IN THE SUPREME COURT OF IOWA
No. 10–0520
Filed October 15, 2010
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
PETER SEAN CANNON,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Attorney disciplinary action involving accusations of plagiarism
and an unreasonable fee. ATTORNEY REPRIMANDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
Peter S. Cannon, West Des Moines, pro se.
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APPEL, Justice.
In this disciplinary proceeding, an Iowa attorney is charged with
plagiarism in connection with the filing of briefs in federal court. He is
also accused of charging his client an unreasonable fee for the
preparation of those briefs. The Grievance Commission of the Supreme
Court of Iowa found that the attorney committed plagiarism but did not
charge an excessive fee. The commission nonetheless recommended a
six-month suspension of the attorney’s license. The attorney has filed a
statement urging a more lenient sanction. Upon our de novo review, we
agree with the findings of the commission, but conclude a public
reprimand is warranted.
I. Factual and Procedural History.
The Iowa Supreme Court Attorney Disciplinary Board filed a
complaint against Iowa attorney Peter Cannon arising out of his
representation of a client in bankruptcy proceedings. In its complaint,
the board charged that Cannon filed a brief and a reply brief—in support
of the removal of the attorneys for the bankruptcy trustee—which were
largely plagiarized from a published article. The board also alleged that a
bill of $5737.50 for 25.5 hours of work for Cannon’s execution of the
briefs was excessive.
The underlying dispute from which this ethical complaint arises is
complex. Attorney Jay Marcus brought an action, on behalf of his
clients, the Cains, against Ted Burghoff in state court alleging that
Burghoff had swindled money from the Cains through an investment
scheme involving the acquisition of IPO stock. During the pendency of
that action, the Cains deposed John Petit. Petit, believing that the focus
of the deposition centered on Burghoff’s conduct, was unrepresented at
the time. During the deposition, however, Marcus began to aggressively
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question Petit about his conduct regarding the development of the
scheme to acquire the IPO stock. Ultimately, Petit refused to answer the
questions posed by Marcus.
Eventually, Burghoff filed for bankruptcy protection, and Marcus
was appointed as special counsel to the bankruptcy trustee to pursue
Petit. Attorney Mark Sherinian initially represented Petit in the
bankruptcy proceeding, but he sought Cannon’s help in the litigation.
Sherinian and Cannon believed that Marcus had a personal and legal
vendetta against Petit due, in part, to the attorney’s conduct during
Petit’s deposition and his aggressive legal style. They also believed that
Marcus’s continued representation of the Cains in the state court
proceeding was inappropriate. As a result, Sherinian and Cannon
believed that Marcus was not “disinterested” as required by the
Bankruptcy Code and sought to have him disqualified as special counsel
in the bankruptcy proceedings.
Cannon filed a motion to disqualify Marcus with the bankruptcy
court, along with a twenty-one-page brief. Following the hearing,
Cannon submitted a further brief in support of the motion. Bankruptcy
Judge Paul Kilburg denied Cannon’s motion to disqualify Marcus as
special counsel for the trustee.
After the motion was denied, Judge Kilburg, having found
Cannon’s briefs to be of unusually high quality, issued an order directing
Cannon to certify that he was the author of the two briefs in question.
Cannon filed a response indicating that both briefs were his sole
responsibility and that they “relied heavily” upon an article entitled Why
Professionals Must be Interested in “Disinterestedness” Under the
Bankruptcy Code by William H. Schrag and Mark C. Haut. Cannon
further admitted that his initial brief “exceeded permissible fair use
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without attestation” of the source. He reported he had informed his
client about his mistake as well as the bar association.
The bankruptcy court initiated sanction proceedings against
Cannon. The bankruptcy court concluded that seventeen of the nineteen
pages of legal analysis in the initial brief were verbatim excerpts from the
article, with only variations for format and deletion of matters
detrimental to Cannon’s position. Although the bankruptcy court noted
that the posthearing brief contained more original material, the
bankruptcy court found that it had several pages of string citations from
the article, including the authors’ parenthetical notations. The
bankruptcy court also determined that Cannon charged his client an
unreasonable fee to prepare the two briefs.
