               IN THE SUPREME COURT OF IOWA
                               No. 19–1662

                         Filed January 24, 2020


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

BEAU A. BERGMANN,

      Respondent.

      On review of the report of the Iowa Supreme Court Grievance

Commission.



      Grievance   commission     recommends     public   reprimand     and

probation for violations of ethical rules. ATTORNEY REPRIMANDED.



      Tara van Brederode, Des Moines, and Andrew J. Boettger, Ames, for

complainant.


      Alfredo Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry,

Brown & Bergmann LLP, Des Moines, for respondent.
                                              2

MANSFIELD, Justice.

      I. Introduction.

      A relatively inexperienced Iowa attorney had too much on his plate

and, as a result, missed court deadlines and appearances. After the Iowa

Supreme Court Attorney Disciplinary Board (Board) filed a complaint

against the attorney, the parties reached a stipulation of facts, violations,

and sanctions.        They proposed that the attorney receive a public

reprimand followed by twelve months of probation. The Iowa Supreme

Court Grievance Commission agreed with the joint recommendation and

passed it along to us.

      On our review, we conclude that a public reprimand is appropriate

for this case of neglect. Several mitigating factors are present, including

the attorney’s inexperience. But we decline to order probation. In our

view, any such change in our disciplinary system should be instituted via

rulemaking, with an opportunity for public comment.

      II. Facts and Procedural History.

      A. Our Limited Record. Our factual record is sparse because the

matter was submitted on a stipulation, and the stipulation is rather vague

as to what the facts are. Also, no exhibits accompany the stipulation to

provide additional background. 1

      One example of a shortfall in the stipulation is the following

sentence: “Bergmann neglected the dissolution case by failing to keep B.M.



      1Iowa   Court Rule 36.16(2) provides,
      The grievance commission must interpret the stipulation of facts with
      reference to its subject matter and in light of the surrounding
      circumstances and the whole record, including the state of the pleadings,
      issues involved, and any additional evidence elicited at a limited hearing.
Thus, the rule contemplates that the record will often include more than just the
stipulation.
                                             3

reasonably informed of the status of said case.” 2 This is really a stipulation

as to a legal conclusion, not a fact. It would be helpful to know in what

ways Bergmann failed to keep his client informed and for how long the

client remained uninformed.

       The next sentences of the stipulation recite, “Bergmann received the

relevant documents late from the client. However, Bergmann concedes he

should have been more diligent in obtaining the information.”                          For

purposes of our review, it would be helpful to know what the documents

were, when they were obtained, and what their importance to the case was.

       Next the stipulation states, “Bergmann admits he did not properly

follow the Rules of Civil Procedure relative to proper notice of service of

process in B.M.’s matter.” What was the deficiency here? What effects did

it have?

       The stipulation continues, “Bergmann admits he did not file the

affidavits on behalf of B.M. in a timely fashion and should have done so.

However, a mitigating factor is that B.M. produced these affidavits at a late

hour.” Again, what affidavits are the parties referring to, when should they

have been filed, and when were they in fact filed?

       These details matter because not every missed deadline or delay is

an ethical violation. 3      And even when we find an ethical violation, the

       2Although  the stipulation does not identify Bergmann’s clients, our practice is not
to use pseudonyms or initials routinely in our opinions. We do use pseudonyms or initials
when the identity of someone is legally confidential, such as a juvenile, or when the nature
of the matter calls for confidentiality, such as an allegation of sexual harassment or
domestic violence. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Sears, 933 N.W.2d
214, 217 n.1 (Iowa 2019) (“Due to the sensitive nature of the underlying facts, we will use
the pseudonym ‘Jane Doe’ in reference to the victim witness.”).
       3We   have previously said,
               Generally, a violation of rule 32:1.3 cannot be found if “the acts or
       omissions complained of were inadvertent or the result of an error of
       judgment made in good faith.” An attorney does not typically commit
       neglect by missing a single deadline. Instead, neglect involves a consistent
       failure to perform obligations the lawyer has assumed or a “conscious
                                             4

sanction often turns on the seriousness of the violation and the attendant

circumstances. The Board has the burden of proof. See Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Smith, 885 N.W.2d 185, 192 (Iowa 2016)

(discussing the board’s burden of proof in a case heard on stipulation).

Therefore, to the extent our factual record falls short, we cannot hold that

against the attorney. See id.

