                    IN THE SUPREME COURT OF IOWA

                                  No. 14–0049

                            Filed May 30, 2014


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

LORI JO KIEFFER-GARRISON,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Review   of    a   report    filed    by   the   Grievance     Commission

recommending     suspension       of   an    attorney’s   license.     LICENSE

SUSPENDED.



      Charles L. Harrington and Wendell J. Harms, Des Moines, for

complainant.


      Lori J. Kieffer-Garrison, Davenport, pro se.
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HECHT, Justice.

      The Iowa Supreme Court Disciplinary Board (Board) charged an

attorney with violations of the Iowa Rules of Professional Conduct after

she repeatedly missed appellate deadlines in several criminal cases,

received twenty default notices as a consequence of those missed

deadlines, failed to pay resulting penalties in a timely fashion over a

period of two years, and allegedly made a knowingly false statement to

the court. After a hearing, a division of the Grievance Commission of the

Supreme Court of Iowa found the attorney’s actions violated several

ethical rules and recommended a suspension of her license to practice

law. Upon our review, we find the Board proved the alleged violations,

and we conclude the appropriate sanction is a suspension of the

attorney’s license for a period of six months.

      I. Background Facts and Prior Proceedings.

      Lori Jo Kieffer-Garrison was first licensed to practice law in Iowa in

2002. 1 She was privately admonished in 2009 and 2010, each time for

failure to cure a notice of default from the clerk of this court.      Both

private admonitions were based on violations of Iowa Rules of

Professional Conduct 32:1.3 and 32:8.4(d).
      The Board’s complaint in this case alleged Kieffer-Garrison’s

pattern of neglecting her obligation to comply with the deadlines imposed

by our rules of appellate procedure continued in 2011 and 2012.          In

particular, the amended complaint alleged and Kieffer-Garrison admitted

she received more than twenty notices of default after failing to meet

various deadlines and timely pay monetary penalties for such defaults in



      1She   was first licensed to practice law in Illinois in 2001.
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nine separate criminal case appeals.      The Board alleged—and Kieffer-

Garrison admitted—these failures and defaults constituted violations of

rules 32:1.3 (lawyer shall act with reasonable diligence and promptness

in representing a client); 32:3.2 (lawyer shall make reasonable efforts to

expedite litigation consistent with the interests of the client); 32:3.4(c)

(lawyer shall not knowingly disobey an obligation under the rules of a

tribunal); and 32:8.4(d) (professional misconduct for a lawyer to engage

in conduct that is prejudicial to the administration of justice).

      In a separate count of the amended complaint, the Board alleged

Kieffer-Garrison falsely represented to both her client, Anthony McGee,

and the clerk of this court that she had timely filed by mail an

application for further review in a postconviction appeal. This conduct,

the Board alleged, violated rules 32:1.2(a) (lawyer shall abide by a client’s

decisions concerning the objectives of representation), 32:1.3, 32:3.2,

32:3.3(a)(1) (lawyer shall not knowingly make a false statement of fact to

a tribunal), 32:3.4(c), and 32:8.4(d). Kieffer-Garrison denied the Board’s

allegations in this count and testified before the commission that she

prepared the application for further review and followed her routine office

procedure for timely filing it through the mail.

      The commission found the Board met its burden of proving Kieffer-

Garrison violated rules 32:1.3, 32:3.2, 32:3.4(c), and 32:8.4(d) as a

consequence of her serial failures to comply with deadlines imposed by

our rules of appellate procedure.     The commission also found Kieffer-

Garrison violated rules 32:1.2(a), 32:1.3, 32:3.2, 32:3.3(a)(1), 32:3.4(c),

and 32:8.4(d) in failing to prepare and timely file the application for

further review, and in falsely representing to McGee and the court that

she had done so.
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      The commission recommended a one-year suspension of Kieffer-

Garrison’s license.

      II. Scope of Review.

      Our review of the commission’s report is de novo. Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 366 (Iowa 2005).

“Under this standard of review, we give weight to the factual findings of

the Commission, especially with respect to witness credibility, but we

find the facts anew.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Beckman, 674 N.W.2d 129, 131 (Iowa 2004). “Although we respectfully

consider the discipline recommended by the Commission, the final

decision on the appropriate sanction is for this court.”         Howe, 706

N.W.2d at 366. The Board must prove its allegations of misconduct by a

convincing preponderance of the evidence. Id.

