Iowa Supreme Court Attorney Disciplinary Board v. Kathryn S. Barnhill

IN THE SUPREME COURT OF IOWA
No. 16–0731

Filed September 16, 2016

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

KATHRYN S. BARNHILL,

Respondent.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

The grievance commission reports an attorney violated several

rules of professional conduct and recommends a suspension. LICENSE

SUSPENDED.

Tara M. van Brederode, Des Moines, and Patrick W. O’Bryan of

O’Bryan Law Firm, Des Moines, for complainant.

Kathryn S. Barnhill, West Des Moines, pro se.
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HECHT, Justice.

The Iowa Supreme Court Disciplinary Board (the Board) charged

attorney Kathryn Barnhill with violating multiple rules of professional

conduct following two matters in which trial court judges imposed

sanctions against Barnhill for her actions in those cases. The Iowa

Supreme Court Grievance Commission (the commission) concluded

Barnhill committed ethical violations and recommended suspension of

Barnhill’s license for six months. We now review the commission’s

recommendation. See Iowa Ct. R. 36.21.

I. Background Facts and Proceedings.

“We admitted Barnhill to practice law in Iowa in 1989.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Barnhill (Barnhill II), 847 N.W.2d

466, 471 (Iowa 2014). This disciplinary proceeding arises out of a fee

dispute Barnhill had with a former client and out of her representation of

a client in a property damage claim litigated in federal court.

A. Fee Dispute. Don Jayne hired Barnhill to represent him in a

dispute with a contractor that filed a mechanic’s lien on Jayne’s

property. The amount in controversy was under $20,000. Jayne signed

a fee agreement with Barnhill in which he agreed to pay $200 per hour

for Barnhill’s services.

By the time the matter ended, Barnhill had billed Jayne over

$60,000 for her work. Jayne paid the bill but believed it was

unreasonable given the breadth of his legal problem. He retained new

counsel and filed a complaint with the Polk County Bar Association

Attorney Fee Arbitration Committee. In April 2014, the committee

determined the fee Barnhill charged was “unreasonable given the amount

of work performed . . . in relation to the scope of the problem.” It ordered

Barnhill to refund Jayne twenty-five percent of the fees collected. The
 3

committee did not place any conditions on Jayne’s entitlement to the

refund.

Barnhill tendered Jayne a check for $1000 (check #1). However,

she did not immediately pay the remainder (over $14,000) of the fee

arbitration award. On May 30, 2014, we suspended her license for sixty

days for unrelated ethical misconduct, with automatic reinstatement

after the sixty days passed. Id. at 488. Obeying this court’s order and

the Iowa Court Rules, Barnhill notified Jayne’s counsel, Kenneth Munro,

that her license had been suspended. See id.

In August, after Barnhill’s suspension ended, Munro wrote to

Barnhill requesting that she pay the remainder of Jayne’s refund.

Barnhill did not respond. A month later, Munro sent another letter

requesting payment. Barnhill responded by email in mid-September,

explaining that she had not fully repaid Jayne because she was

concerned doing so might constitute practicing law while her license was

suspended. Because her license was now reinstated, she promised to

“finalize th[e] payment” when she returned from an international trip.

In early October, Jayne informed Barnhill he had ended his

attorney–client relationship with Munro and requested that Barnhill

direct all further communications regarding the fee matter to him. On

October 10, Barnhill sent a responsive letter to Jayne, signaling her

intent to pay Jayne “by the end of this month if not sooner.”

Barnhill missed her intended payment deadline and did not repay

Jayne by the end of October. Jayne subsequently filed a complaint with

the Board and retained attorney Kevin Abbott to collect the amount

owed. Abbott sent Barnhill a letter dated November 24, 2014, in which

he requested payment from Barnhill within ten days. Two weeks later,

Barnhill responded by email that Abbott “should have [a] check for full
 4

payment.” Barnhill further requested that upon receiving the check

(check #2), Jayne execute “a full release and satisfaction,” including a

“release” of Jayne’s complaint to the Board. 1 Barnhill indicated she was

“prepared to take all actions available,” including “claims against Don

Jayne resulting from his continuing conduct,” unless she received “a

global release within 48 hours.” She also sent a fax to Abbott’s office

warning Abbott that she did not consent to him disbursing any proceeds

of check #2 to Jayne until she received an acceptable release.

Despite Barnhill’s statement to Abbott that she sent check #2

paying in full the balance of the fee arbitration award and her assertion

that the funds were “presently being held” in Abbott’s client trust

account, Abbott never received the check. Accordingly, in January 2015,

he filed a petition on Jayne’s behalf in district court to enforce the fee

arbitration committee’s ruling. Barnhill answered the petition, asserting

“[n]o amount remains unpaid.” Barnhill also brought counterclaims

against Jayne and cross-claims against Abbott (individually) and Abbott’s

law firm. The counterclaims and cross-claims contended Jayne, Abbott,

and Abbott’s firm were committing abuse of process and had conspired

to do so. In answering the counterclaims and cross-claims, Abbott wrote

Barnhill “has not made payment . . . and she is making a false statement

to the Court by claiming she has made said payment.”

In April, Barnhill sent Abbott a letter enclosing a photocopy of yet

another instrument (check #3) payable to Abbott’s trust account for the

balance of the fee arbitration award. In this letter, Barnhill promised she

would deliver check #3 once she received a release. Notably, check #3

1Barnhill’s demand for a release of the complaint lodged with the Board was

curious because Jayne lacked authority to halt the Board’s investigation.
 5

was dated March 16, 2015—after Barnhill’s assertion of claims against

Jayne, Abbott, and Abbott’s firm. Abbott did not forward the requested

release, and he never received check #3.

