Hello and welcome to this Ethics Alert blog which will discuss the recent Iowa Supreme Court opinion suspending a lawyer for 6 months for engaging in misconduct by covering up his failure to timely serve discovery requests by creating false certificates of service to make it appear that they were timely served. The disciplinary opinion is Iowa Supreme Court Attorney Disciplinary Board v. Jeffrey K. McGinness, Case No. 13–1213 (March 21, 2014) and the disciplinary opinion is here: https://www.iowacourts.gov/About_the_Courts/Supreme_Court/Supreme_Court_Opinions/Recent_Opinions/20140321/13-1213.pdf?search=Jeff+McGinness#_1
According to the opinion, the lawyer represented a plaintiff in a civil action in 2012 and his client’s deposition had been scheduled for June 18, 2012. The facts were undisputed and are as follows:
“Five days before the scheduled deposition, (the lawyer) realized he had not served discovery requests on opposing counsel. (The lawyer) believed his failure to obtain responses from the opposing party prior to his client’s deposition was a strategic mistake. To cure his oversight, (the lawyer) embarked on a course of dishonest conduct he will regret for the remainder of his legal career. Instead of seeking an accommodation from opposing counsel or simply proceeding with the scheduled deposition, he decided to lie about his failure to serve discovery. (The lawyer) began by emailing opposing counsel demanding responses to the discovery requests by the end of the next day ‘to avoid the need to reschedule the deposition.’ When opposing counsel responded that he had not received any discovery requests from the lawyer, he replied via an email to which he attached two discovery requests he had purportedly served March 21, 2012. The discovery requests contained the lawyer’s signature as well as purported certificates of service indicating the requests had been served March 21 by U.S. Mail. The certificates of service appeared to have been signed by (the lawyer’s) administrative assistant.” (emphasis supplied).
The opposing attorney was suspicious so he examined electronic data (metadata) embedded in the discovery documents and determined the documents had been created in June 2012. He hired a handwriting expert and, after comparing the certificates of service on the discovery documents e-mailed by the lawyer with the certificate of service on the response to the discovery requests, the expert concluded the certificates of service were photocopies of the previous documents.
The opposing attorney confronted the lawyer and, instead of admitting his fabrication (according to the opinion, he did not “fess up”), he “embellished” and said that he explicitly recalled preparing and signing the discovery requests at the same time that he responded to opposing attorney’s discovery requests and that he may have served them the same day. He also stated that since he did not sign the certificate of service, he could not speak to the allegation of identical signatures and that his secretary, who signs many certificates of service each week, had no recollection of signing it.
Understandably, the opposing attorney then filed a motion for sanctions and, “(o)nce again, (the lawyer) embellished instead of fessing up. (The lawyer) filed a response with the district court in which he maintained neither he nor his assistant photocopied nor duplicated previously used certificates of service. (The lawyer) added a new layer to his fraudulent conduct by hiring an expert at his own expense to defend the position he knew to be false. (He) represented to the district court that his own expert found the signatures were not identical. Finally, (the lawyer) attempted to discredit opposing counsel’s theory that he was motivated by a desire to delay the deposition.” (emphasis supplied)
The lawyer then advised his client about the pending sanctions motion and stated in an e-mail that opposing counsel had alleged that he had fabricated certificates of service dates in an attempt to delay the client’s deposition, that he did “not take these allegations lightly”, and that he had discussed the motion with opposing counsel. He also told the client he had hired, at his own expense, “a forensic document examiner who is willing to testify that the certificates are not fabricated.”
It gets better: “The court scheduled a hearing on the sanctions motion. At the hearing, (the lawyer) once again chose not only to maintain the lie, but to embellish. He insisted the certificates of service were not fabrications. He also attacked the conclusions of opposing counsel’s handwriting expert. After the district court expressed its opinion to (the lawyer) it did not think it needed a handwriting expert to see the fabricated certificates of service matched the one on the response to opposing counsel’s discovery requests, (the lawyer) asserted there was no evidence to explain why the certificates of service were identical. (The lawyer) acknowledged his administrative assistant’s signature was on the certificates of service, but stressed that she signs a significant number of documents each week. He further stressed that he has multiple administrative assistants and that any of them could have prepared the documents.” (emphasis supplied).
