               IN THE SUPREME COURT OF IOWA
                               No. 15–0894

                         Filed September 11, 2015


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

JOSEPH MICHAEL HASKOVEC,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      On review of the report of the Grievance Commission of the

Supreme Court of Iowa, we find the attorney violated a rule of the Iowa

Rules of Professional Conduct and publically reprimand the attorney.

ATTORNEY REPRIMANDED.



      Charles L. Harrington and Patrick W. O’Bryan, Des Moines, for
complainant.



      Roger Sutton, Charles City, for respondent.
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WIGGINS, Justice.

      The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against an attorney alleging two violations of the Iowa Rules of

Professional Conduct for the attorney having a witness sign a will outside

the presence of the testatrix and the other witness and then giving the

will to the executrix to probate without disclosing this fact. A division of

the Grievance Commission of the Supreme Court of Iowa found the

attorney’s conduct violated two rules and recommended we give him a

public reprimand. On our de novo review, we find the attorney violated

only one of our rules.      But we nonetheless publicly reprimand the

attorney for his conduct.

      I. Scope of Review.

      We review attorney disciplinary proceedings de novo.             Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Crum, 861 N.W.2d 595, 599 (Iowa

2015).   The Board has the burden to prove violations by a convincing

preponderance of the evidence. Id. “ ‘A convincing preponderance of the

evidence is more than a preponderance of the evidence, but less than

proof beyond a reasonable doubt.’ ” Id. (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa 2013)). Lastly, the

commission’s findings and recommendations are not binding on our

decision. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Barnhill, 847 N.W.2d

466, 470 (Iowa 2014).

      The attorney admitted most of the Board’s factual allegations in his

answer to the complaint.      We deem factual matters admitted by an

attorney in an answer to a complaint established without further

investigation into the record. Nelson, 838 N.W.2d at 532.

      In its brief, the Board set forth substantial facts. In his brief, the

attorney stipulated to most of the facts set forth by the Board.
                                    3

Stipulations of facts are also binding on the parties. Id. “We interpret

such stipulations ‘with reference to their subject matter and in light of

the surrounding circumstances and the whole record, including the state

of the pleadings and issues involved.’ ”   Id. (quoting Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 528 (Iowa 2011)).

      The attorney also stipulated in his brief that he violated two Iowa

Rules of Professional Conduct as alleged by the Board in its complaint. A

party’s stipulation as to a violation of the Iowa Rules of Professional

Conduct does not bind us.     Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Gailey, 790 N.W.2d 801, 804 (Iowa 2010). As we have previously stated,

      Nowhere in our rules have we given the parties the authority
      to determine what conduct constitutes a violation of our
      ethical rules or what sanction an attorney should receive for
      such violation. The parties to a disciplinary proceeding
      cannot substitute their judgment as to what conduct
      constitutes a violation of our ethical rules or what sanction
      we should impose for such a violation. The constitution and
      our court rules vest this function solely in our court.
      Accordingly, to allow the parties to make these
      determinations is against the public policy surrounding our
      attorney disciplinary system.

Id. Accordingly, we will not find an attorney violated the Iowa Rules of

Professional Conduct unless a factual basis exists in the record to

support such a violation. See id.

      II. Findings of Fact.

      On our de novo review, we find the following facts. We admitted

Joseph M. Haskovec to the Iowa bar in 1985. Haskovec currently serves

as a magistrate for Howard County, a part-time position he has held

since 2012. Haskovec also has a solo practice in Cresco; however, his

solo practice makes up only a small portion of his work.     Prior to his

appointment as a magistrate, Haskovec worked part-time as the Howard

County attorney for twenty-seven years.     The events giving rise to the
                                         4

present complaint occurred while Haskovec was serving as a part-time

county attorney, but acting as a private practitioner.

       Haskovec is part of a large family, which began feuding decades

ago. Family members put Haskovec in the middle of this feud when they

asked him to draft a new will for one of his aunts, Edith Benson. Benson

had previously executed a will and power of attorney documents in 2005,

naming her nephew, Kenneth M. Bronner, as the executor of her estate

and his son, Kenneth R. Bronner, as her power of attorney.