Jayne requested summary judgment in the district court litigation

for the balance of the fee arbitration award, including “attorney fees for

defending [Barnhill]’s bad faith [counter and cross] claims.” Around the

same time, Barnhill sent Abbott a letter enclosing another instrument

(check #4) payable to Jayne in the amount of the balance owed on the fee

arbitration award. The letter and check were dated May 4, 2015, but did

not arrive at Abbott’s office until May 20—after Abbott had already filed

the motion for summary judgment. At the commission hearing, Abbott

opined that Barnhill backdated the letter and check because she received

notice of his motion for summary judgment “and then sent the check

that da[y] or the day after,” but wanted it to appear as though the check

preceded the filing of the motion for summary judgment.

The memo line on check #4 stated “payment in full for all claims.”

Abbott received the check but did not tender it to Jayne because, he

explained, accepting “payment in full” might compromise any chance of

recovering court costs and attorney fees incurred in defending Barnhill’s

counterclaims and cross-claims. He asked Barnhill to send another

check for court costs and attorney fees. Barnhill refused, stating the

“costs were incurred . . . needlessly rather than cash[ing] the checks I

have been sending.” Abbott responded that “checks,” plural, was a

misstatement:

I received one check from you. It was after I filed this
lawsuit and after you filed your baseless claims against
Mr. Jayne, myself and my firm. Obviously, if you had sent a
check prior to me filing this lawsuit, I would have cashed it
and not filed the lawsuit. Unfortunately, that did not
happen.
 6

The district court denied the summary judgment motion without a

hearing.

A bench trial was held on Jayne’s collection action against

Barnhill. After hearing testimony and reviewing exhibits, the court ruled

in Jayne’s favor, finding Barnhill’s testimony that she delivered a check

in December 2014 “not credible in the least” and “completely without

merit.” The court entered judgment against Barnhill for the outstanding

amount of the fee arbitration award owed to Jayne, plus court costs.

Barnhill’s counterclaims and cross-claims were dismissed because the

court found “absolutely no basis” for them.

The court then addressed sanctions, including Abbott’s request for

attorney fees. It awarded over $2800 in attorney fees and imposed an

additional sanction of $5000 against Barnhill for forcing Jayne to file a

lawsuit—when there was no dispute she owed him over $14,000—and

filing frivolous counterclaims in response to that lawsuit.

B. BFC Gas Matter. Barnhill represented BFC Gas Company in

an action against Gypsum Supply Co. (GSC) for property damage. The

lawsuit alleged GSC’s “negligence caused parts of [GSC]’s facility to

damage [BFC’s] facility during a . . . storm.” BFC Gas Co. v. Gypsum

Supply Co. (BFC I), No. 13-CV-81-LRR, 2014 WL 5286868, at *1 (N.D.

Iowa Oct. 15, 2014). 2

Discovery opened in August 2013. In the course of discovery, BFC

did not designate expert opinions until months after the deadline. It also

failed to produce some documents required as part of its initial

disclosures and other documents properly requested by GSC, despite

2The lawsuit began in state court, but GSC “removed the action to [federal] court
on the basis of diversity jurisdiction.” BFC I, 2014 WL 5286868, at *1; see 28 U.S.C.
§ 1332(a) (2012).
 7

GSC filing two motions to compel and the court granting both of them.

BFC Gas Co. v. Gypsum Supply Co. (BFC II), No. C13-0081, 2015 WL

64985, at *1 (N.D. Iowa Jan. 5, 2015). GSC ultimately prevailed on

summary judgment. See BFC I, 2014 WL 5286868, at *11, aff’d, 630 F.

App’x 645, 645 (8th Cir. 2016) (per curiam).

In spring 2014, GSC moved for sanctions against BFC and

Barnhill. See BFC II, 2015 WL 64985, at *4. At a sanctions hearing, over

which a federal magistrate presided, Barnhill made several statements

the court ultimately determined were false and upon which the court

relied in imposing sanctions against Barnhill and BFC. Id. at *15.

First, Barnhill claimed BFC could not produce some documents

because the United States Attorney’s Office (USAO) seized them and they

were therefore inaccessible to BFC. Id. at *5. However, “[t]he truth is the

documents were not seized until . . . more than two months after” BFC

filed the lawsuit, so BFC had opportunity in making its initial disclosures

to produce them. Id. at *6. Furthermore, the discovery responses BFC

actually provided made “no reference . . . to the seizure of documents”

and no claim “that . . . compliance with discovery demands was

hampered” by it. Id. Barnhill also asserted some of the difficulty in

producing documents occurred because BFC’s corporate officers were

recalcitrant about doing so despite Barnhill’s repeated requests.

Second, Barnhill asserted she contacted the USAO “as soon as

[she] realized [opposing counsel] was looking for” the documents—but

opposing counsel first sought the documents in September 2013 and

Barnhill did not contact the USAO until January 2014. Id. Additionally,

Barnhill represented to the court “that she had ‘just received’ the

requested documents,” but she had actually received them three months

earlier. Id.
 8

Third, Barnhill represented to the court that BFC had not

submitted a property damage claim to its own insurer because its

deductible exceeded the amount of the damage. Id. at *8. However,

“BFC had no insurance at the time of the loss,” and the court found it

“inconceivable . . . that Barnhill did not know the true facts regarding

insurance when she” made the representation. Id.

The court ordered BFC and Barnhill to pay GSC’s attorney fees

(totaling over $30,000) incurred in litigating the discovery dispute and

filing the motion for sanctions. Id. at *11–12, *15. It assessed over

$18,000 of that amount solely against Barnhill. Id. at *12, *15. The

court further assessed a $20,000 sanction against BFC and Barnhill

jointly because it concluded the entire suit was frivolous. Id. at *15. In

particular, the court relied upon several allegations from BFC’s petition

that were “simply not true” and that “[e]ven the most basic investigation

would have revealed” were not true. Id. at *12–13. Specifically, the court

referred to BFC’s allegations that the storm caused no wind damage to

BFC’s own building and that no other buildings or structures in the

immediate vicinity suffered damage. Id. In reality, “damage from the

storm was widespread, including damage to other buildings in the

immediate area.” Id. at *13.