       From the stipulation and the admitted allegations of the complaint,

we can glean some relevant facts. Beau Bergmann has been licensed to

practice law in Iowa since 2012—a period of seven years.                       Bergmann

resided first in Des Moines (2012 to 2015) and then later in Mount

Pleasant (2015 to present). Until 2018, Bergmann attempted to maintain

offices in both Des Moines and Mount Pleasant. Since then, Bergmann

has maintained an office only in Mount Pleasant and is focused on building

a practice in Henry County and the surrounding area. Bergmann has

accepted court appointments through the state public defender in

seventeen counties.        The disciplinary proceeding concerns Bergmann’s

representation of three different clients, one of which involved a court

appointment.

       B. The First Client.          In 2014, Bergmann began representing a

client in a dissolution of marriage action that involved children.4

Bergmann failed to appear for a hearing on temporary matters, even

though he acknowledged that the client had delivered to him a copy of the


       disregard for the responsibilities a lawyer owes to a client,” and may arise
       when an attorney repeatedly fails to meet deadlines.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Taylor, 814 N.W.2d 259, 265 (Iowa 2012)
(citation omitted) (first quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Joy, 728 N.W.2d
806, 812 (Iowa 2007); and then quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss,
786 N.W.2d 860, 867 (Iowa 2010)).
       4The stipulation says this representation began in 2015. We assume that to be a
typographical error.
                                       5

order setting the hearing. Without Bergmann having made an appearance,

the judge entered a ruling on temporary matters on September 26. Five

days later, on October 1, Bergmann filed a motion for suspension and

reconsideration of temporary matters. In that motion, Bergmann told the

court, incorrectly, that the “first filing” he had received on the temporary

matters hearing was the September 26 ruling.        Eventually, the client

retained new counsel. On November 14, the new attorney filed a motion

for further hearing. The motion included four affidavits that had been

notarized by Bergmann on October 1.

      The parties have also stipulated that Bergmann “believes” his

request for reconsideration was appropriate and timely and “does not feel

he was untruthful in connection with this disciplinary matter but accepts

responsibility.”

      C. The Second Client.          In 2015, Bergmann was appointed to

defend an individual who had been charged with perjury. The individual

was convicted later that year.       Bergmann filed a notice of appeal on

December 21. On January 13, 2016, another attorney, Kenneth Weiland,

likewise filed a notice of appeal.    On January 25, both Bergmann and

Weiland were issued notices of default and assessed $150 penalties for

failure to file and serve the combined certificate and pay the appeal fee.

On February 8, Weiland filed the combined certificate and requested a

waiver of the appeal fee. Bergmann took no action. On May 24, both

Bergmann and Weiland were issued notices of default and assessed $150

penalties for failure to file and serve the appellant’s proof brief and

designation of appendix parts.        Neither attorney responded to these

notices, and the appeal was dismissed for want of prosecution.          See

Iowa R. App. P. 6.1202(1)(a).   Later, Weiland moved unsuccessfully for

reinstatement of the appeal.
                                         6

        According to the parties’ stipulation, Bergmann erroneously believed

that his court-appointed duties had ended once Weiland filed a notice of

appeal as appellate counsel.       Bergmann acknowledges he should have

followed up with the court and with Weiland to ensure the defaults were

cured and the appeal was progressing.

        D. The Third Client.         The third matter involved a custody

proceeding that unfolded during 2016. Bergmann’s client repeatedly had

difficulty reaching Bergmann.        Bergmann admits he received calls and

failed to timely respond. At an August 15 pretrial conference, Bergmann

learned for the first time that his client had reached a settlement in

mediation; before then, Bergmann had been unaware of either the

mediation or the settlement. In late October, Bergmann’s client asked him

to withdraw. In November 2016, Bergmann filed a notice of withdrawal at

the client’s request. The court denied Bergmann permission to withdraw

until   a   new    attorney    appeared.          Bergmann   admits    there   were

administrative shortcomings with regard to the records he maintained in

the matter.

        E. The Complaint and Subsequent Proceedings. The Board filed

a   complaint     against     Bergmann       on    November 14,    2018,   alleging

disciplinary rule violations in the foregoing three matters. Bergmann filed

a motion for a more specific statement and an answer. As already noted,

the parties subsequently reached a stipulation and submitted the matter

to the commission on that basis.                See Iowa Ct. R. 36.16(1).      The

commission        found     violations     of     Iowa   Rule     of   Professional

Responsibility 32:1.3 (requiring the attorney to “act with reasonable

diligence”), rule 32:1.4 (requiring the attorney to “reasonably consult with

the client”), rule 32:3.2 (requiring the attorney to “make reasonable efforts

to expedite litigation”), rule 32:3.4(c) (requiring the attorney not to
                                      7

“knowingly disobey an obligation under the rules of a tribunal”), and

rule 32:8.4(d) (requiring an attorney not to “engage in conduct that is

prejudicial to the administration of justice”).

