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COSTELLO v. MCFADDEN9/18/1996
plaintiff for the amount of their outstanding investments.
Until the following August, McFadden was unaware that a judgment had been rendered against him. He then retained counsel, who filed a motion to vacate the judgment against McFadden.
In substance the motion alleged the adverse judgment should be vacated because it was obtained due to an "irregularity" under Iowa Rule of Civil Procedure 252(b). The motion alleged that Brown's unethical conduct in connection with his representation of the three defendants constituted the irregularity under rule 252(b). The motion also alleged a fall back position: Brown's failure to resist the summary judgment was tantamount to an unauthorized consent to judgment, and such consent was an irregularity under rule 252(b).
The plaintiffs filed a resistance. In a separate motion plaintiffs asked the court to award them attorney fees under Iowa Code section 502.501.
Following a hearing, the district court denied both motions. McFadden appeals and the plaintiffs cross-appeal.
III. The Appeal.
As in the district court, McFadden contends on appeal that the judgment against him should be vacated because it was obtained as a result of an irregularity under Iowa Rule of Civil Procedure 252(b). Rule 252(b) provides in relevant part:
Upon timely motion and notice under R.C.P. 253 the court may . . . vacate . . . a [553 NW2d Page 610]
final judgment or order . . . on any of the following grounds:
(b) Irregularity or fraud practiced in obtaining the [final judgment or order].
The irregularity McFadden relies on relates to alleged unethical conduct by his attorney, Brown. The alleged unethical conduct includes violations of Iowa Code of Professional Responsibility DR 5-105(C) (lawyer shall not continue representation of multiple clients if doing so adversely affects the lawyer's exercise of independent professional judgment), DR 5-105(D) (lawyer may represent multiple clients if each consents to arrangement after full disclosure of possible effect of multiple representation on lawyer's independent judgment), DR 5-107(A)(1) (lawyer shall not accept compensation for legal services from anyone other than client, unless client consents after full disclosure), and DR 5-106(A) (lawyer representing two or more clients shall not make aggregate claim settlements, unless each client consents after being fully advised of the nature and extent of settlement).
McFadden also argues the fall back position he relied on in the district court: Brown's lack of resistance to the motion for summary judgment amounted to an unauthorized consent to judgment. The unauthorized consent to judgment, McFadden argues, also constituted an irregularity under rule 252(b).
A. What constitutes an irregularity under rule 252(b)? In Forsmark v. State, 349 N.W.2d 763 (Iowa 1984), we defined irregularity in rule 252(b) this way:
The doing or not doing that, in the conduct of a suit at law, which, conformably with the practice of the court, ought or ought not to be done. Violation or nonobservance of established rules and practices. The want of adherence to some prescribed rule or mode of proceeding; consisting either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time or improper manner.
Forsmark, 349 N.W.2d at 767 (quoting Black's Law Dictionary 744 (rev. 5th ed. 1979)).
In Forsmark, the trial judge found against the plaintiffs in a medical malpractice case against the State. When the case was tried to the court, the parties were unaware that a wrongf
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