Iowa Supreme Court Attorney Disciplinary Board v. Sean Joseph Barry
Iowa Supreme Court Attorney Disciplinary Board v. Sean Joseph Barry
Opinion
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.
I. Scope of Review.
We review attorney disciplinary proceedings de novo.
Iowa Supreme Ct. Att'y Disciplinary Bd. v. West
,
II. Background Facts and Proceedings.
On February 7, 2017, the Board filed a complaint against Sean Barry alleging multiple ethical violations in his representation *222 of Richard Miller in a dissolution proceeding. The Board filed an amended complaint on June 5.
On June 30, the Board and Barry filed a stipulation pursuant to Iowa Court Rule 36.16, wherein the parties waived a formal hearing on the matter and agreed to the facts, rule violations, and mitigating and aggravating circumstances. The commission approved and accepted the parties' joint stipulation.
Stipulations of facts bind the parties.
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Nelson
,
Barry has practiced law in Iowa since April 2008. He also has a license to practice law in Colorado. However, the Colorado court suspended his Colorado license on May 1, 2012, for nonpayment of his inactive fee. His Colorado license is currently under suspension.
At the time of the alleged misconduct, Barry practiced law as a partner in the law office of Montgomery, Barry, Bovee & Barry, which is located in Spencer. In May 2014, Miller hired Barry to represent him in dissolving his marriage. Barry met with Miller and a couple of his brothers to obtain all the relevant information to draft Miller's dissolution petition and stipulation. Barry prepared the documents, both of which Miller signed on May 27. That same day, Barry notarized Miller's signature on the dissolution petition. Barry never filed the petition with the court and failed to have the petition served on Miller's wife.
On August 29, Barry notarized a power of attorney that he had prepared for Miller in which Miller designated his brothers as agents with general authority to act on his behalf.
From May 27, 2014, to the end of July 2015, when Miller or his brothers asked about the status of the dissolution, Barry repeatedly lied to them that he had filed the dissolution petition. On one occasion, Barry falsely informed one of the brothers that he had Miller's wife served and she had twenty days to answer. After the end of the twenty-day period to answer, the brother asked about the next step, to which Barry falsely informed him that Miller could seek a default judgment. The brother continued to request updates from Barry on the status of the dissolution. Barry either failed to return the brother's phone calls or falsely informed him the matter was progressing.
At a meeting, when Miller and his brothers expressed their concerns about the prolonged dissolution process, Barry knowingly failed to advise them that he had not yet filed the dissolution petition or served it on Miller's wife. After this meeting, they requested updates from Barry almost daily. Barry either failed to respond to the requests for updates or, when he did respond, continued to misrepresent the status of the dissolution.
In January 2015, Miller's other brother went to Barry's office, seeking a status update on the dissolution. Despite knowing he had not filed the petition, Barry falsely informed the brother "the Judge had *223 signed the Decree, but there was a delay in getting them recorded."
On or about July 8, the same brother went to Barry's office to request copies of the decree. Barry gave the brother a document that Barry misrepresented as a copy of an original dissolution decree that dissolved Miller's marriage. To create this fraudulent decree, Barry copied a signature page from an order setting a hearing in an unrelated case bearing Judge Patrick M. Carr's signature. He altered the case title and the case number on this signature page. Without Judge Carr's knowledge or authorization, Barry attached the signature page to the fraudulent decree. He inserted the file-stamp data "E-FILED 2015 JAN 14 11:33 AM CLAY-CLERK OF DISTRICT COURT" on the top of all four pages of the fraudulent decree. Barry also inserted the case number to the first page of the fraudulent decree.
On July 27, 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.
On July 30, the clerk emailed Chief Judge Duane E. Hoffmeyer to inform him of the situation. Chief Judge Hoffmeyer called the Board and subsequently provided affidavits from the Clay County Clerk of Court, a letter from the Miller family, and a copy of the forged decree. In a letter dated August 6, Barry reported his ethical violations for neglecting the dissolution matter and engaging in dishonest conduct.
