               IN THE SUPREME COURT OF IOWA
                             No. 10–0520

                         Filed October 15, 2010


IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

PETER SEAN CANNON,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Attorney disciplinary action involving accusations of plagiarism

and an unreasonable fee. ATTORNEY REPRIMANDED.



      Charles L. Harrington and David J. Grace, Des Moines, for

complainant.


      Peter S. Cannon, West Des Moines, pro se.
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APPEL, Justice.

      In this disciplinary proceeding, an Iowa attorney is charged with

plagiarism in connection with the filing of briefs in federal court. He is

also accused of charging his client an unreasonable fee for the

preparation of those briefs. The Grievance Commission of the Supreme

Court of Iowa found that the attorney committed plagiarism but did not

charge an excessive fee. The commission nonetheless recommended a

six-month suspension of the attorney’s license. The attorney has filed a

statement urging a more lenient sanction. Upon our de novo review, we

agree with the findings of the commission, but conclude a public

reprimand is warranted.

      I. Factual and Procedural History.

      The Iowa Supreme Court Attorney Disciplinary Board filed a

complaint against Iowa attorney Peter Cannon arising out of his

representation of a client in bankruptcy proceedings. In its complaint,

the board charged that Cannon filed a brief and a reply brief—in support

of the removal of the attorneys for the bankruptcy trustee—which were

largely plagiarized from a published article. The board also alleged that a

bill of $5737.50 for 25.5 hours of work for Cannon’s execution of the

briefs was excessive.

      The underlying dispute from which this ethical complaint arises is

complex.   Attorney Jay Marcus brought an action, on behalf of his

clients, the Cains, against Ted Burghoff in state court alleging that

Burghoff had swindled money from the Cains through an investment

scheme involving the acquisition of IPO stock. During the pendency of

that action, the Cains deposed John Petit. Petit, believing that the focus

of the deposition centered on Burghoff’s conduct, was unrepresented at

the time. During the deposition, however, Marcus began to aggressively
                                     3

question Petit about his conduct regarding the development of the

scheme to acquire the IPO stock. Ultimately, Petit refused to answer the

questions posed by Marcus.

         Eventually, Burghoff filed for bankruptcy protection, and Marcus

was appointed as special counsel to the bankruptcy trustee to pursue

Petit.     Attorney Mark Sherinian initially represented Petit in the

bankruptcy proceeding, but he sought Cannon’s help in the litigation.

Sherinian and Cannon believed that Marcus had a personal and legal

vendetta against Petit due, in part, to the attorney’s conduct during

Petit’s deposition and his aggressive legal style. They also believed that

Marcus’s continued representation of the Cains in the state court

proceeding was inappropriate.       As a result, Sherinian and Cannon

believed that Marcus was not “disinterested” as required by the

Bankruptcy Code and sought to have him disqualified as special counsel

in the bankruptcy proceedings.

         Cannon filed a motion to disqualify Marcus with the bankruptcy

court, along with a twenty-one-page brief.        Following the hearing,

Cannon submitted a further brief in support of the motion. Bankruptcy

Judge Paul Kilburg denied Cannon’s motion to disqualify Marcus as

special counsel for the trustee.

         After the motion was denied, Judge Kilburg, having found

Cannon’s briefs to be of unusually high quality, issued an order directing

Cannon to certify that he was the author of the two briefs in question.

Cannon filed a response indicating that both briefs were his sole

responsibility and that they “relied heavily” upon an article entitled Why

Professionals Must be Interested in “Disinterestedness” Under the

Bankruptcy Code by William H. Schrag and Mark C. Haut.            Cannon

further admitted that his initial brief “exceeded permissible fair use
                                      4

without attestation” of the source.       He reported he had informed his

client about his mistake as well as the bar association.

      The bankruptcy court initiated sanction proceedings against

Cannon. The bankruptcy court concluded that seventeen of the nineteen

pages of legal analysis in the initial brief were verbatim excerpts from the

article, with only variations for format and deletion of matters

detrimental to Cannon’s position. Although the bankruptcy court noted

that the posthearing brief contained more original material, the

bankruptcy court found that it had several pages of string citations from

the article, including the authors’ parenthetical notations.             The

bankruptcy court also determined that Cannon charged his client an

unreasonable fee to prepare the two briefs.

