2013 Nuts & Bolts Seminar Des Moines

Transcription

1 2013 Nuts & Bolts Seminar Des Moines LITIGATION TRACK Dos and Don'ts for Indigent Defense Attorneys 4:15 pm.-5:00 p.m. Presented by Sam Langholz State Public Defender Lucas State Office Building 321 E. 12th Street Des Moines, IA Phone: (515) Thursday, October 31, 2013

2 OFFICE OF THE STATE PUBLIC DEFENDER TERRY E. BRANSTAD, GOVERNOR KIM REYNOLDS, LT. GOVERNOR SAMUEL P. LANGHOLZ, STATE PUBLIC DEFENDER Dos and Don ts for Indigent Defense Attorneys Sam Langholz, State Public Defender 1. DO obtain an Indigent Defense Contract with the State Public Defender. - Application is available for download from website, - Generally, limit counties to one hour radius from your home/office - Consider type of contract: appellate (statewide), juvenile, or adult - Contract does not guarantee appointments: introduce yourself to appointing judges and court staff 2. DON T work for free; DO ensure your indigent defense appointment is valid. - Finding of Indigency - Designation Process or Appellate Appointment Process Followed - Within the scope of your contract or rule exceptions - Special requirements for Parole Violations (Iowa Code 908.2A) or 600A terminations (Iowa Code 600A.6A) - If your appointment order does not show on its face that all above requirements are met, collect prior orders or other documentation to submit with your claim 3. DO appropriately obtain and pay Court Reporters, Experts, Evaluations, Investigators, and Interpreters - Attorneys should ensure that the person they hire receives all appropriate court orders and documents necessary to be paid especially with out-of-state experts who may be unfamiliar with indigent defense payment system - Obtain all court orders authorizing deposition expenses, retaining expert or investigator, etc. prior to any expenses being incurred - Generally the person hired should submit miscellaneous claim form directly to SPD with required documentation (but attorney may instead pay directly and seek reimbursement) - Detailed Procedures for each type of claim in SPD Rules DON T be late in submitting your indigent defense claims to the State Public Defender - Must be submitted within 45 days of Date of Service, defined in SPD Rule Generally at end of criminal case (sentencing, NOT filling notice of appeal) more frequently in juvenile cases. LUCAS STATE OFFICE BUILDING, 321 EAST 12TH STREET, DES MOINES, IOWA PHONE (515) FAX (515)

3 5. DON T cause the delay or denial of payment for your indigent defense fee claim a. Types of claims and claim forms: Adult, Juvenile, Appellate, and Miscellaneous b. Submit all required documents in the following order: - Claim form (2 copies) - must have original signature of appointed attorney - Appointment order (for all court numbers listed on claim form) - Order to Exceed - must attach order and application to exceed advise client good cause to exceed good cause for late filing must be set out in application/order - Receipts/proof of payment - Itemization chronological order list date, description of work and time in tenths of an hour for each activity bill for your actual time, not a minimum, estimated or standard billing amount time claimed should be for reasonable and necessary legal services d. Expenses and costs - Copies: $ 0.10 per copy - Fax: $ 0.10 per incoming page (time to fax is not payable) - Mileage: $ 0.35 per mile - Travel time only payable in specific circumstances (see definition in Rule 493-7) - Meals/hotels are only reimbursed when travel time payable and only reimbursed at state rate with an itemized receipt e. Common Errors - Sign claim form (must be signed by the attorney who was appointed) - Make sure beginning date on itemization is on or after date of appointment - Check attachments - Submit time in tenths of an hour on claim form- not hundredths - Box 26 (Make Payments to) on claim form must match most recent W-9 - Staple packet no paperclips and no loose papers e. Seeking Review of a Denied or Reduced Claim - If you do not agree with the SPD reduction or rejection of your claim, you can attempt to resolve informally by contacting the SPD administrative office (the individual signing the Notice of Action) to try to address the issue with the claim or provide additional information - May request court review of the SPD action under Iowa Code 13B.4(4)(d) and SPD Rule , which sets forth more detailed procedural requirements - Court hearing must be requested within 20 days of SPD Action 2

4 6. DO maintain your ethical obligations in your Indigent Defense Billing a. Key Rules of Professional Responsibility Related to Ethical Billing in Indigent Defense Cases - A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expense, or violate any restrictions imposed by law. Rule 32:1.5(a). - A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures. Rule 32:1.5, Comment 5, - A lawyer shall not knowingly... make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. Rule 32:3.3(a)(1) - It is professional misconduct for a lawyer to... commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects. Rule 32:8.4(b) - It is professional misconduct for a lawyer to... engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Rule 32:8.4(c) - It is professional misconduct for a lawyer to... engage in conduct that is prejudicial to the administration of justice. Rule 32:8.4(d) b. Improper Billing to the State Public Defender is prejudicial to the administration of justice because such conduct is bound to undermine public trust in the accuracy and validity of attorney expense reimbursements sought from public funds. Iowa Supreme Court Bd. of Prof l Ethics & Conduct v. Tofflemire, 689 N.W.2d 83, 91 (Iowa 2004). c. Ethical Practices in Hourly Billing - A claim for hourly billing should be an accurate representation of the time actually worked. See ABA Ethics Opinion (Dec. 6, 1993) ( It goes without saying that a lawyer who has undertaken to bill on an hourly basis is never justified in charging a client for hours not actually expended. ). Accuracy requires a method of contemporaneous recordkeeping While mere negligence is generally insufficient to sustain a finding of misrepresentation or conduct that is prejudicial to the administration of justice, an ethical violation does occur when an attorney conducts herself with a significant and reckless disregard for the accuracy and truthfulness of her billing and timekeeping records. Iowa Supreme Court Bd. of Prof l Ethics & Conduct v. Tofflemire, 689 N.W.2d 83, 89 (Iowa 2004); see also Iowa Supreme Court Bd. of Prof l Ethics & Conduct v. Grotewold, 642 N.W.2d 288 (Iowa 2002) ( False statements cannot be excused on the basis of a casual unawareness of the truth. Our system of justice requires absolute reliability and an impeccable reputation for honesty by its officers. ) 3

