                   IN THE SUPREME COURT OF IOWA
                            No. 78 / 08–0176

                        Filed September 12, 2008


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Appellant,

vs.

TODD BUCHANAN,

      Appellee.



      Appeal from the report of the Grievance Commission.



      Board appeals from Grievance Commission report issuing private

admonition. ATTORNEY REPRIMANDED.



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

appellant.



      David L. Brown of Hansen, McClintock & Riley, Des Moines, for

appellee.
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TERNUS, Chief Justice.

      The appellant, Iowa Supreme Court Attorney Disciplinary Board,

charged the appellee, Todd Buchanan, with violations of the Iowa Code of

Professional Responsibility for Lawyers based on Buchanan’s offer to settle a

client’s dispute by destroying evidence of a possibly forged document and by

promising his client’s agreement not to cooperate with any criminal

investigation.   Although the Iowa Supreme Court Grievance Commission

concluded Buchanan engaged in conduct prejudicial to the administration of

justice in violation of DR 1–102(A)(5), it did not recommend any discipline

and instead issued a private admonition. We permitted the Board to appeal

the Commission’s disposition.     After reviewing the record, we conclude

Buchanan committed ethical infractions that warrant a public reprimand.

      I. Scope of Review.

      We review attorney disciplinary proceedings de novo. Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Dull, 713 N.W.2d 199, 201 (Iowa 2006). “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). The Board must establish the charged

violations by a convincing preponderance of the evidence. Dull, 713 N.W.2d

at 201.   “This quantum of proof is ‘something less than required in a

criminal prosecution, and is something more than is required in a civil

proceeding.’ ” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Steffes, 588

N.W.2d 121, 122 (Iowa 1999) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996)).

      II. Factual Findings.

      Attorney Todd Buchanan was retained by Scott Miller to represent

Miller in a dispute over a shower installation project. Miller had contracted
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with Flooring Gallery to install shower tile in a new home. A disagreement

arose between Flooring Gallery and Miller when problems developed in the

shower that required extensive repairs. Miller denied responsibility for the

problems, prompting Flooring Gallery to refuse payment of a bill for

approximately $1000 submitted by Miller on an unrelated job.

      Attorney Michael Reck, on behalf of the owners of Flooring Gallery,

Dan and Teri Stalzer, made a written settlement demand on Miller for

payment in excess of $4600.      This demand was based upon a claim that

Miller had warranted his work for one year. Miller denied that a one-year

warranty existed, so Buchanan requested a copy of the purported warranty.

Reck then sent a copy of a written warranty signed by Miller to Buchanan.

Miller denied signing the warranty and told Buchanan the document was a

forgery. Miller also threatened to file criminal charges against the Stalzers.

Based on these assertions by his client, Buchanan sent a letter to Reck, in

which he stated the following:

      Thank you for sending the copy of the Warranty Agreement that
      is “purportedly a copy of an original” document signed by Scott
      Miller (See Iowa Code Section 715A.2). I would appreciate you
      obtaining the original document and making that available for
      inspection. Once you obtain custody of the original document I
      ask that you preserve it so the document may be examined by
      Roland Dippold, a document and handwriting analyst. I am
      assuming at some point we will want handwriting samples from
      Terry [sic] Stalzer and possibly other employees of Flooring
      Gallery.
      My client has authorized me to make an offer to settle this
      matter. Upon the Stalzers’ payment to Scott Miller of the sum of
      $1,000, he will sign a reciprocal release of claims that would
      include an affirmation that all evidence of the warranty
      agreement, that allegedly has Scott Miller’s signature on it, will
      be destroyed.     Furthermore, Scott Miller will agree to not
      cooperate with any criminal investigation against the Stalzers
      relating to that document. Last, he will agree that the terms of
      the settlement will remain confidential.
                                         4

Iowa Code section 715A.2, referenced in Buchanan’s letter, is an Iowa

statute defining the crime of forgery.

      Upon receipt of Buchanan’s letter, Reck informed Buchanan that he

could not ethically respond to the offer. Reck forwarded Buchanan’s letter to

the disciplinary board.