C. Disciplinary Proceedings. After Jayne’s November 2014

complaint to the Board, the Board opened an investigation and sought a

response from Barnhill. When Barnhill responded to the Board, she

stated she made a partial payment to Munro and sent the remaining

balance to Abbott. The Board then asked Barnhill to provide proof of the

payments made to Jayne and either or both of his attorneys. In

February 2015, when the Jayne litigation and disciplinary investigation
 9

were both still ongoing, Jayne and Abbott both signed a letter to the

Board indicating neither of them had yet received payment from Barnhill.

In April 2015, Barnhill sent a letter to the Board suggesting the

disciplinary matter would be “susceptible of a summary judgment” in her

favor. Barnhill stated she tried to pay Jayne twice, but he and Abbott

had refused to accept her payment. Barnhill was unable to find a copy of

the December check (check #2) she purportedly sent to Abbott,

explaining she lacked documentation because she prepared it herself

instead of delegating the task to her office bookkeeper who was

meticulous about making copies.

The Board filed a formal complaint with the commission in October

2015. It alleged Barnhill violated the Iowa Rules of Professional Conduct

during the Jayne matter by asserting frivolous claims, Iowa R. Prof’l

Conduct 32:3.1; making a false statement of fact to a tribunal, id.

r. 32:3.3(a)(1); making a false statement of fact to a third person, id.

r. 32:4.1(a); making a false statement of material fact in a disciplinary

matter, id. r. 32:8.1(a); engaging in conduct involving dishonesty, deceit,

or misrepresentation, id. r. 32:8.4(c); and engaging in conduct prejudicial

to the administration of justice, id. r. 32:8.4(d).

The Board further alleged Barnhill violated several rules of

professional conduct in the BFC matter by asserting frivolous claims, id.

r. 32:3.1; making a false statement of fact to a tribunal, id. r. 32:3.3(a)(1);

knowingly disobeying an obligation under the rules of a tribunal, id.

r. 32:3.4(c); failing to comply with an opponent’s proper discovery

request, id. r. 32:3.4(d); making a false statement of fact to a third

person, id. r. (rule 32:4.1(a); engaging in conduct involving dishonesty,

deceit, or misrepresentation, id. r. 32:8.4(c); and engaging in conduct

prejudicial to the administration of justice, id. r. 32:8.4(d). The Board
 10

requested the commission suspend Barnhill and condition her

reinstatement upon Barnhill providing certified proof that she has paid

all court ordered sanctions.

The commission set a hearing for February 2016. Before the

hearing, Barnhill filed a “motion for summary judgment” seeking

dismissal of the disciplinary complaint. In her motion, she asserted she

sent a check to Abbott to pay the balance of the fee award in December

2014 and contended her bank statements circumstantially proved her

assertion because they demonstrated her trust account contained an

amount sufficient to satisfy the obligation from December 2014 onward.

The Board resisted the motion. The commission panel president

questioned whether the court rules permit summary judgment practice

in disciplinary matters. See Iowa Ct. R. 36.14 (permitting “preliminary”

motions and applications in disciplinary matters). However, even

assuming the court rules permit dispositive motions in disciplinary

proceedings, the panel president nonetheless denied Barnhill’s motion.

At the hearing before the commission, the parties first addressed

the BFC matter. Barnhill called two BFC witnesses who testified about

the basis for the property damage claim and attempted to corroborate

Barnhill’s explanation about the difficulty obtaining records and

documents due to the USAO investigation and seizure of documents.

The Board called as a witness Barnhill’s opposing counsel from the case.

He testified about the course of the federal court litigation—including the

dispositive order finding BFC’s expert designations untimely and

granting summary judgment in favor of the defendant. He also testified

about his interactions with Barnhill during the discovery process and

disputes and about the sanctions order entered against Barnhill and her

client.
 11

Next, the Board called Abbott to testify about the Jayne matter.

Abbott explained his practice is exclusively commercial collections. He

also explained he notified the accounting staff at his firm “to be on the

lookout” for the check Barnhill claimed she sent in December 2014

(check #2), but no check ever arrived. He described his office’s

specialization in collections, related its established procedure for

receiving and documenting checks, and testified that procedure did not

reveal any checks arriving from Barnhill before the motion for summary

judgment was filed in the collection action.

Barnhill’s accountant also testified at the hearing. She

misidentified the number of the purported December 2014 check (check

#2) several times, then stated she “would have to look at the records

again”—but nonetheless had a “clear recollection” that Barnhill’s firm

sent a check in December, even though she personally was “not in the

office that week.” On cross-examination, the Board’s counsel pointed out

that the accountant knew of the scheduled commission hearing but still

did not have and could not produce at the hearing a copy of the check.

Finally, Barnhill gave a professional statement to the commission:

I have made no false statements, I have committed no
ethics violations, I paid the amount I was legally obligated to
pay by the fee arbitration award, and had the funds in the
bank account to cover the checks. I had nothing to gain by
not paying that sum. I believe this grievance is frivolous and
should be dismissed.

Perceiving a factual discrepancy, one panel member cross-examined

Barnhill about her statements and the evidence she had presented:

Q. Ms. Barnhill, you indicated that Mr. Abbott never
asked you for a replacement check or indicated that he had
never received this other check; is that correct? A. Yes.

Q. And yet, when you got [serv]ed with a lawsuit in
January, did you not assume that that meant he hadn’t
 12
gotten the check? A. No, I didn’t, because as you see, he’s
still holding that one.

Q. And how far is your office, roughly, from where
Mr. Abbott’s office is? Couple miles? A. Probably.

Q. And so in February . . . 2015, you filed an answer
and a counterclaim with a cross-claim? A. Yes.

Q. Yet within two miles you could have hand delivered
a check to Mr. Abbot’s office to cure this problem? A. I don’t
believe he would have accepted it. I’ve thought this through
at length. That is why I made out checks to Don Jayne. I
thought he would be compelled to give the checks that were
made payable to Don Jayne to Don Jayne.

