Iowa Supreme Court Attorney Disciplinary Board Vs. K. G. T.

IN THE SUPREME COURT OF IOWA
No. 108 / 06-0372

Filed October 20, 2006

IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

Appellant,

vs.

K. G. T.,

Appellee.

________________________________________________________________________
On review of the report of the Grievance Commission.

The Iowa Supreme Court Attorney Disciplinary Board appeals the

determination of the Grievance Commission that Iowa Court Rule 35.3

did not apply retroactively to K.G.T.’s disciplinary proceedings.

REVERSED AND REMANDED.

Charles L. Harrington and Teresa Vens, Des Moines, for appellant.

K. G. T., Larchwood, appellee, pro se.
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CADY, Justice.

In this attorney disciplinary proceeding, we must decide if the

Grievance Commission of the Supreme Court of Iowa (the “Commission”)

erred in ruling that amended Iowa Court Rule 35.3 did not apply to

permit the Iowa Supreme Court Attorney Disciplinary Board (the “Board”)

to file a complaint with the Commission against an attorney after the

Board had decided to dispose of the original complaint against the

attorney by a reprimand. On interlocutory review, we reverse the

decision of the Commission, and remand for further proceedings.

I. Background Facts and Proceedings

K.G.T. is an Iowa lawyer. In February 2005, he contacted the

Board and reported that he may have engaged in conduct in violation of

the Code of Professional Responsibility. K.G.T. self-reported that, in his

capacity as an assistant county attorney, he signed the name of a judge,

without authorization, on a hearing order in a juvenile case, and filed the

order with the clerk of court.

On June 15, 2005, the Board considered the complaint and voted

to publicly reprimand K.G.T. for his conduct. The Board prepared a

letter of public reprimand on July 20, 2005. The letter was then filed
with the clerk of the Commission, who eventually served K.G.T. with the

letter by certified mail on August 25, 2005. This service was preceded by

two unsuccessful attempts to serve K.G.T. by certified mail.

On October 19, 2005, after receiving notice of the letter of

reprimand, we declined to include the reprimand letter in the public

records of our clerk of court. Instead, we remanded the matter to the

Board for further consideration.

After further consideration, the Board filed a two-count complaint

against K.G.T. Count I of the complaint was based on the same matter
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that was the subject of the letter of reprimand. K.G.T. filed an answer to

the complaint. The answer to count I admitted the allegations, but

K.G.T. additionally moved to dismiss the count. He claimed we had no

authority to reject the Board’s letter of reprimand because the rule

authorizing the supreme court to remand a letter of reprimand was not

effective until July 1, 2005, and the rule did not apply to the conduct he

reported in February 2005.

The Commission granted the motion to dismiss count I. It held

that the rule authorizing the supreme court to reject a letter of public

reprimand by the Board could not be applied retroactively to conduct by

an attorney that the Board determined, prior to the effective date of the

rule, would result in a letter of public reprimand.

The Board sought, and we granted, permission to appeal the

decision of the Commission. The Board argued that the rule authorizing

the supreme court to remand a letter of public reprimand for further

consideration by the Board applies retrospectively to all cases pending at

the time the rule became effective as long as a hearing on the complaint

has not yet been commenced before the Commission.

II. Standard of Review
“We review rulings and reports of the grievance commission de

novo.” Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. D.J.I., 545

N.W.2d 866, 871 (Iowa 1996) (citing Iowa Sup. Ct. R. 118.10 (current

version at Iowa Ct. R. 35.10(1))).

III. Discussion

The Board is charged with the responsibility to accept and act

upon complaints from any person alleging ethical violations by lawyers.

See Iowa Ct. Rs. 34.1, 34.5. In response to a complaint, the Board may

pursue a variety of actions, including taking the complaint under
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consideration at periodic Board hearings and meetings. Iowa Ct. R. 34.8.

After considering a complaint at such a hearing or meeting, the Board

may, among other actions, reprimand the lawyer and file a written

reprimand as provided by rule 35.3. See Iowa Ct. R. 34.11(4).