      III. Ethical Violations.

      We find the Board proved by a clear preponderance of the evidence

that Kieffer-Garrison violated rules 32:1.3, 32:3.2, 32:3.3(a)(1), 32:8.4(c),

32:1.2(a), and 32:8.4(d) in her repeated failures to comply with the

deadlines imposed by our rules of appellate procedure. Our analysis will

proceed with a discussion of the evidence pertaining to each of the

violations alleged by the Board.

      A.   Rule 32:1.3: Reasonable Diligence and Promptness.               A

lawyer violates rule 32:1.3 in failing to act with reasonable diligence and

promptness in representing a client.       Iowa R. Prof’l Conduct 32:1.3.

Kieffer-Garrison violated this rule in repeatedly failing to comply with

deadlines imposed by the rules of this court in nine separate criminal

cases and in failing to promptly pay penalties imposed by the court. The

documentary evidence of more than twenty default notices issued to her

in those cases overwhelmingly supports our finding of this violation.
                                          5

       B.    Rule 32:3.2: Expediting Litigation.             This rule is violated

when a lawyer fails to “make reasonable efforts to expedite litigation

consistent with the interests of the client.” Iowa R. Prof’l Conduct 32:3.2.

An attorney violates this rule by failing to appear for status conferences

and respond to court inquiries. Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Johnson, 792 N.W.2d 674, 679–80 (Iowa 2010). Similarly, an attorney

violates this rule in failing to comply with orders compelling discovery

responses. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cunningham, 812

N.W.2d 541, 548 (Iowa 2012).             We conclude Kieffer-Garrison’s serial

failures to comply with the requirements of this court’s procedural rules

governing the timely presentation and progression of appeals constituted

a violation of her obligation to demonstrate reasonable efforts to expedite

numerous appeals consistent with her clients’ interests. 2

       C.    Rule 32:3.4(c): Knowing Disobedience of an Obligation

Under the Rules of a Tribunal.                A lawyer’s obligation to act with

fairness to opposing parties and their counsel includes the obligation to

refrain from “knowingly disobey[ing] an obligation under the rules of a

tribunal except for an open refusal based on an assertion that no

obligation exists.” Iowa R. Prof’l Conduct 32:3.4. In this case, there can
be no doubt that Kieffer-Garrison knew the rules of this court imposing

time deadlines pertaining to appeals, and that she persistently violated

them in several criminal appeals. Her violations of the rules occurred

despite her acknowledged receipt of numerous notices of those deadlines

informing her of the specific rules requiring timely filings. Our decisions


       2As  the Board did not contend Kieffer-Garrison engaged in conduct for the
purpose of frustrating the judicial process, we need not address whether she acted with
such intent. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 530
(Iowa 2011).
                                      6

have explained, however, that the purpose of rule 32:3.4(c) is to ensure

“ ‘[f]air competition in the adversary system’ through proper adherence to

discovery and evidence rules.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Dunahoo, 799 N.W.2d at 524, 533 (Iowa 2011) (quoting Iowa R. Prof’l

Conduct 32:3.4(c) cmt. 1). We find the Board failed to meet its burden of

proving Kieffer-Garrison’s conduct undermined the competitive fairness

of the appeals or disadvantaged opposing counsel. Accordingly, we find

no violation of rule 32:3.4(c) by Kieffer-Garrison in this case.

      D. Rules 32:8.4(c); 32:3.3(a)(1): Engaging in Dishonesty; Lack

of Candor Toward a Tribunal in the McGee Case. We now turn to the

Board’s claim that Kieffer-Garrison failed to prepare and timely file an

application for further review in the McGee case and falsely represented

to the clerk of this court she had done so. We find Kieffer-Garrison was

appointed on June 23, 2011, as McGee’s counsel in a postconviction

relief appeal.   On October 7, the clerk of this court issued a notice of

default informing Kieffer-Garrison she had failed to timely serve McGee’s

proof brief and appendix designation. Kieffer-Garrison subsequently filed

both the proof brief and the appendix designation thirty-six and forty-

three days late, respectively. Another notice of default was issued by the

clerk on February 27, 2012, as a consequence of Kieffer-Garrison’s

failure to timely file the appendix, which was eventually filed twenty-

seven days late.

      The court of appeals affirmed the dismissal of McGee’s petition for

postconviction relief on June 13. McGee learned of this development not

from Kieffer-Garrison, but via his receipt of a copy of the decision from

the court. McGee conferred with Kieffer-Garrison who agreed to prepare

and file an application for further review by this court.
                                     7

      No such application was received by the clerk of this court in due

course, however, and procedendo was therefore issued on July 11.

