Iowa Supreme Court Attorney Disciplinary Board v. Attorney Doe No. 819

IN THE SUPREME COURT OF IOWA
No. 16–0652

Filed October 28, 2016

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Appellee,

vs.

ATTORNEY DOE NO. 819,

Appellant.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

Respondent appeals grievance commission’s order deeming the

allegations in the Board’s complaint admitted due to respondent’s failure

to timely file an answer or seek an extension. REVERSED AND

REMANDED.

David L. Brown and Alexander E. Wonio of Hansen, McClintock &
Riley, Des Moines, for appellant.

Tara M. van Brederode, Wendell J. Harms, and Susan A. Wendel,

Des Moines, for appellee.
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APPEL, Justice.

In this case, a former client of Attorney Doe’s filed a complaint

against Doe with the Iowa Supreme Court Attorney Disciplinary Board

(Board). The complaint alleged various ethical violations in connection

with a variety of investments the client made at Doe’s suggestion when

Doe represented the client. Doe responded with a lengthy letter denying

the allegations. After investigating the matter, the Board filed charges

alleging a number of ethical violations arising from transactions involving

the former client.

After the filing of formal charges, Doe’s counsel and the attorneys

for the Board engaged in communications regarding the complaint. The

Grievance Commission of the Supreme Court of Iowa (commission)

entered a scheduling order in the matter. Doe, however, did not file an

answer to the complaint or file a written motion for an extension of time

to file the answer. According to Doe’s counsel, his client could not

respond because he was prevented from doing so due to health issues

and because the FBI had seized certain documents related to the

allegations in the complaint.

The Board filed a motion with the commission to extend the

deadlines. After a hearing, the commission found that Doe had not filed

an answer to the complaint and had not filed a timely written motion for

extension of time to file the answer. The commission cited Iowa Court

Rule 36.7 (2015), which provides that if a respondent does not answer

the complaint or file a written application for extension of time to answer

within twenty days, the allegations in the complaint are “considered

admitted.” The Board’s motion to extend deadlines was granted, but the

commission’s order limited the issues at trial to the question of

sanctions. The commission denied Doe’s motion to reconsider.
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We granted Doe’s application for interlocutory review of the

commission’s order. For the reasons expressed below, we reverse the

order of the commission and remand the case for further proceedings.

I. Factual and Procedural Background.

On February 18, 2013, the Board received a complaint from a

former client of Doe. In general, the complaint alleged that from 2004 to

2006, Doe induced the former client to make various loans and

investments without disclosing conflicts of interest. These undisclosed

conflicts, the complaint alleged, arose from Doe representing the other

party or Doe being interested in the transaction. The former client

claimed losses from the various investments.

On May 8, Doe responded to the complaint by providing the Board

with a thirty-eight-page letter, together with substantial documentation.

Doe provided supplemental materials upon the Board’s request

throughout 2013 and 2014.

The Board filed its complaint against Doe on September 30, 2015.

An attorney for Doe accepted service of the complaint. The complaint

alleged violations of Iowa Code of Professional Responsibility for Lawyers

DR–102(A) (misconduct), DR 2–106(A) (fees for legal services), DR 5–

101(A) (conflict of interest), DR 5–104(A) (business relations with client),

and DR 5–105(C) and (D) (concurrent adverse clients). The complaint

also alleged violations of Iowa Rules of Professional Conduct 32:1.4(a)

and (b) (communications), 32:1.7(a) and (b) (conflict of interest), and

32:1.8(a) (conflict of interest).

On January 22, 2016, the Board filed a motion to modify the

commission’s previous scheduling order and to establish new deadlines.

In the motion, the Board asked the commission to set deadlines for filing

an answer and serving discovery responses.
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Doe’s counsel filed a response on January 28. Doe’s counsel

stated that Doe had been “unable to respond to the very complex

Complaint and provide discovery responses.” Doe’s counsel reported

that Doe had undergone “biopsies, CT and MRI scans, numerous blood

tests and . . . surgeries.” Doe’s counsel stated that a March 29, 2016

hearing date was “currently unrealistic in light of [Doe’s] medical

condition.”

