Iowa Supreme Court Attorney Disciplinary Board v. Beau A. BergmannIowa Supreme Court Attorney Disciplinary Board v. Beau A. Bergmann
On review of the report of the Iowa Supreme Court Grievance Commission.
Grievance commission recommends public reprimand and probation for violations of ethical rules. ATTORNEY REPRIMANDED.
Tara van Brederode, Des Moines, and Andrew J. Boettger, Ames, for complainant.
Alfredo Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry, Brown & Bergmann LLP, Des Moines, for respondent.
I. Introduction.
A relatively inexperienced Iowa attorney had too much on his plate and, as a result, missed court deadlines and appearances. After the Iowa Supreme Court Attorney Disciplinary Board (Board) filed a complaint against the attorney, the parties reached a stipulation of facts, violations, and sanctions. They proposed that the attorney receive a public reprimand followed by twelve months of probation. The Iowa Supreme Court Grievance Commission agreed with the joint recommendation and passed it along to us.
On our review, we conclude that a public reprimand is appropriate for this case of neglect. Several mitigating factors are present, including the attorney’s inexperience. But we decline to order probation. In our view, any such change in our disciplinary system should be instituted via rulemaking, with an opportunity for public comment.
II. Facts and Procedural History.
A. Our Limited Record. Our factual record is sparse because the matter was submitted on a stipulation, and the stipulation is rather vague as to what the facts are. Also, no exhibits accompany the stipulation to provide additional background.1
One example of a shortfall in the stipulation is the following sentence: “Bergmann neglected the dissolution case by failing to keep B.M. reasonably informed of the status of said case.”2 This is really a stipulation as to a legal conclusion, not a fact. It
The next sentences of the stipulation recite, “Bergmann received the relevant documents late from the client. However, Bergmann concedes he should have been more diligent in obtaining the information.” For purposes of our review, it would be helpful to know what the documents were, when they were obtained, and what their importance to the case was.
Next the stipulation states, “Bergmann admits he did not properly follow the Rules of Civil Procedure relative to proper notice of service of process in B.M.’s matter.” What was the deficiency here? What effects did it have?
The stipulation continues, “Bergmann admits he did not file the affidavits on behalf of B.M. in a timely fashion and should have done so. However, a mitigating factor is that B.M. produced these affidavits at a late hour.” Again, what affidavits are the parties referring to, when should they have been filed, and when were they in fact filed?
These details matter because not every missed deadline or delay is an ethical violation.3 And even when we find an ethical violation, the sanction often turns on the seriousness of the violation and the attendant circumstances. The Board has the burden of proof. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Smith, 885 N.W.2d 185, 192 (Iowa 2016) (discussing the board’s burden of proof in a case heard on stipulation). Therefore, to the extent our factual record falls short, we cannot hold that against the attorney. See id.
From the stipulation and the admitted allegations of the complaint, we can glean some relevant facts. Beau Bergmann has been licensed to practice law in Iowa since 2012—a period of seven years. Bergmann resided first in Des Moines (2012 to 2015) and then later in Mount Pleasant (2015 to present). Until 2018, Bergmann attempted to maintain offices in both Des Moines and Mount Pleasant. Since then, Bergmann has maintained an office only in Mount Pleasant and is focused on building a practice in Henry County and the surrounding area. Bergmann has accepted court appointments through the state public defender in seventeen counties. The disciplinary proceeding concerns Bergmann’s representation of three different clients, one of which involved a court appointment.
B. The First Client. In 2014, Bergmann began representing a client in a dissolution of marriage action that involved children.4 Bergmann failed to appear for a hearing on temporary matters, even though he acknowledged that the client had delivered to him a copy of the order setting the hearing. Without Bergmann having made
The parties have also stipulated that Bergmann “believes” his request for reconsideration was appropriate and timely and “does not feel he was untruthful in connection with this disciplinary matter but accepts responsibility.”
C. The Second Client. In 2015, Bergmann was appointed to defend an individual who had been charged with perjury. The individual was convicted later that year. Bergmann filed a notice of appeal on December 21. On January 13, 2016, another attorney, Kenneth Weiland, likewise filed a notice of appeal. On January 25, both Bergmann and Weiland were issued notices of default and assessed $150 penalties for failure to file and serve the combined certificate and pay the appeal fee. On February 8, Weiland filed the combined certificate and requested a waiver of the appeal fee. Bergmann took no action. On May 24, both Bergmann and Weiland were issued notices of default and assessed $150 penalties for failure to file and serve the appellant’s proof brief and designation of appendix parts. Neither attorney responded to these notices, and the appeal was dismissed for want of prosecution. See
According to the parties’ stipulation, Bergmann erroneously believed that his court-appointed duties had ended once Weiland filed a notice of appeal as appellate counsel. Bergmann acknowledges he should have followed up with the court and with Weiland to ensure the defaults were cured and the appeal was progressing.
