IN THE SUPREME COURT OF IOWA
No. 18–1830
Filed January 25, 2019
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
BRYAN JOHN HUMPHREY,
Appellant.
On review of the report of the Iowa Supreme Court Grievance
Commission.
Grievance commission recommends suspension of an attorney’s
license for violations of ethical rules. LICENSE SUSPENDED.
Tara van Brederode and Andrew J. Boettger, Des Moines, for
complainant.
Bryan John Humphrey, Fort Madison, pro se.
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MANSFIELD, Justice.
An attorney failed to prosecute an appeal for one client, never
communicated with a second client in a criminal matter, and failed to
address his loss of a third client’s abstract of title. The attorney also
dragged his feet in responding to the Iowa Supreme Court Attorney
Disciplinary Board (the Board) and, in one instance, misrepresented to the
Board what he had done. In addition, the attorney has a significant history
of discipline for similar misconduct. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Humphrey, 812 N.W.2d 659 (Iowa 2012); Iowa Supreme
Ct. Bd. of Prof'l Ethics & Conduct v. Humphrey, 551 N.W.2d 306 (Iowa
1996); Comm. on Prof'l Ethics & Conduct v. Humphrey, 529 N.W.2d 255
(Iowa 1995).
The attorney and the Board reached a stipulation as to facts and
ethical rule violations, which included a recommended sixty-day
suspension of the attorney’s license. The Iowa Supreme Court Grievance
Commission found this sanction to be too lenient and recommended an
indefinite suspension of at least eighteen months. We likewise find the
stipulated sanction to be too lenient. We impose an indefinite suspension
with no possibility of reinstatement for one year.
I. Facts and Procedural History.
Bryan Humphrey is a solo practitioner in Fort Madison who was
admitted to the Iowa bar in 1981. This disciplinary proceeding relates to
Humphrey’s representation of three different clients.
A. The A.M. Matter. In 2015 and 2016, Humphrey represented
A.M., the mother, in a private termination of parental rights proceeding.
After filing a notice of appeal on A.M.’s behalf, Humphrey did nothing to
advance the appeal. Humphrey later explained that his client had
indicated she no longer wished to pursue the appeal. However, as
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Humphrey put it, “I did not make a responsive filing with the Court to
dismiss the appeal, but rather allowed the dismissal to occur by order of
the Court; obviously not a prudent decision on my part.”
Thus, Humphrey ignored a notice of default from the clerk of the
appellate courts, failed to pay an assessed penalty of $150, and simply
allowed the appeal to be dismissed pursuant to Iowa Rule of Appellate
Procedure 6.1202.
B. The Gerety Matter. In 2017, Daniel Francis Gerety was
charged with operating while intoxicated, first offense, in violation of Iowa
Code section 321J.2. He retained Humphrey to represent him and paid
him an $800 retainer. Humphrey entered an appearance on Gerety’s
behalf on March 22, 2017.
When Gerety did not appear for his pretrial conference on July 11,
the district court rescheduled the pretrial conference for August 22 and
the trial for September 13. On August 22, Humphrey informed the court
that Gerety wanted to submit a written guilty plea. On September 11,
Humphrey moved to continue the trial on the ground that Gerety lived in
California and needed more time to file the written guilty plea. The court
granted a continuance, and Gerety ultimately signed the written guilty plea
on September 19, which Humphrey filed on September 25.
Meanwhile, Gerety had mailed a complaint to the Board with a
September 11 postmark, complaining that he had “never heard from”
Humphrey after hiring him and paying an $800 retainer. As Gerety stated,
“I would call & or text . . . at least 50 times over the next 5 mos. For an
update or progress report & wouldn’t hear anything from him. . . . I don’t
know what is going on.”
C. The Bergund Matter. Also in 2017, Paul Bergund tried without
success to get Humphrey to deliver an abstract of title, which Humphrey
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had been holding since 1989 and had apparently lost or misplaced. When
Bergund decided to file a complaint with the Board, Humphrey initially did
not respond, but later told the Board he had “taken steps to remedy the
problem by extending [an] offer to cover the cost of preparing a
replacement abstract.” This claim was not accurate; Humphrey had not
communicated with Bergund. Two months later, after Bergund followed
up with the Board, Humphrey finally did contact Bergund, telling him to
check with the abstract company and find out what the cost of a
replacement abstract would be.
D. Failures to Respond to the Board. Humphrey repeatedly
ignored Board inquiries about the A.M., Gerety, and Bergund matters. In
the A.M. matter, Humphrey left the Board’s original certified letter
unclaimed. He then failed to respond to a Board letter personally delivered
to him by the Lee County Sheriff’s Office. He also disregarded the Board’s
notice of complaint, finally responding only when this court issued a notice
of possible temporary suspension of his law license.