      In light of its conclusion that Cannon committed plagiarism and

charged an unreasonable fee, the bankruptcy court ordered Cannon to

(1)   complete    a    law-school-equivalent     course     in   professional

responsibility, (2) disgorge the fee charged to his client for the briefs’

preparation, (3) formally notify the authors of the plagiarized article and

provide the court with a copy of the correspondence, and (4) provide

copies of the sanction order to Chief Judge Pratt and the board.

      The board commenced an investigation. Originally, the board and

Cannon agreed to a public reprimand. This court, however, entered an

order indicating it could not accept a public reprimand “under the

limited record provided.”

      The board then initiated proceedings against Cannon.                 In

connection with the alleged plagiarism, the board asserted that Cannon

violated Iowa Rules of Professional Conduct 32:8.4(c) (conduct involving

dishonesty,   fraud,   deceit,   or   misrepresentation),   32:3.3(a)   (false

statement of fact or law to a tribunal), and 32:7.1(a) (false or misleading
                                      5

communication about the lawyer or lawyer’s services). With respect to

the billings for the briefs, the board charged Cannon with violation of

rule 32:1.5(a) (a lawyer shall not collect an unreasonable fee).

      When the matter came to a hearing, the board did not present

witnesses but relied instead upon exhibits and Cannon’s admissions.

Cannon testified that he did not intend to plagiarize when he started

writing the brief and regretted his error.      Prior to preparing the brief,

Cannon testified that he had conducted research, responded to emails

from opposing counsel, and reviewed some thirty-two bankers boxes of

documents.    By the time the brief was due, however, Cannon testified

that he was time-pressed and made the wrong decision to plagiarize large

sections of the Schrag and Haut article verbatim. Cannon testified that

he did not simply copy the article, but spent time looking at cases,

looking at the facts, and analyzing the opposition papers.

      The commission concluded that Cannon’s hearing and posthearing

briefs constituted plagiarism.    As a result, the commission found that

Cannon    violated   rules   32:8.4(c),   32:3.3(a),   and   32:7.1(a).   The

commission, however, concluded that the board had not proven that

Cannon charged an excessive fee in violation of rule 32:1.5(a).           That

conclusion was based upon the fact that Cannon (1) forgave the fees

billed to the client for the two briefs at issue, (2) made other financial

accommodations for his client by paying for other counsel to be “brought

up to speed” and by waiving fees for other legal work, and (3) did more

work on the briefs than mere plagiarism. The commission recommended

that Cannon’s license to practice law be suspended for a period of not

more than six months.
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         II. Standard of Review.

         This court reviews attorney disciplinary proceedings de novo. Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bernard, 653 N.W.2d 373,

375 (Iowa 2002). The board has the burden to prove an ethical violation

by a “ ‘convincing preponderance of the evidence.’ ” Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864 (Iowa 2010)

(quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Mulford, 625

N.W.2d 672, 679 (Iowa 2001)).

         III. Discussion.

         A.         Plagiarism.    In Iowa Supreme Court Board of Professional

Ethics & Conduct v. Lane, 642 N.W.2d 296 (Iowa 2002), we addressed the

question of whether plagiarism constituted an ethical violation. In Lane,

the attorney submitted a posttrial brief in federal court that was largely

plagiarized from a treatise. Lane, 642 N.W.2d at 298. Just as in this

case, a federal judge asked Lane to certify the author or authors of the

brief.        Id.      Unlike this case, however, Lane did not immediately

acknowledge the plagiarism and failed to respond to the court for several

months. Id. When Lane did respond, he buried the plagiarized treatise

in a four-page, single-spaced list of sources. Id.

         In     Lane,      we     determined   that   plagiarism   amounts   to   a

misrepresentation to the court. Id. at 300; see Iowa R. Prof’l Conduct

32:8.4(c) (prohibiting lawyers from engaging in “conduct involving . . .

misrepresentation”).            We note that other courts considering the issue

have reached the same conclusion. See, e.g., In re Ayeni, 822 A.2d 420,

421 (D.C. 2003) (finding attorney committed an ethical violation by

copying codefendant’s brief); In re Zbiegien, 433 N.W.2d 871, 875 (Minn.

1988) (finding plagiarism in a seminar paper constituted misconduct);
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Columbus Bar Ass’n v. Farmer, 855 N.E.2d 462, 467–68 (Ohio 2006)

(finding ethical violation for copying prior attorney’s brief).