On February 3, the Board responded to Doe’s claims by asking the

commission to order Doe to (1) “file a statement from a treating physician

that discloses his diagnosis, treatment plan, anticipated recovery period,

and prognosis”; (2) “file a statement, under oath, describing whether, and

to what extent, [Doe] had been practicing law from October 15 to now or

whether he has temporarily closed his law practice”; and (3) “file a

statement, under oath, describing whether, and to what extent, [Doe’s] ill

health limited his personal activities.” On February 9, the commission

ordered Doe to file the statements requested by the Board by February

17.

In response to the commission’s order, Doe filed three documents.

Two of the documents were letters from physicians. The first physician’s

letter reported that Doe had prostate cancer, a prostatectomy was

planned, after the surgery there should be a six-week period of “no

strenuous activity,” and the prognosis was excellent. The second

physician’s letter reported Doe’s suffered from chronic vascular

headaches that have been resistant to treatment, a treatment plan of

further testing and medication, and an “uncertain prognosis.”

The third document was Doe’s affidavit describing his condition.

Doe stated his health problems began about February 2015. Doe stated

that after a fall and head injury he experienced continuing headaches
 5

and one episode of paralysis. Doe opined that in June or July 2015, he

began to experience tinnitus. Doe stated that prostate surgery was

scheduled.

Doe stated that since the summer of 2015 he generally arrives at

the office between 9:30 and 11:00 a.m. He hired a young lawyer to assist

him in his legal practice. Doe stated he is “able to meet with clients,

ascertain what they need or want, give some direction to the young

attorney, and briefly review her work product.” He also stated he could

do the “planning” for franchise documents. From October to the present,

Doe reported he averaged less than twelve hours of billable time per

week.

With respect to the complaint, Doe stated that he was physically

and emotionally unable to deal with the complaint over the past four

months. Although he vehemently denied the allegations, Doe asked for

“sufficient time to address these serious allegations at a time [he is] able

to do so with a clear head.” Doe stated, “I would hope to have my life

back to some degree of normalcy soon and then address this Complaint

appropriately.”

The Doe affidavit also touched briefly upon the status of an FBI

investigation related to the transactions involved in the complaint.

According to Doe, the FBI has had possession of approximately eighteen

boxes of records since August 2013.

The commission held an unrecorded hearing on February 18,

2016. On February 22, the commission issued the order that gives rise

to the present dispute. In the order, the commission, on its own motion,

invoked Iowa Court Rule 36.7. The commission found that Doe had

failed to timely file an answer or a written request for an extension of
 6

time to file an answer, and as a result, the allegations in the Board’s

complaint were considered admitted.

The commission noted that Doe’s alleged disability occurred nine

or more months prior to the filing of the complaint and that Doe provided

no explanation for failing to file a request for an extension of time within

the twenty-day answer period. With respect to the unavailability of

documents in the possession of the FBI, the commission noted that while

Doe made an effort to retrieve the files on December 17, 2015, and

February 12, 2016, these efforts occurred after the answer was due. In

addition, the commission stated, other than two emails Doe sent to the

FBI, there was no specific information about what efforts were made to

retrieve the files between 2013 and December 2015. The order stated, “It

does not appear this was a matter of urgency for [Doe].” The order

concluded, “On the record before the undersigned and based on the

unambiguous language of Rule 36.7, the undersigned has no discretion

and must deem the allegations of the Complaint admitted and set this

matter for hearing on the appropriate sanction.”

On March 3, 2016, Doe responded by filing a motion to reconsider.

Doe requested an “immediate and emergent hearing.” The motion sought

reconsideration of the commission’s sua sponte decision to invoke Iowa

Court Rule 36.7 and requested an extension of time to file an answer.

The Board resisted the motion.