      After investigating the matter, the Board filed a disciplinary complaint

against Buchanan, alleging violations of (1) DR 1–102(A)(5) (a lawyer shall

not engage in conduct that is prejudicial to the administration of justice), (2)

DR 1–102(A)(6) (a lawyer shall not engage in conduct that adversely reflects

on the fitness to practice law), (3) DR 7–102(A)(1) (in the representation of a

client, a lawyer shall not take various actions that would serve merely to

harass   or   maliciously   injure   another),   (4)   DR 7–102(A)(8)   (in   the

representation of a client, a lawyer shall not knowingly engage in other illegal

conduct or conduct contrary to a disciplinary rule), and (5) DR 7–105(A) (a

lawyer shall not present, participate in presenting, or threaten to present

criminal charges solely to obtain an advantage in a civil matter). A hearing

was held before a division of the Grievance Commission. The Commission

concluded Buchanan violated DR 1–102(A)(5).            It was divided (2–3) on

Buchanan’s alleged violation of DR 7–105(A), and it reported no conclusion

on the remaining charges.        The Commission did not recommend any

discipline; it issued a private admonition.      See Comm. on Prof’l Ethics &

Conduct v. Liles, 430 N.W.2d 111, 113 (Iowa 1988) (stating private

admonition is “something less than actual discipline”). See generally Iowa

Ct. R. 35.9 (stating the Commission may “dismiss the complaint, issue a

private admonition, or recommend to the supreme court that the attorney be

reprimanded or the attorney’s license to practice law be suspended or

revoked”).    The Board was granted permission to appeal from the

Commission’s decision to impose no discipline.         See generally Iowa Ct. R.
                                              5

35.11(2) (providing mechanism for Board to appeal from Commission’s

decision to issue a private admonition).

       III. Ethical Violations.

       The Board claims Buchanan’s offer on behalf of his client to destroy

evidence of a purported forgery and to withhold evidence in a criminal

prosecution was conduct prejudicial to the administration of justice and that

it adversely reflected on Buchanan’s fitness to practice law in violation of

DR 1–102(A)(5), (6).1 We agree.

       Whether conduct is prejudicial to the administration of justice is not

subject to a precise test. Actions that have commonly been held to violate

DR 1–102(A)(5) “have hampered ‘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. Howe, 706 N.W.2d 360, 373 (Iowa 2005) (quoting

Steffes, 588 N.W.2d at 123).           When considering whether conduct reflects

adversely on an attorney’s fitness to practice law within the scope of DR 1–

102(A)(6), we have held the term “fitness” embraces more than legal

competence. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Mulford,

625 N.W.2d 672, 683 (Iowa 2001). Conduct that lessens public confidence

in the legal profession is an adverse reflection on an attorney’s fitness to



       1The   Board also asserts Buchanan violated DR 7–105(A), which provides that “[a]
lawyer shall not present, participate in presenting, or threaten to present criminal charges
solely to obtain an advantage in a civil matter.” This prohibition is not found in this form in
the Iowa Rules of Professional Conduct, which became effective shortly after the conduct at
issue here. See generally Comm. on Legal Ethics of the W. Va. Bar v. Printz, 416 S.E.2d 720,
722–23 (W. Va. 1992) (discussing differences between model code and model rules with
respect to threatening to pursue criminal charges to obtain an advantage in a civil
proceeding). We have said “we prefer not to impose a potentially serious sanction based
upon an ethical norm that is no longer applicable.” Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Kress, 747 N.W.2d 530, 539 (Iowa 2008). In Kress, we declined to consider whether an
attorney had violated DR 1–102(A)(6) because the new rules of professional conduct had
materially altered that provision. Id. at 539–40. For the same reason, we decline to
consider whether Buchanan violated DR 7–105(A).
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practice law. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Marcucci,

543 N.W.2d 879, 882 (Iowa 1996).

      Turning to the facts of this case, we think Buchanan clearly implied in

his letter to Reck that Miller’s signature on the warranty agreement was a

forgery in violation of section 715A.2, a criminal statute. In the same letter

Buchanan agreed to participate in the destruction of “all evidence of the

warranty agreement[] that allegedly has Scott Miller’s signature on it.” He

also assured Reck that Miller would “not cooperate with any criminal

investigation against the Stalzers relating to that document.”      Although

Buchanan argues this conduct was not illegal, “conduct may be unethical,

measured by the minimum requirements of the Code of Professional

Responsibility, even if it is not unlawful.”     Gunter v. Va. State Bar, 385

S.E.2d 597, 600 (Va. 1989).

      It cannot be disputed that the destruction and withholding of evidence

hampers the efficient and proper operation of the courts.       See People v.

Kenelly, 648 P.2d 1065, 1066 (Colo. 1982) (“[I]f the legal system in this

country is to survive, courts of law must have the testimony of necessary

witnesses.”); Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 351 (Ind.

2005) (noting “attorneys involved in destruction or concealment of evidence

face penalties including disbarment”); In re Williams, 23 N.W.2d 4, 9 (Minn.

