“An Oxymoronic, But All Too Familiar, Combination Of Self-Serving Justifications And Sincere Explanations…”

The Iowa Supreme Court sanctioned an attorney for a pattern of lies and forgery

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against an attorney, alleging numerous violations of the Iowa Rules of Professional Conduct in the attorney’s representation of a client in a dissolution proceeding. For fourteen months, the attorney misrepresented the status of the dissolution proceeding to his client and his client’s brothers. Moreover, the attorney prepared a fraudulent dissolution decree, to which he attached a signature page bearing a judge’s signature from a different case. A division of the Iowa Supreme Court Grievance Commission found the attorney’s conduct violated our ethical rules.

Based on the attorney’s violation of our rules, the commission recommended we suspend his license to practice law for eighteen months. On our de novo review, we find the attorney violated the provisions of our rules. However, we disagree with the length of the recommended suspension. We suspend the attorney’s license to practice law indefinitely with no possibility of reinstatement for one year from the date of filing this opinion.

How the lies unravelled

members of Miller’s family went to the office of the Clay County Clerk of Court to search for the records relating to Miller’s dissolution of marriage. The staff of the clerk’s office could not locate Miller’s dissolution decree in the court records. The staff contacted Barry’s law office and, in Barry’s absence, spoke with other members of the law office to inquire about the dissolution case. The staff subsequently sought assistance from the electronic data management system support office in Des Moines concerning the fraudulent decree Barry had presented to the Miller family.

The court sustained numerous ethics violations

Although we do not condone Barry’s lack of diligence and other violations of our ethical rules, we agree with the commission that the forging of a court order is the most egregious of his violations.

And found the most comparable case was misconduct by a former NCAA wrestling champion

Here, like the attorney in McGinness, Barry exhibited “remarkable persistence in pursuing his dishonest course[.]” See id. at 466. However, Barry continued his falsehood for fourteen months, a time period much longer than the length of the attorney’s falsehood in McGinness. Although we do not know if the attorney in McGinness would have also perpetuated his falsehood for just as long as Barry did, the fact of the matter is that opposing counsel in McGinness swiftly confronted the attorney about the fabrication of the discovery requests and certificates of service, thereby cutting short the length of the attorney’s deception. Moreover, more egregious than the attorney’s misconduct in McGinness, Barry forged a judge’s signature by attaching a signature page bearing the judge’s signature from a different case to a fraudulent dissolution decree. As already mentioned, forgery of a judge’s signature is a grave misrepresentation. Finally, unlike the misconduct of the attorney in McGinness, Barry’s misconduct caused harm to his vulnerable client.

As to remorse

Barry’s remorse and cooperation came on the coattails of the clerk of court’s discovery of his fraudulent dissolution decree. As the commission and the Board reasoned, “[T]here is nothing to suggest that Barry was prepared to abandon his course of deception prior to the Clerk of Court and Iowa District Court Chief Judge’s contact with Barry’s law firm.” In McGinness, we stated the attorney’s remorse and cooperation came after the district court entered an order imposing sanctions and the Board contacted him concerning a complaint about his misconduct. 844 N.W.2d at 467. We reasoned “[t]he chronology tends to deflate consideration of remorse and cooperation as mitigating factors.” Id.

Here, we agree with the commission that nothing in the record suggests Barry was prepared to abandon the path he was traversing but for the impetus provided by the unraveling of his deception. Notwithstanding the chronology of Barry’s self-reporting, because Barry expressed some level of remorse and cooperated with the Board, we find a deflated degree of mitigation.

Additionally, Barry self-reported his misconduct, although he delivered the letter to the Board after the clerk of court had contacted his law office inquiring about the dissolution file and it became apparent the end of his charade was just around the corner. Admittedly, his self reporting is simultaneously self-serving and apologetic. Barry apologized and stated he understands there should and will be consequences. Nevertheless, his letter portrays himself as a victim, rather than the perpetrator, and paints the Millers as relentless clients who pressured him for updates on the case and made threats against him for his slow handling on the matter.

As a whole, the letter contains an oxymoronic, but all too familiar, combination of self-serving justifications and sincere explanations for his actions. Despite the ambivalent nature of his letter, we give some deflated credit to him for detailing his misconduct in the letter.

His voluntary self-suspension was treated as mitigation but

We find Barry’s misconduct is more egregious than those in McGinness and Thompson because of the continuous nature of his misconduct over a long period of time. Rather
than owning up to his lack of diligence, Barry covered it up by forging a divorce decree. His actions not only caused the client but also the staff of the clerk’s office to expend time and resources to investigate Barry’s deception. Furthermore, Barry took advantage of a client who was in a vulnerable position. However, we find his misconduct is less egregious than that in Rickabaugh I. Accordingly, we suspend Barry’s license to practice law in Iowa for an indefinite period with no possibility of reinstatement for one year from the date of filing of this opinion. As an additional requirement for reinstatement, Barry must provide an evaluation from a licensed health care professional verifying his fitness to practice law.

The court’s web page now provides easy access to the briefs in matters before it. Bravo (Mike Frisch)