      F. Other Considerations. Bergmann has had many stressors in

his life. Some are work-related. Bergmann has practiced primarily in the

area of indigent criminal defense.     This practice requires considerable

travel, much of which has not been compensated in Bergmann’s case.

Bergmann used to have an associate, but the associate left suddenly, and

Bergmann has been unable to hire another.

      Bergmann also has sources of stress in his personal life. He and his

wife lost a child due to a miscarriage. Bergmann suffers from persistent

depressive disorder in the mild range.            His wife has suffered from

depression as well.    Bergmann is currently undergoing personal and

marriage counseling.

      Bergmann has begun using office management software and has

instituted regular staff meetings to improve office procedures and ensure

work is done in a timely manner.

      Bergmann has been a member of the executive council of the Young

Lawyers Division of the Iowa State Bar Association since 2015. He serves

as a volunteer judge at mock trial competitions. He has worked on pro

bono cases.

      Bergmann has responded to all correspondence from the Board. He

volunteered for a psychiatric evaluation after these matters arose and has

been receiving mentoring from his brother, also an Iowa attorney.

      III. Standard of Review.

      “We review attorney disciplinary matters de novo.” Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Earley, 933 N.W.2d 206, 213 (Iowa 2019)

(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lynch, 901 N.W.2d 501,
                                     8

506 (Iowa 2017)); see Iowa Ct. R. 36.21(1).       “The Board must prove

attorney misconduct by a convincing preponderance of the evidence, a

burden greater than a preponderance of the evidence but less than proof

beyond a reasonable doubt.” Earley, 933 N.W.2d at 213 (quoting Lynch,

901 N.W.2d at 506).

      “When the parties enter into a stipulation, . . . they are bound by the

stipulated facts, which we interpret with reference to their subject matter

and in light of the surrounding circumstances and the whole record.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Humphrey, 922 N.W.2d 601, 604

(Iowa 2019) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson,

884 N.W.2d 772, 777 (Iowa 2016)).        “However, ‘[w]e are not bound by

stipulations as to ethical violations or the appropriate sanctions.’ ” Id.

(alteration in original) (quoting Johnson, 884 N.W.2d at 777).             “We

respectfully   consider   the   commission’s    recommendations       as    to

sanction . . . .” Earley, 933 N.W.2d at 213.

      IV. Rule Violations.

      Notwithstanding our misgivings about the stipulated record in this

case, we agree with the parties and the commission that Bergmann

violated several rules of professional conduct. In the future, we remind

parties to comply with rule 36:16(1)(a) when entering into stipulations in

attorney disciplinary proceedings. That rule provides,

      A stipulation submitted pursuant to this rule must include:

             a. For each rule violation stipulated, a separate
      paragraph stating supporting facts sufficient to allow
      the grievance commission and the supreme court to find
      a factual basis for concluding the violation occurred.

Had the parties gone through the exercise of “stating supporting facts,” it

is likely that the facts necessary to sustain each asserted rule violation
                                       9

would have been much more developed. Still, the record allows us to draw

the following conclusions.

      A. Rule 32:1.3—Diligence. Rule 32:1.3 provides, “A lawyer shall

act with reasonable diligence and promptness in representing a client.”

Iowa R. Prof’l Conduct 32:1.3. “An attorney violates this rule when the

attorney ‘fails to appear at scheduled court proceedings, does not make

the proper filings, or is slow to act on matters.’ ” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Noel, 933 N.W.2d 190, 198–99 (Iowa 2019) (quoting

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 537

(Iowa 2013)).

      Although a single missed deadline does not ordinarily violate

rule 32:1.3, there is enough for us to conclude that Bergmann had a

pattern of letting things slide in the first and third matters. See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Baldwin, 857 N.W.2d 195, 206 (Iowa

2014) (“A violation of [rule 32:1.3] arises not from inadvertent acts or

omissions or from missing a single deadline, but from consistently failing

to perform functions required of an attorney or from repeatedly missing

deadlines.” (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conroy, 845

N.W.2d 59, 64 (Iowa 2014))); see also Iowa R. Prof’l Conduct 32:1.3.

