Sunday, March 13, 2011

Lawyer's ex-wife slams slow pace of board

It has taken Iowa's Attorney Disciplinary Board five years and counting to decide what to do about Richard R. Schmidt.

The slow pace doesn't sit well with the Des Moines attorney's ex-wife, whom he choked repeatedly to the point of unconsciousness in front of their three young sons in 2006. Schmidt received a 30-day sentence in jail for his crime.

"Five years is way too long for them (the state disciplinary board) to take action," Jill Schmidt said. "Way too long."

Jill Schmidt was one of several readers who contacted The Des Moines Register after a two-day report last weekend found that the Iowa Supreme Court had revoked the license of only one attorney among 7,200 practicing in the state last year.

The Register reported that attorney discipline in the state can take years, and that it's virtually impossible to determine the scope of legal misconduct in Iowa because the disciplinary system is largely self-policing. The Register also found that a fund set up to help the victims of dishonest lawyers has paid out little in recent years - and nothing at all in cases of legal misconduct, which is on the rise.

The Register's reports on March 6-7 prompted a national advocacy group to call for increased reporting and more transparency in Iowa, and prompted a state commission to decide to speed up consideration of action on behalf of a businessman duped out of more than $33,500 by his lawyer.

It also triggered promises of reforms and swifter action from the director of the judicial branch's office of professional regulation.

"There is room for improvement," said Paul Wieck II. "I think there are some practices used in other states that warrant consideration."

Since publication of the report, several lawyers also have defended the current disciplinary system, warning that no conclusions about attorney conduct can be drawn from the scant number of lawyers - fewer than 30 - who have been disbarred through prosecution since 2000.

Others outside the profession, however, insisted attorneys benefit too much from self-policing.

Jill Schmidt, a local nurse practitioner, said it's unfair that the Supreme Court has published nothing publicly about the case still pending against her ex-husband, though his crime occurred in June 2006. The mother of three said she believes the state's online database of attorney discipline should reflect an attorney's entire disciplinary history.

"And ideally, he should have been limited in what he is allowed to do until a decision is made," she said.

Supreme Court rules dictate that complaints against attorneys be kept confidential unless the court decides to publicly reprimand them.

Colin Witt, the judge who sentenced Schmidt, also said he was surprised to hear the lawyer had not yet been disciplined five years after the fact.

The criminal outcome was already controversial. Both attorneys involved worked out a plea agreement. Witt said he rejected the original deal that Polk County prosecutor Mark Sandon and defense attorney F. Montgomery Brown presented him, which called for no jail time and a deferred judgment.

"It was a difficult case," conceded Witt, who ultimately found Schmidt guilty of domestic abuse and first-degree harassment and sentenced him to 30 days in jail. "It was hard to do anything different when both sides asked for the same thing."

Schmidt, who still practices at a law firm on Ingersoll Avenue, said he has no comment about his discipline case while it is still pending before the Supreme Court.

Wieck said one thing he would like to see improved is the amount of time the disciplinary system takes to resolve cases.

A state prosecutor recommended more than a year ago that Schmidt receive a one-year suspension; Schmidt's lawyer has suggested a public reprimand. The state's grievance commission, which hears misconduct allegations, recommended a six-month suspension. The Supreme Court has yet to weigh in.

Brown, the high-profile defense attorney who represented Schmidt in his criminal case, said he didn't believe Schmidt's status as a lawyer has played into his treatment in the state's justice and disciplinary systems.

The commission, he said, ultimately will rule on Schmidt's conduct. Whatever it decides will be public and have an impact, he said.

"In our business, reputation is everything," he said. "I don't think it's the same for other people."

A top official at a national advocacy group said last week that Iowa should adopt more best practices proposed by his group to better inform consumers.

Rodd M. Santomauro, executive director of Help Abolish Legal Tyranny, or HALT, said the group has fought for more than three decades for improvements in attorney discipline systems to prevent the type of lawyer misconduct outlined in the Register's report.

Santomauro said the state should follow the lead of other states and abolish private admonishments altogether. It also should allow more nonlawyers to participate on panels that decide attorney misconduct cases, and disclose a lawyer's complete disciplinary history so that consumers can make informed decisions about which attorney to hire.

"When you don't have a fully open disciplinary system, how is the public to know a lawyer is not in good standing?" he asked.

Santomauro said most people don't realize that Iowa and most states do not require lawyers to carry legal malpractice insurance. That's a problem, since the state's Client Security Fund will not reimburse clients for legal malpractice, the leading reason for misconduct complaints, he said.

"Our organization is pro-consumer, not anti-lawyer," he said. "Practicing law is a privilege, not a right. When it comes to lawyers, there is a heightened degree of expectations from the public. It's a job that comes with a lot of benefits and a lot of responsibility."

If Iowa lawyers do not carry malpractice insurance, they do not have to disclose that fact, unlike lawyers in other states.

Wieck said he believes the state should consider requiring lawyers to carry professional liability insurance and report malpractice claims against them.

"I would like to be able to tell you the majority of them do (carry the insurance), and I believe that's true, but I can't say for sure," he said.

Wieck cautioned that discipline taken by the judicial system does have serious repercussions. If those reviewing allegations find a preponderance of evidence, attorneys can receive private admonishments, public reprimands, suspensions or disbarments.

"Even for a private admonition, the first thing you have to do is contact your malpractice carrier and notify them," he said.

Wieck said it's unlikely the state will begin making private admonishments public, as Santomauro advocated. He said private admonishments eventually do become public if attorneys are disciplined publicly later for similar reasons.

"I think there's a balance that has to be achieved between what information the public needs versus the damage that can be done to a lawyer's reputation," Wieck said.

Lawyers also caution that cases take time because of the busy schedules of those who serve on the state's discipline and grievance commissions and because of the need to uphold the due process rights of accused attorneys.

That said, many attorneys said they would not object to a requirement to report malpractice lawsuits filed against them as well as damages and restitution, as is currently required of Iowa doctors.

Paul Scott, who serves on the grievance commission, said he wanted to remind the public that attorney misconduct and malpractice are not the same thing.

"One might follow the other, and often that's what gets lawyers in trouble," he said. "But not all malpractice equals misconduct. ... The farther you spread your tentacles, the more likely you will be spreading them into pools where you can make a mistake."




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