Based on Barry's conduct, the Board alleged six violations of the Iowa Rules of Professional Conduct-(1) 32:1.3 (lack of diligence); (2) 32:1.4(a)(3) (failure to keep client reasonably informed); (3) 32:1.4(a)(4) (failure to promptly comply with reasonable requests for information); (4) 32:8.4(b) (criminal act that reflects adversely on honesty, trustworthiness, or fitness as a lawyer); (5) 32:8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and (6) 32:8.4(d) (conduct prejudicial to the administration of justice).
On September 5, 2017, the commission entered its findings of fact, conclusions of law, and recommendation. The commission found Barry violated all the rules alleged in the Board's complaint and recommended an eighteen-month suspension of Barry's license. Barry appealed. We discuss additional facts as needed.
III. Ethical Violations.
A. Lack of Diligence-Rule 32:1.3.
This rule provides, "A lawyer shall act with reasonable diligence and promptness in representing a client." Iowa R. Prof'l Conduct 32:1.3. An attorney must "handle a client matter in a 'reasonably timely manner.' "
Vandel
,
Barry failed to exercise due diligence by never filing the completed dissolution petition despite the lapse of fourteen months. Barry had all the necessary information to draft the petition and stipulation. Miller signed both documents, and Barry notarized Miller's signature on the petition.
*224 Thus, to commence the dissolution process, all Barry had to do was simply file the petition. Barry admitted in his letter to the Board that Miller's dissolution case was "simple" because there were no children and no assets of any significant value. Yet he failed to file the petition.
In
Iowa Supreme Court Attorney Disciplinary Board v. Weiland
, we held a lawyer violated rule 32:1.3 because he delayed filing a dissolution petition for four months.
Barry's lack of diligence extended the case into a fourteen-month ordeal when it could have been resolved much sooner. Miller eventually retained new counsel who completed the dissolution in less than six months. Accordingly, the Board proved by a convincing preponderance of the evidence that Barry violated rule 32:1.3.
B. Keep Client Reasonably Informed-Rule 32:1.4(a)(3).
This rule requires an attorney to "keep the client reasonably informed about the status of the matter[.]" Iowa R. Prof'l Conduct 32:1.4(a)(3). Barry not only failed to reasonably inform the Millers about the status of the dissolution but also misled them about the filing status of the petition and service of process on Miller's wife.
See
Weiland
,
C. Promptly Comply with Reasonable Requests for Information- Rule 32:1.4(a)(4).
This rule requires a lawyer to "promptly comply with reasonable requests for information[.]" Iowa R. Prof'l Conduct 32:1.4(a)(4). "A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation."
From May 27, 2014, to the end of July 2015, when Miller or his brothers repeatedly asked about the status of the dissolution, Barry failed to communicate to them that he had not filed the petition and had not served it on Miller's wife. Clearly, because Barry failed to communicate regularly with the Millers, they repeatedly requested information concerning the prolonged delay in the dissolution process.
In response to one of Miller's brother's reasonable request for information, Barry told him Miller's wife had been served and had twenty days to answer instead of informing him of the delay in filing or, rather, nonfiling.
See
Weiland
,
*225 Moreover, the Millers went to Barry's office to convey they were upset with the long delay in the whole process. They requested updates almost daily thereafter. Barry continued to mislead them by creating a fraudulent dissolution decree. Based on the foregoing, we find the Board proved by a convincing preponderance of the evidence that Barry violated rule 32:1.4(a)(4).
D. Criminal Act that Reflects Adversely on Honesty, Trustworthiness, or Fitness as a Lawyer-Rule 32:8.4(b).
This rule prohibits a lawyer from "commit[ting] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects[.]" Iowa R. Prof'l Conduct 32:8.4(b). "It is the commission of a criminal act reflecting adversely on a lawyer's fitness to practice law, not the act of getting caught committing a crime, which constitutes a violation of this rule."
