IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, vs. ERIC TINDAL, Appellant.
No. 20–0005
IN THE SUPREME COURT OF IOWA
October 9, 2020
Submitted September 16, 2020
On appeal from the report of the Iowa Supreme Court Grievance Commission.
Grievance commission recommends suspension for violation of ethical rules. ATTORNEY REPRIMANDED.
Waterman, J., delivered the opinion of the court, in which Christensen, C.J., Appel, Mansfield, Oxley, and McDermott, JJ., joined.
Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for appellant.
Tara van Brederode and Wendell J. Harms, Des Moines, for appellee.
Lawyers shouldn‘t use default notices from the supreme court clerk as a tickler system for appellate briefing deadlines. Eric D. Tindal did so; and in 2018, we publicly reprimanded him for default notices he received in sixteen appeals. We now decide the sanction for his default notices in another thirteen appeals. Importantly, all but four of the new default notices at issue preceded his 2018 public reprimand. The Iowa Supreme Court Attorney Disciplinary Board seeks “at least” a two-month suspension. A division of the Iowa Supreme Court Grievance Commission that heard the evidence recommends a one-month suspension. It is undisputed that Tindal cured all of the defaults without any appeal being dismissed, and he personally paid every penalty assessment. Tindal, by all accounts a competent criminal defense trial lawyer, has agreed to forgo handling court-appointed criminal and postconviction appeals. For these reasons, we impose a second public reprimand rather than suspending his license.
I. Background Facts and Proceedings.
Tindal obtained his Iowa law license in 2000. He worked seventeen years at a general practice firm in Cedar Rapids before joining his current firm in Iowa City where he focuses on criminal defense.
In 2012, Tindal received a private admonition for lack of diligence in a court-appointed appeal after receiving two default notices and failing to apply for further review of the court of appeals decision. When Tindal joined Dean Keegan‘s law practice in 2017, his workload increased dramatically, in part because Tindal took over the cases handled by another lawyer in the firm who experienced serious health problems. Tindal continued handling numerous court-appointed appeals, sometimes adding two or three a week. During this time, he received default notices. Each notice of default contained the same advisory language:
You are advised that if the appeal is dismissed as a result of counsel‘s failure to comply with this default notice, a copy of the dismissal order will be forwarded to the Iowa Supreme Court Attorney Disciplinary Board and to the State Public Defender‘s Office, where applicable. The dismissal may serve as grounds for an investigation of neglect of a client‘s legal matter.
Tindal cured each default by filing the overdue briefs and appendices and personally paying all the penalties. No appeal was dismissed, nor did we order Tindal‘s removal as appellate counsel. Based on the wording of the clerk‘s notice, Tindal believed
The Board charged Tindal with disciplinary violations based on twenty-one default notices and penalty assessments in sixteen appeals. On December 6, 2017, Tindal paid the accrued penalties assessed for those defaults totaling $3150. On October 3, 2018, we publicly reprimanded Tindal for that conduct. Meanwhile, Tindal had continued to receive default notices and penalty assessments in other appeals.
On April 10, 2019, the Board filed a new complaint against Tindal alleging multiple default notices issued between February 2018 and March 2019 in thirteen appeals.1 All but four of the default notices preceded his October 2018 reprimand. Tindal cured every default and paid all the monetary penalties out of his own pocket. No appeal was dismissed, nor did his default notices result in the appointment of substitute appellate counsel. Tindal voluntarily revised his contract with the State Public Defender to remove himself from its appellate court-appointed list.
In all thirteen appeals, the Board alleged that Tindal violated Iowa Rules of Professional Conduct
On August 28, 2019, the commission held an evidentiary hearing. The Board submitted its case through documentary evidence including the filings in the appeals and his correspondence with Campbell. Tindal called five witnesses who testified in person regarding his professionalism and competency as a criminal defense lawyer.
The Board and Tindal filed posthearing briefs. On January 2, 2020, the commission filed its findings of fact, conclusions of law, and recommended sanctions. The commission found Tindal violated Iowa Rules of Professional Conduct
II. Standard of Review.
“We review attorney disciplinary proceedings de novo.” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Meyer, 944 N.W.2d 61, 67 (Iowa 2020) (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 171 (Iowa 2013)). The Board must prove the attorney misconduct by a convincing preponderance of the evidence, which “is more demanding than the civil preponderance-of-the-evidence standard but less demanding than the criminal beyond-a-reasonable-doubt standard.” Id. While “[w]e give the commission‘s findings and recommendations respectful consideration, . . . we are not bound by them.” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Morse, 887 N.W.2d 131, 138 (Iowa 2016) (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Weiland, 862 N.W.2d 627, 635 (Iowa 2015)).
