*1 ATTORNEY COURT IOWA SUPREME BOARD,
DISCIPLINARY
Complainant, BIEBER, Respondent.
Paul J.
No. 12-1203. Court of Iowa.
Dec. *2 Harrington
Charles L. Wendell J. Harms, Moines, for complainant. Des Kutmus, Pennington Mark Pen- S. Hook, P.C., Moines, nington & West Des respondent. Back- and Procedural MANSFIELD, I. Factual Justice. ground. attorney helped facilitate An Iowa *3 in which transaction fraudulent real estate in practice law Bieber was admitted to $55,000. by overstated price the was sales all in this Iowa in At relevant times 1980. pled guilty to attorney subsequently The he has and maintained resided proceeding, see U.S.C. § felony, misprision of County. law in Scott Bieber’s office (2006), We are probation. received and divorce, personal in- practice law includes what ethical rules he to decide now asked real work. jury, probate, and some estate consequences should what the violated and disciplinary viola- history Bieber no of has be. record distinguished has a tions. Bieber report us comes on the This case before community including ser- of involvement of a of the Grievance Commission division Davenport Historic Preserva- vice with the (commis- of Iowa of the Court Commission, Army, Salvation tion the 35.10(1) (2009).1 sion). R. Services, “In and Neighborhood Housing Disci- Attorney Court Cold,” as- organization From that the (Board) respon- alleged the plinary Board the Bieber also has been sists homeless. dent, Bieber, violated several rules Paul J. president an inn court and president of of The commission professional of conduct. school. of the board Catholic found that Bieber agreed accordingly and 30, 2011, appeared Bieber On June Con- Iowa Rules of Professional violated for the the States District Court United 82:1.2(d), 32.1.16(a)(1), 32:4.1(a), duct and, Southern District of Iowa under 32:8.4(b). 32:4.1(b), Additionally, the and to agreement, pled guilty misprision plea felony con- Bieber’s found that commission upon by As Bieber felony.2 agreed of revoca- requirements met the for viction government, Bieber was and federal sec- suspension tion or under Iowa Code years to three of probation, sentenced (2011). tion 602.10122 sentencing within federal which was an indefi- The commission recommended was Bieber also ordered guidelines. of law suspension nite amount restitution to the lender pay of reinstatement six possibility no $37,969.99. of consideration of the Upon months. our of transaction are set The facts this fact, of conclusions findings commission’s plea agreement: forth in the recommendations, law, and and our de Lord, record, Mary agent, a real estate had agree of the Pat novo review listing Esplanade for the sale of 1818 has all the violations found committed Avenue, Iowa, Davenport, owned agree with the then the commission. We arranged and Denisa Woods. Lord recommended sanction order Bieber’s indefinitely Darryl Hanneken pos- property with no sell the suspended license Herdrich for the sibility price months. and Robert of reinstatement six 2) alleged felony; defendant had full knowl- 1. amendments to Iowa Court Recent fact; 3) edge defendant failed applicable not case because Rules are authorities; 4) notify and defendant hearing prior held their effective steps the crime. took to conceal (2012). date. See Iowa R. 35.26 (2d Cefalu, F.3d United Cir.1996). States gone tri- previously charges. The case al on number federal Felony Misprision jury are The elements ended a mistrial because could charges. principal completed reach verdicts on those committed $100,000. agreed parties Esplanade and the sale of 1818 Lord took custody Settlement Statement proceeds HUD-1 of the of the sale on behalf of other documents to the pertaining Thereafter, Woods. conveyed [Bieber] $155,000, a price would reflect sale cash back payment to Han- thereby allowing Hanneken Herd- neken. mortgage
rich to obtain a loan $108,500, than sale greater the actual transaction, connection with this [Bie- Further, Lord price. parties and the did not collect fees or any payments ber] agreed proceeds sale after of the *4 for his except fee representing $400 Woods, paid had been she would con- Woods, which duly was reflected on the (the $55,000 vey a payment “cash back” HUD-1 form. acted in the in- [Bieber] between the actual and price difference of Woods in that he terests carried out price) inflated sale to Hanneken and her instructions to conduct the transac- price ex- Herdrich. The actual and the tion. back payment istence of the cash Hanneken and would con- Herdrich be 18, 2011, May On the Board filed an lender, mortgage from the cealed Inter- complaint alleging amended Bieber violat- bay Funding, by omitting those details ed Iowa Rules of Professional Conduct the HUD-1 Statement. Settlement 32:1.2(d), 32:1.16(a)(l), 32:4.1(a), 32:4.1(b), area, Davenport lived outside the 32:8.4(b). Woods and alleged Board also that [Bieber], attorney, an so was retained Bieber’s conviction met the require- act for Woods in the connection with suspension ments for revocation or under closing pursuant power sale and to a section Code 602.10122. attorney. the was aware of [Bieber] filed an amended answer admit- price lower actual and the back cash ting allegations most the in the amend- and the fact that those details payment, However, complaint. ed specifically he de- conveyed on