       On July 6, 2010, Haskovec, Benson, and Benson’s sister, Elsie

Pint, met for two hours at Benson’s home to discuss the provisions of a

new will, a new power of attorney, and a new durable power of attorney

for health care decisions.       Haskovec and Benson discussed removing

certain family members from Benson’s will and naming new individuals

as her power of attorney and durable power of attorney for health care

decisions. Haskovec, Benson, and Pint also discussed how to change the

beneficiaries on Benson’s Ameriprise Financial account.              Haskovec did

not change the beneficiaries on this account. Rather, he advised Benson

to speak with the financial agent on the account to determine the proper

way to make that change. 1

       On July 8, Haskovec returned to Benson’s home to execute the

new documents. She designated new beneficiaries and a new executrix.2

Haskovec and Pint were with Benson when she executed the will, and

Haskovec signed the will as a witness. For some unknown reason, Pint



      1Ultimately, Pint and Benson did make the change to the beneficiaries on

Benson’s Ameriprise account, which became the subject of later litigation.
       2The power of attorney and durable power of attorney for health care decisions

are not at issue in this case.
                                       5

did not sign the will as a witness. The will was not a self-proving will

because Haskovec did not use self-proving wills in his practice.

      In early August, Benson’s health began to fail and she entered the

Cresco hospital. It was at that time other family members discovered the

changes Haskovec had made to Benson’s will and power of attorney

documents. The hospital where Benson was admitted notified Benson’s

great-nephew, Kenneth R., and his wife, Terri Bronner, that other family

members were trying to move Benson out of her local hospital.              After

learning from family member Susan Randall that Benson had named

Randall as her new power of attorney and executrix under the 2010

documents, Kenneth R. went to Haskovec’s office to question him about

the changes to the will.

      When questioned by Kenneth R., Haskovec confirmed he had

written the new will and other documents executed by Benson. After this

discussion Haskovec reviewed the will and discovered that Pint, who had

been present at the execution of the will, did not sign the will as a

witness. Soon after discovering Pint had not signed the will, Haskovec

consulted the Iowa Code and noted that for a will to be valid, two

witnesses must sign it in the presence of the testator and each other.

See Iowa Code § 633.279(1) (2011).             Though Haskovec recognized

Benson’s will did not meet this requirement, he thought there might be

some legal argument a probate attorney could make to save the will. 3

      Prior to Benson’s death, he sent the will to Arizona for Pint to sign

the will as a witness. Pint then signed the will pursuant to Haskovec’s

instructions and returned it to his office.


       3At the commission hearing, Haskovec failed to disclose what that argument

would be.
                                     6

      On August 26, Benson passed away. In mid-September, Haskovec

gave the 2010 will to Randall so she could probate it. Haskovec did not

disclose to Randall the fact that Pint signed the will outside the presence

of himself and the testatrix. Randall took the will to another attorney,

Michael Dunbar, so he could open an estate.

      After receiving the will, Dunbar sent Haskovec an Affidavit of the

Subscribing Witness.    After receiving the affidavit, Haskovec contacted

Dunbar. Haskovec readily admitted he had sent the will to Pint for her

signature, as she had not signed it on the same day as he and Benson

had. He informed Dunbar he would not sign the affidavit because the

statements in it were not accurate. Dunbar then informed Randall the

will was invalid and he could not probate it.     Another attorney, Brian

McPhail, ultimately probated the 2005 will.

      On October 13, 2014, the Board filed a complaint against

Haskovec alleging violations of rule 32:4.1(b) (“In the course of

representing a client, a lawyer shall not knowingly . . . fail to disclose a

material fact to a third person when disclosure is necessary to avoid

assisting a criminal or fraudulent act by a client, unless disclosure is

prohibited by rule 32:1.6.”) and rule 32:8.4(c) (“It is professional

misconduct for a lawyer to . . . engage in conduct involving dishonesty,

fraud, deceit, or misrepresentation.”). Iowa Rs. Prof’l Conduct 32:4.1(b),

32:8.4(c).