5 Ultimately review of the bill is the attorney s responsibility i. This duty cannot be delegated to support staff, the attorney must ensure that the staff are appropriately supervised. See Rule 32:5.3 ii. In a court-appointed case, it is the attorney who is courtappointed to the case who must sign the claim form verifying its accuracy even if other attorneys covered and handled portions of the case. iii. When reviewing: - Ensure that dates and times are accurate - Properly perform math calculations if not automatic in billing software, and if using software, ensure that there are no glitches (e.g., expenses entered as time) - Describe work with sufficient detail to justify time - It is a good idea (and will soon be required for indigent defense claims), to note when another attorney is performing the services. - Billing Increments and Rounding Minimum billing increment: 0.1 hours vs hours vs. minutes Indigent defense requires tenths of an hour and using greater than that amount leads to a strong likelihood of overbilling. See Republican Party of Minn. V. White, 456 F.3d 912, 920 (8th 2006) (concluding tenth-hour billing is more reliable and quarter-hour billing and reducing fees, agreeing that even short phone calls lasting only five minutes or less would automatically be billed for fifteen minutes, which when a number of phone calls are billed separately risks potentially inflating the total bill ). Some suggest that whatever increment, any time less than half of the increment should round down, not automatically rounding up. (2 minute phone call is not billed at all; 4 minute phone call billed as 0.1 hour) Even when using 0.1 hour increments, individually billing for multiple events below the minimum threshold can improperly inflate a bill and should be blocked together. (E.g., receiving 10 s on the same case in one day and taking one minute to read each should be 0.2 hours, not 1.0). 4

6 - Standardized billing (set amounts for specific tasks or set tasks always recorded in a case regardless of whether necessarily performed) is inconsistent with accurate hourly billing based on attorney s time spent on the case will almost inevitably lead to overbilling - Double-Billing Because of premise of hourly billing based on time actually expended, an attorney should never bill for the same time period twice. See ABA Ethics Opinion (Dec. 6, 1993): If multiple clients are handled in one trip to courthouse and corresponding wait time, actual time spent should be allocated proportionally. If billing for travel time for one client and perform work for another client while traveling (e.g., making telephone calls with county attorney for Client A while driving to prison to visit Client B), attorney should reduce amount of travel time billed to Client B for time spent on Client A. If attorney prepared ten-page legal brief for Client A and can reuse much of the same research and analysis for Client B, attorney may only bill Client B for the actual time updating the brief for Client B unless Client B agrees to some further non-hourly compensation. - If any doubt, make written agreement with client about how you will be billing. In the case of indigent defense cases, the Indigent Defense Contract and Administrative Rules provide precise expectations. d. Ethical Practices with Expenses - Clerical time and clerical activities are never payable under SPD administrative rules, consistent with ordinary practices that clerical expenses are part of overhead. - Paralegal time is ordinarily billable to a client at a reduced rate, assuming it is work that could have been an attorney doing it but not if it was clerical work that could have been performed by clerical staff. In indigent cases, paralegal time is only payable in Class A felony cases under the administrative rules. - Mileage should be reimbursement for your actual cost for indigent defense rate is set by administrative rule (currently $0.35 per mile) - If you are traveling for multiple clients, the cost of mileage should be split between clients rather than billing each client or billing only one client. 6. DON T just guess use SPD Resources to answer your indigent defense questions - SPD Website: - Statutes (Iowa Code Chapters 13B, 814, 815), SPD Rules (493-1 to ) - Ask Questions: (claims@spd.state.ia.us) is best 5