In the Gerety matter, Humphrey ignored the Board’s requests for
copies of his correspondence with Gerety, an itemization of his time spent
on the Gerety matter, and his trust accounting for Gerety’s advance fees.
In the Bergund matter, as in A.M., Humphrey did not respond to the
Board’s notice of complaint until he received a follow-up notice threatening
a temporary suspension of his license.
E. This Proceeding. On June 7, 2018, the Board filed a complaint
against Humphrey. Humphrey answered on July 16, admitting the factual
allegations of the complaint but not the alleged ethical violations. On
August 9, the parties entered into and submitted a stipulation as to facts,
exhibits, disciplinary rule violations, mitigating and aggravating
circumstances, and recommended sanction. See Iowa Ct. R. 36.16. The
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parties’ stipulation also waived formal hearing before the commission. See
id. The parties jointly recommended a sixty-day suspension of
Humphrey’s law license.
On October 19, the commission accepted the parties’ factual
stipulation, agreed with most of the stipulated rule violations, but
recommended a much longer suspension involving no possibility of
reinstatement for eighteen months.
II. Standard of Review.
“When the parties enter into a stipulation, . . . they are bound by the
stipulated facts, which we interpret with reference to their subject matter
and in light of the surrounding circumstances and the whole record.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 884 N.W.2d 772, 777 (Iowa
2016). However, “[w]e are not bound by stipulations as to ethical violations
or the appropriate sanction.” Id.
III. Rule Violations.
We do not believe a detailed discussion of Humphrey’s rule
violations is needed. The parties stipulated, the commission concluded,
and we agree that Humphrey violated Iowa Rule of Professional Conduct
32:1.3 (diligence) in all three matters, rule 32:1.4 (communication) in the
Gerety and Bergund matters, and rule 32:3.2 (expediting litigation) in the
A.M. and Gerety matters. Humphrey also violated rule 32:3.4(c)
(disobeying an obligation under the rules of a tribunal) in the A.M. matter
and rule 32:8.4(d) (engaging in conduct prejudicial to the administration
of justice) in the Gerety matter. Furthermore, Humphrey violated rule
32:8.1(b) by failing to respond to lawful demands from the Board.
Additionally, the Board charged Humphrey with engaging in
conduct prejudicial to the administration of justice, contrary to rule
32:8.4(d), in the Bergund matter. Bergund was not a litigated proceeding;
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typically, violations of rule 32:8.4(d) arise in litigation. See, e.g., Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo, 799 N.W.2d 524, 534 (Iowa
2011) (“Conduct is prejudicial to the administration of justice only when it
impedes ‘the efficient and proper operation of the courts or of ancillary
systems upon which the courts rely.’ ” (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 768 (Iowa 2010))).
Nevertheless, our precedent does indicate that Humphrey engaged in
conduct prejudicial to the administration of justice when he failed to
respond to the Board’s inquiry in Bergund and later gave inaccurate
information that further delayed a resolution of the matter. See, e.g., Iowa
Supreme Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519, 525 (Iowa
2017). Lastly, we agree that Humphrey intentionally misrepresented to
the Board what he had done to address the lost abstract of title in the
Bergund matter, thereby violating rules 32:8.1(a) and 32:8.4(c).
However, the Board did overcharge this case to some extent. For
guidance in future cases, we will discuss that overcharging briefly.
First, the Board alleged that Humphrey violated rule 32:8.4(a) in all
three matters. Rule 32:8.4(a) provides, “It is professional misconduct for
a lawyer to . . . violate . . . the Iowa Rules of Professional Conduct . . . .”
We have repeatedly held that this rule “does not create a separate ethical
infraction.” Dunahoo, 799 N.W.2d at 534; see also Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Netti, 797 N.W.2d 591, 598 n.1 (Iowa 2011); Templeton,
784 N.W.2d at 769. We reiterate that reminder today. Rule 32:8.4(a) does
not need to be automatically tacked onto every count of an attorney
disciplinary complaint.
Second, the Board alleged that Humphrey violated rule 32:3.4(c) in
the Gerety and Bergund matters. We do not agree. Unlike in A.M.,
Humphrey disobeyed no court order in those two matters. See Iowa
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Supreme Ct. Att’y Disciplinary Bd. v. Hedgecoth, 862 N.W.2d 354, 362
(Iowa 2015) (“Knowing disobedience occurs when noncompliance occurs
notwithstanding the attorney’s actual knowledge of the court order.”). In
Gerety, Humphrey put off court deadlines by seeking and obtaining
unjustified extensions. That was improper, but it didn’t violate rule
32:3.4(c). Bergund was not even a litigated proceeding.