Q. But you didn’t do such a check to Mr. Jayne until
May; is that right? A. That’s correct.

Q. On the contrary to what you just said, in March of
2015 you made a check [(check #3)] out again to the Abbott
Law Firm Trust Account. A. Yes.

Q. So that’s just contrary to what you just offered to
this commission. A. In what way?

[PANEL MEMBER]: I have no further questions.

In her closing statement, Barnhill reiterated that she had no reason to

avoid paying Jayne and especially no reason to lie about it. She also

expressed some exasperation: “I don’t know why I seem to strike people

as . . . such a liar, but there is no reason.”

The commission concluded the Board proved a violation of each of

the rules alleged, with one exception: the commission did not find a

convincing preponderance of evidence indicating Barnhill violated rule

32:4.1(a) by making a false statement of material fact to a third person in

either the Jayne matter or the BFC matter. The commission considered

in mitigation Barnhill’s pro bono work and sponsorship of incarcerated

women. However, it ultimately concluded the aggravating factors in this

case far outweighed mitigating considerations. Those aggravating factors

included Barnhill’s history of disciplinary matters and sanctions for
 13

substantially similar conduct, financial harm caused to Jayne, and

“Barnhill’s . . . refusal to acknowledge even the possibility that her

conduct violated the rules of professional responsibility.” See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Stowers, 823 N.W.2d 1, 17 (Iowa

2012) (considering as an aggravating factor the attorney’s defiance,

disdain, and derision exhibited during the commission hearing). The

commission recommended an indefinite suspension with no possibility of

reinstatement for six months and proposed a condition on reinstatement

requiring Barnhill “to provide proof that all outstanding debts levied

against her arising out of the Jayne and [BFC matters] have been fully

and completely satisfied.”

Barnhill filed a notice of appeal from the commission’s report.

However, she later decided not to pursue the appeal and filed a

statement signaling her desire “to retire from the practice of law and

voluntarily turn in her law license.” “An attorney . . . may acquiesce to

suspension or disbarment, but only by delivering to the grievance

commission an affidavit stating that the attorney consents to suspension

of not more than a specific duration or to disbarment” and that fulfills

several other requirements. Iowa Ct. R. 34.16(1). Barnhill has not

delivered or filed such an affidavit, and the required procedure under

rule 34.16 has not occurred. See id. r. 34.16(2)–(3). Accordingly, we

proceed to review the commission’s recommendation. See id. r. 36.21(1)

(“If no appeal is taken . . . the supreme court will set a date for

submission of the grievance commission report.”).

II. Scope of Review.

We review attorney disciplinary matters de novo. Id.; Barnhill II,

847 N.W.2d at 470. “The Board must prove the attorney’s ethical

misconduct by a convincing preponderance of the evidence”—a standard
 14

“that is higher than the burden in civil cases but lower than the burden

in criminal matters.” Barnhill II, 847 N.W.2d at 470.

III. Rule Violations.

Although the courts in the Jayne and BFC matters concluded

Barnhill engaged in sanctionable conduct, those rulings do not have

preclusive effect in this disciplinary proceeding on the question of

whether Barnhill violated the rules of professional conduct. “The

difference in burden of proof between an ordinary civil action and a

disciplinary action generally means civil actions do not have preclusive

effect in disciplinary hearings.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Cepican, 861 N.W.2d 841, 845 (Iowa 2015); accord Iowa Ct. R. 36.17(4);

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Murphy, 669 N.W.2d

254, 257 (Iowa 2003).

Although the rulings do not have preclusive effect, they remain

valid and enforceable. We lack authority to review either sanctions order

on the merits because Barnhill voluntarily dismissed her appeal of the

Jayne matter and any appeal from the BFC matter would be decided by

the United States Court of Appeals for the Eighth Circuit, not this court.

Cf. Barnhill v. Iowa Dist. Ct. (Barnhill I), 765 N.W.2d 267, 280 (Iowa 2009)

(reviewing a sanctions order on the merits when the appellant actually

pursued the appeal). In this case, we simply review whether the evidence

supporting the sanctions imposed in those matters also demonstrates an

ethical violation by a convincing preponderance. Conduct occurring in

federal courts located in Iowa is subject to the Iowa Rules of Professional

Conduct even though attorneys must obtain separate admission to

practice in federal court. N.D. & S.D. Iowa Civ. R. 83.1(g)(1); see Iowa R.

Prof’l Conduct 32:8.5(b)(1) (providing “the rules of the jurisdiction in

which the tribunal sits” shall govern the “exercise of the disciplinary
 15

authority of Iowa”); cf. In re Disciplinary Action Against Lyons, 780

N.W.2d 629, 634 & n.2 (Minn. 2010) (per curium) (applying the Montana

Rules of Professional Conduct in a Minnesota disciplinary proceeding

against a lawyer whose conduct occurred in federal district court in

Montana).

A. Frivolous Claims. “A lawyer shall not bring or defend a

proceeding . . . unless there is a basis in law and fact for doing so that is

not frivolous . . . .” Iowa R. Prof’l Conduct 32:3.1. When evaluating

whether an attorney violated rule 32:3.1, we identify “the alleged

offending conduct and [ask] whether there was legal authority to support

the attorney engaging in this conduct.” Barnhill II, 847 N.W.2d at 485.

The conduct at issue in the Jayne matter is Barnhill’s assertion

that Abbott, Abbott’s firm, and Jayne committed abuse of process by not

accepting multiple checks she purportedly sent and by filing a lawsuit

against her instead. “To prove a claim of abuse of process, a plaintiff

must show (1) use of the legal process, (2) in an improper or

unauthorized manner, and (3) that damages were sustained as a result

of the abuse.” Stew-Mc Dev., Inc. v. Fischer, 770 N.W.2d 839, 849 (Iowa

2009). “The plaintiff must prove that the defendant used the legal

process primarily for an impermissible or illegal motive.” Wilson v.