      The Board, in its hearing brief filed with the commission, argued

Haskovec was representing Randall when he gave her the will and then

failed to disclose to her the issue with Pint’s signature. However, we find

the Board failed to prove by a convincing preponderance of the evidence

Randall was Haskovec’s client. Haskovec only gave Randall the will. He

provided no legal advice to her and did not probate the will for her. We
                                     7

find the only client Haskovec represented concerning this matter was

Benson.

      The commission found that Haskovec violated rules 32:4.1(b) and

32:8.4(c).   The commission recommends we give Haskovec a public

reprimand for this conduct rather than a suspension because his

disclosure to attorney Dunbar “prevented any fraud or dishonesty from

being perpetrated on the Court or the public.”

      III. Ethical Violations.

      A. Rule 32:4.1(b). Rule 32:4.1(b) provides:

            In the course of representing a client, a lawyer shall
      not knowingly:

             ....

            (b) fail to disclose a material fact to a third person
      when disclosure is necessary to avoid assisting a criminal or
      fraudulent act by a client, unless disclosure is prohibited by
      rule 32:1.6.

Id. r. 32:4.1(b) (emphasis added).

      The plain language requires that, in order for an attorney’s failure

to disclose a material fact to violate this rule, disclosure must be

necessary for the attorney to avoid assisting his or her client in
perpetrating a crime or fraud. See id.; see also 2 Geoffrey C. Hazard, Jr.,

et al., The Law of Lawyering § 40.07, at 40-16 (4th ed. 2015) (“[The

attorney] must have known . . . that the client was indeed engaged in a

criminal or fraudulent act.”); Gregory C. Sisk & Mark S. Cady, Iowa

Practice Series: Lawyer and Judicial Ethics § 8.1(d), at 771 (2015)

(“Importantly, Rule [32:]4.1(b) is implicated only if the lawyer has become

involved (presumably unwittingly) in the client’s criminal or fraudulent

scheme, in such a way that the lawyer would be ‘assisting’ the client by

remaining silent after discovery of the client’s wrongdoing.”). Here, the
                                     8

Board did not prove Randall was Haskovec’s client.           The record only

establishes that Haskovec’s client in this matter was Benson. There is

no evidence in the record Benson was attempting to commit a criminal or

fraudulent act when Haskovec drafted her will. Haskovec’s act of giving

the will to Randall, the named executrix, after his client had died did not

assist his deceased client in perpetrating a criminal or fraudulent act.

       We have previously found a violation of rule 32:4.1(b) in cases in

which the attorney’s client engaged in a fraud or crime with the

attorney’s assistance. In Iowa Supreme Court Attorney Disciplinary Board

v.   Bieber,   we   found   an   attorney   who   assisted    his   client   in

misrepresenting the actual sales price of real estate in order to obtain a

cash-back payment from the lender violated rule 32:4.1(b). 824 N.W.2d

514, 517, 519–20 (Iowa 2012). The client’s conduct in listing the selling

price as greater than the actual price paid for the property was

fraudulent; therefore, the lawyer’s drafting and delivering the documents

knowing they provided false information regarding the price assisted his

client in fraudulent action. Id. Because he knew his client was providing

false information, the lawyer had an obligation to disclose the

misrepresentations to the lender. See id. at 520.

       In Iowa Supreme Court Attorney Disciplinary Board v. Engelmann,

we also found a violation of rule 32:4.1(b).      840 N.W.2d 156, 161–62

(Iowa 2013). Again, the client falsified information on real estate sales

paperwork, and the attorney assisted in the client’s fraudulent activity by

preparing the documents and failing to disclose the fraudulent

information to his client’s lenders. Id. at 158–59, 161–62.

       Here, there is no evidence Benson, Haskovec’s client, was

committing a crime or fraud by executing her will.             Even though

Haskovec stipulated that he violated rule 32:4.1(b), we find no factual
                                     9

basis in this record to support a finding that Haskovec violated rule

32:4.1(b). Therefore, upon our de novo review, we find Haskovec did not

violate rule 32:4.1(b).