Bergmann missed an important hearing on temporary matters in a

dissolution case that involved children.        Bergmann did not attend a

mediation in a child custody case. He therefore violated rule 32:1.3.

      B. Rule     32:1.4—Communication.            Rule 32:1.4 requires an

attorney to “keep the client reasonably informed about the status of the

matter”   and   to   “promptly    comply    with   reasonable    requests    for

information.” Iowa R. Prof’l Conduct 32:1.4(a)(3), (4). “We have concluded

attorneys violate both subsections (a)(3) and (a)(4) [of rule 32:1.4] by failing

to keep their clients informed about the status of their case and neglecting
                                    10

to respond to client inquiries.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Capotosto, 927 N.W.2d 585, 588 (Iowa 2019). In the third matter, the

record is minimally adequate for us to conclude that Bergmann violated

this rule. He admits that his client had trouble reaching him, that he

received phone calls from the client, and that he failed to respond to the

phone calls. See Noel, 933 N.W.2d at 199–200. This conduct establishes

a violation of rule 32:1.4(a).

      C. Rule 32:3.2—Expediting Litigation. Rule 32:3.2 requires an

attorney to “make reasonable efforts to expedite litigation consistent with

the interests of the client.” Iowa R. Prof’l Conduct 32:3.2. Failure to meet

appellate deadlines and the triggering of default notices can violate

rule 32:3.2. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weiland, 862

N.W.2d 627, 637 (Iowa 2015). That occurred here with respect to the

second matter. Although Bergmann had not been appointed to handle the

appeal, he should have known that he remained responsible for the case

until there was an order of withdrawal in place.       See Iowa R. Crim.

P. 2.29(6) (“Trial counsel shall continue as defendant’s appointed appellate

counsel unless the trial court or supreme court orders otherwise.”).

Bergmann violated rule 32:3.2.

      D. Rule       32:3.4(c)—Knowingly        Disobeying       a    Court

Order. Rule 32:3.4(c) makes it a violation to “knowingly disobey an

obligation under the rules of a tribunal except for an open refusal based

on an assertion that no valid obligation exists.”           Iowa R. Prof’l

Conduct 32:3.4(c). We have found violations of this rule in the past when

an attorney fails to comply with a court order to provide discovery

responses. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hedgecoth,

862 N.W.2d 354, 362 (Iowa 2015). However, the Board has not identified

a court order that it claims Bergmann knowingly failed to follow. We are
                                     11

unable to conclude by a convincing preponderance of the evidence that

Bergmann knowingly disobeyed a court order in any of the three matters

at issue.

        E. Rule 32:8.4(d)—Conduct Prejudicial to the Administration of

Justice.      Rule 32:8.4(d) prohibits “conduct that is prejudicial to the

administration of justice.     “We have consistently held an attorney’s

misconduct causing prolonged or additional court proceedings violates

this rule.”    Capotosto, 927 N.W.2d at 589.    Here Bergmann’s conduct

necessitated additional court action and proceedings in the first and

second matters. We find that he violated rule 32:8.4(d).

        V. Discipline.

        “There is no uniform sanction for a particular ethical violation.”

Earley, 933 N.W.2d at 213 (quoting Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Bauermeister, 927 N.W.2d 170, 174 (Iowa 2019)). Yet, “[w]e seek to

‘achieve consistency with prior cases when determining the proper

sanction.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Crotty, 891 N.W.2d

455, 466 (Iowa 2017) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.

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

        A. A Public Reprimand Is the Appropriate Sanction Here. The

case before us is essentially one of neglect. Typically, the sanction in a

neglect case ranges from a public reprimand to a six-month suspension.

See Noel, 933 N.W.2d at 205 (discussing the range of sanctions); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Kingery, 871 N.W.2d 109, 123 (Iowa

2015) (same); Hedgecoth, 862 N.W.2d at 365 (same).

        Several considerations drive us toward the low end of that range,

consistent with the parties’ joint recommendation.         Although three

separate client matters are involved, this appears to be purely a neglect

case.    It is not neglect compounded with other misconduct.         Also,
                                    12

numerous mitigating factors are present.       These include Bergmann’s

inexperience, his personal health issues, his acceptance of responsibility,

his cooperation with the Board, his public service, and his willingness to

take proactive measures to correct the problems that led to his disciplinary

rule violations. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Jacobsma,

920 N.W.2d 813, 821 (Iowa 2018) (finding that cooperation with the board

and community service can be mitigating factors); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Turner, 918 N.W.2d 130, 155–56 (Iowa 2018)

(characterizing inexperience, depression, acceptance of responsibility, and

efforts to correct the problems that led to the disciplinary rule violations

as mitigating factors).