We reiterate that using the appellate clerk‘s notices of default “as a private tickler system is unacceptable behavior for an attorney.” Weiland, 862 N.W.2d at 642; see also Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 699 (Iowa 2008) (characterizing an attorney‘s use of the appellate clerk‘s office as a private tickler system as “deplorable“). Tindal agrees with the commission‘s finding that he violated
A. Iowa Rule of Professional Conduct 32:1.3. Iowa Rule of Professional Conduct
We have previously determined that an attorney violated this rule when she failed to comply with the deadlines in nine separate criminal cases, resulting in over twenty default notices. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Kieffer-Garrison, 847 N.W.2d 489, 492 (Iowa 2014). From February 16, 2018, to March 8, 2019, Tindal received notices of default in thirteen appeals for missing deadlines. These defaults occurred despite the fact that Tindal asked for and received ten extensions. We determine that Tindal violated
B. Iowa Rule of Professional Conduct 32:3.2. Iowa Rule of Professional Conduct
We have specifically determined that an attorney violates
C. Iowa Rule of Professional Conduct 32:8.4(d). Iowa Rule of Professional Conduct
“Failing to comply with appellate deadlines is prejudicial to the administration of justice.” Id. Additionally, “an attorney hampers proper court operations by ‘[i]gnoring deadlines and orders, which results in default notices from the clerk of court.’ ” Kingery, 871 N.W.2d at 121 (alteration in original) (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 530 (Iowa 2011)). Tindal repeatedly missed deadlines, triggering the clerk‘s default notices. We agree with the commission that Tindal violated
D. Iowa Rule of Professional Conduct 32:1.4(a). The Board alleged that Tindal violated Iowa Rules of Professional Conduct
In our view, we may undertake de novo review of the commission‘s record, including any rule violations alleged by the Board, even if the commission found the Board failed to prove the violation. Indeed, we have the power to review the commission record de novo and impose sanctions when no party appeals or applies for permission to appeal. See
Accordingly, we will address the merits of the Board‘s allegation that Tindal violated
(a) A lawyer shall:
. . . .
(2) reasonably consult with the client about the means by which the client‘s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter; [and]
(4) promptly comply with reasonable requests for information . . . .
Tindal was appointed in Campbell‘s appeal from postconviction proceedings. Tindal
We agree with the commission‘s finding that the Board failed to prove that Tindal violated
IV. Sanction.
“We craft appropriate sanctions based upon each case‘s unique circumstances . . . .” Noel, 933 N.W.2d at 205 (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Kennedy, 837 N.W.2d 659, 673 (Iowa 2013)). We consider factors including,
[t]he nature of the violations, the attorney‘s fitness to continue in the practice of law, the protection of society from those unfit to practice law, the need to uphold public confidence in the justice system, deterrence, maintenance of the reputation of the bar as a whole, and any aggravating or mitigating circumstances.
Id. (alteration in original) (quoting Turner, 918 N.W.2d at 152).
We must determine the sanction for Tindal‘s conduct resulting in default notices in thirteen appeals during 2018–19, mindful that nine of those preceded his October 2018 public reprimand for default notices in sixteen appeals during 2016–17. The commission recommended a thirty-day suspension premised on its belief that our court would have suspended Tindal in 2018 had the Board charged him with another nine default notices. We disagree with that premise. In our view, given Tindal‘s nearly unblemished disciplinary history in 2018 (he had one prior private admonishment), he still would have received a public reprimand for the series of default notices with no client harm, whether in sixteen or twenty-five appeals.
Sequence matters. See id. (“We believe the timing of the present violations has bearing on the sanction.“). In Iowa Supreme Court Attorney Disciplinary Board v. Noel, we imposed a public reprimand instead of the suspension recommended by the board and commission because the conduct at issue preceded the discipline imposed for earlier misconduct. Id. at 205–06. We concluded the prior sanction, a public reprimand, would have remained the same had we been aware then of the additional misconduct, and we therefore declined “to enhance Noel‘s sanction in the present case.” Id. at 206. We reach the same conclusion here.
Tindal argues that based on the wording of the default notices, he thought he faced discipline only if his continued inaction resulted in dismissal of the appeal. He avoided any dismissals. His 2018 reprimand, however, educated him that a series of default notices could trigger discipline without the dismissal of an appeal. Nevertheless, nine of the default notices presently at issue preceded that reprimand. We do not consider these nine default notices in 2018 to be an aggravating factor in today‘s proceeding. As we explained in Noel,
We use prior discipline as an aggravating factor because an attorney did not learn from his or her prior misconduct. How can we use prior discipline for this purpose when we did not discipline an attorney prior to committing an act?
Thus, for prior discipline to qualify as an aggravating factor, we must have disciplined an attorney before he or she commits the subsequent act.