Third, we are not convinced that Humphrey violated rule 32:1.15
(safekeeping client property) simply because he could not locate an
abstract of title twenty-eight years after it had been entrusted to him. If
that were true, any loss of client property would be transformed into an
ethical violation. Rule 32:1.15 is not a strict liability provision; rather, it
sets out a standard of care, that “[a] lawyer should hold property of others
with the care required of a professional fiduciary.” See id. cmt. [1].
Humphrey may have failed to adhere to that standard of care, but the
record does not so establish by the required convincing preponderance of
the evidence.
IV. Discipline.
We now consider the appropriate sanction. The parties have jointly
recommended a sixty-day suspension, whereas the commission
recommends an eighteen-month suspension. We are not bound by the
parties’ stipulation or the recommendation of the commission, although
we give the commission’s recommendation respectful consideration. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130, 144 (Iowa
2018).
In determining the sanction, “we take guidance from prior cases.”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Saunders, 919 N.W.2d 760, 764
(Iowa 2018) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Smith, 904
N.W.2d 154, 159 (Iowa 2017)). An appropriate sanction should consider
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the nature of the violations, the attorney’s fitness to continue
in the practice of law, the protection of society from those unfit
to practice law, the need to uphold public confidence in the
justice system, deterrence, maintenance of the reputation of
the bar as a whole, and any aggravating or mitigating
circumstances.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Crotty, 891 N.W.2d 455, 466
(Iowa 2017) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey,
761 N.W.2d 53, 61 (Iowa 2009)).
Seven years ago, in 2012, although “[t]he core violation committed
by Humphrey was the neglect of a single client matter,” we suspended
Humphrey’s law license indefinitely with no possibility of reinstatement for
three months. Humphrey, 812 N.W.2d at 666, 669. We acknowledged
that “[t]aken on their own, Humphrey’s current violations might merit no
more than a reprimand.” Id. at 669. Yet we emphasized that Humphrey’s
prior ethical transgressions from the 1990s “must be considered relevant
aggravating factors.” Id.
In 1994, Humphrey had received a public reprimand for failing to
respond to inquiries from the Committee on Professional Ethics and
Conduct. Id. In 1995, we had suspended Humphrey’s license for sixty
days after he neglected three probate matters and a postconviction-relief
matter, and “stonewalled two judges, as well as the [Committee on
Professional Ethics and Conduct].” Humphrey, 529 N.W.2d at 256–59. A
year later, in 1996, we had suspended Humphrey’s license indefinitely
with no possibility of reinstatement for three years after he had neglected
several matters, had been nonresponsive to courts, clients, and the Board,
and had engaged in deceptive conduct with the court. Humphrey, 551
N.W.2d at 307–09.
We therefore reached the following conclusion in 2012:
Although some time has lapsed from these violations, it
is disheartening that Humphrey has resumed some of the
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habits that led to his difficulties and our imposition of severe
sanctions in the 1990s. While the current violations do not
involve fraud or dishonesty, and are limited to a single client
matter, the earlier pattern of neglect and nonresponsiveness
has reemerged. Therefore, despite the passage of time, and
the somewhat narrower scope of the present violations as
compared to those we addressed in 1995 and 1996, a
substantial suspension is appropriate to protect the public
and uphold the integrity of the profession.
Humphrey, 812 N.W.2d at 669.
Today is the fourth time we must consider suspending Humphrey’s
license. Once again, the violations amount to “neglect plus.” Humphrey
let three client matters slide, failed to communicate with two of those
clients, acted deceptively with respect to one of those clients, and generally
treated Board inquiries as a nuisance rather than items deserving a
prompt and accurate response. The starting point for all three violations,
though, was neglect. As the commission put it, “Humphrey has been
sanctioned in the past multiple times for [exactly the] same behavior he
now is in trouble for.”
In light of Humphrey’s prior disciplinary record, his current
violations involving three separate clients, and our imposition of a three-
month suspension in 2012 for related but less serious misconduct, we
cannot approve the parties’ proposed sixty-day suspension. It is not
stringent enough.
The commission has recommended an indefinite suspension of at
least eighteen months. An eighteen-month suspension primarily for
neglect is not without precedent. In Iowa Supreme Court Attorney
Disciplinary Board v. Cunningham, we imposed an eighteen-month
suspension. 812 N.W.2d 541, 553, 554 (Iowa 2012). There, the attorney
did not ensure his client properly completed discovery requests. Id. at
547. This ultimately led to the client being sanctioned without her
knowledge. Id. The same attorney also failed to file a client’s bankruptcy
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petition. Id. at 549. He then misrepresented to the client and her divorce
attorney that he had filed the petition. Id. He even sent a copy of a
purported petition to his client to cover up the neglect. Id. In levying an
eighteen-month suspension, we noted, “When multiple instances of
neglect are involved and combine with other violations or cause significant
harm to the clients, we have imposed a longer period of suspension.” Id.