7 IN THE IOWA DISTRICT COURT FOR COUNTY STATE OF IOWA or, Plaintiff/Petitioner, vs., Defendant/Respondent. ) ) ) ) ) ) ) Criminal Civil No. ORDER OF APPOINTMENT OF COUNSEL NOW on this day of, 20, the Court having received and examined the Defendant s Financial Affidavit and Application for Appointment of Counsel and having considered not only the Defendant s income, but also the availability of any assets subject to execution and the seriousness of the charge or nature of the case, finds the following: 1. The Defendant: Is eligible 1 for court-appointed counsel pursuant to Iowa Code because: Defendant s income is at or below 125% of the poverty guidelines and Defendant is unable to pay for the cost of an attorney; OR Defendant s income is between 125% and 200% of the poverty guidelines and not appointing counsel would cause Defendant substantial financial hardship; OR Defendant s Income is over 200% of the poverty guidelines, Defendant is charged with a felony, and not appointing counsel would cause Defendant substantial financial hardship. Is not eligible for court-appointed counsel pursuant to Iowa Code The counsel appointed below to represent the Defendant is: The local public defender office, nonprofit organization, or attorney designated by the State Public Defender pursuant to Iowa Code 13B.4(2) to represent indigent persons in this type of case in this county OR An attorney not designated by the State Public Defender, AND any local public defender office or other designee of the State Public Defender for this type of case in this county has been contacted and has declined the appointment or withdrawn from the case, or there is no designation for this type of case in this county, AND the appointed attorney: Has a current contract with the State Public Defender to represent indigent persons in this type of case and in this county; OR Does not have such a contract, but all attorneys with a contract to represent indigent persons in this type of case in this county have been contacted and no such attorney is available to take this case; OR Does not have such a contract, but the State Public Defender has been consulted and consents to the appointment. IT IS THEREFORE ORDERED that Defendant s Application for Appointment of Counsel is Denied. Approved, and that is appointed to represent the Defendant in this case at State expense and may be contacted at. Copy to: JUDGE, Judicial District 1 In a parole revocation proceeding, the appointment order must include additional specific findings. See Iowa Code 908.2A(1)(c); Iowa Admin. Code (1)(b)(2). Do not use this form for parole revocation appointments. Rev. 1/6/12

8 IN THE IOWA DISTRICT COURT FOR COUNTY (JUVENILE DIVISION) IN THE INTEREST OF, Child(ren). ) ) ) ) ) ) Juvenile No. ORDER OF APPOINTMENT OF COUNSEL FOR Child Parent Other: NOW on this day of, 20, the Court having received and examined the Financial Affidavit of Parent and Application for Appointment of Counsel and having considered not only the Child/Applicant s income, but also the availability of any assets subject to execution and the seriousness of the charge or nature of the case, finds the following: 1. The Child/Applicant: Is eligible 1 for court-appointed counsel pursuant to Iowa Code because: Child/Applicant s income is at or below 125% of the poverty guidelines and Child/Applicant is unable to pay for the cost of an attorney; OR Child/Applicant s income is between 125% and 200% of the poverty guidelines and not appointing counsel would cause Child/Applicant substantial financial hardship; OR Child/Applicant s Income is over 200% of the poverty guidelines, case is a felony-level delinquency, and not appointing counsel would cause Child/Applicant substantial financial hardship. Is a child and is otherwise eligible for court-appointed counsel under Chapter 232. Is not eligible for court-appointed counsel. 2. The counsel/guardian ad litem appointed below to represent the Child/Applicant is: The local public defender office, nonprofit organization, or attorney designated by the State Public Defender pursuant to Iowa Code 13B.4(2) to represent indigent persons in this type of case in this county OR An attorney not designated by the State Public Defender, AND any local public defender office or other designee of the State Public Defender for this type of case in this county has been contacted and has declined the appointment or withdrawn from the case, or there is no designation for this type of case in this county, AND the appointed attorney: Has a current contract with the State Public Defender to represent indigent persons in this type of case and in this county; OR Does not have such a contract, but all attorneys with a contract to represent indigent persons in this type of case in this county have been contacted and no such attorney is available to take this case; OR Does not have such a contract, but the State Public Defender has been consulted and consents to the appointment. IT IS THEREFORE ORDERED that Child/Applicant s Application for Appointment of Counsel is Denied. Approved, and that is appointed to serve as counsel/guardian ad litem in this case for at State expense and may be contacted at. Copy to: JUDGE, Judicial District 1 NOTE: A different standard applies for determining eligibility for appointment of respondent s counsel in a Chapter 600A TPR, and additional findings are required to determine the appropriate party/agency responsible for payment. See Iowa Code 600A.2(11), 600A.6A(2), and 600A.6B. Do not use this form order for 600A TPR Appointments. Rev. 1/6/12

