Defense To Bar Complaint “Eclipsed The Gravity Of The Underlying Charges”

The Iowa Supreme Court has ordered a 30-day suspension of an attorney

This attorney disciplinary appeal presents the case of a lawyer whose misconduct while defending himself against ethics charges eclipsed the gravity of the underlying charges from which his case arose. The case started with a charge about a false certification by the lawyer on a client’s federal immigration application. It ends, regrettably, as a cautionary tale for lawyers about the bounds of proper advocacy when defending against ethics charges. Although lawyers are entitled to put on a zealous defense in ethics cases, they aren’t allowed to stonewall when responding to discovery requests, file frivolous motions, or engage in similar obstructive conduct in a grievance commission proceeding.

The Iowa Supreme Court Attorney Disciplinary Board charged the lawyer with violating multiple Iowa ethics rules and a federal regulation governing practice in immigration matters. The grievance commission concluded that the lawyer committed several of the charged violations and also found significant aggravating conduct. It recommended that we suspend the lawyer’s license for thirty days and require additional continuing legal education. In our de novo review, we find that the lawyer violated the federal regulation and impose a thirty-day suspension.

The attorney was admitted in 2019.

He rejected a proposed reprimand when the underlying misconduct was brought to the attention of the Bar.

After charges were filed

Mbanza engaged in considerable motion practice of his own, much of it frivolous. Shortly after the Board filed its complaint with the grievance commission, Mbanza sent an email to the two lawyers handling the case on behalf of the Board. In his email, Mbanza threatened to file claims against each of them, informing them that if the Board didn’t dismiss the complaint, they “should expect claims of malicious prosecution and intentional infliction of emotional distress naming you personally and professionally as a Defendant.” Five days before the hearing, Mbanza filed with the grievance commission what he labeled a “counterclaim” against the two Board lawyers alleging these causes of action. The grievance commission’s rules provide no mechanism for an attorney to pursue a counterclaim against the Board, its agents, or anyone else, and the motion was promptly denied. Mbanza additionally filed a motion to shorten the deadline to respond to his counterclaim, a motion for directed verdict (before the hearing had even started), a motion to disqualify the Board’s attorneys, a motion for summary judgment, and a motion to dismiss. All were denied.

An aggravating factor

Mbanza’s extraordinary actions throughout the grievance commission process are a severely aggravating factor. Mbanza refused to substantively answer virtually every request for discovery that the Board made to him, leaving the grievance commission little choice but to impose harsh sanctions for his repeated refusals to provide answers. Mbanza argues on appeal that the division president erred in imposing discovery sanctions against him, but we find nothing erroneous about the ruling. “The attorney may not ‘stonewall’ the disciplinary authorities, and, indeed, simple disregard for requests for information may result in non-responses being treated as admissions.” 16 Gregory C. Sisk et al., Iowa Practice Series Lawyer and Judicial Ethics § 12:1(c), at 1045–46 (2023 ed. 2023). The decision to impose sanctions finds ample support in this record.

Resisting discovery wasn’t Mbanza’s only impropriety during the grievance commission proceeding. As mentioned, Mbanza made an assortment of frivolous filings. Employing a strategy seemingly founded on the belief that the best defense is a no-holds-barred offense, Mbanza threatened to file malicious prosecution and intentional infliction of emotional distress claims if the Board didn’t dismiss the charges and ultimately followed through. The grievance commission’s rules provide no mechanism for an attorney to pursue a counterclaim against other lawyers in the proceeding. Mbanza also filed a series of other motions that lacked merit, including a motion for directed verdict before the hearing had started or evidence had been presented—typically necessary precursors to such a motion. All were denied; indeed, most do not even apply in grievance commission proceedings. The Board and the commission nonetheless had to expend time and resources responding to them.

Sanction

We determine the appropriate sanction in an attorney disciplinary matter based on the unique circumstances of the case before us and aim for consistency with our prior cases. Iowa Sup. Ct. Att’y Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 464 (Iowa 2014). This is an unusual case in which the underlying misconduct—the misrepresentation associated with the preparer’s certification on the I-415 application—on its own likely would not warrant a suspension. See, e.g., Haskovec, 869 N.W.2d at 562–63; Yang, 821 N.W.2d at 430–31. And indeed, a public reprimand is the sanction the Board originally proposed. Yet more egregious conduct presents itself in Mbanza’s actions during the grievance commission proceeding that pushes this case into suspension territory. Although a lawyer has the right to defend himself zealously against ethics charges in a grievance commission proceeding, Mbanza’s conduct in this case, unfortunately, far exceeded that right.

We thus find a suspension of thirty days to be the appropriate sanction in this case. We do not impose any additional CLE requirements.

(Mike Frisch)