Hayes, 464 N.W.2d 250, 266 (Iowa 1990) (en banc).

Like the district court in the underlying Jayne litigation, we

conclude Barnhill’s counterclaims and cross-claims were meritless. To

prove Abbott and Jayne were using the legal process in an improper or

unauthorized manner and were doing so primarily with an illegal or

impermissible motive, Barnhill would have had to prove she in fact sent

check #2 in December 2014 and Abbott lied about never receiving it.

Like the commission, we find Abbott’s explanation much more credible.
 16

In light of Barnhill’s unfulfilled promises to pay Jayne in September and

October and her inability to provide anything other than naked

assertions and conclusory testimony from her accountant who was away

from the office when Barnhill claims to have drawn the check, we

conclude there was no plausible factual basis for the counterclaims and

cross-claims. Although filing a claim “is not frivolous merely because the

facts have not first been fully substantiated,” it is frivolous “if the lawyer

is unable . . . to make a good faith argument on the merits.” Iowa R.

Prof’l Conduct 32:3.1 cmt. 2. No good-faith basis existed here. We find

Barnhill violated rule 32:3.1 in the Jayne matter.

The federal district court in the BFC matter also determined

Barnhill filed a frivolous claim. However, the evidence in the federal

district court file bearing upon the nature of the storm and the resulting

damage is not in the disciplinary record in this case. We conclude there

is not a convincing preponderance of evidence demonstrating the BFC

claim was frivolous under rule 32:3.1.

B. False Statements. “A lawyer shall not knowingly . . . make a

false statement of fact or law to a tribunal . . . .” Id. r. 32:3.3(a)(1).

Similarly, “a lawyer shall not knowingly . . . make a false statement of

material fact or law to a third person.” Id. r. 32:4.1(a). The word

“knowingly” is important; “[w]e will not infer an attorney made a

misrepresentation knowingly simply because the misrepresentation

occurred.” Barnhill II, 847 N.W.2d at 486. False statements also

implicate two other ethical rules: prohibitions against “conduct involving

dishonesty, fraud, deceit, or misrepresentation” and “conduct that is

prejudicial to the administration of justice.” Iowa R. Prof’l Conduct

32:8.4(c)–(d).
 17

1. False statements to a tribunal and in a disciplinary matter. In

Barnhill II, we concluded Barnhill did not violate rule 32:3.3(a)(1) when

she “[a]t most ... acknowledged her petition contained false

information.” Barnhill II, 847 N.W.2d at 486. Barnhill did much more

than that here. “[F]alse statements to the court can be made both orally

and in writing,” and we find Barnhill did both. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 462 (Iowa 2014).

In the Jayne matter, Abbott contended in his answer to Barnhill’s

counterclaims and cross-claims that Barnhill was making a false

statement to the court by claiming she had paid Jayne. We agree.

Barnhill not only included false information in her pleadings; she

premised an entire cause of action on the false assertion that payment of

the balance of the fee arbitration award had been tendered, continued to

assert the falsity throughout the bench trial, and even filed a motion for

new trial reiterating it. We find she violated rule 32:3.3(a)(1). We also

agree with the commission that Barnhill’s continued assertion in this

disciplinary proceeding that she sent a check when she actually did not

constitutes a violation of rule 32:8.1(a), which prohibits lawyers from

making false statements of material fact “in connection with a

disciplinary matter.” Iowa R. Prof’l Conduct 32:8.1(a).

We also conclude Barnhill violated rule 32:3.3(a)(1) in the BFC

litigation. The record includes copies of emails demonstrating Barnhill’s

receipt of the documents earlier than she represented to the court and

establishing her first contact with the USAO occurred long after she

asserted it had taken place.

2. False statements to a third person. The commission concluded

the Board did not prove Barnhill made false statements of material fact

to a third person in violation of rule 32:4.1(a). The issue to be resolved in
 18

determining whether Barnhill violated this rule is whether opposing

counsel is a third person within the meaning of the rule. We have found

an attorney violated rule 32:4.1(a) when he made false statements to real

estate lenders issuing loans to the attorney’s clients. See Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Engelmann, 840 N.W.2d 156, 162 (Iowa

2013). We have not decided, however, whether “third person” includes

opposing counsel.

The Iowa Rules of Professional Conduct include a rule addressing

fairness to opposing parties and counsel. Iowa R. Prof’l Conduct 32:3.4.

However, unlike the rule preceding it, which addresses candor toward

the tribunal, rule 32:3.4 does not expressly address a duty of candor

toward the opposing party and counsel. Compare id., with id. r. 32:3.3.

Instead, rule 32:3.4 primarily addresses discovery conduct and an

attorney’s presentation of their client’s evidence and testimony. See id.

r. 32:3.4 cmt. 1 (“Fair competition in the adversary system is secured by

prohibitions against destruction or concealment of evidence, improperly

influencing witnesses, obstructive tactics in discovery procedure, and the

like.”). Nonetheless, we conclude the absence of an express prohibition

against false statements to opposing counsel in rule 32:3.4 does not

exclude opposing counsel from the universe of third persons mentioned

in rule 32:4.1.

Rule 32:4.1 appears in a section of the rules entitled “Transactions

with Persons Other Than Clients.” The comments to the rules explain

that lawyers are “required to be truthful when dealing with others on a

client’s behalf.” Id. r. 32:4.1 cmt. 1. These references to “others” are

clearly broad and include anyone apart from the lawyer’s client or a

tribunal (which rule 32:3.3 addresses separately).
 19

Furthermore, our research reveals some courts in other

jurisdictions with materially similar or even identical ethical rules

consider opposing counsel a third person within the meaning of the rule.