The papers filed by the parties in response to the commission’s

order—the motion to reconsider and the Board’s resistance—show that

the parties disagree as to whether there was an informal agreement

regarding the proceedings. If there was an informal agreement, the

parties disagree as to its terms and whether such an agreement would be

binding on the commission.
 7

A hearing on the matter was held on March 30. On April 4, the

commission entered an order denying the motion to reconsider. The

commission again cited the plain language of rule 36.7 and stated that

Doe’s first written request for an extension of time to file an answer was

filed on January 28—eighty-six days after Doe’s deadline to answer and

sixty-one days before the scheduled start of the evidentiary hearing. The

commission rejected Doe’s argument that rule 36.14 entitled him to

notice and a hearing before the commission ordered the allegations

considered admitted. The commission disagreed with the

characterization that the commission made its own motion under rule

36.7, stating that it enforced the rule on its own terms. The commission

rejected the notion that the parties could waive or amend the operation

of rule 36.7. Further, the commission concluded that Iowa Rule of Civil

Procedure 1.977 was inapplicable because this was not a default

situation but application of an automatic rule. In any event, the

commission concluded there was no colorable claim of good cause

because Doe’s failure to timely answer could not be characterized as

mistake, inadvertence, surprise, excusable neglect, or unavoidable

casualty.

On April 22, Doe filed an answer to the complaint. Doe sought

interlocutory review which was granted on May 4.

II. Discussion.

A. Background to Iowa Court Rule 36.7.

1. Text of rule 36.7. The central issue in this case is the proper

meaning of Iowa Court Rule 36.7. Prior to April 2016, the rule provided,

The respondent shall file a written answer to the complaint
within 20 days from the completed service of notice. For
good cause shown upon written application, the grievance
commission may grant an extension of time for filing an
 8
answer. If the respondent fails or refuses to file such answer
within the time specified, the allegations of the complaint
shall be considered admitted, and the matter shall proceed
to a hearing on the issue of the appropriate sanction.

Iowa Ct. R. 36.7.

The rule appears to have been based upon the ABA Model Rules

for Lawyer Disciplinary Enforcement originally adopted by the American

Bar Association in 1989. See Model Rules for Lawyers Disciplinary

Enforcement preface (Am. Bar Ass’n 2002) [hereinafter ABA Model

Rules]. The relevant ABA Model Rule provides,

The respondent shall file a written answer with the board
and serve a copy on disciplinary counsel within [twenty] days
after service of the formal charges, unless the time is
extended by the chair of the hearing committee. In the event
the respondent fails to answer within the prescribed time, or
the time as extended, the factual allegations shall be deemed
admitted as provided in Rule 33(A).

See id. r. 11(D)(3) (2002).

Rule 33(A) in turn states, “Failure to answer charges filed shall

constitute an admission of the factual allegations.” Id. r. 33(A). The

commentary to ABA Model Rule 33 explains that the rule “provides

remedies for a lawyer’s disregard of the duty to respond to a lawful

demand for information from a disciplinary authority.” Id. r. 33(A) cmt.

The commentary further observes, “Failure by respondents to answer or

to appear in disciplinary matters is a significant problem.” Id.

Since the 2002 amendments of the Model Rules for Lawyer

Disciplinary Enforcement, the use of the word “shall” in legal rules has

fallen into disfavor because it may indicate a mandatory or permissive

rule. See Bryan A. Garner, Shall We Abandon Shall?, ABA Journal

(Aug. 1, 2012, 7:20 AM), www.abajournal.com/magazine/article/

shall_we_abandon_shall/. Part of the restyling of the federal rules

involved removing all instances of “shall” and replacing them with “must”
 9

or “will” or other language that clearly expresses the mandatory nature of

the rule. Id.; Federal Plain Language Guidelines, Use “Must” to Indicate

Requirements, www.plainlanguage.gov/howto/guidelines/FederalPLGui

delines/writeMust.cfm (last visited Oct. 20, 2016); see also Symposium,

The Restyled Federal Rules of Evidence, 53 Wm. & Mary L. Rev. 1435,

1441 (2012).