would be the lender knowing preparing nied the HUD-1 the HUD-1 Settlement Statement. document with the inflated price sale did affirmative act to conceal [Bieber] amounted criminal conduct. Additional- offense, in via provided the that [Bieber] ly, admitting while that he knew the inflat- closing process information false, ed price sale was Bieber denied that falsely in- represented higher any knowledge he had the false statement price agreed flated and price was “material” to the lender. price failed to reveal the lower actual one-day hearing cash back knew A payment. before commis- [Bieber] place this information would be on sion included took June 2012. Bieber the HUD-1 Settlement Statement. all of the charged by conceded violations also a declaration of completed alleged [Bieber] except Board violations of falsely value form that represented (a) (b).3 subparts rule 32:4.1 He also price. sale acknowledged plea that his guilty pre- had 9, 2005, or about On December clusive effect as to the elements of [Bieber] represented at the closing Woods crime to. Emp’rs admitted See prohibits "makflng] 3. Rule 32:4.1 false lent act a client.” Iowa R. of Prof’l 32:4.1(a)-(b). above, of material fact or law third statement to a As noted Bie- person” "failflng] price or to disclose a material ber denied the inflated sales was materi- person given lending fact to a third when nec- the real disclosure is al estate environment essary assisting to avoid criminal or fraudu- as it existed Haaften, proof beyond than a reason v. burden less Mut. Co. Van Cas. doubt, (Iowa (noting than the preponder the well-estab able but more plea in an Iowa in the civil guilty required that a usual lished rule ance standard “ a criminal defen ‘precludes Supreme Bd. state court case.” Iowa Ct. Prof'l Lett, essential elements of relitigating dant from & Ethics Conduct 2004). in a later civil offense case stringent the criminal It is a less or inci out of the same transaction arising convincing than evidence burden clear ” Kruckenberg, Dettmann v. (quoting dent’ civil law highest which is “the standard 2000))). 238, 244 proof.” Prof'l Ronwin, Ethics & Conduct However, that both he Bieber asserted (Iowa 1996). 515, 517 If a violation is Woods believed and his client established, “may impose lesser actually go toward needed rebate would greater sanction than recommended property. repairs improvements commission.” Iowa account, disputed, By which no one their *5 Disciplinary Murphy, Bd. 800 the buy- were unaware Bieber and Woods (Iowa 2011); 37, R. 42 also Iowa see Ct. pocket to the differ- simply ers intended 35.10(1). $108,500 they had ence between the bor- $100,000 they the net rowed and Alleged III. Review of Ethical Viola- also to Woods. Bieber testi-
transferred $37,969.99 tions. repaid he had res- fied that court.4 by titution ordered the federal alleged, The Board commission a proposed The Board six-month sus- found, five separate that Bieber violated license; law pension of Bieber’s provisions of the Iowa Rules Profession- was suspension appropriate a but conceded review, agree al Upon Conduct. our we sixty argued days. thoroughly After findings. with those law, discussing relevant facts 32:1.2(d). 32:1.2(d) A. Rule Rule for- li- recommended that Bieber’s commission lawyer “eounsel[ing] bids a from a client indefinitely suspended cense with no be client, engage, assisting] or in conduct for six months. possibility reinstatement lawyer criminal fraud- that the knows is or 32:1.2(d). ulent.” Iowa R. Profl Conduct Scope of II. Review. explains rule Comment 32:1.2 attorney disciplin Our review of (d) prohibits a “[paragraph lawyer ary proceedings Iowa R. is de novo. Ct. counseling a client knowingly assisting or 35.10(1); Att’y Supreme Iowa Disci Ct. crime fraud.” r. commit a or Fields, 791, plinary Bd. v. 790 N.W.2d 32:1.2(d) explains cmt. 9. Comment (Iowa 2010). give respectful We consider lawyer as “is a situation such Bieber’s findings rec ation to the commission’s assisting ... required avoid client by but are not bound them. ommendations by drafting delivering documents that Supreme Disciplinary are r. lawyer knows fraudulent.” Id. Lickiss, (Iowa 32:1.2(d)cmt. 10. 2010). The is on the burden Board 32:1.2(d) by convincing July misconduct Rule took effect on prove not preponderance of the evidence. Id. “This and since time criminally presume that this amount is what the tion who were convicted were restitution, foreclosing it ultimately after to make the same but lender lost ordered property. paid entirely participants Other in the transac- Bieber. applied form, it in any disciplinary opinions. Declaration of Value faxing clos 32:1.2(d) However, Illinois, of rule to the language ing figures title company disciplin- substantially prior similar to our all of which reflected the inflated sales 7-102(A)(7), ary rule DR which in price. stated At the closing, posses Bieber took client, part, “In the representation proceeds sion of the sale and issued the [cjounsel lawyer ... shall not or assist buyers refund from his trust facts, client in the lawyer conduct that knows to account. Under these we find that illegal be or fraudulent.” cases knowingly We find his client assisted in de interpreting prior disciplinary lender, rule DR 7- frauding buyer’s Interbay 102(A)(7) Thus, to be instructive in this matter. Funding. Bieber violated Rule 32:1.2(d). See Supreme Att’y Disciplinary Ct. Bd. of (Iowa Romeo, Gailey, Bd. v. Ethics & Conduct v. Prof'l 2010) (relying applying prior on cases dis- N.W.2d (suspend 7-104(A)(l) ing ciplinary interpret- rule DR for three years who assist successor, S2:4.2(a)). ing ed a under investigation its rule client criminal making receipts false “to get heat off example, For in Iowa Court client,” of his and cover up his client’s role Nelsen, Attorney Disciplinary Board v. “fence”). aas respondent busi- represented failed 32:4.1(a) B. Rule 32:4.1. Rule states ness that owed million to a bank. $3.6 2011). lawyer “a shall ... knowingly make a mis- Nelsen *6 false of statement material fact or law to a represented the bank that would he person.” third Iowa R. Profl Conduct deposit the business’s accounts receivable 32:4.1(a). 