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Taylor
,
The Board found that Barry violated rule 32:8.4(b). In its amended complaint, it cited to Iowa Code section 715A.2. Iowa Code section 715A.2(1) states,
1. A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that the person is facilitating a fraud or injury to be perpetrated by anyone, the person does any of the following:
a . Alters a writing of another without the other's permission.
b . Makes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize that act, or so that it purports to have been executed at a time or place or in a numbered sequence other than was in fact the case, or so that it purports to be a copy of an original when no such original existed.
c . Utters a writing which the person knows to be forged in a manner specified in paragraph " a " or " b ".
d . Possesses a writing which the person knows to be forged in a manner specified in paragraph " a " or " b ".
Iowa Code § 715A.2(1)( a )-( d ) (2015).
Iowa Code section 715A.2(2) provides,
2. a. Forgery is a class "D" felony if the writing is or purports to be any of the following:
....
(3) A check, draft, or other writing which ostensibly evidences an obligation of the person who has purportedly executed it or authorized its execution.
....
The evidence in the stipulation is sufficient to show Barry committed forgery pursuant to section 715A.2. Barry knowingly and intentionally created a fraudulent dissolution decree and presented it to the Millers as an original decree signed by a judge without the judge's authority or knowledge. Barry attached the judge's signature page from another case to the decree, changed the case title and case number on the signature page, inserted the case number on the first page of the decree, and inserted file-stamp data to all four pages of the decree.
Barry's crime of forgery reflects adversely on his honesty, trustworthiness, and fitness as a lawyer, even if the authorities
*226
never charged him with the crime.
See
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Stowe
,
E. Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation- Rule 32:8.4(c).
This rule prohibits an attorney from "engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation[.]" Iowa R. Prof'l Conduct 32:8.4(c). "Honesty is necessary for the legal profession to function."
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Haskovec
,
Misrepresentation requires a level of scienter that is more than negligent behavior or incompetence.
Here, Barry knowingly and intentionally misrepresented to the Millers that he had filed the dissolution petition when in fact he had not filed such a petition. To continue with the guise that the dissolution process was underway, Barry told one of Miller's brothers that Miller's wife had been served and had twenty days to answer, all while knowing he had not filed the petition. When the brother followed up with Barry after twenty days had passed, Barry lied about being able to obtain a default judgment.
When Miller's other brother went to Barry's office seeking information on the status of the case, Barry told him a judge had signed the decree but there was a delay in getting it recorded. To bury the truth even further, Barry created a fraudulent dissolution decree by attaching a signature page with the judge's signature from a different case, changing the case title and case number on the signature page, inserting the case number on the first page of the decree, and inserting file-stamp data to each of the four pages of the decree.
See
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Thompson
,
Based on the foregoing, we agree with the commission and find the Board proved that Barry violated rule 32:8.4(c) by a convincing preponderance of the evidence.
F. Conduct Prejudicial to the Administration of Justice- Rule 32:8.4(d).
This rule prohibits an attorney from "engag[ing] in conduct that is prejudicial to the administration of justice[.]" Iowa R. Prof'l Conduct 32:8.4(d). Actions that "violate well-understood norms and conventions of the practice of law and hamper the efficient and proper operation of the courts will generally constitute a violation of this rule."
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Liles
,
Barry undoubtedly delayed court proceedings because his charade lengthened the dissolution process for months on end. Moreover, he caused court personnel to invest time and energy in searching court records, verifying cases, and investigating the matter.
See
Iowa Supreme Ct. Att'y Disciplinary Bd. v. McGinness
,
IV. Sanction.
In determining the appropriate sanction, we engage in a fact-based analysis and consider a number of factors, such as "the nature of the underlying violation, need to deter, public protection, protection of the reputation of the legal profession, and the [lawyer]'s fitness to practice law."
Thompson
,
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.
See
Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold
,
Sanctions for attorney misconduct involving misrepresentation generally range from a public reprimand to a three-year suspension. In some cases, we found a public reprimand sufficient for attorney misconduct involving false instruments or forgery.