Rule 35.3 governs the reprimand of an attorney by the Board. See

Iowa Ct. R. 35.3. Prior to July 1, 2005, the rule provided that a copy of

the reprimand be filed by the Board with the clerk of the Commission,

who is required to serve the reprimand on the attorney. Id. After service,

an attorney who fails to file an exception to the reprimand is deemed to

consent that the reprimand be final and public. Id. The clerk then

provides the supreme court with a copy of the reprimand, together with a

declaration that no exception was taken, and the supreme court must

direct the reprimand be made a public record of the court. Id. This

action then concludes the matter.

On April 20, 2005, rule 35.3 was amended to give the supreme

court the option of remanding the matter to the Board for consideration

of another disposition, in lieu of concluding the matter by making the

reprimand a public record. See Iowa Ct. R. 35.3. This rule allows the

supreme court to reject reprimands viewed to be too harsh or too lenient,
or otherwise inappropriate. Importantly, the amended rule did not go

into effect until July 1, 2005. Id.

The dispute in this case arises because the amended rule went into

effect after the Board decided to issue a reprimand. K.G.T. asserts that

count I of the complaint must be governed by the procedure that was in

place at the time the Board voted to impose a reprimand. He claims, and

the Commission held, the current procedure giving the supreme court

the option of remanding a Board reprimand for further consideration

cannot apply retroactively to count I of the complaint.
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It is the general rule that statutes and rules are presumed to apply

prospectively to actions that arise after the effective date of the

enactment. See Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d

682 (Iowa 2002); D.J.I., 545 N.W.2d at 872. This presumption exists only

if there is no additional enactment that expressly makes the law or rule

retrospective. See In re Marriage of Williams, 595 N.W.2d 126, 130 (Iowa

1999) (“A statute is presumed to be prospective in its operation unless

expressly made retrospective.” (Citation omitted.)). This same approach

“applies to our construction of court rules.” D.J.I., 545 N.W.2d at 872.

There is a disciplinary rule that specifically addresses the

prospective and retrospective application of the other disciplinary rules

governing attorney discipline. Thus, we look to the rule for guidance.

Iowa Court Rule 35.24 provides:

These rules shall have prospective and retrospective
application to all alleged violations, complaints, hearings,
and dispositions thereof on which a hearing has not actually
been commenced before the Grievance Commission prior to
the effective date of these rules.

In D.J.I., we considered the application of this rule and recognized that

the rules governing Commission proceedings apply retroactively to
alleged violations and complaints when a hearing has not been

commenced at the time of the effective date of the rule. 545 N.W.2d at

872. Thus, an amendment to a rule applies to a pending disciplinary

matter unless a hearing before the Commission has been commenced.

Id. In D.J.I., we held the pertinent rule had retroactive application

because “[t]he record show[ed] a hearing on the merits of the disciplinary

complaint filed by the Board against respondent ha[d] not been

commenced and [was] stayed pending resolution of this interlocutory

appeal.” Id.
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At the time rule 35.3 was amended to authorize the supreme court

to reject a Board reprimand, the matter in this case had not reached the

commission stage of the disciplinary process. Instead, the matter was

still before the Board, and it sought to dispose of the matter without

filing a complaint with the Commission for prosecution. See Iowa Ct. R.

34.11(5). The only action that had been taken on the original complaint

at the time of the effective date of the amendment to rule 35.3 was the

Board’s decision to dispose of the complaint by a reprimand. Thus, no

hearing had “actually been commenced before the Grievance Commission

prior to the effective date” of amended rule 35.3. See Iowa Ct. R. 35.24.

As a result, the amended rule applies retrospectively pursuant to the

language of rule 35.24.

Finally, the Board had not filed its reprimand with the clerk of the

Commission at the time of the effective date of the new rule, and K.G.T.

had not been placed in a position to object or consent to the reprimand.

Thus, K.G.T. did not take any action in reliance on the prior procedural

rule. For that reason, the retrospective application of the rule to this

case does not, contrary to the decision of the Commission, implicate any

additional principles of fundamental fairness or fair play that might
entitle K.G.T. to relief.

IV. Conclusion

We conclude the Commission erred in dismissing count I of the

complaint. We reject all grounds relied upon by the Commission. We

reverse the decision of the Commission and remand for further

proceedings.

REVERSED AND REMANDED.

All justices concur except Streit and Hecht, JJ., who take no part.