        We recognize that the term “plagiarism” is something of a scarlet

letter that imposes a brand on a wide variety of behaviors. We do not

believe our ethical rules were designed to empower the court to play a

“gotcha” game with lawyers who merely fail to use adequate citation

methods. This case, however, does not involve a mere instance of less

than perfect citation, but rather wholesale copying of seventeen pages of

material. Such massive, nearly verbatim copying of a published writing

without attribution in the main brief, in our view, does amount to a

misrepresentation that violates our ethical rules.       We note that before

this court, Cannon has candidly admitted that his activity represented

dishonesty and not negligence or incompetence.

        We are less concerned about the alleged plagiarism in the

posthearing brief.    The claim of plagiarism in the posthearing brief is

based on a lengthy string citation, including parentheticals, lifted from

the Schrag and Haut article. While parentheticals can include original

ideas or creative expression, often they merely represent summaries of

cases without any unique intellectual work product. Nonetheless, it is

clear   that   in   the   main   brief,   Cannon   engaged    in   a   material

misrepresentation by copying page after page of original material and, in

doing so, violated rule 32:8.4(c).

        B. Unreasonable Fee. The commission found that the board did

not meet its burden in proving an unreasonable fee in this case.             In

reviewing this issue, we note that the burden is on the board to show an

ethical violation by a “convincing preponderance of the evidence.”

Lickiss, 786 N.W.2d at 864.
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      Upon our de novo review, we conclude, like the commission, that

the board has not met its burden. Unlike in Lane, where there was little

in the record to support the expenditure of time writing the plagiarized

briefs, Cannon testified that he spent the time he billed on record review

and research leading up to the filing of the briefs. He testified that he

examined the facts of the case, looked through volumes of evidence, and

conducted research on cases.      He testified that he did the amount of

work billed but simply took what amounted to a very unwise shortcut

when he ran out of time to file the brief. While we engage in a de novo

review,   we   give   consideration       to   the    commission’s   apparent

determination that Cannon was a credible witness. In light of the lack of

contrary evidence, and in light of the commission’s determination of

credibility, we conclude that the board failed to meet its burden by a

“convincing preponderance of the evidence” that Cannon charged an

excessive fee. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wright, 758

N.W.2d 227, 228 (Iowa 2008) (noting that we give weight to the

commission’s credibility findings).

      C. Sanction. There is no standard discipline for any particular

type of attorney misconduct. Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Kadenge, 706 N.W.2d 403, 410 (Iowa 2005). Nonetheless, we strive to

maintain a certain level of consistency.             Id.   In determining the

appropriate sanction, this court considers the nature of the violation or

violations, the protection of the public, the need to deter similar

misconduct by others, the lawyer’s fitness to practice, and the court’s

duty to uphold the integrity of the profession. Iowa Supreme Ct. Att’y

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

      In Lane, we suspended the attorney’s license for six months. Lane,

642 N.W.2d at 302. It is clear, however, that Lane represents a more
                                    9

egregious case than this proceeding.     In Lane, the attorney not only

committed plagiarism, but attempted to conceal that misconduct from

the court.   Id. at 298.   Further, in Lane, we found that the attorney

charged an excessive fee. Id. at 301. Neither an effort of concealment

nor an excessive fee is present in this case.       Yet, Cannon copied

extensive portions of the Schrag and Haut article and omitted

unfavorable passages of it. This is misrepresentation, plain and simple.

      In mitigation, we note that Cannon has engaged in a series of

remedial actions as required by the federal court. He refunded all his

fee, and even paid Sherinian to get up to speed on the file after his

plagiarism was uncovered.     Conversely, Cannon has a history of prior

ethical problems, which amounts to an aggravating factor.

      Under all the facts and circumstances, we conclude that a public

reprimand is the appropriate sanction in this matter. See Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Newman, 748 N.W.2d 786, 789 (Iowa 2008)

(publicly reprimanding attorney for violation of rule 32:8.4(c)).     We

recognize that we originally rejected a public reprimand in light of the

limited record presented to us.   The commission has now developed a

fuller record, and, after our review, we conclude that a public reprimand

is appropriate.

      IV. Conclusion.

      In light of the above facts and circumstances, Peter Cannon is

publically reprimanded for the misrepresentations involved in this

matter.

      ATTORNEY REPRIMANDED.