D. The Third Client. The third matter involved a custody proceeding that unfolded during 2016. Bergmann’s client repeatedly had difficulty reaching Bergmann. Bergmann admits he received calls and failed to timely respond. At an August 15 pretrial conference, Bergmann learned for the first time that his client had reached a settlement in mediation; before then, Bergmann had been unaware of either the mediation or the settlement. In late October, Bergmann’s client asked him to withdraw. In November 2016, Bergmann filed a notice of withdrawal at the client’s request. The court denied Bergmann permission to withdraw until a new attorney appeared. Bergmann admits there were administrative shortcomings with regard to the records he maintained in the matter.
E. The Complaint and Subsequent Proceedings. The Board filed a complaint against Bergmann on November 14, 2018, alleging disciplinary rule violations in the foregoing three matters. Bergmann filed a motion for a more specific statement and an answer. As already noted, the parties subsequently reached a stipulation and submitted the matter to the commission on that basis. See
F. Other Considerations. Bergmann has had many stressors in his life. Some are work-related. Bergmann has practiced primarily in the area of indigent criminal defense. This practice requires considerable travel, much of which has not been compensated in Bergmann’s case. Bergmann used to have an associate, but the associate left suddenly, and Bergmann has been unable to hire another.
Bergmann also has sources of stress in his personal life. He and his wife lost a child due to a miscarriage. Bergmann suffers from persistent depressive disorder in the mild range. His wife has suffered from depression as well. Bergmann is currently undergoing personal and marriage counseling.
Bergmann has begun using office management software and has instituted regular staff meetings to improve office procedures and ensure work is done in a timely manner.
Bergmann has been a member of the executive council of the Young Lawyers Division of the Iowa State Bar Association since 2015. He serves as a volunteer judge at mock trial competitions. He has worked on pro bono cases.
Bergmann has responded to all correspondence from the Board. He volunteered for a psychiatric evaluation after these matters arose and has been receiving mentoring from his brother, also an Iowa attorney.
III. Standard of Review.
“We review attorney disciplinary matters de novo.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 933 N.W.2d 206, 213 (Iowa 2019) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lynch, 901 N.W.2d 501, 506 (Iowa 2017)); see
“When the parties enter into a stipulation, . . . they are bound by the stipulated facts, which we interpret with reference to their subject matter and in light of the surrounding circumstances and the whole record.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Humphrey, 922 N.W.2d 601, 604 (Iowa 2019) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 884 N.W.2d 772, 777 (Iowa 2016)). “However, ‘[w]e are not bound by stipulations as to ethical violations or the appropriate sanctions.’ ” Id. (alteration in original) (quoting Johnson, 884 N.W.2d at 777). “We respectfully consider the commission’s recommendations as to sanction . . . .” Earley, 933 N.W.2d at 213.
IV. Rule Violations.
Notwithstanding our misgivings about the stipulated record in this case, we agree with the parties and the commission that Bergmann violated several rules of professional conduct. In the future, we remind parties to comply with
A stipulation submitted pursuant to this rule must include:
a. For each rule violation stipulated, a separate paragraph stating supporting facts sufficient to allow the grievance commission and the supreme court to
find a factual basis for concluding the violation occurred.
Had the parties gone through the exercise of “stating supporting facts,” it is likely that the facts necessary to sustain each asserted rule violation would have been much more developed. Still, the record allows us to draw the following conclusions.
A.
Although a single missed deadline does not ordinarily violate
B.
C.
D.
E.
V. Discipline.
“There is no uniform sanction for a particular ethical violation.” Earley, 933 N.W.2d at 213 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bauermeister, 927 N.W.2d 170, 174 (Iowa 2019)). Yet, “[w]e seek to ‘achieve consistency with prior cases when determining the proper sanction.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Crotty, 891 N.W.2d 455, 466 (Iowa 2017) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010)).
A. A Public Reprimand Is the Appropriate Sanction Here. The case before us is essentially one of neglect. Typically, the sanction in a neglect case ranges from a public reprimand to a six-month suspension. See Noel, 933 N.W.2d at 205 (discussing the range of sanctions); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kingery, 871 N.W.2d 109, 123 (Iowa 2015) (same); Hedgecoth, 862 N.W.2d at 365 (same).
Several considerations drive us toward the low end of that range, consistent with the parties’ joint recommendation. Although three separate client matters are involved, this appears to be purely a neglect case. It is not neglect compounded with other misconduct. Also, numerous mitigating factors are present. These include Bergmann’s inexperience, his personal health issues, his acceptance of responsibility, his cooperation with the Board, his public service, and his willingness to take proactive measures to correct the problems that led to his disciplinary rule violations. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Jacobsma, 920 N.W.2d 813, 821 (Iowa 2018) (finding that cooperation with the board and community service can be mitigating factors); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130, 155–56 (Iowa 2018) (characterizing inexperience, depression, acceptance of responsibility, and efforts to correct the problems that led to the disciplinary rule violations as mitigating factors).