We have noted the ambiguity inherent in the word “shall.” See

State v. Klawonn, 609 N.W.2d 515, 521–22 (Iowa 2000) (discussing the

ambiguity, but finding that “shall” imposes a duty by reference to the

context and Iowa Code section 4.1(30)(a)). We recently amended Iowa

Court Rule 36.7 to avoid any potential ambiguity. Our new rule 36.7,

effective April 1, 2016, states,

The respondent must file a written answer . . . . If the
respondent fails or refuses to file an answer within the time
specified, the allegations of the complaint are deemed
admitted, and the matter will proceed to a hearing on the
issue of the appropriate sanction.

Iowa Ct. R. 36.7 (2016) (emphasis added).

In the court order announcing the change to our rules, we affirmed

the proposition that all changes to chapter 36 would have retrospective

application as provided in Iowa Court Rule 34.9. Iowa Supreme Ct.

Order, Amendments to Iowa Court Rules on Professional Regulation

(Jan. 26, 2016). We explained, “These chapters are procedural, and do

not establish standards for attorney conduct.” Id. We further

emphasized that we apply the ethical standards that were in effect at the

time of the conduct, but that we traditionally apply the procedural rules

as they exist at the time of the hearing before the commission. Id.

Here, the hearing before the commission on the Board’s motion

occurred on February 18, 2016, before the effective date of our amended
 10

rules. At the time of the hearing on the motion, the prior version of the

rule was in effect. On the other hand, by the time of any hearing on the

merits will occur in this matter, the 2016 version of the rule will apply.

2. Disciplinary precedent in other states. There is a body of

precedents in other states dealing with the question of the consequences

of a respondent’s failure to timely answer a complaint in an attorney

disciplinary proceeding. See generally Debra T. Landis, Annotation,

Failure to Co-Operate With or Obey Disciplinary Authorities as Ground for

Disciplining Attorney—Modern Cases, 37 A.L.R. 4th 646 (1985 & Supp.

2016); 7 Am. Jur. 2d Attorneys at Law § 107, at 168 (2007). Because the

language of the applicable disciplinary rules varies, the precedents are of

limited value. Nonetheless, the precedents shed light on the interpretive

considerations that may be brought to bear on the question.

In In re Weston, the Illinois Supreme Court considered a case in

which an attorney sought to file a response after the disciplinary

commission had submitted the matter to the court. 442 N.E.2d 236, 238

(Ill. 1982). The commission considered the charges admitted after the

respondent failed to answer or appear to defend himself. Id. The

respondent asked the court to remand the case, arguing that he had

been previously without funds to hire counsel and was unable to defend

himself because he was not physically or mentally capable of presenting

his case. Id. On this later point, the Illinois Supreme Court stated,

To . . . afford respondent another opportunity to defend the
charges because of his claim that he could not cope with the
strain in the first place would, it seems to us, be tantamount
to condoning unprofessional, indifferent and dilatory
behavior by one charged with professional misconduct. It
would, we believe, tend to discourage attorneys from
cooperating in disciplinary proceedings . . . .
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Id. In re Weston may be distinguished from the current case, however, in

that the case was already pending before the supreme court when the

respondent proposed filing an answer. Here, an answer was filed while

the matter was still pending before the commission.

In In re Disciplinary Action Against Larson, the Supreme Court of

Minnesota considered a case in which an attorney failed to file an answer

within the time allowed by the Minnesota rule by a wide margin but

subsequently filed an answer the day before a show-cause hearing. 324

N.W.2d 656, 657 (Minn. 1982) (per curiam). The Minnesota rule

provided, “If the respondent fails to file an answer within the time

provided or any extension of time this Court may grant, the petition’s

allegations shall be deemed admitted and this Court may proceed . . . .”

Id. at 657–58 (emphasis added). The Minnesota court held that it could,

if it wished, excuse the lateness and accept the respondent’s answer. Id.

at 658. The court, however, viewed the respondent’s behavior as

“procedural fencing” since the respondent had not asked for an extension

of time nor offered any reason or excuse for his lateness. Id.

Additionally, the substance of the belated answer did not seek a hearing

on the facts, but included respondent’s own request to be disbarred. Id.

The court determined that these circumstances did not warrant

respondent’s late answer to be excused. Id.