32:4.1(b) Rule “In provides, the checks into 266. his trust account. Id. at client, representing lawyer course of a a Instead, order Nelsen contravened a court knowingly shall not ... fail to a disclose by of sending most these checks to his material fact to a person third when disclo- clients out of Id. Ultimately, state. Nelsen necessary sure assisting is to avoid a crim- assisted his least diverting clients client, inal or act by fraudulent a unless $141,335.34in the accounts receivable from prohibited disclosure rule 32:1.6.”Id. court-appointed control of the receiver. 32:4.1(b). r. The commission found that any Id. at 265. Nelsen did not receive (a) (b) subparts Bieber violated both of personal benefit from the was funds and rule 32:4.1. charged any not crimes. Id. at 267.
We nonetheless found that his vio- conduct disputes that Bieber his conduct violated 7-102(A)(7) lated DR and amounted to At the hearing, these rules. Bieber admit- “knowingly assisting] his in de- clients inflated, ted he knew the sale was price frauding the Id. at bank.” knowledge but that he had the any denied false statement was “material” to the lend- Bieber does contest that er, Interbay Funding. Bieber contended 32:1.2(d). violated rule Bieber the knew Interbay Funding mak- because was $100,000 price only actual sales was but ing require “liar loans” did not income $155,000. was being reported as He also verification, the price actual was not sales buyers receiving knew that the were it. material to $108,500 loan on based the overstated He price. concealing persuaded. assisted client in are not The issue the actual price buyers provid sales the lender here is not whether the income, processing a State of whether the HUD-1 Settlement ed verification but ment, preparing Iowa executing price an actual of mat- property sales things.5 different order a criminal act constitute [I]n are two
tered. Those fraud, 32:8.4(b), Interbay of Funding of rule Because violation “ $108,500, buyers up lending the wound must be some rational connec- ‘[t]here they more than were was which $8500 act criminality than the tion other dic- Logic the property. really paying fit- the actor’s between conduct and material; was that the overstatement tates consid- ness to law. Pertinent otherwise, en- would not have parties lawyer’s mental erations include the but would in their elaborate charade gaged state; the extent to which act dem- the bank this simply have told for the law law disrespect onstrates or absence transaction. enforcement; presence absence evidence that actual sales specific some victim; the or poten- extent actual lend- have mattered to this price would not victim; presence tial injury er, materiality find inference of con- pattern or absence of criminal be here. established ” duct.’ processed paper sales knowingly Bd. Supreme Att’y Disciplinary Ct. price, inflated faxed purchase work with an 2012) Weaver, 812 N.W.2d closing figures his client’s the inflated Att’y (quoting Disci- Ct. Illinois, company title to the transaction plinary Templeton, Bd. v. 784 N.W.2d completed a declaration of value form (Iowa 2010)). falsely price. the sale represented acknowledged violating misrepresentation the sales Bieber’s rule, and the commission so found. We a false price in the transaction constituted con difficulty reaching no same Su statement of material fact. clusion. See Iowa Dis preme 'l Ethics & Conduct Prof Schall, ciplinary Bd. v. Gallner, (Iowa 2012) an (finding who en (finding that *7 pled guilty aggravated to three misde social abled clients to receive increased in practice meanor counts of fraudulent security disability by exaggerating benefits file degree timely the third for failure to reports in to Social Securi attorney’s fees 32:8.4(b)). In tax returns had violated rule ty knowingly made false Administration case, there more than a “rational was fact). point At no did he statements of connection” Bieber’s conduct and between misrep any attempt to disclose the make Templeton, his fitness to law. See paper in the sales resentations contained The criminal 767. behavior agree work. We with the commission that actually involved actions undertaken this conduct violated both subsections attorney. capacity Bieber in his as Woods’s rule 32:4.1. part As of the for the guilty factual basis 32:8.4(b). 