Iowa Supreme Court Attorney Disciplinary Board v. Howe, _____ N.W.2d _____ (Iowa 2005)(No. 78/05-0468)
The license of attorney Bradley Bernhardt Howe is suspended for at least four months in connection with this role as assistant city of attorney for the city of Spencer and plea bargains that he reached with various defendants for cowl-lamp violations. Howe, in an opinion written by Ternus, J., is also found by the Supreme Court to have conflicts of interest in several cases in which he was both assistant city attorney and counsel for the defendants.

Howe was licensed to practice in 1975 and has been an assistant city attorney since 1976. Between January 1998 and February 2004, Howe moved to amend 174 citations issued by Spencer police to allege violations of the cowl-lamp statute (The statute provides that a motor vehicle may be equipped with not more than two side cowl or fender lamps which shall emit an amber or white light without glare. Vehicles have not had cowl-lamps for a number of years.). The Court observes:

. . . [Howe] did not think he was doing anything illegal or wrong by allowing defendants to plead guilty to these fictitious charges. He thought that as long as the charging police officer agreed to the deal and the reduction benefited the defendant’s the plea bargains were consistent with his obligation as a prosecutor to see that justice was done. His actions were always above board. Magistrate Whittenburg testified she understood at the time she accepted the guilty pleas that there was no factual basis for them. She believed none was required for simple misdemeanors.

The Court states Howe’s ethical violation arises from the amended charges alleging cowl-lamp violations which clearly lacked probable cause. A prosecutor has a duty to file only those charges supported by probable cause. The Court holds, “DR 7-103(A) means what it says: prosecutors cannot ethically file charges they know lack probable cause.”

The Court criticizes Howe for his dual representation of the city of Spencer and individual defendants in several situations. The Court observes that there were obvious and direct conflicts of interest in situations where Howe was prosecuting criminal charges against individuals he was representing on the same charges. The Court indicates a belief that Howe was attempting to resolve matters in a fashion that was just to the city and the defendants, but he crossed the line into unethical conduct:

Even though Howe was not motivated by personal gain, his failure to understand the problem of divided loyalties reflects poorly on his fitness to practice law. On the other hand, based on his testimony at trial and his general reputation as a person who strives to do the right thing, we are confident that he will not repeat his mistakes in the future.

Perhaps the most troubling aspect of Howe’s misconduct is the impact of his actions on public confidence in our system of justice. The public’s trust in the courts depends upon citizens’ belief in the integrity of the court process. When people learn that a city prosecutor represents the very defendants he is prosecuting, they will not view the justice system as fair or impartial. They will also rightly question the motivation of a prosecutor who agrees to a disposition favorable to a criminal defendant and then later uses the favorable result for the advantage of the defendant whom the prosecutor now represents. The respondent’s repeated disregard of his conflicting loyalties generates distrust and skepticism of the courts, and reflects adversely on the entire bar.

Unfortunately, Howe’s routine reduction of traffic citations to cowl-lamp violations has a similar impact. Admittedly, plea bargains are a common and useful tool for resolving criminal cases. But when charges are filed that are known to all to be bogus and guilty pleas to those charges are accepted in order to allow defendants to escape the adverse consequences of the offenses they actually committed, there can be only one result: respect for the court system is diminished and the public’s confidence in the integrity of the criminal justice system is seriously undermined. While the disposition of a traffic offense in the manner employed here may be the expedient way to dispose of a citation to the satisfaction of the parties involved, it sends the wrong message to the public. It makes a mockery of the justice system when a defendant is punished for violating a statute that he unquestionably did not violate.

(Citations omitted.) Carter, J. concurs specially, stating, “I am not convinced that discipline should be imposed on the basis of Howe’s acceptance of misdemeanor guilty pleas to equipment violations that had not occurred where the alleged offenders agreed to that disposition.” Larson, J. dissents, agreeing with Howe that he was blindsided that a factual basis is required for conviction of simple misdemeanors. The dissent notes, “The majority opinion will cause many past and present prosecutors, and also defense counsel, to wait for “the other shoe to drop’ with the specter of ethical charges being filed for violating rule that is only arguable applicable and whose application could not reasonably have been foreseen.”

