32:1.9(a) because Wood was pursuing his
But the language used in New Hampshire Rule of Professional Conduct 1.9(a) differs from Iowa’s rule 32:1.9(a) in a material way. The New Hampshire rule provides:
A lawyer who has formerly represented a person in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that client’s interests are materially adverse to the interests of both unless the former client consents . . . .
Id. at 1342 (emphases added) (quoting N.H. R. of Prof‘l Conduct 1.9(a)). The New Hampshire Supreme Court relied on the phrase, “that client’s interests,” to clarify that the reference to “another person,” whom an attorney is barred from representing, is not any other person, but is limited to another client. Id. (“While Rule 1.9(a) first refers to ‘formerly represent[ing] a person’ and a lawyer’s obligation to ‘not thereafter represent another person,’ the remainder of the Rule contains the terms ‘that client’s interests,’ and ‘the former client.’ The Rule thus refers to the formerly represented person as ‘the former client.’ ‘Another person’ is the second client, referred to in the Rule as ‘that client.’ ” (alteration in original)). So read, the New Hampshire Supreme Court concluded that rule 1.9 did not preclude an attorney from representing his own preexisting interests in property that were adverse to a former client’s. Id. But cf. In re Disciplinary Proceeding Against Haley, 126 P.3d 1262, 1266–67 (Wash. 2006) (holding that pro se attorney violated Washington Rule of Professional Conduct 4.2, which provides, “In representing a client, a lawyer shall not communicate . . . with a party . . . represented by another lawyer,” noting that “[o]ther jurisdictions that have considered the rule’s applicability to lawyers acting pro se have generally concluded that the policies underlying the rule are better served by extending the restriction to lawyers acting pro se” (emphasis added)); ABA Comm. on Ethics & Prof‘l Resp., Formal Op. 22–502 (2022) (explaining that for purposes of Model Rule 4.2, “[p]ro se lawyers represent themselves as ‘a client’ “).
Iowa’s rule, however, more broadly prohibits an attorney
who has formerly represented a client in a matter [from] thereafter represent[ing] another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
We agree with the Mac Naughton court’s reasoning and conclude that “another person” as used in rule 32:1.9(a) includes attorneys representing themselves. When read as a cohesive whole rather than as disjointed elements, the rule’s focus is on the relationship between two cases in which the same lawyer and client are involved, not the identity of the person on behalf of whom the lawyer acts in the second matter. “The purpose of the rule is to ensure that a client’s confidential communications to his or her lawyer will not be used against that client when the attorney-client relationship has ended and the lawyer later represents a party adverse to the former client,” Hoffmann, 533 N.W.2d at 836, which, as the Mac Naughton court concluded, is just as applicable to an attorney appearing pro se as it is to an attorney representing another party, 338 F. Supp. 3d at 728.
Van Cleaf’s argument thus not only ignores the plain text of the rule, cf. Att’y Doe No. 639, 748 N.W.2d at 209, but promotes an absurd result by reasoning that the rule is only meant to act as a prophylactic in cases where an attorney might indirectly use confidential information to the detriment of a former client by passing it through a current client, yet has nothing to say about cases where an attorney might directly use confidential information to his own advantage. Although our interpretation may limit a lawyer’s ability to pursue personal claims, the right to self-representation has never been absolute. See Metz v. Amoco Oil Co., 581 N.W.2d 597, 599 n.4 (Iowa 1998) (“We do not hold the right to appear pro se is unlimited.“). Rule 32:1.9(a)’s substantial relationship requirement ensures those limits are no broader than necessary, and any remaining limitations are those that are to be expected when a lawyer takes on the duties of loyalty and confidentiality associated with legal representation. As Professor Sisk noted:
Perhaps no other element of the attorney–client relationship is as fundamental as the sacred obligation of the lawyer to keep the confidences of his or her client. As attorneys, we serve as agents and advocates seeking to advance the legal objectives of our clients, but we also serve as confidants in whom our clients may repose trust. Because our clients are guaranteed confidentiality, they are willing to share their most private thoughts and relate the most sensitive and embarrassing information, secure in the knowledge that what has been shared will be safeguarded and will never be used against them by the lawyer.
Gregory C. Sisk, Change and Continuity in Attorney–Client Confidentiality: The New Iowa Rules of Professional Conduct, 55 Drake L. Rev. 347, 356 (2007) (emphasis added).