See, e.g., In re Corizzi, 803 A.2d 438, 441 & n.5 (D.C. 2002); La. State

Bar Ass’n v. Harrington, 585 So. 2d 514, 519 (La. 1990); Att’y Grievance

Comm’n v. Trye, 118 A.3d 980, 990 (Md. 2015); In re Walsh, 872 N.W.2d

741, 749 (Minn. 2015) (per curiam); In re Edison, 724 N.W.2d 579, 584

(N.D. 2006) (per curiam); Office of Disciplinary Counsel v. Battistelli, 457

S.E.2d 652, 660 (W. Va. 1995). Today we join those jurisdictions and

hold an attorney can violate rule 32:4.1(a) by making a false statement of

material fact to opposing counsel.

Although the commission concluded Barnhill did not violate this

rule, we disagree. Barnhill repeatedly stated falsely to Abbott that she

had sent payment when she had not. The fact Abbott did not believe

those statements is of no consequence to our determination. The rule

prohibits attorneys from making knowingly false statements, with no

exception providing an attorney does not commit an ethical violation if

the third person knows or believes the statement is false. We conclude

Barnhill violated rule 32:4.1(a) in the Jayne matter.

We decline to find Barnhill violated the same rule in the BFC

matter, however. We have already concluded Barnhill violated rule

32:3.3(a)(1) by making false statements to the court at the sanctions

hearing. We do not find a duplicative violation of rule 32:4.1(a) simply

because opposing counsel was also present when the conduct occurred.

3. Conduct involving dishonesty, deceit, or misrepresentation. “It is

professional misconduct for a lawyer to . . . engage in conduct involving

dishonesty, fraud, deceit, or misrepresentation.” Iowa R. Prof’l Conduct

32:8.4(c). As we have explained,
 20
Rule 32:8.4 is a general rule prohibiting conduct involving
dishonesty, fraud, deceit, or misrepresentation. The Iowa
Rules of Professional Conduct contain other, more specific,
provisions dealing with the same concept. . . . When we find
conduct violates a specific provision involving dishonesty,
fraud, deceit, or misrepresentation, we will not find the same
conduct violates rule 32:8.4(c).

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 591, 605

(Iowa 2011). Rules 32:3.3(a)(1) and 32:4.1(a) are more specific provisions

dealing with the same conduct. Accordingly, because we have already

found Barnhill violated these rules, we do not find a separate violation of

rule 32:8.4(c). See id.

4. Conduct prejudicial to the administration of justice. As we have

already noted, the Board alleged and the commission found Barnhill

violated rule 32:8.4(d), which prohibits lawyers from engaging “in

conduct that is prejudicial to the administration of justice.” Iowa R.

Prof’l Conduct 32:8.4(d). “[T]here is no typical form of conduct” that

violates this rule. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Steffes, 588 N.W.2d 121, 123 (Iowa 1999) (en banc). “Instead, the

dispositive inquiry is whether ‘the attorney’s act[s] hampered the efficient

and proper operation of the courts or of ancillary systems upon which

the courts rely.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kingery, 871

N.W.2d 109, 121 (Iowa 2015) (alteration in original) (quoting Steffes, 588

N.W.2d at 123); accord Barnhill II, 847 N.W.2d at 484.

An attorney violates rule 32:8.4(d) “when his [or her] misconduct

results in additional court proceedings or causes court proceedings to be

delayed or dismissed.” Barnhill II, 847 N.W.2d at 484 (alteration in

original) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 841

N.W.2d 114, 124 (Iowa 2013)). In Barnhill II, we concluded Barnhill

violated rule 32:8.4(d) “by continuing to pursue an unwarranted claim.”

Id. She did the same thing in this case by pursuing frivolous claims in
 21

the Jayne matter and by repeatedly asserting she had paid Jayne in full

when she had not. Her conduct led to an entire lawsuit and bench trial

that were ultimately unnecessary. Furthermore, her failure to comply

with discovery obligations in the BFC matter led to additional court

proceedings, including a sanctions hearing and hearings on GSC’s

motions to compel. Indeed, even after granting summary judgment to

GSC, the federal district court had to leave the case open so that the

sanctions issue could be resolved. We conclude Barnhill violated rule

32:8.4(d) in both matters.

C. Conduct in Discovery. The commission found Barnhill

committed two additional violations in the BFC matter: knowing

disobedience of a court order and failure to comply with an opponent’s

proper discovery request. Iowa R. Prof’l Conduct 32:3.4(c)–(d). A lawyer

“must have actual knowledge of the court order to violate” rule 32:3.4(c).

Barnhill II, 847 N.W.2d at 484. “If an attorney has knowledge of the

court order, and yet fails to obey the court order, the attorney violates”

rule 32:3.4(c). Id. The federal district court issued orders on January 22

and March 18, 2014 compelling BFC to provide discovery responses, but

responses were not made. Responding to the motion for sanctions for

her failure to comply with these orders compelling discovery, Barnhill

asserted the USAO’s seizure of documents obstructed her ability to

comply. The federal court order imposing sanctions against Barnhill,

however, noted that the requested documents had not yet been seized

when they were requested and Barnhill and her client should have

disclosed them as part of their initial disclosures under the applicable

federal rules of procedure. The federal court’s order imposing sanctions

further concluded that some of the items (emails) requested from BFC in
 22

discovery remained accessible to BFC notwithstanding the seizure and

should have been produced in response to discovery requests.

At the hearing before the commission, Barnhill attributed her

failure to comply with the discovery orders to the uncooperativeness of

her client. We find this attribution unavailing, however. The record

reveals the USAO provided Barnhill access to the seized documents on

February 21, 2014—well before the second order compelling discovery on

March 18. We conclude Barnhill violated rule 32:3.4(c).