In light of its conclusion that Cannon committed plagiarism and
charged an unreasonable fee, the bankruptcy court ordered Cannon to
(1) complete a law-school-equivalent course in professional
responsibility, (2) disgorge the fee charged to his client for the briefs’
preparation, (3) formally notify the authors of the plagiarized article and
provide the court with a copy of the correspondence, and (4) provide
copies of the sanction order to Chief Judge Pratt and the board.
The board commenced an investigation. Originally, the board and
Cannon agreed to a public reprimand. This court, however, entered an
order indicating it could not accept a public reprimand “under the
limited record provided.”
The board then initiated proceedings against Cannon. In
connection with the alleged plagiarism, the board asserted that Cannon
violated Iowa Rules of Professional Conduct 32:8.4(c) (conduct involving
dishonesty, fraud, deceit, or misrepresentation), 32:3.3(a) (false
statement of fact or law to a tribunal), and 32:7.1(a) (false or misleading
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communication about the lawyer or lawyer’s services). With respect to
the billings for the briefs, the board charged Cannon with violation of
rule 32:1.5(a) (a lawyer shall not collect an unreasonable fee).
When the matter came to a hearing, the board did not present
witnesses but relied instead upon exhibits and Cannon’s admissions.
Cannon testified that he did not intend to plagiarize when he started
writing the brief and regretted his error. Prior to preparing the brief,
Cannon testified that he had conducted research, responded to emails
from opposing counsel, and reviewed some thirty-two bankers boxes of
documents. By the time the brief was due, however, Cannon testified
that he was time-pressed and made the wrong decision to plagiarize large
sections of the Schrag and Haut article verbatim. Cannon testified that
he did not simply copy the article, but spent time looking at cases,
looking at the facts, and analyzing the opposition papers.
The commission concluded that Cannon’s hearing and posthearing
briefs constituted plagiarism. As a result, the commission found that
Cannon violated rules 32:8.4(c), 32:3.3(a), and 32:7.1(a). The
commission, however, concluded that the board had not proven that
Cannon charged an excessive fee in violation of rule 32:1.5(a). That
conclusion was based upon the fact that Cannon (1) forgave the fees
billed to the client for the two briefs at issue, (2) made other financial
accommodations for his client by paying for other counsel to be “brought
up to speed” and by waiving fees for other legal work, and (3) did more
work on the briefs than mere plagiarism. The commission recommended
that Cannon’s license to practice law be suspended for a period of not
more than six months.
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II. Standard of Review.
This court reviews attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bernard, 653 N.W.2d 373,
375 (Iowa 2002). The board has the burden to prove an ethical violation
by a “ ‘convincing preponderance of the evidence.’ ” Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864 (Iowa 2010)
(quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Mulford, 625
N.W.2d 672, 679 (Iowa 2001)).
III. Discussion.
A. Plagiarism. In Iowa Supreme Court Board of Professional
Ethics & Conduct v. Lane, 642 N.W.2d 296 (Iowa 2002), we addressed the
question of whether plagiarism constituted an ethical violation. In Lane,
the attorney submitted a posttrial brief in federal court that was largely
plagiarized from a treatise. Lane, 642 N.W.2d at 298. Just as in this
case, a federal judge asked Lane to certify the author or authors of the
brief. Id. Unlike this case, however, Lane did not immediately
acknowledge the plagiarism and failed to respond to the court for several
months. Id. When Lane did respond, he buried the plagiarized treatise
in a four-page, single-spaced list of sources. Id.
In Lane, we determined that plagiarism amounts to a
misrepresentation to the court. Id. at 300; see Iowa R. Prof’l Conduct
32:8.4(c) (prohibiting lawyers from engaging in “conduct involving . . .
misrepresentation”). We note that other courts considering the issue
have reached the same conclusion. See, e.g., In re Ayeni, 822 A.2d 420,
421 (D.C. 2003) (finding attorney committed an ethical violation by
copying codefendant’s brief); In re Zbiegien, 433 N.W.2d 871, 875 (Minn.
1988) (finding plagiarism in a seminar paper constituted misconduct);
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Columbus Bar Ass’n v. Farmer, 855 N.E.2d 462, 467–68 (Ohio 2006)
(finding ethical violation for copying prior attorney’s brief).