Notably, however, the Minnesota rule provided that the court

“may” proceed if no answer is filed. The Iowa rule does not use the term

“may.” The Minnesota court, however, has recently held that if a

respondent fails to file a timely answer, “[u]pon the Director’s [of the

Office of Lawyers Professional Responsibility] motion, we deem[ ] the

allegations in the petition admitted.” In re Disciplinary Action Against

Ulanowski, 834 N.W.2d 697, 701 (Minn. 2013) (per curiam).
 12

The Supreme Court of New Jersey considered the effect of the

failure of a respondent to timely respond to three complaints. In re Kern,

345 A.2d 321, 321 (N.J. 1975) (per curiam). The respondent in In re

Kern did not file a response within the time frame and only responded

after “repeated urging” by members of the ethics committee. Id. The New

Jersey court noted,

For good and sufficient reason an Ethics Committee may,
and customarily does, grant such further time as may be
reasonably requested. But such an extension of time should
never be thought of as being automatically available nor
should it be granted except for good cause and then only for
a definite and reasonably short interval.

Id. The New Jersey court upheld the dismissal of an order to show cause

for failure to file a timely answer. Id. at 322.

Finally, the Supreme Court of Louisiana considered whether

charges should be deemed admitted after a respondent failed to answer a

complaint. In re Brown, 939 So. 2d 1241, 1242 (La. 2006) (per curiam).

The respondent claimed he did not think an answer was necessary

because the matter had been previously resolved by consent discipline in

the form of a public reprimand. Id. In a hearing before the disciplinary

commission, the respondent again asserted that no answer was

necessary and contested some of the factual allegations in the underlying

complaint. Id. Citing prior precedent, the Louisiana court explained that

it liberally interpreted its “deemed admitted” rule so as to not prevent

lawyers who wished to defend themselves from formal charges from doing

so. Id. at 1242–43. The court vacated the order deeming the factual

allegations admitted to permit the respondent to contest the case on the

merits. Id. at 1244.
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B. Analysis and Application of Rule.

1. Mandatory vs. directory issue. We begin our analysis and

application of the rule in this case by considering whether the rule is

“mandatory” or “directory.” In some contexts, the law makes a

distinction between “shall” deadlines that are mandatory and those that

are merely directory. See generally 3 Norman Singer & Shambie Singer,

Sutherland Statutory Construction § 57:2, at 6 (7th ed. 2008).

We explored the mandatory–directory distinction in Taylor v.

Department of Transportation, 260 N.W.2d 521 (Iowa 1977). In Taylor, an

appellant charged with operating a motor vehicle while under the

influence contended that because the department of transportation failed

to provide him a hearing within twenty days as required by Iowa Code

section 321B.8, the case against him should have been dismissed. Id. at

522. The Taylor court rejected dismissal. Id. at 524. According to the

Taylor court,

Mandatory and directory statutes each impose duties. The
difference between them lies in the consequence for failure to
perform the duty. . . . If the prescribed duty is essential to
the main objective of the statute, the statute ordinarily is
mandatory and a violation will invalidate subsequent
proceedings under it. If the duty is not essential to
accomplishing the principal purpose of the statute but is
designed to assure order and promptness in the proceeding,
the statute ordinary is directory and a violation will not
invalidate subsequent proceedings unless prejudice is
shown.

Id. at 522–23.

We have also addressed the distinction between mandatory and

directory requirements in the attorney disciplinary context. In Committee

on Professional Ethics & Conduct v. Michelson, we held that a rule

requiring a hearing within thirty days from date of service was directory.

345 N.W.2d 112, 117 (Iowa 1984). Similarly, in Committee on
 14

Professional Ethics & Conduct v. Behnke, we held that a rule requiring

the commission to file a dispositive ruling within a prescribed time period

was also directory. 276 N.W.2d 838, 842 (Iowa 1979).