9 STATE PUBLIC DEFENDER ADULT DESIGNATIONS County Designation Local Office Conflict Office #1 Conflict Office #2 Conflict Office #3 Effective Adair A s only SDU Des Moines Adult (A s only) Des Moines Juv (A s only) N/A 1/12/11 Adams A s only SDU Council Bluffs (A s only) Des Moines Adult (A s only) N/A 1/12/11 Allamakee A s only Dubuque Waterloo Adult (A s only) Waterloo Juv (A s only) SDU (A s only) 9/1/11 Appanoose All indictables Ottumwa SDU (A s only) Burlington (A s only) N/A 10/3/12 Audubon A s only Council Bluffs SDU (A s only) Des Moines Juv (A s only) N/A 1/13/11 Benton All indictables Cedar Rapids Iowa City (A s only) Waterloo Adult (A s only) SDU (A s only) 9/1/11 Black Hawk All indictables Waterloo Adult Waterloo Juv (All Indict.) Dubuque (A s only) SDU (A s only) 6/1/13 Boone All indictables Nevada Fort Dodge (A s & B s) SDU (A s only) N/A 9/1/11 Bremer All indictables Waterloo Juv Waterloo Adult (A s & B s) Dubuque (A s only) N/A 9/19/11 Buchanan All indictables Waterloo Adult Waterloo Juv (All Indict.) Dubuque (A s only) N/A 8/15/11 Buena Vista A s & B s Sioux City Adult Sioux City Juv (A s & B s) Council Bluffs (A s only) SDU (A s only) 9/1/11 Butler A s only Mason City Waterloo Adult (A s only) Waterloo Juvenile (A s only) SDU (A s only) 9/1/11 Calhoun All indictables Fort Dodge Mason City (A s & B s) SDU (A s only) N/A 10/1/09 Carroll A s only Fort Dodge Mason City (A s only) SDU (A s only) N/A 10/1/09 Cass A s only Council Bluffs SDU (A s only) Des Moines Adult (A s only) N/A 1/13/11 Cedar A s & B s Davenport Iowa City (A s & B s) Cedar Rapids (A s only) SDU (A s only) 9/1/11 Cerro Gordo All indictables Mason City Fort Dodge (A s & B s) SDU (A s only) N/A 10/1/09 Cherokee A s only Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) SDU (A s only) 9/1/11 Chickasaw A s & B s Waterloo Adult Waterloo Juv (A s only) Dubuque (A s only) SDU (A s only) 9/1/11 Clarke A s only SDU Des Moines Adult (A s only) Des Moines Juv (A s only) N/A 1/13/11 Clay A s only Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) SDU (A s only) 9/1/11 Clayton All Felonies Dubuque Waterloo Adult (A s only) Waterloo Juv (A s only) SDU (A s only) 9/1/11 Clinton A s & B s Davenport Dubuque (A s only) Cedar Rapids (A s only) SDU (A s only) 9/1/11 Crawford A s only Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) SDU (A s only) 9/1/11 Dallas All indictables Des Moines Adult Des Moines Juv (A s & B s) SDU (A s & B s) N/A 11/17/09 Davis A s only Ottumwa Burlington (A s only) SDU (A s only) N/A 10/3/12 Decatur A s only SDU Des Moines Adult (A s only) Des Moines Juv (A s only) N/A 1/13/11 Delaware All indictables Dubuque Waterloo Adult (A s & B s) Waterloo Juv (A s & B s) SDU (A s only) 9/1/11 Des Moines All indictables Burlington Ottumwa (A s only) Davenport (A s only) SDU (A s only) 10/3/12 Dickinson A s only Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) SDU (A s only) 9/1/11 Dubuque All indictables Dubuque Waterloo Adult (A s & B s) Waterloo Juv (A s only) SDU (A s only) 9/1/11 Emmet A s only Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) SDU (A s only) 9/1/11 Fayette A s & B s Waterloo Juvenile Waterloo Adult (A s & B s) Dubuque (A s only) SDU (A s only) 9/1/11 SPD Adult Designations by County Page 1 (Revised 09/17/13)

10 SPD Adult Designations by County Page 2 (Revised 09/17/13) STATE PUBLIC DEFENDER ADULT DESIGNATIONS County Designation Local Office Conflict Office #1 Conflict Office #2 Conflict Office #3 Effective Floyd All indictables Mason City Waterloo Adult (A s only) SDU (A s only) N/A 9/1/11 Franklin A s only Mason City Fort Dodge (A s only) SDU (A s only) Marshalltown (A s 9/17/13 only) Fremont A s only Council Bluffs SDU (A s only) Des Moines Adult (A s only) N/A 1/13/11 Greene All indictables Fort Dodge Nevada (A s only) SDU (A s only) N/A 10/1/09 Grundy A s & B s Waterloo Adult Waterloo Juv (A s & B s) Marshalltown (A s & B s) SDU (A s only) 9/1/11 Guthrie A s only SDU Des Moines Adult (A s only) Des Moines Juv (A s only) N/A 1/13/11 Hamilton All indictables Fort Dodge Nevada (A s only) SDU (A s only) N/A 10/1/09 Hancock All indictables Mason City Fort Dodge (A s only) SDU (A s only) N/A 10/1/09 Hardin All indictables Marshalltown Nevada (A s only) SDU (A s only) N/A 10/1/09 Harrison All indictables Council Bluffs Sioux City Adult (A s only) Sioux City Juv (A s only) SDU (A s only) 9/1/11 Henry All indictables Burlington Ottumwa (A s only) Iowa City (A s only) SDU (A s only) 10/3/12 Howard A s & B s Waterloo Adult Waterloo Juv (A s only) Dubuque (A s only) SDU (A s only) 9/1/11 Humboldt All indictables Fort Dodge Mason City (A s only) SDU (A s only) N/A 10/1/09 Ida All indictables Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) SDU (A s only) 9/1/11 Iowa All Felonies Iowa City Cedar Rapids (A s only) SDU (A s only) N/A 10/1/09 Jackson A s & B s Davenport Dubuque (A s only) Cedar Rapids (A s only) SDU (A s only) 9/1/11 Jasper A s & B s SDU Marshalltown (A s only) Des Moines Adult (A s only) N/A 9/1/11 Jefferson A s only Ottumwa Burlington (A s only) Iowa City (A s only) SDU (A s only) 10/3/12 Johnson All indictables Iowa City Linn Co. Advocate (All Indict.) Cedar Rapids (A s only) SDU (A s only) 7/16/12 **A s to Cedar Rapids and SDU then Linn Co. Advocate Jones All indictables Cedar Rapids Iowa City (A s only) Dubuque (A s only) SDU (A s only) 9/1/11 Keokuk A s only Ottumwa Iowa City (A s only) SDU (A s only) N/A 1/13/11 Kossuth A s only Fort Dodge Mason City (A s only) SDU (A s only) N/A 10/1/09 Lee North All indictables Burlington Ottumwa (A s only) Iowa City (A s only) SDU (A s only) 10/3/12 Lee South All indictables Burlington Ottumwa (A s only) Iowa City (A s only) SDU (A s only) 10/3/12 Linn All indictables Cedar Rapids Linn Co. Advocate (All Indict.) Iowa City (A s and B s) SDU (A s only) 9/9/11 Louisa All indictables Burlington Iowa City (A s only) Davenport (A s only) SDU (A s only) 9/9/11 Lucas A s only Ottumwa SDU (A s only) Des Moines Adult (A s only) N/A 6/24/11 Lyon All indictables Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) N/A 12/22/09 Madison A s & B s SDU Des Moines Adult (A s only) Des Moines Juv (A s only) N/A 12/7/09 Mahaska All indictables Ottumwa SDU (A s only) Marshalltown (A s only) Iowa City (A s 10/3/12 only) Marion A s & B s SDU Des Moines Adult (A s only) Des Moines Juv (A s only) N/A 12/7/09

