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Iowa Supreme Court Board of Professional Ethics and Conduct v. Jones2/16/2000
review the record de novo. Ct. R. 118.10. We give respectful consideration to the commission's recommendations. We, however, ultimately decide what discipline is appropriate under the unique facts of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 557 N.W.2d 94, 95 (Iowa 1996).
The board must prove its allegations of lawyer misconduct by a convincing preponderance of the evidence. Id. This burden of proof is greater than in a civil case but less than in a criminal case. Id.
I. The Violations.
A. DR 7-102(A)(7) (lawyer shall not counsel or assist client in conduct that lawyer knows to be illegal or fraudulent).
Like the commission, we find the record does not establish that Jones (1) knew that the Nigerian transaction was fraudulent and (2) intended to deceive Delbert. In fact, there is no evidence that the transaction is fraudulent other than that the story sounds incredible.
Jones continues to believe the funds will be forthcoming. He testified that the funds are currently tied up in Chicago and that he had documentation to prove it. The problem, however, is that Jones did not present any such documentation. (The commission offered to recess so Jones could produce the documentation. Jones, however, declined the offer.) Nor did he have Currie at the hearing to explain the transaction and to verify the funds were in Chicago and would be forthcoming. Jones' failure in this regard troubled the commission, and it troubles us too.
Nevertheless, we think what we have here is not an attorney who intended to deceive but an attorney who naively believed the "pie in the sky" story that Currie handed him. Perhaps the allure of the two-million-dollar annuity blinded Jones' judgment. Delbert himself believed Jones had not intended to deceive him. He testified: "Well, [Jones has] always been an honest fellow to me as long as I've known him. I never known him to do anything wrong. I don't think [Jones] thought this would happen. I think he thought like I did—that the man was coming through." We therefore agree with the commission that the board failed to prove a violation of DR 7-102(A)(7).
B. DR 1-102(A)(4) (lawyer shall not engage in conduct involving misrepresentation) and DR 1-102(A)(6) (lawyer shall not engage in conduct reflecting adversely on fitness to practice law).
Jones claimed he was acting not as a lawyer but as a business or investment adviser. There are two problems with this assertion. First, the assertion is not entirely accurate. Although Delbert was not a client of Jones at the time, Currie was Jones' client. Second, such an assertion has little significance for our purposes because lawyers do not shed professional responsibilities in their personal and business transactions. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hansel, 558 N.W.2d 186, 188-89 (Iowa 1997) (finding misconduct in lawyer's farm loan dealings with bank).
In a business transaction with an unrepresented person, an attorney's failure to recognize and correct potentially misleading situations is unethical even though the lawyer has no intent to deceive. Committee on Prof'l Ethics & Conduct v. Wunschel, 461 N.W.2d 840, 847 (Iowa 1990). We find that under the circumstances Jones' statements and omissions went beyond potentially misleading Delbert—they did mislead him and caused him to make the loan.
Jones was aware that Delbert had no experience in the kind of venture Jones was describing to him and that Delbert did not know Currie. Given the longtime friendship and trust between the two, Jones knew Delbert's decision whether to make the loan would depend on Jones' repre
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