      In addition, we have not been directed to any aggravating factors.

The Board alleges in its complaint—and Bergmann admits—that he has

received three prior private admonitions. Although a private admonition

is not discipline, we can consider it an aggravating factor because it puts

the attorney on notice of his or her ethical requirements.        See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519, 528 (Iowa

2017) (treating a private admonition for failing to keep a client reasonably

informed to be an aggravating factor in a neglect case). But here, neither

the stipulation nor the rest of the record discloses what the private

admonitions were for.     Therefore, we do not know what notice they

conveyed to Bergmann or what relevance they bear to the present case.

      In sum, we believe this case falls in line with other precedents where

we have issued a public reprimand. See Weiland, 862 N.W.2d at 642–43

(imposing a public reprimand for neglect allowing an appeal to be

dismissed despite some aggravating factors); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 663 (Iowa 2007) (holding

that a public reprimand was appropriate where an attorney neglected two
                                     13

client matters and failed to respond to notices from the board); Iowa

Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Parker, 558 N.W.2d 183, 184,

186 (Iowa 1997) (concluding a public reprimand was an appropriate

sanction for failure to close two estates for many years). We find that a

public reprimand is the appropriate discipline for Bergmann’s rules

violations.

      B. Probation Should Await Formal Rulemaking. The parties and

the commission also recommend that we put Bergmann on probation for

one year. As conditions of probation, Bergmann would continue to mentor

with his brother; keep using a case management system in his office; take

additional continuing legal education hours beyond the requirement

(including six hours of ethics); implement a proactive, management-based

regulation assessment and any recommended strategies; and certify

continued counseling and treatment.

      In recent years, we have generally declined to impose terms and

conditions in our attorney disciplinary rulings that would require ongoing

supervision. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Waterman, 890

N.W.2d 327, 333 (Iowa 2017) (declining to require that an attorney remain

in therapy “in part because we do not have a mechanism for supervising .

. . performance”); Hedgecoth, 862 N.W.2d at 366–67 (gathering cases on

this issue).

      Nonetheless, in its statement regarding sanction in this case, the

Board advises us that it is prepared to monitor all of the conditions it

proposes.      The Board also notes that over half of other jurisdictions

imposed probation as a component of attorney discipline in 2017, the last

year for which data are available. Finally, the Board observes rule 36.19

authorizes
                                      14
        additional or alternative sanctions such as restitution, costs,
        practice limitations, appointment of a trustee or receiver,
        passage of a bar examination or the Multistate Professional
        Responsibility Examination, attendance at continuing legal
        education courses, or other measures consistent with the
        purposes of attorney discipline.

Iowa Ct. R. 36.19. In the Board’s view, this gives us leeway to establish

probationary terms and conditions.

        Still, we believe that any system of probation for attorneys should

be adopted through a formal rule amendment rather than launched in this

case.    We reach this conclusion for several reasons.      First, probation

typically comes with consequences for failure to comply with the terms of

probation. But in this case, it is unclear what would happen if Bergmann

did not meet the terms of his probation.       He has already received his

reprimand. Second, in the realm of attorney discipline, it is important for

attorneys to know in advance what sanctions are potentially available for

misconduct. That way, all affected attorneys have notice and stand on

equal footing. This is the same reasoning that has led us at times to issue

a warning before we ramp up the sanction in a particular area of attorney

misconduct.     See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nine, 920

N.W.2d 825, 830 (Iowa 2018) (“In the future, we may need to implement

harsher sanctions to deter attorneys from engaging in sexual relationships

with clients.”). Third, to the extent possible, there should be criteria for

when probation is and is not available and what effect it has on the
sanction.    This helps assure that discipline is evenhanded across the

board. Lastly, probation would be a significant change in our disciplinary

system, and we believe that the bar and members of the public should

have the chance to weigh in before we make such a change. A rulemaking

proceeding would give interested parties in Iowa the opportunity for input.
                                          15

       We are aware that several neighboring jurisdictions—Illinois,

Minnesota, Missouri, Nebraska, and South Dakota—utilize probation in

attorney disciplinary proceedings. 5 See Ill. Sup. Ct. R. 772; Minn. R. Law.