1946) (“The willful participation by an attorney in the destruction or

suppression of evidence which he knows may be required upon a trial,

hearing, or other legal proceedings constitutes a breach of professional duty

and subjects such attorney to discipline.”); cf. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502 (Iowa 2008) (holding

attorney’s failure to fully cooperate with disciplinary board was conduct

prejudicial to the administration of justice).   The fact Buchanan’s offer to

destroy and withhold evidence was not accepted or acted upon does not
                                        7

mitigate the wrongfulness of his attempt to engage in conduct prejudicial to

the administration of justice. See Kenelly, 648 P.2d at 1066 (“An attorney,

who is sworn to uphold the law and to aid in the administration of justice,

has a high duty as an officer of the court to never participate in any scheme

to obstruct the administration of justice or the judicial process.”); Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Gallner, 621 N.W.2d 183, 188

(Iowa 2001) (holding “the failure to achieve the ultimate goal does not

mitigate the wrongful attempt”); Office of Disciplinary Counsel v. Campbell,

345 A.2d 616, 621–22 (Pa. 1975) (holding attorney who agreed to supposedly

arrange for the destruction of nonexistent evidence engaged in conduct

prejudicial to the administration of justice).

       Buchanan’s conduct also reflects adversely on his fitness to practice

law.   The public expects attorneys “to uphold the law and to aid in the

administration of justice.” Kenelly, 648 P.2d at 1066. Buchanan’s conduct

indicated he was amenable to obstructing the criminal investigation of a

forgery, and therefore, it reflected adversely on his fitness to serve as an

officer of the court. See Campbell, 345 A.2d at 621–22 (holding attorney’s

agreement to supposedly arrange for the destruction of nonexistent evidence

reflected adversely on his fitness to practice law); cf. Ireland, 748 N.W.2d at

502 (holding attorney’s failure to fully cooperate with disciplinary board

adversely reflected on his fitness to practice law).

       In summary, we agree with the commission that Buchanan violated

DR 1–102(A)(5) by engaging in conduct prejudicial to the administration of

justice. In addition, we conclude his actions also reflected adversely on his

fitness to practice law in violation of DR 1–102(A)(6). We turn now to the

appropriate discipline.
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      IV. Sanction.

      Buchanan’s conduct violated our code of professional responsibility,

and he is, therefore, subject to discipline.   In determining an appropriate

sanction,

      “we consider the nature and extent of the respondent’s ethical
      infractions, his fitness to continue practicing law, our obligation
      to protect the public from further harm by the respondent, the
      need to deter other attorneys from engaging in similar
      misconduct, our desire to maintain the reputation of the bar as
      a whole, and any aggravating or mitigating circumstances.”

Howe, 706 N.W.2d at 378 (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Kallsen, 670 N.W.2d 161, 164 (Iowa 2003)).

      In addition to the fact that a private admonition of an attorney is not

discipline, it is also significant that a private admonition is not made public.

See Iowa Ct. Rs. 35.9 (requiring commission to file report only if it

recommends a reprimand or a suspension or revocation of attorney’s

license), 35.11(3) (providing that appeal from commission’s issuance of a

private reprimand shall remain confidential unless and until supreme court

reverses or modifies commission’s report).      Therefore, the issuance of a

private admonition for an ethical infraction does not deter other attorneys

from engaging in similar misconduct.        Moreover, the failure to impose

discipline for an ethical violation diminishes the reputation of the bar as a

whole because it sends a message that attorneys may shirk their ethical

responsibilities with impunity. Finally, we are also mindful that one of the

underlying purposes of attorney discipline is “ ‘to protect the integrity of and

public confidence in our system of justice.’ ”     Howe, 706 N.W.2d at 378

(quoting Comm. on Prof’l Ethics & Conduct v. Vesole, 400 N.W.2d 591, 593

(Iowa 1987)).   To fail to discipline an attorney who offers to engage in

conduct that undermines the integrity of our court proceedings through the

destruction and suppression of evidence would weaken the public’s
                                      9

confidence in the courts, contrary to the purpose of our disciplinary system.

For these reasons, we agree with the Board that the Commission’s issuance

of a private admonition was an insufficient sanction.

      On the other hand, we do not think Buchanan’s conduct warrants the

suspension or revocation of his license. Buchanan has no prior disciplinary

history. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Borth, 728 N.W.2d

205, 212 (Iowa 2007) (stating attorney’s lack of prior ethical violations was a

mitigating circumstance that supported issuance of a public reprimand). In

addition, there is nothing in the record to suggest that the public would be

at risk of further harm if we allow Buchanan to continue to practice law.

Therefore, we conclude the goals of the attorney disciplinary system will be

adequately addressed through the imposition of a public reprimand.

      V. Conclusion.

      We publicly reprimand Todd Buchanan for his ethical violations and

tax the costs of this proceeding against him.

      ATTORNEY REPRIMANDED.