      B. Rule 32:8.4(c). The commission found that by sending the will

to Pint for her signature after the execution of the will and allowing

Randall to take the will without informing her of this issue, Haskovec

violated rule 32:8.4(c).   Rule 32:8.4(c) provides “[i]t 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).

      “To violate [rule 32:8.4(c)], a lawyer must act with some level of

scienter” and not simply negligence. Iowa Supreme Ct. Att’y Disciplinary

Bd. v. McGinness, 844 N.W.2d 456, 462 (Iowa 2014). An attorney–client

relationship need not exist between the attorney and the person the

attorney is dealing with at the time of the attorney’s dishonesty, fraud,

deceit, or misrepresentation for an attorney to violate this rule.        See

Comm. on Prof’l Ethics & Conduct v. Mollman, 488 N.W.2d 168, 171 (Iowa

1992) (interpreting DR 1–102(A)(4), the predecessor to rule 32:8.4(c)). An

attorney may commit a violation of this rule when he or she fails to

disclose a material fact. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Dunahoo, 799 N.W.2d 524, 531 (Iowa 2011) (finding a violation of rule

32:8.4(c) when an attorney failed to inform his client the bankruptcy

court had terminated his bankruptcy practice). Honesty is necessary for

the legal profession to function. Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Lane, 642 N.W.2d 296, 300 (Iowa 2002). When dealing with a

violation of rule 32:8.4(c), the key question we must answer is whether

the effect of the lawyer’s conduct is to mislead rather than to inform. See

Comm. on Prof’l Ethics & Conduct v. Baudino, 452 N.W.2d 455, 458 (Iowa

1990) (interpreting DR 1–102(A)(4), the predecessor to rule 32:8.4(c)).
                                    10

      In regards to the execution of a will, the Iowa Code provides:

      All wills and codicils, except as provided in section 633.283,
      to be valid, must be in writing, signed by the testator, or by
      some person in the testator’s presence and by the testator’s
      express direction writing the testator’s name thereto, and
      declared by the testator to be the testator’s will, and
      witnessed, at the testator’s request, by two competent
      persons who signed as witnesses in the presence of the
      testator and in the presence of each other; provided,
      however, that the validity of the execution of any will or
      instrument which was executed prior to January 1, 1964,
      shall be determined by the law in effect immediately prior to
      said date.

Iowa Code § 633.279(1).

      The attestation clause of Benson’s will mimicked the formal

requirements for the valid execution of a will contained in section

633.279(1) and stated:

      And now, on this 8th day of July, 2010, the forgoing
      instrument, consisting of two pages including this page, was
      in our presence signed and executed by Edith Benson and
      by her declared to us to be her Last Will and Testament, and
      at her request and in her presence and in the presence of
      each other, we have subscribed our signatures as witnesses
      hereto.

(Emphasis added.)

      Regarding Haskovec’s conduct in having Pint sign the will outside

the presence of the testatrix and the witness, the record establishes by a

convincing preponderance of the evidence that Haskovec knew for a will

to be valid it must be signed by the testatrix and the witnesses in the

presence of each other. Haskovec knew when he sent the will for Pint’s

signature that he was asking her to sign a legal document containing a

false statement because she would not be signing the will in the presence

of the testatrix and the other witness. He intended her to sign the will

despite the false statement in the attestation clause. He also failed to

disclose to Pint that her signature might not be valid because she did not
                                     11

sign it in the presence of the testatrix and the other witness or that she

was falsifying a document intended to be filed with the court.

      In regards to Haskovec giving the will to Randall without disclosing

it did not meet the formal requirements of the Code even though the

attestation clause stated otherwise, the record establishes by a

convincing preponderance of the evidence Haskovec knew the will was

not valid, but failed to disclose that fact to Randall.       He also knew

Randall did not ask him to probate the will. Thus, he had to know either

that Randall was going to ask another attorney to probate an invalid will

or that she was going to file an invalid will with the court pro se.