Thereafter, McGee called the clerk’s office to check on the status of his

appeal. He was informed that an application for further review had not

been filed in his case.

      McGee went to Kieffer-Garrison’s office to inquire.    After Kieffer-

Garrison assured McGee an application had been filed, McGee called the

clerk’s office. He handed his cell phone to Kieffer-Garrison who spoke

with a deputy clerk. Kieffer-Garrison told the deputy she had sent an

application to the clerk via the postal service but could not supply

tracking confirmation.    When the deputy asked Kieffer-Garrison if she

possessed a copy of the application, Kieffer-Garrison said she was unable

to locate a copy that could be promptly transmitted to the clerk’s office

by email or fax.    The deputy informed Kieffer-Garrison that her only

remaining option was to file a motion to reconsider and reinstate the

appeal.

      Kieffer-Garrison’s opposing counsel, an assistant attorney general

representing the state in McGee’s appeal, never received a copy of the

application from Kieffer-Garrison.       On August 13—four weeks after

procedendo issued—Kieffer-Garrison faxed to the clerk of this court a

motion to reconsider and reinstate McGee’s appeal and request further

review. The motion asserted she had “filed a request for further review,”

but no application for further review was attached.

      This court’s clerk finally received an application for further review

from Kieffer-Garrison pertaining to McGee’s case on December 5. The

application included a certificate of mailing signed by Kieffer-Garrison

certifying the document had been filed on July 2 by mailing it to the clerk

and to opposing counsel at the attorney general’s office.
                                         8

      Upon our review of this evidence, we find Kieffer-Garrison violated

rules 32:3.3(a)(1) and 32:8.4(c) when, after failing to prepare and timely

file the application for further review, she falsely represented to McGee

and this court that she had done so.

      In making these findings, we give weight to and agree with the

commission’s finding as to Kieffer-Garrison’s lack of credibility. Although

she persisted at the hearing before the commission in claiming she

prepared the McGee application and placed it in the mail for filing and

service, her testimony on this point is unsupported by the credible

evidence. Neither the clerk of this court nor Kieffer-Garrison’s opposing

counsel received the application through the mail before procedendo

issued in the appeal.        Furthermore, after McGee confronted Kieffer-

Garrison with the fact that the clerk of this court had not received the

application, she was unable to produce a copy of the document from her

office computer system or paper files before she was notified of the

ethical complaint. 3 Even more salient, in our view, is the fact that her

billing records submitted in support of her request for compensation in

the McGee case did not include an entry for time spent in preparing the

application.
      E.    Rule 32:1.2(a): Failing to Abide by a Client’s Decisions

Concerning Objectives of Representation. This rule provides a lawyer

shall, subject to limitations not applicable here, “abide by a client’s

decisions concerning the objectives of representation.”            Iowa R. Prof’l

Conduct 32:1.2(a).        We find the board proved by a convincing


      3Kieffer-Garrisondid later provide the Board with a copy of an application for
further review in McGee’s case, but the credible evidence supports our finding this
document was prepared and mailed after Kieffer-Garrison was notified of the default
and ethical complaint.
                                    9

preponderance of the evidence that Kieffer-Garrison failed to abide by

McGee’s objective and her agreement to prepare and timely file the

application for further review.

      F.   Rule 32:8.4(d): Conduct Prejudicial to the Administration

of Justice. A lawyer’s conduct violates rule 32:8.4(d) if “it impedes ‘the

efficient and proper operation of the courts or of ancillary systems upon

which the courts rely.’ ”    Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Taylor, 814 N.W.2d 259, 267 (Iowa 2012) (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 103 (Iowa 2012)).

Violations of this rule impede the efficient operation of the courts and

waste judicial resources. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Kallsen, 814 N.W.2d 233, 238–39 (Iowa 2012). We find Kieffer-Garrison’s

conduct was, by a convincing preponderance of the evidence, prejudicial

to the administration of justice because it caused the court to waste

judicial resources in addressing a motion falsely asserting she filed an

application for further review on behalf of McGee.