The trial judge rejected the lawyer’s “now elaborate deceit” and found that he had “intentionally and knowingly affixed false certificates of service to discovery requests to cause unnecessary delay in the progression of the litigation. The (judge) further noted, ‘(the lawyer’s) behavior is so shocking and egregious that it is hard even to know what to say about it.’” The district court also stated that “(i)t is deeply disappointing to find that a member of the bar has engaged in such elaborate, calculated, and premeditated deceit.” The court ordered the lawyer to pay $5,152.00 to opposing counsel and $2,348.00 to the Iowa Judicial Branch and then forwarded a copy of the sanctions order to the state court administrator. After receiving the district court’s order, (the lawyer) disclosed his conduct to his law firm and was told that he must report his actions to the disciplinary authorities and that “he had betrayed their trust. At this point, (the lawyer) voluntarily withdrew from the firm and began a solo practice in Iowa City; however, he did not self-report.
After receiving the complaint/sanctions order of the court, the disciplinary board sent it to the lawyer. The lawyer responded and admitted that had he engaged in the misconduct and stated that he had “extreme disappointment” in himself and recognized that his actions reflected “a severe lapse in judgment.” He said that there was no excuse, and, in falsifying the certificates of service, he was “motivated by a misguided loyalty and attempt to protect a client” and that instead he should have admitted the oversight and requested an extension. He also noted his belief that submitting his client for a deposition without the benefit of the discovery responses could have compromised his client’s case. Finally, he noted that while it would take significant time to regain the lost trust of his friends and law partners, he believed the disciplinary process and the process of mending damaged relationships would make him a better person and attorney.
The board then filed a complaint alleging that the lawyer engaged in misconduct related to lack of candor, dishonesty, deceit, misrepresentation, or fraud, and conduct prejudicial to the administration of justice. At the disciplinary hearing, the lawyer admitted to the misconduct and expressed remorse and presented testimony and affidavits from a senior partner in his former firm, an administrator at the University of Iowa College of Law, a family friend, and other lawyers as character witnesses and offered evidence showing he had served on a local school board, local municipal boards, and in various organizations and had coached wrestling, soccer, and baseball.
The disciplinary commission found that the lawyer engaged in misconduct and violated Iowa Bar rules related to lack of candor, dishonesty, deceit, misrepresentation, and/or fraud, and conduct prejudicial to the administration of justice and found multiple aggravating factors, including the failure to self-report, repeated failure to tell the truth, and failure to turn to the numerous friends and colleagues comprising his support system for advice, and mitigating factors, including the lawyer’s sincere and straightforward admission to the commission, lack of prior discipline, and community service. The commission recommended a six month suspension, which the opinion approved.
Bottom line: “Oh what a tangled web we weave when first we practice to deceive.”- Sir Walter Scott. This case illustrates how a lawyer can seriously compound a mistake and turn it into an elaborate web of deceit and misrepresentation which resulted in serious allegations and sanctions against. As I have said many times, if a lawyer makes a mistake, it is always better a admit it and accept the consequences (the Nixon rule) instead of potentially making things exponentially worse by covering it up. This is an extreme case; however, if it had been in Florida, the sanctions may have been much more severe and possibly disbarment.
Be careful out there!
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Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Joseph G. Lee
I have an opposing counsel who falsified the certificate of service on an Opposition for my Motion for Leave to Amend. The Opposition Brief was due 3/24/16. USPS tracking screenshot shows the papers were picked up at 6:02 PM on Friday, 3/24/16 priority overnightt. Package delivered Monday 3/28/16 9:32 AM. Reply was due that day but no one was in the office as we assumed the motion was unopposed. Never seen anything like this before… Feel kind of guilty to call the guy out…