32:8.4(b) Rule Rule C. that plea, Bieber admitted “professional it misconduct for a makes act the did an affirmative to conceal ... a criminal act that lawyer to commit offense, provided via the adversely lawyer’s honesty, that [he] reflects on the trustworthiness, that lawyer closing process falsely as a information or fitness represented higher inflated respects.” R. Profl that other 32:8.4(b). price and failed to price agreed was recoup to be entirely possible It is that the lender did not would wanted able by foreclosing ability property if care much loan amount on about borrowers' assets, necessary. repay personal but loan from their price reveal the lower actual cash Disciplinary Bd. Dunahoo, com- payment.... back [Bieber] of value pleted declaration form (finding in violation falsely represented price. the sale scope where he failed to “limit his of rep resentation to matters in which he could This admission demonstrates that client). ethically represent” his had a mental state. culpable Temple ton, at 767. Interbay Funding As acknowledged at the hearing was harmed substantially victimized (with candor): commendable by Bieber’s This is misconduct. See id. Q .... gentlemen, Could these two I plea agreement ordering evidenced loosely, refer to Herdrich and Hannek- him to make restitution the amount en, have done this $37,969.99 attorneys without like Servicing, Loan Bayview you your at the time not doing job? A. company Interbay. successor No, they mean, couldn’t have. I it’s one Again, the provided conduct that, know, things you those as we guilty plea factual basis for Bieber’s relat- trial, going through were that oc- representation directly ed to his of Woods me, curred their successful com- in the real estate transaction. Bieber’s pletion plan their required partic- knowing preparation, processing, ipation somebody myself. such as transmission real estate sale documents containing misrep- an affirmative material Q. you No, Are proud of that? A. I directly honesty, resentation on his bear should have known better than that. I trustworthiness, and lawyer. fitness as a mean, thing is, that’s the it you about Thus, we find Bieber’s conviction know, I had the responsibility that I misconduct rule constitutes under figured should have out what going 32:8.4(b). didn’t. and I 32:1.16(a)(l). D. Rule Rule Q. Yeah, Does that you? bother A. 32:1.16(a)(l) states, lawyer “[A] shall said, mean, I it does. like I it’s one of or, represent a client where representation that, things those going as we were commenced, has shall withdraw from the it, it was clear through definitely to me representation if repre- client ... that, know, you there were multiple sentation will result violation of the players that were required make their *8 Iowa Rules of Professional or oth- And, know, plan I you work. was one of er law.” R. Profl Conduct mean, players. those And if it—I if 32:1.16(a)(l). Bieber conceded that somebody hadn’t done the of it part 32:1.16(a)(l), conduct rule violated and we did, they I wouldn’t been able to agree. pull it off. above, As knew discussed Bieber representation that his of her Woods in Appropriate IV. Consideration of real estate in transaction would result Sanction. Thus, perpetration fraud on a lender. representation knew that such would now appropriate consider the 32:1.2(d) cause him to violate rules and sanction of our for Bieber’s violation disci 32:4.1(a)-(b). Nonetheless, plinary Bieber appropriate contin rules. “We craft represent ued to Woods no at upon and made based case’s unique sanctions each circumstances, tempt to Accordingly, withdraw. we find although prior cases are in 32:1.16(a)(l). Bieber violated rule Att’y structive.” Iowa Disci Kallsen, (citing at Iowa Code Bd. v. plinary 602.10122(1)). 2012). § of conviction “The record evidence.” is conclusive Code goal of held repeatedly haveWe 602.10122(1).6 § public maintain rales is to ethical our well legal profession as in confidence The commission recommended a six- mechanism for policing provide toas noting we have “con- suspension, month Important consider- lawyering. poor sistently imposed harsh sanctions for of viola- the nature include ations lawyer’s commission criminal conduct tions, public, of the deter- protection dishonesty.” fraud involving and The others, misconduct rence of similar a prior found Bieber’s lack of commission practice, and our lawyer’s fitness to record, disciplinary respected status aas integrity pro- duty uphold lawyer, cooperation and with Board eyes public. fession in the be mitigating in the fac- proceedings sanction, appropriate fashioning the noted tors. The commission also cases while remain- prior similar look not or Bieber did seek receive additional their limited cognizant of usefulness ing transaction, profit from did not de- their Of- facts. to the variations due scheme, manage vise or the fraudulent ten, punish- between the the distinction promptly reported his conviction to the depends upon the exis- imposed ment Board, appeared sincerely remorse- neglect, multiple instances of tence factors, aggravating ful. the commis- As problems, other past disciplinary “represented sion considered that Bieber violations, uncoop- including companion and, other transactions” sellers similar investiga- disciplinary in the erativeness during hearing, “suggested cir- mitigating Aggravating tion. honestly that he believed there was noth- important. are cumstances price an ing wrong using inflated buyer closing Disciplinary Bd. documents allow get money repairs.”7 back to make Bie- Humphrey, (citations at the presented ber also evidence hear- quotation and internal omitted). recently he has ing that been treated marks kidney cancer. grounds
“A
conviction is
All
this case
suspension
violations
stem
revocation
Weaver, 812 from
representation
law.” See
Bieber’s
Woods
license
(not Bieber)
states in rele-
is true that Bieber's
said
Iowa Code section 602.10122
part:
point
“did
think it
vant
one
fine,
thought
just
it
scheme and
this was
following
causes for
are sufficient
wasn’t.” Yet this off-the-cuff remark needs to
suspension:
revocation or
placed
hearing.