Id. at 205.
This leaves us with default notices in the subsequent four cases. We are troubled that Tindal missed several more appellate deadlines after being publicly reprimanded for such conduct. We consider his 2012 private admonition and his 2018 public reprimand for like misconduct as aggravating factors. Weiland, 862 N.W.2d at 641–42. But the Board cites no case suspending an attorney solely for default notices cured without dismissal of the appeal, court-ordered substitution of counsel, other ethical violations, or a prior suspension for similar misconduct. See id. at 639–42 (surveying cases).
We next consider other aggravating and mitigating factors. The lack of harm to Tindal‘s clients is a key mitigating factor. Id. at 642. He frequently represents clients from an underserved part of the community—another mitigating factor. Id. at 643. On the other hand, his twenty years of experience practicing law is an aggravating factor. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Vandel, 889 N.W.2d 659, 669 (Iowa 2017).
We reject the Board‘s argument in aggravation that Tindal “refused to acknowledge the wrongful nature of his conduct.” To the contrary, Tindal cooperated with the Board‘s investigation and readily conceded his violations of
Tindal‘s suspension is not needed to protect the public. Tindal has discontinued taking criminal or postconviction appeals for the State Public Defender. We consider a lawyer‘s voluntary practice restrictions in mitigation. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Hedgecoth, 862 N.W.2d 354, 367 (Iowa 2015) (“[W]e are satisfied that Hedgecoth‘s voluntary commitment to refrain from representing clients on appeal will provide adequate assurance against recurrence . . . .“); see also Kingery, 871 N.W.2d at 124–25 (“[W]e can consider voluntary cessation when evaluating whether our sanction will serve its purposes of deterring future misconduct and protecting the public.“). We also consider in mitigation that Tindal has taken corrective measures within his office to better track deadlines and ensure timely filings. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Mathahs, 918 N.W.2d 487, 499 (Iowa 2018) (considering corrective measures in mitigation). Well-qualified witnesses testified to Tindal‘s fitness to practice law and high level of competence.
On the unique facts of this case, especially considering the timing of the prior reprimand and default notices, we conclude another public reprimand is sufficient, while hereby warning Tindal that further missed deadlines could trigger a suspension. See Noel, 933 N.W.2d at 206 (“However, we remind Noel that future misconduct will result in harsher sanctions.“).
V. Disposition.
We impose a public reprimand on Tindal rather than the suspension recommended by the commission. We tax the costs of this action to Tindal under
ATTORNEY REPRIMANDED.
All justices concur except McDonald, J., who concurs in part and dissents in part.
I concur in all parts of the majority opinion with the exception of division III.D regarding the issue of whether the Iowa Supreme Court Attorney Disciplinary Board waived its challenges to the Iowa Supreme Court Grievance Commission‘s findings and conclusions. The relevant court rules and controlling precedent require the attorney disciplinary board to file a cross-appeal to challenge the grievance commission‘s findings. Because the Board failed to file a cross-appeal, I would hold it waived its challenges to the commission‘s findings. I thus respectfully concur in part and dissent in part.
After an attorney disciplinary hearing, when the commission recommends a reprimand, suspension, or revocation, the commission must file its findings of fact, conclusions of law, and recommendations with the clerk of the commission. See
First, if the attorney does not appeal the commission‘s findings and conclusions, this court may review the recommended sanction. The rule provides if the attorney does not appeal, this court “will notify the parties that they may file written statements with the supreme court in support of or in opposition to the discipline the grievance commission recommends.”
Second, an attorney or the board may seek appellate review of the commission‘s findings, conclusions, and recommended sanction.
Under the rules of appellate procedure and controlling precedents, a party must timely file a cross-appeal to obtain appellate review of an adverse finding or decision. The rules of appellate procedure provide a party must file a notice of cross-appeal “within the 30-day limit for filing a notice of appeal, or within 10 days after the filing of a notice of appeal, whichever is later.”
The majority‘s conclusion to the contrary ignores these precedents and conflates the scope of review with the standard of review. De novo review does not mean we review all issues anew; it means we review anew those issues properly preserved and presented for appellate review.
The majority‘s conflation of the scope of review and the standard of review has, in my view, distorted the process by which this court processes and reviews attorney disciplinary matters. This court has processed and reviewed all attorney disciplinary matters identically without regard to whether the attorney has appealed. If the attorney has chosen not to appeal the commission‘s findings and conclusions and instead opted to present a statement regarding sanctions pursuant to
I respectfully suggest we have separate rules because they do not mean the same thing. When an attorney or the board elects not to appeal, pursuant to
Because of these differences between the rules, I would treat these proceedings differently going forward. For these reasons, I respectfully concur in part and dissent in part.