In addition, we have not been directed to any aggravating factors. The Board alleges in its complaint—and Bergmann admits—that he has received three prior private admonitions. Although a private admonition is not discipline, we can consider it an aggravating factor because it puts the attorney on notice of his or her ethical requirements. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519, 528 (Iowa 2017) (treating a private admonition for failing to keep a client reasonably informed to be an aggravating factor in a neglect case). But here, neither the stipulation nor the rest of the record discloses what the private admonitions
In sum, we believe this case falls in line with other precedents where we have issued a public reprimand. See Weiland, 862 N.W.2d at 642–43 (imposing a public reprimand for neglect allowing an appeal to be dismissed despite some aggravating factors); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 663 (Iowa 2007) (holding that a public reprimand was appropriate where an attorney neglected two client matters and failed to respond to notices from the board); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Parker, 558 N.W.2d 183, 184, 186 (Iowa 1997) (concluding a public reprimand was an appropriate sanction for failure to close two estates for many years). We find that a public reprimand is the appropriate discipline for Bergmann’s rules violations.
B. Probation Should Await Formal Rulemaking. The parties and the commission also recommend that we put Bergmann on probation for one year. As conditions of probation, Bergmann would continue to mentor with his brother; keep using a case management system in his office; take additional continuing legal education hours beyond the requirement (including six hours of ethics); implement a proactive, management-based regulation assessment and any recommended strategies; and certify continued counseling and treatment.
In recent years, we have generally declined to impose terms and conditions in our attorney disciplinary rulings that would require ongoing supervision. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Waterman, 890 N.W.2d 327, 333 (Iowa 2017) (declining to require that an attorney remain in therapy “in part because we do not have a mechanism for supervising . . . performance“); Hedgecoth, 862 N.W.2d at 366–67 (gathering cases on this issue).
Nonetheless, in its statement regarding sanction in this case, the Board advises us that it is prepared to monitor all of the conditions it proposes. The Board also notes that over half of other jurisdictions imposed probation as a component of attorney discipline in 2017, the last year for which data are available. Finally, the Board observes
additional or alternative sanctions such as restitution, costs, practice limitations, appointment of a trustee or receiver, passage of a bar examination or the Multistate Professional Responsibility Examination, attendance at continuing legal education courses, or other measures consistent with the purposes of attorney discipline.
Still, we believe that any system of probation for attorneys should be adopted through a formal rule amendment rather than launched in this case. We reach this conclusion for several reasons. First, probation typically comes with consequences for failure to comply with the terms of probation. But in this case, it is unclear what would happen if Bergmann did not meet the terms of his probation. He has already received his reprimand. Second, in the realm of attorney discipline, it is important for attorneys to know in advance what sanctions are potentially available for misconduct. That way, all affected attorneys have notice and stand on equal footing. This is the same reasoning that has led us at times to issue a warning before we ramp up the sanction in a particular area of attorney misconduct. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nine, 920 N.W.2d 825, 830 (Iowa 2018) (“In the future, we may need to implement harsher
We are aware that several neighboring jurisdictions—Illinois, Minnesota, Missouri, Nebraska, and South Dakota—utilize probation in attorney disciplinary proceedings.5 See
suspension, on such terms as the Court may designate . . . .“);
In most of these jurisdictions, a rule sets forth procedures for revoking probation and specified consequences if the attorney violates the terms of probation. See, e.g.,
We find these examples from our neighbors instructive. While we cannot forecast how probation would look in the Iowa attorney disciplinary system, we believe rulemaking with an opportunity for public comment is the appropriate mechanism for adopting any system of probation in our state.
For all these reasons, we respectfully decline to order probation in this case but remain willing to consider proposed rule amendments from the Board or others.
VI. Disposition.
We impose a public reprimand on Bergmann. We tax the costs of this action to Bergmann pursuant to
ATTORNEY REPRIMANDED.
Notes
Thus, the rule contemplates that the record will often include more than just the stipulation.The grievance commission must interpret the stipulation of facts with reference to its subject matter and in light of the surrounding circumstances and the whole record, including the state of the pleadings, issues involved, and any additional evidence elicited at a limited hearing.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Taylor, 814 N.W.2d 259, 265 (Iowa 2012) (citation omitted) (first quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Joy, 728 N.W.2d 806, 812 (Iowa 2007); and then quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 867 (Iowa 2010)).Generally, a violation of
rule 32:1.3 cannot be found if “the acts or omissions complained of were inadvertent or the result of an error of judgment made in good faith.” An attorney does not typically commit neglect by missing a single deadline. Instead, neglect involves a consistent failure to perform obligations the lawyer has assumed or a “conscious disregard for the responsibilities a lawyer owes to a client,” and may arise when an attorney repeatedly fails to meet deadlines.