In Iowa Supreme Court Attorney Disciplinary Board v. Attorney Doe

No. 639, however, we held a rule providing that if the Board wants to

appeal the commission’s decision the application must be filed within ten

days was mandatory and not directory. 748 N.W.2d 208, 210 (Iowa

2008); see Iowa Ct. R. 36.11(2) (2008). We distinguished Attorney Doe

No. 639 from Taylor, Michelson, and Behnke because, among other

reasons, the ten-day-filing rule provided a consequence for the Board

failing to file within ten days, namely that the commission’s decision is

final. Id. This consequence, we held, clearly evinced the intent of the

court to make the ten-day-filing rule mandatory. Id.

We have not yet had occasion to consider whether considering

allegations admitted in Iowa Court Rule 36.7 is mandatory or directory.

The main objective of rule 36.7 is found both in the text of the rule and

in the commentary to the ABA Model Rule upon which it is based—

encouraging respondents to file a written answer to the complaint and

thus cooperate with the commission. See ABA Model Rules r. 33(A) &

cmt. Establishing a deadline for the answer and consequences for

ignoring that deadline by failing to answer or request an extension is

essential to accomplish the main objective of the rule. See Taylor, 260

N.W.2d at 522–23.

Based on the language of the rule itself and its underlying purpose,

we conclude that considering allegations admitted in Iowa Court Rule

36.7 describes a consequence of noncompliance and is thus mandatory

and not directory. The language of the rule on its face describes a

consequence and is self-executing. Further, the principal purpose of the
 15

rule will not be accomplished if the deadline for responding to the

Board’s complaint is directory only. See Taylor, 260 N.W.2d at 522–23.

2. Authority of commission to act without a motion to enforce by the

Board. Doe claims that the commission erred in considering the impact

of rule 36.7 “on its own motion.” We have not yet had occasion to

consider explicitly whether a motion is required in a proceeding in which

the respondent has at least appeared and participated in the proceeding.

We have, however, enforced the rule without a motion in situations when

the respondent has not appeared in the proceedings. See, e.g., Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Hearity, 812 N.W.2d 614, 616–17

(Iowa 2012); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786

N.W.2d 860, 864 (Iowa 2010); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Moonen, 706 N.W.2d 391, 395 (Iowa 2005).

A number of reported cases from other states note that the

disciplinary authority filed a motion to enforce similar rules deeming

allegations in a complaint admitted when the respondent failed to file a

timely answer. In re Marsh, 1 Cal. State Bar Ct. Rptr. 291, 295 (State

Bar Ct. 1990) (granting examiner’s motion to deem allegations admitted);

Fla. Bar v. Morrison, 669 So. 2d 1040, 1041 (Fla. 1996) (per curiam)

(noting the bar filed motion to deem matters admitted); Fla. Bar v. Daniel,

626 So. 2d 178, 182 (Fla. 1993) (per curiam) (stating the bar filed motion

to deem matters admitted); In re Hooks, 741 S.E.2d 645, 646 (Ga. 2013)

(per curiam) (deeming facts admitted in disciplinary hearing where

respondent failed to file answers on motion); In re Webb, 475 N.E.2d 523,

524 (Ill. 1985) (stating the hearing panel deemed allegations in complaint

admitted “[o]n motion of the Administrator”); In re Brown, 939 So. 2d at

1242 (stating disciplinary board filed motion to have formal charges

deemed admitted); In re Ulanowski, 834 N.W.2d at 701 (deeming
 16

allegations in complaint admitted on the director’s motion); State ex rel.

Okla. Bar Ass’n v. Mirando, 376 P.3d 232, 239 (Okla. 2016) (stating the

bar filed motion to deem allegations admitted); State ex rel. Okla. Bar

Ass’n v. Knight, 359 P.3d 1122, 1127 (Okla. 2015) (stating the motion to

deem complaint allegations admitted was granted); In re Kline, 781

N.W.2d 492, 493 (Wis. 2010) (finding the commission successfully moved

to deem allegations in complaint admitted). These cases, however, do not

necessarily stand for the proposition that a motion must be filed. The

cases only show that a motion is often employed as a vehicle to bring the

issue to the attention of the disciplinary authority.