be
in the context of the entire
*9
attorney has
convict-
1. When the
been
consistently
responsibility
took
for his
felony.
The record of conviction is
ed of
conduct and admitted it
fraudulent. His
was
conclusive evidence....
attorney
foregoing
made the
statement as
way
at
emphasizing
that Bieber understood
question
7. We
to some extent the Board's
going
was
the time that
kickback
aggravating
Bie-
reliance on these
factors.
building repairs
being kept
into
rather than
attorney acknowledged had
ber's
The
Hanneken and Herdrich.
evidence
in four or five transactions
been involved
had
belief
that Bieber
was unrebutted.
money went
to Hanneken and
where
back
Overall,
However,
attorney
we think Bieber’s
mounted a
only one transaction
Herdrich.
Board,
vigorous
at
charged
proper
but
defense of his client
by the
and evidence
was
was
Also,
hearing.
only
it
the commission
presented
as
that transaction.
and his
have
2005 real estate transaction
otherwise
been
lend.
willing to
Nel-
conviction
subsequent felony
misprision
sen’s
case
demonstrated callous disre-
court. Bieber’s mis-
federal
gard for court orders
in sig-
and resulted
an element
conduct involves
of deceit. We
greater
nificantly
financial harm than the
repeatedly
held that:
case at
Id. at
hand.
267.
honesty
line
is the base
[fundamental
Attorney
Court
Disci
mandatory requirement
and
to serve
Nelsen,
plinary Board v. Polsley, like
in
The
struc-
legal profession.
whole
volved theft of property.
A closer
to the
case
months after he had been convicted of two
may
in the
disciplinary
be found
Gallner
practices
counts of fraudulent
for failing to
proceeding.
security disability
they
benefits than
would pension.
526 Thus, the Id. at 826. revocation in Little- 798 yer’s income.” 595 large have appears to been based in field 1999).9 the attorney’s on willful evasion of part the between Admittedly, difference court-imposed probation. No terms of his file tax to income case and the failure in tably, approval we Littlefield with cited acts in deceptive the is that return cases subsequent case we imposed where in course of were committed the this case attorney on an who ninety-day suspension of a client. attorney’s representation conduct engaged had fraudulent but hand, attorney an fails when On the other complete to his intended conversion unable or government, he income to the report to 'l & funds. on Ethics of See Comm. Prof personal benefit deriving a direct she is Millen, 314-15 v. Conduct fraud, present not a circumstance from the (Iowa 1984). case, attorney In that here. during pending been his di had ordered proceeding any to withdraw vorce & Ethics on In Committee Professional specific account without the funds from the li- we revoked Littlefield, of 314. approval written his wife. who had convict- attorney an been cense of order, attorney In of that violation Kentucky attempting to commit a ed of $26,000 payable drafted checks worth over pro- to making a false statement felony by forged signature to himself and his wife’s 824, 825- cure a credit card. those Id. He was unsuccessful to checks. 1976). that case did not While only attorney learned of because wife’s theft, the fraud was completed involve a payor institu checks contacted Id. at personal benefit. tion time. Id. Moreover, emphasized 825. we jurisdictions in other have con Courts had “determined to evade the attorney an appropriate sidered the sanction for willfully probation restrictions his felony attorney misprision of a convicted Kentucky of the disobeyed the order” conclusions, varying depend and reached during practice that he not law his court ing Grievance the situation. himself to Iowa and probation by removing Wingerter, Comm’n Md. of Md. 825- practice of law. Id. at resuming 57-58, (2007) (disbarring A.2d conduct, we conclud- 26. to the latter As guilty misprision to of a pled who ed: felony acknowledging that he was after conduct in dishonest and deceitful conspiracy His of a aware the existence lack of regards his these demonstrates engage immigration fraud affirma moral re- requisite good activity); character tively to conceal In re acted such per- he is quired Calonge, individual before A.D.3d N.Y.S.2d (2008) practice of engage lawyer in the law two (suspending mitted state, permit his actions no years subsequent mispri in this conviction felony “mailing] than the immediate and sion letter other sanction Citizenship license States and Immi permanent revocation United purpose for