We turn to the application of rule 32:1.9(a) here. Under that rule, an attorney who has represented a client in one action is disqualified from participating in a representative capacity in subsequent litigation against that client “when the subject matter of the new litigation or representation is substantially related to the subject of the prior representation,” Hoffmann, 533 N.W.2d at 836, and the attorney takes a position “materially adverse”
Matters are “substantially related if there is ‘a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter,’ ” or if the second matter “involves the same transaction or legal dispute” as the first. Iowa Sup. Ct. Att‘y Disciplinary Bd. v. Stoller, 879 N.W.2d 199, 216 (Iowa 2016) (quoting
(1) the nature and scope of the prior representation; (2) the nature of the present lawsuit; and (3) whether the client might have disclosed a confidence to [his or] her attorney in the prior representation which could be relevant to the present action.
Id. at 216–17 (alteration in original) (quoting Doe v. Perry Cmty. Sch. Dist., 650 N.W.2d 594, 598 (Iowa 2002)). The party seeking disqualification is not required to show that confidential information will be used in the subsequent litigation, or even that it was disclosed in the prior representation; rather, the rule focuses on the potential for a breach of confidences given the relationship between the two matters.
In this case, we agree with the juvenile court that the substantial relationship test was satisfied based on the specific facts as pleaded in the petition. Looking first to the nature and scope of the prior representation: Both van Cleaf and his law partner, Colin McCormack, represented Mother in five cases between 2013 and 2016, four of which involved child custody disputes between Mother and other parties, and one of which involved a custody dispute over the same child at issue in the current petition, which was resolved in November 2016. At that time, van Cleaf owed fiduciary duties to Mother, not to J.W. Indeed, the court could have appointed a guardian ad litem to advocate for J.W.’s best interests and appointed her an attorney to represent her wishes. See
Turning to the current proceeding: van Cleaf is seeking to gain an involuntary guardianship (i.e., custody) over J.W., over whom McCormack helped Mother establish
comparing the prior representation to the current litigation under the third substantial relationship factor—we believe there is a substantial risk that Mother disclosed confidences to van Cleaf or McCormack during the prior representation that would be relevant to and materially advance van Cleaf’s position in the present action.
In framing the question, we are cautious to not overgeneralize the issues involved in both the prior and current proceedings. Compare Lyons v. Lyons, 22 N.Y.S.3d 338, 350–51 (Sup. Ct. 2015) (denying husband’s motion to disqualify wife’s current attorney in no-fault divorce case, concluding that attorney’s previous representation of husband in child support dispute with his prior wife was not substantially related to present divorce case), with Yeomans v. Gaska, 58 N.Y.S.3d 754, 756–57 (App. Div. 2017) (affirming disqualification of attorney for mother seeking modification of a child custody order where the attorney represented the father in the original custody matter three years earlier involving the same child, concluding the two proceedings were substantially related “since both pertain to custody and visitation of the child“). Appropriately narrowing the specific issues involved in each proceeding, we conclude that the nature of the prior representation overlaps significantly with the nature of the current litigation—should Mother have custody of her children, specifically J.W.?
We also recognize that the passage of time is relevant to whether a current matter is substantially related to a prior representation.
Although there was a four-year lapse between van Cleaf’s representation of Mother and his filing of the instant petition, critical to our analysis is the overlapping time frame between van Cleaf’s prior representation and the allegations in his petition. Proving some of the assertions in his petition is likely to involve evidence of Mother’s conduct during the time she was a client of his firm. In particular, van Cleaf’s petition asserts that Wildt has been serving as a de facto guardian since 2013—the same year van Cleaf and McCormack began representing Mother. Evidence of Wildt’s relationship to J.W. and to Mother from that time to the present will necessarily include evidence that Mother was not consistently parenting J.W. while van Cleaf and McCormack were representing her—information that would be very relevant to van Cleaf’s involuntary guardianship petition.