at 551 (quoting Iowa Supreme Court Att’y Disciplinary Bd. v. Carpenter,
781 N.W.2d 263, 270 (Iowa 2010)).
Likewise, in Iowa Supreme Court Attorney Disciplinary Board v. Joy,
we imposed an eighteen-month suspension on an attorney who had
neglected several client matters, had “engaged in a pattern of
misrepresentations designed to conceal his neglect,” and had failed to
cooperate and respond on time to the Board. 728 N.W.2d 806, 809–13,
814, 816 (Iowa 2007). There, we cited multiple cases imposing
suspensions ranging from one to three years, stating, “Where neglect is
compounded by other serious offenses . . . this court has suspended the
license of the offending attorney for substantial periods of time.” Id. at
815–16; Carpenter, 812 N.W.2d at 553.
Yet Cunningham and Joy involved misconduct more egregious than
the misconduct here. In Cunningham, the attorney appeared to leave his
practice suddenly, thus requiring other attorneys to take over and attempt
to salvage his cases. Cunningham, 812 N.W.2d at 543–44. Cunningham’s
conduct caused significant harm to his clients, and he was completely
nonresponsive to the Board, even during the temporary suspension that
issued because of his nonresponsiveness. Id. at 554.
In Joy, the “persistent pattern of delinquencies, missed deadlines,
and evasive and misleading statements” pertained to several estates, and
in some cases, led to years of unnecessary delay. Joy, 728 N.W.2d at 812.
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One estate was open for over five-and-a-half-years during which time
seven delinquency notices were issued. Id. at 810. Another estate was
open for over four years prior to closure, during which time two
delinquency notices were issued and eventually another attorney was
hired to complete the work. Id. at 809.
Humphrey’s misconduct in the present case may not have been as
serious as the misconduct in Cunningham or Joy, but his three prior
suspensions for neglect stand out. In Iowa Supreme Court Attorney
Disciplinary Board v. Hearity, another case involving neglect, we imposed
a one-year suspension. 812 N.W.2d 616, 622–23 (Iowa 2012). Hearity
neglected two cases in violation of rule 32:1.3. Id. at 618–19 They
included one estate that was needlessly left open for three and one-half
years and one appeal Hearity failed to prosecute. Id. As to the appeal,
Hearity’s conduct was similar to Humphrey’s here. When a criminal client
filed a pro se appeal following trial, Hearity was notified that he was
presumed counsel of record on the appeal, and he was instructed to
promptly prosecute the appeal or file a motion to withdraw. Id. at 617.
Hearity took no action on the appeal, and the appeal was dismissed after
he failed to respond to a notice of default. Id. at 617–18. For these and
some other violations we imposed a one year suspension and required
Hearity to successfully complete the Multistate Professional Responsibility
Examination (MPRE) prior to reinstatement. Id. at 623.
Hearity also involved additional, significant misconduct. Overall,
his ethical violations spanned five client matters and included neglect,
unreasonable fees, failure to communicate about fees, failure to properly
terminate representation, failure to respond to the Board, unauthorized
practice of law, and making a false statement to the court. Id. at 616, 618–
21. Hearity had also been suspended on two prior occasions, once for
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failure to comply with an obligation owed to the Iowa Department of
Revenue and once on a temporary basis for not responding to board
inquiries. Id. at 617.
We find Hearity a relevant precedent here. After considering
Humphrey’s violations, his fitness to continue practicing law, the
protection of society, the need to uphold public confidence in the justice
system and in the bar, and especially Humphrey’s prior disciplinary
record, we suspend Humphrey’s license indefinitely with no possibility of
reinstatement for one year. As in Hearity, we also direct that Humphrey
take and pass the MPRE before any reinstatement. See id. at 623.
We note Humphrey “continues to fail to honor the ethical boundaries
of the profession.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell, 901
N.W.2d 513, 517 (Iowa 2017). As we stated in Powell, “At some point,
public protection and the reputation of the profession justify the
revocation of a license to practice law.” Id.
V. Disposition.
Humphrey’s license to practice law in the State of Iowa is suspended
with no possibility of reinstatement for one year from the filing of this
opinion. This suspension applies to all facets of the practice of law. See
Iowa Ct. R. 34.23(3). Humphrey must comply with all notification
requirements of Iowa Court Rule 34.24. Humphrey must file a written
application for reinstatement of his license. See id. r. 34.23(1). Humphrey
must comply with all applicable requirements of Iowa Court Rule 34.25 for
reinstatement and establish he has not practiced law during the
suspension period. Before reinstatement, Humphrey must also
successfully complete the MPRE. The costs of the proceeding are taxed to
Humphrey pursuant to Iowa Court Rule 36.24(1).
LICENSE SUSPENDED.