the of con profession gration of law in Iowa. Services practice said, is we "Where convic- revoked the license of an Vinyard, directly involving con- involved dishonest fraud. An im- tions convicted of conduct duct, attorney's consideration, above, we have revoked the license portant we discuss as law." N.W.2d at 132. That is a theft conver- whether the fraud included foregoing as the sum- true statement. Yet sion of funds. indicates, automatically mary have not *13 cealing felony. certification of em fraudulent Id. at 546-47. mitigating The fac- ex rel. Bar Ass’n tors in ployment”); State Okla. that case were that the attorney (Okla. Golden, 862, 863-64, P.3d 866 had been a member bar v. 201 of the for over 2008) (disbarring attorney twenty years, whose involve he prior had no disciplinary record, cover-up ment in health care fraud led to and there was no evidence of a misprision felony conviction of of “dishonest or selfish motive desire for years to three pecuniary gain.” which was sentenced Id. at 547. $5,719,340.22 to probation pay and ordered rel. Discipline State ex Counsel v. restitution). Boose, the Supreme Court Nebraska Russell, In In a New appellate re York held that appropriate disbarment was the attorney attorney reciprocal court considered case of an sanction for an in a 1, pled misprision felony of a guilty disciplinary proceeding. 277 Neb. 759 (2009). 110, was N.W.2d attorney sentenced 113 The client, failed to that report county year, to a probation term of of one con- commissioner, engaging illegal was self- with fined his home electronic moni- dealing public in a real estate transaction. months, toring period for a of six or- at Id. 112. The pled guilty fine in pay dered to the sum misprision felony of a been and had sus- special assessment in sum of pended years for three Florida $100, perform per 20 hours directed Supreme Id. at Court. 112-13. community week of on pro- service while bation, to participate and ordered in a with agree the commission mental program. health treatment lack of a prior disciplinary Bieber’s (2009). 71, 364, A.D.3d 365 63 877 N.Y.S.2d important record is an mitigating factor. suspension The court a six-month held that See Iowa Supreme Att’y Disciplinary Ct. light an appropriate sanction in of the 295, Bd. v. 792 Lustgraaf, N.W.2d attorney’s disciplinary lack of a record in (Iowa 2010) (noting prior the lack of a York, acknowledgement New of his mis- factor); record of as a discipline mitigating conduct, remorse, expression coopera- Supreme Att’y Disciplinary Iowa Ct. committee, with grievance tion “strict Howe, 360, v. 706 N.W.2d 379 suspension to the terms of his adherence (same). mitigating An additional factor is probation, and federal his meticulous rec- service. community Bieber’s record keeping, ord and the fact that he ha[d] Schall, (recognizing 814 N.W.2d 215 vol automatically been reinstated in the State untary community a mitigating service as upon expiration of Connecticut of his factor); Supreme Att’y Disciplin probation.” federal Boles, ary Bd. v. (Iowa 2012) (same). case, Also, attorney pled In an Arizona acknowl being edged after remorse guilty misprision wrongdoing expressed as a in a for his He the entire paid named defendant federal indict- actions. has alleging conspiracy Supreme ment to defraud the restitution. Disci Taylor, in relation a former Bd. v. plinary United States (Iowa 2012) Morris, (finding taking responsi client’s tax evasion scheme. In re (1990). bility mitigating Ariz. 793 P.2d actions is a fac one’s tor); suspended of Arizona Ct. Bd. Eth Court Prof'l pursuant Tofflemire, for months to an ics & six (Iowa 2004) (“A required mitigating Arizona rule factor is disciplinary suspension recognition wrong- any attorney convicted of a some rules, goals of the of our ethical cooperated fully has sideration -AndBieber
doing.”)-
factors, our
mitigating
aggravating
the commission. Iowa
with
Board and
jurisdic-
other
precedents,
and cases from
Att’y Disciplinary Bd.
Supreme Ct.
(Iowa 2012)
tions,
prac-
Bieber’s license to
Denton,
suspend
indefinitely
no
law in this state
mitigating
circum
tice
cooperation as
(noting
*14
stance).
possibility of
for six months.
factor is
reinstatement
mitigating
A further
the
suspension applies to all facets of
legal
in his
This
respected
is well
that Bieber
35.12(3).
R.
witnesses
law. See
Ct.
community, as
character
several
Rule
comply
must
with Iowa Court
Att’y Dis Bieber
See Iowa
attested.