Despite van Cleaf’s argument that he would not need to use any of Mother’s confidential information to advance his current petition, rule 32:1.9(a) does not wait for an actual breach of confidences before disqualification is warranted; the risk of such a breach is the proper focus of the disqualification inquiry. See
Concluding the proceedings were substantially related, the juvenile court went on to hold that disqualification of van Cleaf under rule 32:1.9(a) required dismissal of the case, reasoning that allowing van Cleaf to proceed if he was “represented by counsel changes nothing” about his breach of duties owed to Mother as a former client. We cannot say the juvenile court abused its discretion in reaching that conclusion. This is not a case where the party seeking dismissal is attempting to misuse our rules of professional conduct to gain a tactical advantage. See NuStar, 880 N.W.2d at 482 (cautioning that “the court ‘must also be vigilant to thwart any misuse of a motion to disqualify for strategic reasons’ ” (quoting Bottoms v. Stapleton, 706 N.W.2d 411, 415 (Iowa 2005))). Rather, Mother moved to dismiss based on her former attorney’s attempt to remove her daughter from her custody and to have himself named as her daughter’s guardian while armed with intimate details about her life and her role as a parent—details he learned through their former attorney–client relationship. Evidence presented at the hearing, including van Cleaf’s own testimony, convinced the juvenile court that van Cleaf would be unable to proceed as a petitioner without running afoul of his ethical obligations to Mother. Given the unique circumstances of this case—including the overlap in the timing between van Cleaf’s representation of Mother and his and Wildt’s involvement in parenting J.W., and the fact that dismissing van Cleaf’s petition does not foreclose others (including the state) from filing a petition to advance J.W.’s best interests—dismissal was not clearly untenable.6 See, e.g., Quest Diagnostics Inc., 734 F.3d at 167 (affirming dismissal of qui tam action based on a violation of New York Rule of Professional Conduct 1.9(c) because, inter alia, the petitioner was “not the real party in interest,” meaning dismissal did not prevent other parties from bringing a lawsuit or “significantly impair the federal interests embodied in the” act under which the lawsuit was brought); Mac Naughton, 338 F. Supp. 3d at 728 (affirming dismissal of action involving attorney’s pro se claim against a former client and noting that “[b]ecause Mac Naughton is representing himself, dismissal with prejudice will punish him rather than a possibly innocent client“).
IV. Conclusion.
For the foregoing reasons, the juvenile court order dismissing van Cleaf’s petition is affirmed.
DECISION OF COURT OF APPEALS VACATED; JUVENILE COURT JUDGMENT AFFIRMED.
Christensen, C.J., and Waterman and McDermott, JJ., join this opinion. Mansfield, J., files an opinion concurring in part and dissenting in part, in which McDonald, J., joins. May, J., takes no part.
In re Guardianship of J.W.
#21–0348
IN THE SUPREME COURT OF IOWA
Filed May 26, 2023
Mansfield, J.
MANSFIELD, Justice (concurring in part and dissenting in part).
I concur in much of the court’s analysis, including its conclusion that attorney Jacob van Cleaf violated Iowa Rule of Professional Conduct 32:1.9(a). I dissent from the court’s decision to affirm dismissal.
I agree that the juvenile court had inherent authority over van Cleaf. See Ronnfeldt v. Shelby Cnty. Chris A. Myrtue Mem’l Hosp., 984 N.W.2d 418, 428 (Iowa 2023) (“[S]anctioning parties for wrongful conduct is a natural incident of courts’ inherent authority over the parties appearing before it . . . .“).
But the power should be exercised “with restraint and caution.” Motz v. Motz, 207 N.W.2d 580, 581 (Iowa 1973). “Dismissal is a drastic remedy.” Toney v. Parker, 958 N.W.2d 202, 210 (Iowa 2021). “Generally, we do not affirm the sanction of dismissal without the violation of a prior court order.” Id.
While I agree that van Cleaf could not represent himself in this action, I am not persuaded on this record that it was impossible for the case to go forward. The majority primarily relies on a federal district court case—Mac Naughton v. Harmelech, 338 F. Supp. 3d 722 (N.D. Ill. 2018), aff’d on other grounds, 932 F.3d 558, 564 (7th Cir. 2019). But that case was dismissed not because the attorney violated the counterpart to rule 32:1.9(a) but because the attorney willfully defied a prior court order. Id. at 727–28.
The other authorities cited by the majority are also distinguishable. One involved a qui tam action where the attorney was a relator and not actually a party. United States v. Quest Diagnostics, Inc., 734 F.3d 154, 166 (2d Cir. 2013). Thus, the violation was of the counterpart to rule 32:1.9(c), not rule 32:1.9(a), see id. at 163–64, and no party was prevented from pursuing a case, id. at 166–67. In another case, a law firm that had represented the husband in a divorce proceeding later represented the wife in an effort to reopen the divorce settlement based on fraud. Ennis v. Ennis, 276 N.W.2d 341, 342 (Wis. Ct. App. 1979). The Wisconsin Court of Appeals held that the district court had the power to dismiss the action if the law firm refused to withdraw from representing the wife. Id. at 347–48. None of these cases provides authority for dismissal in a situation where, as the majority acknowledges, “Van Cleaf’s position . . . is not without support.” See also generally
For these reasons, I concur in part and dissent in part.
McDonald, J., joins this concurrence in part and dissent in part.