11 SPD Adult Designations by County Page 3 (Revised 09/17/13) STATE PUBLIC DEFENDER ADULT DESIGNATIONS County Designation Local Office Conflict Office #1 Conflict Office #2 Conflict Office #3 Effective Marshall All indictables Marshalltown Nevada (A s only) SDU (A s only) N/A 1/28/10 Mills Indictables & PVs Council Bluffs SDU (A s only) Des Moines Adult (A s only) N/A 1/13/11 Mitchell All indictables Mason City Fort Dodge (A s only) SDU (A s only) N/A 10/1/09 Monona All indictables Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) SDU (A s only) 9/9/11 Monroe All indictables Ottumwa SDU (A s only) Burlington (A s) N/A 10/3/12 Montgomery A s & B s Council Bluffs SDU (A s only) Des Moines Adult (A s only) N/A 3/1/13 Muscatine A s & B s Davenport Burlington (A s only) Iowa City (A s only) SDU (A s only) 10/3/12 O Brien A s only Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) SDU (A s only) 9/9/11 Osceola A s only Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) SDU (A s only) 9/9/11 Page A s only Council Bluffs SDU (A s only) Des Moines Adult (A s only) N/A 1/13/11 Palo Alto A s only Fort Dodge Mason City (A s only) SDU (A s only) N/A 10/1/09 Plymouth All indictables Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) N/A 12/22/09 Pocahontas A s only Fort Dodge Mason City (A s only) SDU (A s only) N/A 10/1/09 Polk All indictables & PVs except misdemeanor domestics 1 Des Moines Adult Des Moines Juv (All Indict.) SDU (A s & B s) Marshalltown (A s only) Pottawattamie Indictables & PVs Council Bluffs Sioux City Adult (A s only) Sioux City Juvenile (A s only) SDU (A s only) 9/9/11 Poweshiek A s only Marshalltown Nevada (A s only) SDU (A s only) N/A 10/1/09 Ringgold A s only SDU Des Moines Adult (A s only) Des Moines Juvenile (A s only) N/A 1/13/11 Sac A s only Fort Dodge Sioux City Adult (A s only) SDU (A s only) N/A 10/1/09 Scott A s & B s / Agg. & Serious Misd. /OWI 3rd Davenport Burlington (A s only) Iowa City (A s only) SDU (A s only) 10/3/12 Shelby A s only Council Bluffs Sioux City Adult (A s only) Sioux City Juv (A s only) SDU (A s only) 9/9/11 Sioux All indictables Sioux City Adult Sioux City Juv (A s only) Council Bluffs (A s only) SDU (A s only) 9/9/11 Story All indictables except serious misd. Nevada Marshalltown (A s only) Fort Dodge (A s only) SDU (A s only) 9/1/11 1 Polk County also has the following special designations: 1) Parole violations of male parolees (Marshalltown Office); 2) Parole violations of female parolees (Attorney Matt Dummermuth); 3) Contempt proceedings for the nonpayment of support payments under section A of the Iowa Code and for failing to appear for proceedings under section A for persons with the last names as follows: A - Dum (Attorney Jeff Wright); Dun Kram (Attorney John Audlehelm); Kran - Robe (Attorney Nancy Trotter); and Robf Z (Attorney Erin Carr). 9/5/13