See
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Newman
,
In other cases, we imposed six-month suspensions.
See
McGinness
,
In
Iowa Supreme Court Board of Professional Ethics & Conduct v. Rylaarsdam
, we suspended an attorney's license for six months for mainly two instances of fraud, among other violations.
Here, Barry's misconduct went beyond lying to his clients. Like the attorney in
Rylaarsdam
, "in an even more calculated and unscrupulous attempt to hide his neglect, [Barry] falsified a court document."
In some cases, we imposed a harsher sanction than that imposed in
Rylaarsdam
and concluded three years was the appropriate length.
See
In re Rickabaugh
(
Rickabaugh I
),
In some circumstances, we disbarred attorneys from the practice of law in this state.
See
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Rickabaugh
(
Rickabaugh II
),
In Rickabaugh II , we revoked the license of the same attorney who was under scrutiny in Rickabaugh I .
*229
In the instant case, the commission weighed two cases that they found were most similar to Barry's conduct concerning the forged dissolution decree:
Rickabaugh I
,
In our review of the case, we accepted the factual findings from the Nebraska proceeding as conclusive.
In
Thompson
, we suspended an attorney's license to practice law in Iowa for nine months.
Unlike cases involving the forged signature of a client where a lawyer may feel a false sense of justification as a representative agent, it is hard to imagine how a lawyer could ever possess even a momentary sense of justification in forging the signature of a judge on a court order.
Like in Rickabaugh I , the fact that Barry did not and could not file the court order is only a minor mitigating factor because there was no open case due to his lack of diligence. We note, however, Nebraska disbarred the attorney in Rickabaugh I and that case involved reciprocal discipline. Here, no jurisdiction has disbarred Barry and this case does not involve reciprocal discipline.
We see some differences between
Thompson
and Barry's case. Barry lacks the more colorful disciplinary history of the attorney in
Thompson
, whom we sanctioned
*230
in three instances, one of which included misconduct for correcting a typographical error on an original document in a court file without permission.
Moreover, in addition to attaching the signature page of a judge from another case to the fraudulent dissolution decree, Barry also replaced the case title and case number on the signature page, inserted the case number on the first page of the decree, and inserted file-stamp data on each of the four pages of the decree. Such action requires more forethought and strategizing than that of the attorney in
Thompson
who simply forged a judge's signature. Lastly, Barry perpetuated his falsehood for fourteen months while the attorney in
Thompson
was discovered within a short period of time.
See
Lastly,
McGinness
is an informative case.
In determining the appropriate sanction, we stated the attorney's persistence in continuing his lies was a "remarkable" factor that aggravated the sanction that we ought to impose.
Here, like the attorney in
McGinness
, Barry exhibited "remarkable persistence in pursuing his dishonest course[.]"
See
After a comparative analysis of Rickabaugh I , Thompson , and McGinness to the *231 case at hand, we conclude the appropriate sanction for Barry's ethical rule violations falls on the spectrum between the lengthy three-year suspension in Rickabaugh I and the six-month suspension in McGinness . Specifically, the appropriate sanction is closer to the nine months imposed in Thompson. However, before affirmatively concluding on the appropriate length of the sanction, we consider the mitigating and aggravating circumstances present in this case.
A. Mitigating Factors.
In his August 6, 2015 letter to the Board, Barry accepted responsibility for his actions and expressed some degree of remorse. We have recognized that an attorney's acceptance or acknowledgment of some wrongdoing constitutes a mitigating circumstance.
Liles
,
However, 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.
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.
1
See
Thompson
,
In addition, Barry performed community service at an orphanage in Haiti.
See
McGinness
,
We have recognized depression as a mitigating factor.
Thompson
,
In his letter to the Board, Barry somewhat established a relationship between his depression and his ethical rule violations by explaining how his depression prevented him from pressing the "send" button after doing the substantive work because he "just became paralyzed and couldn't do it." Such an explanation explains his lack of diligence in filing the dissolution petition but loosely explains his misrepresentations to the Millers.