Rule 32:3.4(c) and rule 32:3.4(d) are interrelated; courts often

grant motions to compel and issue corresponding orders (giving rise to

possible violations under rule 32:3.4(c)) after a party has already failed to

comply with proper discovery requests—a violation of rule 32:3.4(d). See

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hedgecoth, 862 N.W.2d 354,

362–63 (Iowa 2015). We have concluded an attorney violated rule

32:3.4(d) when “the court granted several motions to compel and motions

for sanctions filed by opposing counsel” because the attorney “repeatedly

failed to provide timely discovery responses to opposing counsel’s proper

requests.” Id. Barnhill’s conduct in this case was similar to the conduct

we concluded in Hedgecoth violated the rule. See id. We conclude

Barnhill violated rule 32:3.4(d).

IV. Sanction.

Having concluded Barnhill committed ethical violations, we now

turn to decide the appropriate sanction. Our guidelines for sanctions in

attorney disciplinary matters are well established:

In considering an appropriate sanction, this court considers
all the facts and circumstances, including the nature of the
violations, the attorney’s fitness to practice law, deterrence,
the protection of society, the need to uphold public
confidence in the justice system, and the need to maintain
the reputation of the bar. We also consider mitigating and
 23
aggravating circumstances. The court gives respectful
consideration to the findings and recommendations of the
commission, but “may impose a greater or lesser sanction
than that recommended by the commission.”

McGinness, 844 N.W.2d at 463–64 (citations omitted) (quoting Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Wheeler, 824 N.W.2d 505, 509–10

(Iowa 2012)). “The primary goal of attorney discipline is to protect the

public, not to punish the attorney.” Barnhill II, 847 N.W.2d at 487.

In Barnhill II, we concluded a sixty-day suspension was

appropriate after Barnhill pressed frivolous claims, knowingly disobeyed

court orders, and engaged in conduct prejudicial to the administration of

justice (among other violations). Id. at 488. We weighed aggravating

factors, including “Barnhill’s extensive legal experience,” the fact she

caused client harm, the multitude of violations, and “two prior

admonitions from the Board.” Id. at 486. In mitigation, we considered

Barnhill’s pro bono work and volunteerism, her acknowledgement of the

violations, and the sanctions already imposed on her in the underlying

district court matters. Id. at 486–87; see also Everly v. Knoxville Cmty.

Sch. Dist., 774 N.W.2d 488, 495 (Iowa 2009) (affirming the district court’s

decision to sanction Barnhill but remanding for determination of an

appropriate sanction); Barnhill I, 765 N.W.2d at 279–80 (affirming a

monetary sanction the district court imposed upon Barnhill).

The conduct in this case was similar to the conduct for which we

have previously suspended Barnhill. In fact, much of Barnhill’s conduct

in the Jayne matter began immediately after her previous suspension for

similar misconduct ended. “Prior misconduct is more suggestive of

increased sanctions when it involves the same type of conduct as the

conduct currently subject to discipline.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Baldwin, 857 N.W.2d 195, 214 (Iowa 2014). Barnhill’s
 24

disciplinary history is an aggravating factor. See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Conroy, 845 N.W.2d 59, 67 (Iowa 2014) (noting the

fact an attorney received a suspension for identical misconduct just three

years earlier was an aggravating factor and demonstrated the current

misconduct was “an unfortunate but recurrent theme”).

Additionally, “persistence . . . in perpetuating [a] falsehood is a

remarkable aggravating factor.” McGinness, 844 N.W.2d at 466.

Barnhill asserted throughout the Jayne litigation that she sent check #2

to Abbott in December 2014 in payment of the balance owed on the fee

arbitration award. However, the district court found that argument

meritless because Barnhill provided no proof of the check or of any

aspect of its delivery—including a return receipt or even the name of the

courier who delivered it. Even so, Barnhill continued to assert before the

commission that she sent Abbott a timely check. At the commission

hearing, Barnhill called her accountant to testify about check #2. The

accountant first testified she could not remember the check number but,

after Barnhill stated she thought the accountant was “misremembering,”

changed her testimony to be that the check had no number because it

was a counter check. Yet in the underlying Jayne litigation only a month

earlier, Barnhill propounded in support of her defense the accountant’s

affidavit asserting check #2 bore a specific number. The accountant’s

testimony and Barnhill’s repeated assertions about the check are not

credible in light of the multiple contradictions and especially in light of

the fact a financial record like a check should be easily retrievable.

Barnhill’s continued insistence that she sent a check despite a total lack

of proof is an aggravating factor. See id.

Furthermore, Barnhill “has twenty years’ experience as an

attorney, which can be considered an aggravating factor.” Iowa Supreme
 25

Ct. Att’y Disciplinary Bd. v. Kennedy, 837 N.W.2d 659, 675 (Iowa 2013);

accord Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morris, 847 N.W.2d 428,

436 (Iowa 2014). Just as Barnhill’s experience was an aggravating factor

two years ago, we consider it an aggravating factor again here. See

Barnhill II, 847 N.W.2d at 486.

Some of the mitigating factors present in Barnhill II—specifically,

Barnhill’s volunteerism and pro bono work—are also mitigating factors in

this case. See id. Additionally, as in Barnhill II, to some extent “courts

have already punished Barnhill by levying sanctions . . . against her.” Id.

at 488. Barnhill did not acknowledge violations or accept responsibility

in this case as she did in the previous disciplinary proceeding. See id. at

486. However, she indicates she intends to retire from practicing law.

Voluntary cessation of practice or a self-imposed practice limitation does

not excuse misconduct but can be a mitigating factor. See Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 871 (Iowa 2010); see

also Kingery, 871 N.W.2d at 124–25 (“[W]e can consider voluntary

cessation when evaluating whether our sanction will serve its purposes

of deterring future misconduct and protecting the public.”). Nonetheless,

even when an attorney “indicated he ha[d] no plans to resume the

practice of law,” we concluded a suspension was “consistent with

promoting public confidence in the justice system and maintenance of

the reputation of the bar as a whole.” Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Ireland, 748 N.W.2d 498, 503 (Iowa 2008). A suspension is

appropriate here despite Barnhill’s stated intent to retire.