      IV. Sanction.

      “In considering an appropriate sanction, this court considers all

the facts and circumstances, including the nature of the violations, the

attorney’s fitness to practice law, deterrence, the protection of society,

the need to uphold public confidence in the justice system, and the need

to maintain the reputation of the bar.”         Iowa Supreme Ct. Att’y

Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 463 (Iowa 2014).       We

consider mitigating and aggravating circumstances as we calibrate the

sanction. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d

498, 502 (Iowa 2008) (per curiam). We give respectful consideration to

the commission’s findings and conclusions, but “may impose a greater or

lesser sanction than that recommended by the commission.”            Iowa
                                     10

Supreme Ct. Att’y Disciplinary Bd. v. Wheeler, 824 N.W.2d 505, 509–10

(Iowa 2012). We also seek to “achieve consistency with our prior cases

when determining the proper sanction.”          Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010).

         “When neglect is the primary violation, the sanction generally

ranges from a public reprimand to a six-month suspension.”            Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa

2007). When neglect is accompanied by other misconduct, however, the

sanction imposed will likely be more severe than when neglect stands

alone.    Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d

683, 685 (Iowa 2006). A brief review of this court’s recent disciplinary

cases will illustrate factors influencing our determination of the

appropriate sanction in this case.

         In Iowa Supreme Court Board of Professional Ethics & Conduct v.

Stein, 586 N.W.2d 523 (Iowa 1998), we concluded an attorney’s neglect of

two medical negligence cases and his numerous misrepresentations

made to cover up his neglect warranted a suspension of six months.

Stein, 586 N.W.2d at 526. In Walker, we imposed a suspension of six

months as the sanction for an attorney’s neglect of four clients’ cases

and misrepresentations calculated to conceal his neglect. Walker, 712

N.W.2d at 686. In Earley, we suspended for four months the license of

an attorney who neglected the interests of three clients, failed to deposit

retainers from two clients in a trust account, and failed to promptly

return a file to a client. Earley, 729 N.W.2d at 442–44. In Iowa Supreme

Court Attorney Disciplinary Bd. v. Conroy, 845 N.W.2d 59 (Iowa 2014), we

imposed a suspension of six months as a consequence of an attorney’s

neglect of appeals in six criminal cases and one postconviction relief

case.     Conroy, 845 N.W.2d 59, 67–68.       Although Conroy made no
                                   11

misrepresentations to hide his neglect, we counted his history of two

prior admonitions, three temporary suspensions, and one suspension of

sixty days as aggravating factors affecting our determination of the

appropriate sanction. Id. at 67.

      Sanctions for violations involving dishonesty have ranged from a

brief suspension of two months to revocation. Van Ginkel, 809 N.W.2d at

110–11 (imposing a suspension of two months for filing interlocutory

report with a false statement and other violations); Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 382 (Iowa 2007)

(revoking the license of a lawyer for multiple instances of dishonest

conduct including forging an executor’s name on a probate report

submitted to the court after previous suspension for similar dishonest

conduct).

      Kieffer-Garrison’s neglect of legal matters and her persistent

misrepresentations were serial acts of misconduct, rather than an

isolated misadventure. “Normally, a pattern of misconduct gives rise to

enhanced sanctions.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Gallner, 621 N.W.2d 183, 187 (Iowa 2001). Kieffer-Garrison’s persistent

perpetuation of a falsehood is a “remarkable aggravating factor.”

McGinness, 844 N.W.2d at 466–67 (noting attorney’s persistence in

asserting misrepresentation was “a remarkable aggravating factor” and

suspending attorney’s license for six months).

      In determining the appropriate sanction in this case, however, we

also consider Kieffer-Garrison’s depression during the relevant period

and her appropriate pursuit of medical treatment. Depression, while not

excusing the disciplinary violations, may have a bearing on our

determination of the appropriate severity of sanction. See Iowa Supreme

Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 292–96
                                     12

(Iowa 2002) (considering major depression as a factor influencing the

sanction).     Having considered the relevant factors affecting our

determination of an appropriate sanction, we conclude Kieffer-Garrison’s

license should be suspended with no possibility of reinstatement for six

months.

      V. Conclusion.

      We suspend Kieffer-Garrison’s license to practice law in this state

with no possibility of reinstatement for a period of six months from the

date of the filing of this opinion. This suspension shall apply to all facets

of law.      Iowa Ct. R. 35.13(3).     She must establish prior to any

reinstatement that she has not practiced law during the suspension

period, that she has conformed with the rules and procedures governing

reinstatement found in Iowa Court Rule 35.14, and that she has satisfied

the notification requirements set forth in Iowa Court Rule 35.23.        The

costs of this proceeding are taxed to Kieffer-Garrison. See Iowa Ct. R.

35.27.

      LICENSE SUSPENDED.