Iversen,
with the notification
dealing
Bd.
35.22
ciplinary
and
“we do
clients
counsel.
(noting that
not
service to
devoted
overlook
reinstatement,
application for
Bie-
Upon
(quoting
the
profession”
prac-
establish that he has not
ber must
Fre
'l
and
Ethics
Prof
period and
during
suspension
ticed law
the
(Iowa 2008))).
richs, 671 N.W.2d
complied
require-
he has
with
persuaded
we are
that Bieber’s
Lastly,
and
of Iowa Court Rules 35.13
ments
by a
not motivated
desire
misconduct was
The
are taxed to
35.22.
costs of
action
Howe,
gain.
for financial
pursuant
Court Rule
Bieber
(noting
mitigating
factor that
as
35.26(1).
any
to obtain
did not intend
LICENSE SUSPENDED.
benefit).
only
Bieber
personal financial
fee he
stood to receive
standard $400
WATERMAN
justices
except
All
concur
closing.10
real estate
charged
any
ZAGER, JJ.,
specially,
and
concur
remains that Bieber was
Yet
fact
WIGGINS, J., who
and
dissents.
part
in a criminal fraud as
of his
involved
WATERMAN,
(concurring specially).
J.
in-
law
albeit one that did not
practice,
far
he knew—a theft or con-
volve—as
as
majority
join
I
the well-reasoned
has
Although
of funds.
Bieber
version
opinion,
separately
respond
but
write
oper-
he
client
demonstrated that
and his
Wiggins.
Justice
The dis-
the dissent
Han-
under a reasonable belief that
ated
stealing
calls
sent accuses Bieber
were
going
use
neken
Herdrich
law
permanent
for the
revocation
his
improve
proceeds
additional loan
The
inaccu-
license.
dissent’s accusation is
them,
with
than abscond
property, rather
rate, and
does
punishment
the dissent’s
“if
correctly acknowledges that
not fit
crime. Bieber did
steal
of it that I
somebody
part
hadn’t done the
parties
Nor
other
dime.
did
know
did,
able to
it
they
pull
wouldn’t
been
ultimately
real
estate transaction
off.”
violation of our ethical
This serious
loan. Bieber
would default on
bank
significant
sanction.
standards warrants
and,
only
collected
a standard
fee
$400
later,.
entire
personally paid the
Disposition.
V.
Be-
to make the bank whole.
restitution
case,
rec-
and circum-
fore this
he had an unblemished
light
all of
facts
case,
ord,
history reputation,
excellent
in this
and after careful con-
stances
mitigation
generally
purposes we
focus on
Board did not
Bieber's recent
The
treat
suffering
mitigating
whether the
illness as
factor.
follow the
certainly
when
oc-
approach.
sympa-
While
condition
the misconduct
same
health
Schall,
situation,
at 215.
present
with
medical
curred. See
thize
Bieber’s
stated,
community
back to
giving
adapt
volun-
“[W]e
sanctions to the
Attorney Disciplinary
service. The
tary
unique facts of each case.” Id. That is
Board, acting
sought
as
never
prosecutor,
what
today.
he fails to do
and concurred
the six-month
revocation
The
gets
dissent
wrong,
facts
grievance
suspension recommended
then misapplies
precedent.
our
The dis-
panel
commission
that conducted the evi-
argues
sent
knowingly
“assisted
dentiary hearing.
cases
The revocation
client in stealing money from the bank.”
by the
far
cited
dissent
involved
more
First, the record
egregious misconduct.
evidence confirms Bieber
did not
anyone
know
in the transaction
majority
does what
opinion
our
repay
would steal or fail to
the bank loan.
lawyer discipline
court strives to do in all
*15
He believed the borrowers
spend
would
evidence,
carefully
the
cases:
reviews
the
the additional
proceeds
loan
fix
rules,
up
to
the
the
and
applicable
mitigating
aggra-
circumstances,
vating
precedent
property
to
secured the loan.
and
de-
He as-
termine the
sanction.
appropriate
One
the
repaid.
sumed
bank would be
does
fit
Supreme
size
all. See Iowa
theft,
was not charged with
nor could he
Cannon,
v.
Disciplinary
charged
have been
with theft absent intent
(Iowa 2012) (“There-is
873, 880
N.W.2d
no
deprive
to
another
property.
See Iowa
by any par-
standard sanction warranted
714.1(1)(2005).
§
Code
type
Though prior
ticular
of misconduct.