12 STATE PUBLIC DEFENDER ADULT DESIGNATIONS County Designation Local Office Conflict Office #1 Conflict Office #2 Conflict Office #3 Effective Tama All indictables Marshalltown Nevada (A s only) SDU (A s only) N/A 10/1/09 Taylor A s only SDU Council Bluffs (A s only) Des Moines Adult (A s only) N/A 1/13/11 Union A s only SDU Des Moines Adult (A s only) Des Moines Juv (A s only) N/A 1/13/11 Van Buren A s only Burlington Ottumwa (A s only) Iowa City (A s only) SDU (A s only) 10/3/12 Wapello All felonies Ottumwa Burlington (A s only) SDU (A s only) Marshalltown (A s 3/1/13 and agg. misd. only) Warren A s & B s Special Defense Des Moines Adult (A s only) Des Moines Juv (A s only) N/A 9/1/11 Washington A s & B s Iowa City Cedar Rapids (A s only) SDU (A s only) N/A 10/1/09 Wayne A s only Ottumwa SDU (A s only) Des Moines Adult (A s only) N/A 6/24/11 All indictables w/simples, PVs, Webster & non-magistrate contempts Fort Dodge Mason City (A s only) SDU (A s only) N/A 11/2/09 Winnebago All indictables Mason City Fort Dodge (A s only) SDU (A s only) N/A 10/1/09 Winneshiek A s only Dubuque Waterloo Adult (A s only) Waterloo Juv (A s only) SDU (A s only) 9/9/11 Woodbury All indictables Sioux City Adult Sioux City Juv (All Indict.) Council Bluffs (A s only) SDU (A s only) 9/9/11 Worth All indictables Mason City Fort Dodge (A s only) SDU (A s only) N/A 10/1/09 Wright A s & B s Fort Dodge Mason City (A s only) SDU (A s only) N/A 12/12/11 SPD Adult Designations by County Page 4 (Revised 09/17/13)

13 STATE PUBLIC DEFENDER JUVENILE DESIGNATIONS County Designation Local Office Effective Black Hawk All cases representing children in alleged delinquencies, CINA and TPR proceedings. All mental health Waterloo Juvenile 7/22/11 and substance abuse commitments for present juveniles represented by the Waterloo Juvenile Public Defender. Bremer All cases representing children in alleged delinquencies, CINA and TPR proceedings. Waterloo Juvenile 9/19/11 Buchanan All cases representing children in alleged delinquencies, CINA and TPR proceedings. Waterloo Juvenile 10/1/09 Calhoun All cases representing children in alleged delinquencies, CINA and TPR proceedings. Fort Dodge 10/1/09 Cerro Gordo All cases representing children in alleged delinquencies. Mason City 11/1/13 Cherokee All cases representing children in alleged delinquencies, CINA and TPR proceedings. Sioux City Juvenile 10/1/09 Chickasaw All cases representing children in alleged delinquencies, CINA and TPR proceedings. Waterloo Juvenile 1/3/12 Dallas All cases representing children in alleged delinquencies, CINA and TPR cases except for cases referred Des Moines Juvenile 10/1/09 to the Youth Law Center All juvenile cases the Des Moines Juvenile Public Defender declines because of conflict of interest or Youth Law Center work overload. Dubuque All cases representing children in alleged delinquencies, CINA and TPR proceedings. Dubuque 10/1/09 Fayette All cases representing children in alleged delinquencies, CINA and TPR proceedings. Waterloo Juvenile 10/1/09 Greene All cases representing juveniles in delinquency proceedings. Fort Dodge 10/1/09 Grundy All cases representing children in alleged delinquencies, CINA and TPR proceedings. Waterloo Juvenile 8/22/11 Hardin All cases representing juveniles in delinquency proceedings. Marshalltown 10/1/09 Harrison All cases representing children in alleged delinquencies, CINA and TPR proceedings. Council Bluffs 10/1/09 Where the Council Bluffs office is representing parents in criminal proceedings, then the Council Bluffs office will represent the parents in CINA and TPR proceedings. Ida All cases representing children in alleged delinquencies, CINA and TPR proceedings. Sioux City Juvenile 10/1/09 Johnson All cases representing juveniles in CINA, TPR, Juvenile Commitment, Judicial Bypass and Delinquency Linn County 12/3/12 cases. Advocate All cases representing parents in CINA and TPR (chapter 232) proceedings. Iowa City All cases specified by the Iowa City Office for appointment of the University of Iowa Legal Clinic Family Representation Clinic. University of Iowa Legal Clinic Family Representation Clinic Lee (North) All cases of representation of children in alleged delinquencies, CINA cases and TPR cases. Burlington 10/1/09 Lee (South) All cases of representation of children in alleged delinquencies, CINA cases and TPR cases. Burlington 10/1/09 Linn All cases representing parents in CINA and TPR proceedings. All cases representing juveniles in Cedar Rapids 12/1/09 SPD Juvenile Designations by County Page 1 (Revised 09/17/13) delinquency proceedings. All cases representing juveniles in CINA, TPR, Juvenile Commitment and Judicial Bypass cases and in Delinquency cases the Cedar Rapids Public Defender declines because of conflict of interest or work overload. Linn County Advocate