See
Moreover, Barry has not been receiving treatment from a licensed mental health professional. The record contains a letter from Rita Henry with Inner Prosperity and treatment records. Such information does not provide any details on Henry's credentials.
Furthermore, since self-reporting the matter to the Board in August 2015, Barry only attended seven counseling sessions with Henry and eight other sessions, such as "one-day healing intensive." In 2017, Barry only attended three counseling sessions, once in March, April, and May, respectively. In light of the fact that Barry claimed in his letter that the debilitating symptoms of depression adversely impacted his ability to work, like the commission, we express concerns about the adequacy of the frequency of counseling Barry received.
To be fair, at the time of his letter, Barry stated he was on the waiting list for inpatient treatment at the Turnaround House in Ojai, California. Although subsequent recovery efforts are important as a mitigating factor, we decline to speculate on the question of whether Barry is now receiving treatment at Turnaround House and, if not, whether he has recently sought help from a licensed health professional, such as a psychiatrist or psychologist. Accordingly, Barry's depression plays a minor *233 mitigating role in the sanction we ought to impose.
Additionally, Barry's law office was in transition at the time of the Miller case because his father and uncle, both partners at the office, were in the process of retiring. Thus, Barry and his other law partner absorbed extra work. The stress of a law practice does not excuse Barry's misconduct, but we do consider his stressful situation as a mitigating factor in determining the proper discipline.
See
Weiland
,
Lastly, Barry claimed he placed his license in inactive status following his self-reporting. We view an attorney's voluntary cessation of law practice as a mitigating factor.
See
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lickiss
,
B. Aggravating Factors.
We now turn to the aggravating factors. We emphasize "[w]hat should dictate the sanction in this case is the nature, number, and seriousness of the ethical violations[.]"
Hansel
,
Misrepresentation is a "grave and serious breach of professional ethics."
Rickabaugh II
,
Moreover, "[a] lawyer has a very special responsibility for candor and fairness in all his dealings with a court" because "[a]bsent mutual trust and confidence between a judge and a lawyer-an officer of the court-the judicial process will be impeded and the administration of justice frustrated."
Lesyshen
,
Even in light of mitigating circumstances, "[t]he controlling consideration is the absolute necessity for lawyers to be absolutely honest."
Clauss
,
*234
Furthermore, Barry's perpetuation of his deception "is a remarkable aggravating factor."
McGinness
,
Prior disciplinary action is a significant aggravating factor.
Weiland
,
In 2013, Barry failed to file an appellate proof brief and designation of appendix, causing the dismissal of his client's appeal. The Board admonished Barry for neglecting his client's appeal, in violation of rules 32:1.3 (lack of diligence) and 32:3.2 (failure to expedite litigation). It is apparent that our past admonition has not improved Barry's conduct in pursuing his client's matters with diligence. We note this prior misconduct involved no misrepresentations.
Harm to a client is also an aggravating factor.
West
,
Lastly, vulnerability of the client is an aggravating factor.
Weiland
,
C. Appropriate Sanction. 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.
*235 V. Disposition.
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. The suspension applies to all facets of the practice of law. See Iowa Ct. R. 34.23(3). Barry must comply with the notification requirements of Iowa Court Rule 34.24. To establish his eligibility for reinstatement, Barry must file an application for reinstatement meeting all applicable requirements of Iowa Court Rule 34.25 and provide an evaluation from a licensed health care professional verifying his fitness to practice law. We tax the costs of this action to Barry in accordance with Iowa Court Rule 36.24(1).
LICENSE SUSPENDED.
Chief Judge Hoffmeyer reported Barry's misconduct to the Board in a letter dated August 7, 2015. However, according to the stipulations, Chief Judge Hoffmeyer telephoned the Board and later provided supporting documents. We are unsure of the date of this phone call. The Board received Barry's letter on August 6, 2015.
Reference
- Full Case Name
- IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Sean Joseph BARRY, Appellant.
- Cited By
- 21 cases
- Status
- Published