Second,
Wood,
Bieber’s client was
the
instructive,
can
cases
be
sanction war-
represent
seller. Bieber did not
Hannek-
in particular
ranted
must be
case
based
(Cita-
Herdrich,
en or
buyers
who later
on the
case.”
circumstances
omitted.)).
by
The
call
“stole” from the
defaulting
tion
dissent’s
for revo-
bank
on the
on this record
at odds with
cation
is
our
Bieber,
they
loan
obtained.
to his shame
precedent. Notably,
Wig-
court’s
Justice
regret,
by
and
enabled them falsifying the
gins’s dissent
to
fails
cite
he
decision
documents to show
price
an inflated sale
in Iowa
Court
Attorney
authored
single
transaction before the real estate
Iversen,
Disciplinary Board v.
723 N.W.2d market crashed. His misconduct warrants
(Iowa 2006).
806,
ease,
In that
810-12
our
six-month suspension
impos-
our court
suspended
year
court
for one
the license of
today,
by
es
as
the disciplin-
recommended
Iversen,
guilty
of tax fraud.
But,
ary
grievance
board and
commission.
N.W.2d at
811-12.
Iversen cheated
wrong
equate
the dissent
Bieber’s
$207,743-mon-
government
our state
out of
prompted
conduct to the “conduct that
us
pocketed
ey
illegally.
he
Id. at 808. Iver-
to revoke the law
attorneys
licenses”
sen also failed to file a federal tax return
in four
cases:
Court
other
years, allowing
illegally
for ten
him to
Nelsen,
Attorney Disciplinary Board v.
$180,000 $200,000
retain
taxes that he
2011);
807 N.W.2d
267-68
government.
owed
federal
Id. Iver-
Supreme Court Board
Eth
of Professional
revocation
be
clearly
required
sen’s
would
&
v. Vinyard,
ics Conduct
stealing
today’s
under
definition of
(Iowa 2003);
Committee on
Justice
Profes
Wiggins
dissent.
wrote in that
“
Hall,
Ethics &
v.
sional
Conduct
case,
‘It
lawyer
is as
for a
wrong
cheat
1990);
35-36
and Com
him
government
as it is for
to cheat a
”
mittee on
&
Ethics
Conduct
Id. at
(quoting
client.’
Comm. on
Professional
Strack,
Littlefield,
Ethics &
Prof'l
(Iowa 1975)).
(Iowa 1976).
But,
he
year
Kentucky county jail
correctly distin
one
opinion
majority
Nelsen,
and then violated the terms
Vinyard.
bank fraud
guishes Nelsen
by
court-ordered
probation
foregoing
court
di
attorney violated
orders
psychiatric
fleeing
of receivables
treatment
verting at least
knowingly aided
law in
disobedience
thereby
willful
his clients
of bank
Kentucky
Littlefield,
their conversion
court
and abetted
order.
contrast,
In Vin
By
at
267.
funds. 807 N.W.2d
N.W.2d at 825-26.
probation,
of four
com-
was convicted
the terms of his
yard, the
honored
orders,
expressed ap-
fraud and twelve
plied
of mail
with court
teen counts
money laundering. 656 N.W.2d
contrition.
propriate
counts of
remorse and
loss exceeded $2.8
at 128. The victims’
re-
None of the other revocation cases
Vinyard
We noted
million.
131.
point here.
is on
lied on
dissent
of miscon
“engaged
lengthy pattern
in a
Moreover,
revo-
the dissent’s discussion of
personal, pe
sake of
duct ... all
fails
jurisdictions
from other
cation cases
contrast,
By
cuniary gain.” Id. at
states,
that in
of those
to mention
most
trans
discipline
single
involves
Bieber’s
read-
temporary,
revocation can be
merely
in which
collected $400
action
*16
Zazzali,
James R.
permitted.
mission
rules for
breaking
was not
fee. He
Dis-
and Hows
Permanent
Whys
he made the victim
personal gain, and
Rule, 21
Jersey’s
New
Wilson
barment:
by paying the restitution of
bank whole
(2008)
311,
n.
Ethics
337
224
Legal
Geo. J.
$37,969.
approximately
one
six
(listing Iowa as
aggravating cir-
Hall
likewise involved
perma-
license revocation is
states where
not
here.
In that
present
nent).
cumstances
Similarly,
on the
the dissent relies
case,
into a
lawyer
entered
series
noting
standards without
disbarment
ABA
with his client over a
business transactions
may only
temporary. See ABA Model
be
four-year
conflicting
their
period despite
Lawyer Disciplinary Enforce-
Rules for
(2002)
absence
disclosure and
setting
interests
R.
(permitting
ment
25
Hall,
consent.
decided
There, attor- license of an we revoked the
ney knowingly aided abetted his funds, bank of even defrauding
client in no con-
though attorney had criminal
viction for his misconduct.
Here, know- we have an obtain funds from
ingly helped his client
the bank. This constitutes the exact same Marcucci, time a member of Ethics & Conduct v.
13. This is not first (Neuman, J., (Iowa 1996) discipline dissent separately court has written ing). case. Ct. Bd. 'l See Iowa of Prof