There is, however, authority in nondisciplinary settings for the

proposition that no motion is required to enforce a rule providing that

allegations or requests for admissions are considered or deemed

admitted when the opposing party fails to respond. In the context of

requests for admissions under the Iowa Rules of Civil Procedure, we have

held that when a party fails to file a timely response to requests for

admissions, the party seeking to avoid application of the rule must file a

motion seeking to withdraw the facts deemed admitted. Allied Gas &

Chem. Co. v. Federated Mut. Ins. Co., 332 N.W.2d 877, 879 (Iowa 1983).

When the request to withdraw the admissions is not timely, the express

language of the rule provides that the court has discretion to consider

whether or not to allow withdrawal. Id. Cases in other jurisdictions

support the view that once a party has failed to timely answer a request

for admissions, the allegations in the requests are deemed admitted

without further motion. See, e.g., Tyler v. Auto. Fin. Co., 113 So. 3d

1236, 1240 (Miss. 2013) (holding rule regarding admissions is “self-

executing” and no motion to have request deemed admitted is required);

Tymar, LLC v. Two Men & a Truck, 805 N.W.2d 648, 657 (Neb. 2011)
 17

(holding failure to respond to a request for admission constitutes an

admission by that party of the subject matter of the request); Curry v.

Clayton, 715 S.W.2d 77, 79 (Tex. Ct. App. 1986) (stating requests for

admission automatically deemed admitted after thirty days if no motion

to extend time filed).

The fundamental question here is who must file a motion when a

respondent in a disciplinary proceeding fails to timely file an answer

under rule 36.7. Must the Board affirmatively seek to enforce the rule

through a motion or is the burden on the respondent to file a motion to

avoid the consequences of the rule? In our view, the best interpretation

of the Iowa rule is that it prescribes consequences for failure to file a

timely answer and that these consequences occur without the

requirement that the Board file a motion to enforce the rule. We base

our conclusion on the language of the rule. The failure to file a timely

response to the allegations in the Board’s complaint is “considered

admitted.” In other words, it is the equivalent of an express admission in

a responsive pleading that is binding on the responding party. The Iowa

rule then explicitly addresses the question of motion practice with

respect to the failure of a respondent to file a timely answer. The rule

requires the respondent to file a motion to avoid the consequences of the

rule. It does not require the Board to file a motion to enforce it.

3. Authority of Board to waive the mandatory requirement. Having

concluded that the rule is mandatory and that it does not require a

motion from the Board to be enforced, the question arises whether the

Board may waive the requirements of the rule. Again, we have not

considered this issue before. At oral argument, the Board candidly

admitted that as a matter of practice, the Board works with attorneys to
 18

obtain answers and routinely allows the parties additional time to file

answers beyond the twenty-day period established in rule 36.7.

We think the best reading of the language of the rule, however, is

that the Board may not waive enforcement of the mandatory rule. Only

the commission, upon the filing of a proper motion by the respondent,

may determine that the mandatory rule should not be enforced “for good

cause.” The Board, of course, may agree that good cause is shown by a

respondent, but it cannot usurp the role of the commission in

determining whether a respondent has shown good cause for failure to

comply. When a respondent requires additional time, the proper

mechanism is for the respondent to file a motion with the commission

which the Board, in its discretion, may choose not to resist.

4. Commission’s failure to find good cause. As the respondent

correctly points out, the Board, when it moved for modification of

deadlines in this matter, did not expressly cite rule 36.7 or argue that

the rule required that the allegations in the Board’s complaint be

considered admitted. After the commission filed its order enforcing the

rule, the respondent filed papers with the commission explaining his

position. After the commission denied reconsideration of its ruling, the

respondent filed an answer.