We recognize that the term “plagiarism” is something of a scarlet
letter that imposes a brand on a wide variety of behaviors. We do not
believe our ethical rules were designed to empower the court to play a
“gotcha” game with lawyers who merely fail to use adequate citation
methods. This case, however, does not involve a mere instance of less
than perfect citation, but rather wholesale copying of seventeen pages of
material. Such massive, nearly verbatim copying of a published writing
without attribution in the main brief, in our view, does amount to a
misrepresentation that violates our ethical rules. We note that before
this court, Cannon has candidly admitted that his activity represented
dishonesty and not negligence or incompetence.
We are less concerned about the alleged plagiarism in the
posthearing brief. The claim of plagiarism in the posthearing brief is
based on a lengthy string citation, including parentheticals, lifted from
the Schrag and Haut article. While parentheticals can include original
ideas or creative expression, often they merely represent summaries of
cases without any unique intellectual work product. Nonetheless, it is
clear that in the main brief, Cannon engaged in a material
misrepresentation by copying page after page of original material and, in
doing so, violated rule 32:8.4(c).
B. Unreasonable Fee. The commission found that the board did
not meet its burden in proving an unreasonable fee in this case. In
reviewing this issue, we note that the burden is on the board to show an
ethical violation by a “convincing preponderance of the evidence.”
Lickiss, 786 N.W.2d at 864.
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Upon our de novo review, we conclude, like the commission, that
the board has not met its burden. Unlike in Lane, where there was little
in the record to support the expenditure of time writing the plagiarized
briefs, Cannon testified that he spent the time he billed on record review
and research leading up to the filing of the briefs. He testified that he
examined the facts of the case, looked through volumes of evidence, and
conducted research on cases. He testified that he did the amount of
work billed but simply took what amounted to a very unwise shortcut
when he ran out of time to file the brief. While we engage in a de novo
review, we give consideration to the commission’s apparent
determination that Cannon was a credible witness. In light of the lack of
contrary evidence, and in light of the commission’s determination of
credibility, we conclude that the board failed to meet its burden by a
“convincing preponderance of the evidence” that Cannon charged an
excessive fee. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wright, 758
N.W.2d 227, 228 (Iowa 2008) (noting that we give weight to the
commission’s credibility findings).
C. Sanction. There is no standard discipline for any particular
type of attorney misconduct. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Kadenge, 706 N.W.2d 403, 410 (Iowa 2005). Nonetheless, we strive to
maintain a certain level of consistency. Id. In determining the
appropriate sanction, this court considers the nature of the violation or
violations, the protection of the public, the need to deter similar
misconduct by others, the lawyer’s fitness to practice, and the court’s
duty to uphold the integrity of the profession. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Iversen, 723 N.W.2d 806, 810 (Iowa 2006).
In Lane, we suspended the attorney’s license for six months. Lane,
642 N.W.2d at 302. It is clear, however, that Lane represents a more
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egregious case than this proceeding. In Lane, the attorney not only
committed plagiarism, but attempted to conceal that misconduct from
the court. Id. at 298. Further, in Lane, we found that the attorney
charged an excessive fee. Id. at 301. Neither an effort of concealment
nor an excessive fee is present in this case. Yet, Cannon copied
extensive portions of the Schrag and Haut article and omitted
unfavorable passages of it. This is misrepresentation, plain and simple.
In mitigation, we note that Cannon has engaged in a series of
remedial actions as required by the federal court. He refunded all his
fee, and even paid Sherinian to get up to speed on the file after his
plagiarism was uncovered. Conversely, Cannon has a history of prior
ethical problems, which amounts to an aggravating factor.
Under all the facts and circumstances, we conclude that a public
reprimand is the appropriate sanction in this matter. See Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Newman, 748 N.W.2d 786, 789 (Iowa 2008)
(publicly reprimanding attorney for violation of rule 32:8.4(c)). We
recognize that we originally rejected a public reprimand in light of the
limited record presented to us. The commission has now developed a
fuller record, and, after our review, we conclude that a public reprimand
is appropriate.
IV. Conclusion.
In light of the above facts and circumstances, Peter Cannon is
publically reprimanded for the misrepresentations involved in this
matter.
ATTORNEY REPRIMANDED.