14 STATE PUBLIC DEFENDER JUVENILE DESIGNATIONS County Designation Local Office Effective Marshall All cases of representation of children in alleged delinquencies, CINA cases and TPR cases. Marshalltown 10/1/09 Mills All cases of representation of children in alleged delinquencies, CINA cases and TPR cases. Council Bluffs 6/8/11 Representation of a parent in a CINA or TPR case where the Council Bluffs office represents a parent on adult criminal charges. Monona All cases of representation of children in alleged delinquencies, CINA cases and TPR cases. Sioux City Juvenile 10/1/09 Plymouth All cases of representation of children in alleged delinquencies, CINA cases and TPR cases. Sioux City Juvenile 10/1/09 Polk All cases of representation of children in alleged delinquencies, CINA cases and TPR cases. Des Moines Juvenile 10/1/09 All juvenile cases the Des Moines Juvenile Public Defender declines because of conflict of interest or Youth Law Center work overload. All cases specified by the Des Moines Juvenile Public Defender for appointment to the Middleton Center for Children s Rights. Drake Middleton Clinic Pottawattamie All cases of representation of children in alleged delinquencies, CINA cases and TPR cases. Council Bluffs 10/1/09 Representation of a parent in a CINA or TPR case where the Council Bluffs office represents a parent on adult criminal charges. Story All cases of representation of children in alleged delinquencies, CINA cases and TPR cases. Nevada 10/1/09 Warren All cases representing juveniles in CINA and TPR proceedings. Des Moines Juvenile 10/1/09 Woodbury All cases of representation of children in alleged delinquencies, CINA cases and TPR cases. Sioux City Juvenile 10/1/09 There is no designation filed in any county not listed. SPD Juvenile Designations by County Page 2 (Revised 09/17/13)

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20 IN THE SUPREME COURT OF IOWA No. 114 / Filed October 6, 2004 (Public Version; Also published as 689 N.W.2d 83) IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, vs. Complainant, CYNTHIA L. TOFFLEMIRE, Respondent. On review of the report of the Grievance Commission. Grievance Commission report in disciplinary proceeding recommended suspending respondent s license to practice law. LICENSE SUSPENDED. Charles L. Harrington and Mark Schouten, Des Moines, for complainant. Roger J. Kuhle, West Des Moines, and Michael S. Carroll, Des Moines for respondent. LAVORATO, Chief Justice. The Iowa Supreme Court Board of Professional Ethics and Conduct (Board) filed a complaint against the respondent, Cynthia L. Tofflemire, alleging several violations of the Iowa Code of Professional Responsibility arising out of her employment with the Labor Division of Iowa Workforce Development (IWD) and her services for the State Public Defender (SPD). Specifically, the complaint alleged that during a nine-month period Tofflemire (1) claimed sick leave from IWD on days she also certified she was engaged in indigent criminal and juvenile defense on claims she filed with the SPD, (2) filed payroll timesheets with IWD and certified indigent fee claims with the SPD claiming she regularly worked days in excess of twelve hours and as great as twenty-nine hours for both agencies combined, and (3) made false claims for payment to the SPD and false timesheets to IWD. Finally, the complaint alleged this conduct violated Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(3) (lawyer shall not engage in illegal conduct involving moral turpitude), (4) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), (5) (lawyer shall not engage in conduct prejudicial to the administration of justice), and (6) (lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law). The complaint also alleged Tofflemire charged the SPD fees that violated DR 2-106(A) (lawyer shall not charge an excessive fee). The Board filed an amendment to the complaint, expanding on the allegation that during the nine-month period in question Tofflemire made false claims for payment to the SPD and false timesheets to IWD, including the following: (1) she claimed to be working for IWD during the same period she claimed to render services for the SPD, (2) she double-billed the SPD for the same services rendered to multiple clients, (3) she billed the SPD for time that exceeded the time actually expended for services she rendered to indigent defendants, and (4) she submitted copies of altered checks in support of claims for reimbursement for expenses she filed with the SPD. The amendment alleged this conduct also violated the above-cited disciplinary rules. The Grievance Commission (Commission) heard testimony from eight witnesses over a threeday period and considered the affidavits of two other individuals and over three hundred exhibits. The transcript of testimony exceeds seven hundred pages. The Commission found the Board had proved several of the allegations against Tofflemire and recommended that her license should be suspended without the possibility for reinstatement for a minimum of thirty days. We likewise find that the Board proved several of the allegations of misconduct but conclude that the egregious nature of Tofflemire s conduct warrants a longer suspension. We therefore suspend her license to practice law in this state indefinitely with no possibility of reinstatement for two years