“Sanctions for violations involving dishonesty have ranged from a

brief suspension . . . to revocation.” Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Kieffer-Garrison, 847 N.W.2d 489, 496 (Iowa 2014); accord

Barnhill II, 847 N.W.2d at 487. “We have in the past suspended lawyers
 26

from the practice of law for filing frivolous matters, although these cases

have been accompanied by other unethical conduct.” Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Daniels, 838 N.W.2d 672, 679 (Iowa 2013). We

have even revoked lawyers’ licenses in some circumstances, usually

when the lawyer commits a bevy of exceptionally serious ethical

infractions alongside frivolous litigation. See, e.g., Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 381–82 (Iowa 2007)

(revoking a lawyer’s license after he fabricated documents, forged

signatures (including a judge’s signature), accepted fees prematurely,

practiced law while suspended, and generally “demonstrated a blatant

disregard for his duty as an attorney to be honest and truthful”); Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ronwin, 557 N.W.2d 515,

520, 522–23 (Iowa 1996) (per curium) (revoking a lawyer’s license after

the lawyer pressed a frivolous claim resulting in sanctions imposed

against him and separately and repeatedly made unfounded and

unsupported allegations that several judges and lawyers were conspiring

to violate his civil rights and tortiously injure him). Frivolous claims and

false statements are particularly troublesome. As we have explained,

Fundamental honesty is the base line and mandatory
requirement to serve in the legal profession. The whole
structure of ethical standards is derived from the paramount
need for lawyers to be trustworthy. The court system and
the public we serve are damaged when our officers play fast
and loose with the truth.

Comm. on Prof’l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa

1990); accord Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bjorklund, 725

N.W.2d 1, 12 (Iowa 2006) (“A lawyer who employs dishonesty as a routine

component of his [or her] normal operating procedure clearly lacks the

character required of members of the bar.”); Comm. on Prof’l Ethics &

Conduct v. Postma, 430 N.W.2d 387, 392 (Iowa 1988) (“Our profession
 27

has no place for persons who demonstrate a penchant for distorting the

truth.”).

Although Barnhill’s ethical shortcomings in this case are serious,

they do not involve the panoply of violations and auxiliary misconduct

that justified revocation in some cases. However, they are also not so

isolated as to justify a mere reprimand. See Daniels, 838 N.W.2d at 679

(imposing a reprimand for one isolated instance of filing a frivolous

claim). Instead, Barnhill committed violations in multiple matters on the

heels of a suspension for committing very similar violations in other

matters. That pattern of misconduct deserves a suspension. See Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Gallner, 621 N.W.2d 183,

187 (Iowa 2001) (“Normally, a pattern of misconduct gives rise to

enhanced sanctions.”).

We now turn to cases involving similar misconduct. In a recent

case involving primarily and exclusively an attorney’s dishonesty, we

imposed a six-month suspension. McGinness, 844 N.W.2d at 467. The

attorney violated rules 32:3.3(a)(1)(A), 32:8.4(c), and 32:8.4(d) by copying

“old certificates of service in an attempt to deceive opposing counsel” and

then “attempt[ing] to cover his tracks with more fabrication.” Id. at 462–

63. We concluded the violations’ seriousness simply outweighed the

mitigating circumstances—which included community service and an

unblemished disciplinary history:

Our citizens generally, and this court particularly, rely upon
the honesty and integrity of lawyers to ensure the fair
operation of our adversary system of justice. In the arena of
civil discovery, the honesty of lawyers is an essential
component. While McGinness’s conduct may be an
extraordinary one-time occurrence that is out of character
for him, we must protect the integrity of the judicial system
and the lawyers who work within it.

Id. at 467. We find McGinness to be a useful comparator.
 28

We imposed a three-month suspension when, in one matter, an

attorney made misleading statements to the court and persisted in a

defense position “that was patently frivolous.” Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Hohnbaum, 554 N.W.2d 550, 552 (Iowa 1996).

Similarly, in 2013, we imposed a thirty-day suspension on an attorney

who made false statements to a tribunal and engaged in conduct

prejudicial to the administration of justice by committing “acts of false

notarization” in one matter. Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Palmer, 825 N.W.2d 322, 325–26 (Iowa 2013). We noted the violations

were “less extensive than those at issue in [prior cases presenting similar

facts] and deserve[d] a correspondingly less severe sanction.” Id. at 326.

After considering these cases and the circumstances presented

here, we conclude a six-month suspension is appropriate. Barnhill’s

misconduct is just as serious as the conduct we condemned in

McGinness. And while we imposed a three-month suspension for a one-

time occurrence in Hohnbaum, Barnhill has established a pattern of

unethical conduct and a disciplinary history justifying a lengthier

suspension in this case. If that pattern continues, the sanctions will

escalate further in any future disciplinary proceedings—including

possible revocation. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct

v. Beckman, 674 N.W.2d 129, 139 (Iowa 2004) (revoking the license of a

lawyer who “repeatedly and convincingly demonstrated his inability and

unwillingness to abide by our canons of ethics”); see also Conroy, 845

N.W.2d at 67 (“Conroy has now been suspended twice with escalating

sanctions . . . . The two suspensions will be an aggravating factor should

there be future proceedings involving Conroy . . . .”).
 29

V. Conclusion.

We suspend Barnhill’s license to practice law in this state

indefinitely with no possibility of reinstatement for six months from the

date this opinion is filed. The suspension applies to “all facets of

ordinary law practice.” Iowa Ct. R. 34.23(3). Upon application for

reinstatement, Barnhill must establish she has not practiced law during

her suspension, has complied with the notification requirements of Iowa

Court Rule 34.24, and has complied with the reinstatement procedures

of Iowa Court Rule 34.25. Costs are taxed to Barnhill pursuant to Iowa

Court Rule 36.24(1).

LICENSE SUSPENDED.

All justices concur except Appel, J., who takes no part.