      We find the evidence establishes by a convincing preponderance of

the evidence Haskovec’s conduct had the effect to mislead rather than to

inform.   We also find the evidence establishes he had the intent to

mislead Pint when he asked her to sign the will. Furthermore, he had

the intent to mislead Randall when he gave her the will without

disclosing its deficiencies.   Accordingly, we agree with the commission

that Haskovec violated rule 32:8.4(c).

      IV. Sanction.

      In deciding the proper sanction,

      “we consider the nature of the violations, protection of the
      public, deterrence of similar misconduct by others, the
      lawyer’s fitness to practice, and [the court’s] duty to uphold
      the integrity of the profession in the eyes of the public. We
      also consider aggravating and mitigating circumstances
      present in the disciplinary action.”

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell, 726 N.W.2d 397, 408

(Iowa 2007) (alteration in original) (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Iversen, 723 N.W.2d 806, 810 (Iowa 2006)) (internal

quotation marks omitted).         Additionally, we attempt “to achieve

consistency with our prior cases when determining the proper sanction.”
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761,

769 (Iowa 2010).    “The goal of our disciplinary system is ‘to maintain

public confidence in the legal profession as well as to provide a policing

mechanism for poor lawyering.’ ” Id. at 770 (quoting Powell, 726 N.W.2d

at 408).

      We cannot find an Iowa disciplinary case with similar facts.

However, in a disciplinary case involving an attorney attempting to

probate a will when he knew the signature of the witness was forged, we

imposed a sixty-day suspension for the attorney’s violation of rule

32:8.4(c). Iowa Supreme Ct. Att’y Disciplinary Bd. v. Liles, 808 N.W.2d

203, 207 (Iowa 2012).    In another case in which an attorney forged a

judge’s signature on an order that the judge had approved but failed to

sign and then filed the order with the court, we imposed a public

reprimand for the attorney’s violation of rule 32:8.4(c). Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Newman, 748 N.W.2d 786, 787, 788–89 (Iowa

2008).

      We do note, however, that Haskovec did not forge a signature but

rather sent a document to a witness to sign, which is not as egregious as

the conduct in either Liles or Newman. Further, Haskovec immediately

and without hesitation disclosed to Dunbar that Pint did not sign the will

in the presence of the testatrix and the other witness without any

probing by Dunbar or the court. Additionally, Haskovec does not have a

prior disciplinary record and has spent most of his career in public

service.   Lastly, Haskovec’s disclosure to Dunbar came before Dunbar

attempted to probate the will and, therefore, caused no harm to the

courts or the public. These all serve as mitigating circumstances.

      After considering the nature of Haskovec’s conduct, the mitigating

circumstances, and the need to protect the public and the reputation of
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the bar, we conclude a public reprimand is the appropriate sanction for

Haskovec’s violation of rule 32:8.4(c).

      V.   Future Stipulations Filed Concerning Iowa Rules of
Professional Conduct Violations and Sanctions.

      As we previously discussed in this opinion, we are not bound by

the parties’ stipulations as to whether a violation of the Iowa Rules of

Professional Conduct has occurred or what sanctions ought to be

imposed.    See Gailey, 790 N.W.2d at 804.       However, we do find such

stipulations to be helpful in narrowing the issues and highlighting the
facts supporting a violation or sanction.         Thus, when the parties

stipulate to a rule violation, the stipulation for each violation must be

contained in a separate paragraph that includes supporting facts

sufficient to allow us to find a factual basis for concluding a violation of a

rule occurred. When the parties stipulate to a sanction, the stipulation

must be contained in a separate paragraph supported by citations to our

prior decisions and a discussion as to why our prior decisions support

such a sanction.

      These requirements for stipulations shall apply to all stipulations

entered into by the parties after the date we file this decision.

      VI. Disposition.

      For the above reasons, we agree with the recommendation of the

committee and publicly reprimand Haskovec for his conduct. We tax the

costs of this proceeding to Haskovec in accordance with Iowa Court Rule

35.27(1).

      ATTORNEY REPRIMANDED.

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