Although not labeled as such, we conclude the papers filed by the

respondent, in context, amount to a written motion to extend the

deadline for filing an answer for good cause. See Allied Gas & Chem. Co.,

332 N.W.2d at 879 (stating there is no need to distinguish between a

motion to file an untimely response and a motion to withdraw

admission); In re Eickman’s Estate, 291 N.W.2d 308, 311 (Iowa 1980)

(holding motions to file a late response and motions to withdraw

admission are similar and the same test should be applied); Double D
 19

Land & Cattle Co. v. Brown, 541 N.W.2d 547, 550 (Iowa Ct. App. 1995)

(stating a motion to file an untimely response and a motion to withdraw

admission are similar). Such a motion is, of course, authorized by rule

36.7. The rule does not explicitly impose a time for filing of such a

motion, though it seems obvious that the best practice would be to file

such a motion before the expiration of the twenty-day time period to

answer. Because the rule does not contain a time requirement for the

filing of a motion to extend the period of time to answer for good cause,

however, we question whether the respondent’s filings in this case are

untimely. In any event, under the approach in Allied Gas & Chemical

Co., the commission has the discretion to consider an untimely motion to

set aside allegations which were considered admitted because of a failure

to respond. See 332 N.W.2d at 879.

We now turn to the merits of the good-cause issue. We believe the

commission is entitled to some discretion on the good-cause question.

See McElroy v. State, 637 N.W.2d 488, 493 (Iowa 2001) (“We review a

decision of the district court to permit the filing of an untimely answer [in

a civil case] for an abuse of discretion.”); see also Ireland v. Carpenter,

879 A.2d 35, 39 (Me. 2005) (ruling on good cause for motion to file a late

answer reviewed for abuse of discretion). The commission should

generally favor hearing disciplinary cases on the merits when an attorney

indicates he wishes to respond and participate in a formal hearing and

has provided the Board with documents demonstrating a denial of the

charges even though the deadlines established in rule 36.7 have not

been met. See In re Brown, 939 So. 2d at 1242–43.

In this case, the respondent’s counsel apparently believed that he

had an informal agreement of some kind that the Board would not seek

to enforce rule 36.7. Respondent was providing information to the
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Board, though not at a pace that we would ordinarily expect in

disciplinary proceedings. Although the record does not provide direct

evidence of an agreement between the respondent and the Board, it is

noteworthy that the Board did not seek to enforce rule 36.7 when it

sought to establish a new schedule, thereby giving some support for

respondent’s position. Further, the Board has a practice of generally

allowing a reasonable period of time to file an answer beyond the twenty

days. The practice of the Board generally, and the course of conduct

between the respondent and the Board specifically, did not suggest that

the respondent was at risk of forfeiting his right to litigate the merits of

the action by failing to file an answer.

Further, as we have stated above, the issues presented under rule

36.7 included questions of first impression. Like the commission, we

question whether the respondent made the case for a lengthy or

indefinite extension of time to answer the Board’s complaint.

Nonetheless, we think the legal uncertainties surrounding rule 36.7, the

Board’s general and specific acquiescence in the failure of respondents to

file timely answers, Doe’s active, if dilatory, participation in the

proceedings, and the preference for deciding disciplinary cases on the

merits provides sufficient good cause that the commission should have

allowed a brief period of time to allow the respondent to file an answer.

We emphasize that we do not regard compliance with rule 36.7 as

merely a good idea or an aspirational goal. Lawyers subject to

disciplinary proceedings must cooperate in a prompt disposition and

comply with mandatory rules. To the extent good cause in this

proceeding was based on ambiguity in rule 36.7 and whether the Board

must file a motion to enforce it, that ambiguity is now resolved.

Respondents in disciplinary proceedings are admonished that the failure
 21

to timely respond to the Board’s complaint results in admission of the

allegations that may be unraveled only if the respondent shows good

cause for the delay. Although we prefer deciding disciplinary proceedings

on the merits, extensions of time to respond to the Board’s complaint are

not automatically granted and should ordinarily be of a relatively short

duration. See In re Kern, 345 A.2d at 326. Respondents should regard

disciplinary proceedings as a priority, not an unpleasant task that may

be avoided through inordinate delay.

III. Conclusion.

For the above reasons, we conclude that the commission should

have granted respondent a brief extension of time to file an answer. An

answer has now been filed. We vacate the order of the commission to the

extent it prohibits litigation on the merits of the Board’s allegations. We

remand the matter to the commission for a hearing on both the merits of

the Board’s complaint and on sanctions, if any, that may be appropriate.

REVERSED AND REMANDED.