Ethics Opinions
Iowa Supreme Court Board of Professional Ethics and Conduct
Date of Opinion: 03/08/2005
Opinion Number: 05-06
Title: CONFLICTS: REPRESENTATION OF RESPONDENT IN A DISCIPLINARY PROCEEDING BY A PARTNER OF A GRIEVANCE COMMISSION MEMBER
Opinion: You are the chairperson of the Iowa Supreme Court Grievance Commission. You inquire whether the reasoning of Board Opinion 04–05, which holds that a partner of a member of the Board may not represent respondents in proceedings before the Grievance Commission, applies to a partner of a member of the Grievance Commission, thus precluding such partner from representing a respondent in a Grievance Commission action. Your question, of course, relates solely to a partner of a commissioner who is not assigned to hear the particular case in question.
By way of background, the Iowa Supreme Court Board of Professional Ethics and Conduct (“Board”) consists of seven lawyers and two non-lawyers, who are charged with investigating complaints of misconduct, and, through counsel, with prosecuting serious complaints of misconduct before the Iowa Supreme Court Grievance Commission (”Commission”). The usual practice is for all Board members to consider the initial disposition of each complaint. The Commission consists of five lawyers from each judicial election district and between five and 26 laypersons. In any given case, the Commission sits in five-person panel, which you, as the chairperson, appoint. The usual practice is to appoint also two lawyer alternate members, in case one of those assigned to the case is unable to serve. The remaining members of the Commission do not participate and do not receive any pleadings or other information pertaining to the particular case.
In Opinion 04–05, the Board considered the interpretation and application of Court Rule 35. 2(2), which provides in part:
No member appointed to either the board of professional ethics and conduct or the grievance commission shall undertake to represent, in any state of the investigative or disciplinary proceedings, any lawyer against whom an ethical complaint has been filed.
The Board reasoned in Opinion 04–05 that because a member of the Board could not represent a respondent in a Grievance Commission proceeding, a Board member’s partner likewise would be precluded from such representation. In other words, the Board member’s conflict is imputed to his or her partner or associate. See DR 5–105(E) (“If a lawyer is required to decline employment or to withdraw from employment, no partner or associate of the lawyer or the lawyer’s firm may accept or continue such employment.”).
In seeking to distinguish partners of Grievance Commission members from partners of Board members, you state:
Whereas there is a an appearance of impropriety if a member of the firm serves on the [Board] and another member of the firm is representing the target respondent, so that there may need to be some hard and fast rule that prohibits [representation by] any partner of any lawyer serving on the [Board], I think we have a different situation as relates to the Grievance Commission. As for the Grievance Commission, the commissioners are to act only upon being appointed to a small panel, to hear one specific claim against a specific respondent. When I [ ]sign an order that appoints a panel, I try to pick people who are not in the same county seat as the respondent, but who will be within driving distance, since the hearings are typically held in the county where the respondent practices. Certainly, nobody appointed to a panel could allow his or her partner to represent the respondent in a Grievance Commission hearing. That would be an obvious conflict. On the other hand, I personally do not see any conflict or even the appearance of a conflict when I appoint a commissioner to handle a grievance hearing, just by virtue of the fact that he or she may have a partner defending other respondents in other grievance proceedings. These proceedings are confidential, even from partners….
…Without [an opinion allowing commissioners to have partners who represent respondents in Grievance Commission proceedings,] I will not only suffer resignations by those currently serving, I will also predict that the Supreme Court will have a harder and harder time to find volunteer lawyers to serve on these panels. Respondents should generally have a right to select the attorney they would like to represent them. I hate to have a Supreme Court appointment of one partner make another partner decline the opportunity to represent a respondent. Likewise, if a partner in a good firm represents respondents, I hate to disqualify the entire … firm, which may have some very good volunteer lawyers in it, from being able to serve on the Grievance Commission. Until the rule has changed, large firms will suffer a penalty.
The Board, too, believes that partners of Commissioners can be distinguished from partners of Board members in applying Rule 35.2(2) to imputed disqualification situations. In general, confidentiality and loyalty are central to conflict of interest concerns. See, e. g., Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Walters, 603 N.W.2d 772, 777-78 (Iowa 1999). These concerns clearly are substantial when a partner of a Board member wishes to represent the respondent in a Grievance Commission action. In this situation, the respondent’s would-be lawyer practices in the same firm as one who is privy to the Board’s confidential proceedings and who participated in the decision to file the Board’s complaint with the Commission.
Representation by a partner of a Grievance Commission member (when that member is not assigned to the particular case) raises no such concerns. In that case, the partner of would-be counsel has no information that a complaint has even been filed against the respondent, let alone knowledge of the pleadings and charges. It is difficult to see how the a lawyer’s representation of a respondent in a particular Grievance Commission case creates concerns of loyalty or confidentiality merely because the lawyer has a partner who may serve in other, unrelated Grievance Commission cases.
The Board notes that Rule 35.2(2) contains an analogous distinction between the ability of Board members and Commissioners “to represent any lawyer in any malpractice, criminal, or other matter where it appears that the filing of an ethical complaint against that lawyer is reasonably likely.” All Board members are precluded from handling a “malpractice, criminal, or other matter” that may give rise to an ethical complaint A Commissioner, however, may represent a lawyer in such other, related matters, but must then decline to participate in any Commission proceedings arising from the same. The basis for the distinction appears to be that Board members—unlike Commissioners—necessarily are privy to information and are involved in decisions regarding an ethical complaint that arises from a related malpractice or criminal case. Commissioners have no participation in or knowledge of a specific disciplinary case unless they are assigned to hear it.
Accordingly, it is the opinion of the Board that a lawyer may represent the respondent in a Grievance Commission case, despite having a fellow law firm member who serves on the Commission, so long as the law firm member in question is not appointed to serve as a panel member or alternate in that particular case.
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