Two Year License Suspension Imposed for Multiple Breaches
Iowa Supreme Court Attorney Disciplinary Board v. Sotak, _____ N.W.2d _____ (Iowa 2005)(No. 123/05-1153)
The Court, Streit, J., agrees with findings by the Grievance Commission of the Iowa Supreme Court and a recommendation that the license of Ronald M. Sotak be suspended for at least two years. Sotak stipulated that he failed to advise clients that their lawsuit had been dismissed for want of prosecution; that he failed to file a first report of injury in a workers compensation case and made false statements about the claim to the client; that he failed to properly prosecute enforcement and foreclosure on two mechanics’ liens; that he failed to properly serve a personal injury lawsuit; that he did not pursue a subrogation claim for an insurance company; and that he settled a personal injury lawsuit without the client’s consent and retained the settlement checks in the client’s file.

The Court observes, “Sotak’s misconduct compromised the standards of the legal profession and we believe a firm sanction is necessary to assure he public that he courts will maintain the ethics of the profession. . . . We therefore suspend Ronald M. Sotak’s license to practice law in the state of Iowa, with no possibility of reinstatement for a period of two years from the date of the filing of this opinion.” (Citation omitted.)

State Failed to Advise Defendant of Intent to Seek Enhanced Penalties
State v. Butler, _____ N.W.2d _____ (Iowa 2005)(No. 28/04-0217)
Gary Butler drove a van that crossed the center line of a highway in Tama County and collided with a group of motorcycle riders. Three were killed, and two were seriously injured. Butler was indicted by a Tama County Grand Jury on three counts of homicide by vehicle and two counts of serious injury by vehicle. The county attorney filed three complaints for traffic violations: failure to yield the right half of the roadway; failure to maintain control; and careless driving. The traffic complaints did not state the alleged violations resulted in death or serious injury. A jury found Butler not guilty on the indictable offenses; the district court found Butler guilty on two of the three traffic charges. Over the state’s objections, the district court imposed the scheduled $35 fine. The state sought to increase the sentence because Butler had caused death or serious injury. The district court rejected the state’s argument citing the Sixth Amendment and the state’s failure to give Butler notice of its intent to seek imposition of increased penalties. The Supreme Court granted the state’s request for discretionary review.

The Court, Ternus, J., affirms the district court. The Court notes that the Sixth Amendment right “to be informed of the nature and cause of the accusation” is well established and is a part of due process. Here the complaints filed by the county attorney did not include any reference to the contention that Butler’s conduct resulted in death or serious injury. The statutory maximum punishment was the scheduled fine.

Here, the defendant was charged with scheduled violations, yet the State sought to have him sentenced to jail on the basis it had proved he committed nonscheduled simple misdemeanors. Because the defendant had no notice he was being charged with the greater offenses, he clearly did not have constitutionally sufficient notice of the charges against him. . . . We conclude that to permit a sentence beyond the statutory maximum for the charged scheduled violations would infringe the defendant’s Sixth Amendment right “to be informed of the nature and cause of the accusation” against him. We hold, therefore, that the district court was correct when it rejected the prosecution’s request to sentence the defendant to jail and impose $500 fines for his traffic-offense convictions.

(Citations omitted.)

Failure of Employee to Give Notice of Intent to Quit Not Required under Rule 871-24.26(4) of the Iowa Administrative Code
Hy-Vee, Inc. v. Employment Appeal Board, _____ N.W.2d _____ (Iowa 2005)(No. 86/04-0762)
Diyonda Avant quit her job at Hy-Vee, citing “deteriorating mental health, which directly stems from the hostile work environment . . . at the Hy-Vee, Inc. corporate office.” Iowa Workforce Development determined she was entitled to unemployment benefits. Hy-Vee appealed. An administrative law judge held Avant voluntarily resigned and failed to give notice of her intent to quit if conditions were not corrected. The Employment Appeal Board reversed the ALJ. A Polk County District Court judge reversed the Board. The court of appeals affirmed the district court. The Supreme Court granted further review.

The Court, Larson, J., holds:

Based upon the plain language of the Iowa Administrative Code . . . a notice of intent to quit is not required under rule 871-24.26(4). A proposal to add this notice requirement to rule 871-24.26(4) was considered by the agency in response to a 1999 Executive Order to review its rules, but it elected not to do so. See 26 Iowa Admin. Bull. 234 (August 6, 2003).

We conclude that a notice of intent to quit is not required when the employee quits due to intolerable or detrimental working conditions. The court of appeals reached a contrary conclusion in Swanson v. Employment Appeal Board, 554 N.W.2d 294, 297 (Iowa Ct. App. 1996), holding that an employee who quit because of unsafe working conditions was required to notify her employer of her intent to quit, relying on Suluki. However, at the time of the employee’s quit in Swanson, the agency regulation discussed above had not been enacted. Swanson, therefore, is no longer controlling.

The court of appeals decision is vacated, and the matter is returned to the Employment Board for further proceedings.