Prof’l Responsibility 15(a)(4); Mo. Sup. Ct. R. 5.225(a)(2); Neb. Sup. Ct. R.

§ 3-304; S.D. Codified Laws § 16-19-22 (Westlaw current through 2019

Sess. Laws & Sup. Ct. R. 19-18). All of these jurisdictions have adopted

rules governing probation. See Ill. Sup. Ct. R. 772 (“The court may order

that an attorney be placed on probation if the attorney has demonstrated

that he: (1) can perform legal services and the continued practice of law

will not cause the courts or profession to fall into disrepute; (2) is unlikely

to harm the public during the period of rehabilitation and the necessary

conditions of probation can be adequately supervised; (3) has a disability

which is temporary or minor and does not require treatment and transfer

to disability inactive status; and (4) is not guilty of acts warranting

disbarment.”);      Minn.    R.   Law.    Prof’l   Responsibility 15(a)(4)     (“Upon

conclusion of the proceedings, this Court may . . . [p]lace the lawyer on a

probationary status for a stated period, or until further order of this Court,

with such conditions as this Court may specify and to be supervised by

the Director . . . .”); Mo. Sup. Ct. R. 5.225(a)(2) (“A lawyer is eligible for

probation if the lawyer: (A) [i]s unlikely to harm the public during the

period of probation and can be adequately supervised; (B) [i]s able to

perform legal services and is able to practice law without causing the

courts or profession to fall into disrepute; and (C) [h]as not committed acts

warranting disbarment.”); Neb. Sup. Ct. R. § 3-304 (“Misconduct shall be

grounds for . . . [p]robation by the Court in lieu of or subsequent to


       5Wisconsin   does not impose probation for violations of ethical rules. See In re
Disciplinary Proceedings Against Stoltman, 915 N.W.2d 176, 180 (Wis. 2018) (indicating
that probation is “a form of discipline that this court does not impose”).
                                    16

suspension, on such terms as the Court may designate . . . .”); S.D.

Codified Laws § 16-19-35 (“Discipline for misconduct may be imposed as

. . . [p]lacement on a probationary status by the Supreme Court for such

period and with such conditions as the Supreme Court may specify . . . .”).

         In most of these jurisdictions, a rule sets forth procedures for

revoking probation and specified consequences if the attorney violates the

terms of probation. See, e.g., Ill. Sup. Ct. R. 772(c) (“Where appropriate,

the Administrator shall report to the court the probationer’s failure to

comply with the conditions of probation and may request that the court

modify the conditions, extend the probation, or issue a rule to show cause

why the probation should not be revoked and the stay of suspension

vacated.”); Minn. R. Law. Prof’l Responsibility 12(a) (“When a lawyer is

subject to a probation ordered by this Court and the Director concludes

that the lawyer has breached the conditions of the probation or committed

additional serious misconduct, the Director may file with this Court a

petition for revocation of probation and further disciplinary action with

proof of service.”); Mo. Sup. Ct. R. 5.225(f)(2) (“If the chief disciplinary

counsel receives information during the period of probation that any

condition may have been violated, the chief disciplinary counsel may file a

motion in this Court specifying the alleged violation and seeking an order

requiring the lawyer to show cause why the probation should not be

revoked and further discipline imposed. Further discipline may include

additional probation, suspension, or disbarment.”); State ex rel. Counsel

for Discipline of the Neb. Supreme Ct. v. Pierson, 798 N.W.2d 580, 585 (Neb.

2011) (“If respondent commits further violations of the Nebraska Rules of

Professional Conduct, he shall be subject to revocation of his probation

and the imposition of other discipline as outlined in disciplinary rule § 3-

304”).
                                            17

         We find these examples from our neighbors instructive. While we

cannot forecast how probation would look in the Iowa attorney disciplinary

system, we believe rulemaking with an opportunity for public comment is

the appropriate mechanism for adopting any system of probation in our

state.

         For all these reasons, we respectfully decline to order probation in

this case but remain willing to consider proposed rule amendments from

the Board or others.

         VI. Disposition.

         We impose a public reprimand on Bergmann. We tax the costs of

this action to Bergmann pursuant to Iowa Court Rule 36.24(1). 6

         ATTORNEY REPRIMANDED.




         6We   have received a submission indicating that Bergmann has already paid these
costs.