21 I. Scope of Review. Although Tofflemire did not appeal from the Commission s recommendation pursuant to Iowa Court Rule 35.11, she did file a statement at our request, as did the Board. Our review is de novo. See Iowa Ct. R (1); Iowa Supreme Ct. Bd. of Prof l Ethics & Conduct v. Wickey, 679 N.W.2d 1, 2 (Iowa 2004). Because we decide what discipline is appropriate in each case, we may impose a lesser or greater sanction than the one the Commission recommended. Wickey, 679 N.W.2d at 2. II. Facts. Upon our de novo review, we find the following facts. Tofflemire was admitted to practice law in Iowa in Following her admission to the bar, she worked for a small private law firm. When that firm closed its doors, she began her own practice. While on her own, she did some indigent criminal defense as well as family law work. In August 1992 the Division of Labor of the Iowa Department of Employment Services hired Tofflemire as a temporary employee. Eventually, she became a full-time employee. The name of the agency was later changed from Department of Employment Services to Iowa Workforce Development. She worked out of the Des Moines office. At the times material to these proceedings, Tofflemire was representing IWD in OSHA and child labor cases. She worked forty hours per week and was allowed to work ten hours per day, Tuesday through Friday. She also had sick leave benefits according to IWD rules and her union contract. During this same period, Tofflemire was also engaged as a contract attorney with the SPD to represent indigent clients in Polk, Dallas, and Warren counties. Tofflemire accepted cases in adult criminal and juvenile court. She also had a limited private practice consisting of family law and guardianship cases. IWD allowed employees to work a second job in addition to their IWD responsibilities provided they notified IWD of the nature of the outside employment and that such employment would not adversely affect their IWD job responsibilities. In 1992 Tofflemire obtained consent to maintain outside employment. That consent was renewed in 1994 and was effective throughout the times material to these proceedings. Tofflemire s performance review from IWD covering the period of July 1, 1998 through July 1, 1999 indicated that she met or exceeded expectations. During the next year, the relationship between Tofflemire and the other attorneys in her office began to deteriorate. Other attorneys in the office felt compelled to report a potential ethical violation by a former deputy labor commissioner, but Tofflemire did not join in signing the letter to the Board because she did not feel there was such a violation. Tofflemire s performance review covering the period from August 1, 1999 to August 1, 2000 reflected a more negative tone than the year before. Comments in this review included the following: Cindy is not always forthcoming to her supervisors, Cindy is not a good team player, and Cindy really needs to address her working relationship with co-workers. However, this evaluation still stated that Tofflemire s overall performance met or exceeded expectations. In late 1999 Tofflemire began taking on more complicated cases as a SPD contract attorney. As early as March 2000, her supervisors were concerned that Tofflemire s outside work was taking time away from her full-time job with IWD. In June, Commissioner of Labor Byron Orton learned that Tofflemire had earned nearly $50,000 for the first five months of 2000 for her SPD work. Orton became concerned that Tofflemire s outside employment had become so substantial that it was not possible for her to give the time and attention that her job with IWD demanded. When Tofflemire s supervisors suggested that she was not working full time for IWD, she assured them that she was out of the office on rare occasions, she always made sure IWD received its forty hours of work each week, and she did her indigent defense work at nights and on weekends. In December an Iowa Department of Revenue and Finance representative notified IWD that Tofflemire had earned $97,438 in 2000 for work she claimed to have performed for the SPD. Her name had come up during a routine cross match that the revenue department performs when state employees are receiving 1099 income from more than one state - 2 -

22 agency. This amount was in addition to the $59, annual salary Tofflemire earned as an attorney with IWD. The revenue department s disclosure caused Orton to initiate an investigation that ultimately led to the termination of Tofflemire s employment with IWD. The investigation covered the period from January 1, 2000 through September 15, For that period, Orton reviewed the hours Tofflemire had submitted to IWD to justify her forty-hour work requirement and the amount of sick leave she had taken. Orton also gained access to billing records Tofflemire had submitted to the SPD and reviewed those records. From that review, Orton found that on twenty-six occasions Tofflemire took sick leave from IWD while claiming to do indigent defense work for the SPD. Orton also found that Tofflemire had billed substantial hours of work to the SPD on days she claimed she had also worked eight- or ten-hour days for IWD. On some days the amount of hours Tofflemire claimed from IWD employment and SPD contract work exceeded twenty-four hours for a given date. On one occasion (June 27, 2000), Tofflemire took funeral leave because of a relative s death and on that date actually performed work for the SPD. Shortly after initiating his investigation, Orton enlisted the help of Thomas Becker, director of the SPD office. Becker conducted a spot audit of Tofflemire s claim forms. He then asked an attorney who worked for him, Michelle Swanstrom, to review all of the claim forms Tofflemire had filed for Swanstrom then prepared a spreadsheet listing the services Tofflemire claimed to have performed on a day-to-day basis for Thereafter, Orton prepared his own spreadsheet incorporating the SPD data. On January 9, 2001, Orton met with Tofflemire to discuss his findings. His review up to that time had focused on twenty-six dates in 2000 when Tofflemire had taken sick leave from IWD but also claimed to have done work for the SPD. He presented those dates to Tofflemire at this meeting and gave her an opportunity to explain why she had billed the SPD for the same days she had claimed sick leave from IWD. Tofflemire tried to assure Orton that her work for the SPD was not interfering with her work obligations for IWD. She again claimed that she did the bulk of her SPD work on weekends and after hours. Orton also confronted Tofflemire about the days she had billed in excess of twenty-four hours. She responded by saying that there had to be some sort of mistake in her SPD billings. When Orton asked Tofflemire about the days she claimed to have worked at the county jail or courthouse for SPD clients during work hours for IWD, she said the itemizations on her SPD claims were wrong. Orton and Tofflemire met again on January 12 after Orton had given her a few days to come up with an explanation. On that date, Orton brought up the June 27, 2000 date when Tofflemire took funeral leave from IWD while also claiming to work 6.7 hours for SPD. Tofflemire said she had taken funeral leave and attended a funeral for a relative in Sioux Falls, South Dakota. When Orton asked her how she could have worked the 6.7 hours for SPD on that date, she said she did the work after returning from South Dakota. Tofflemire s explanations did not satisfy Orton so he terminated her employment with IWD that same day. His reasons for doing so included her abusing the IWD sick leave policy; deliberately falsifying timesheets, work sheets, production records, materials, or any other records related to work activities; and lying during his investigation. A short time later, Becker terminated Tofflemire s contract with the SPD because of his concerns that she had submitted inaccurate billing itemizations and fee claims to the SPD. At the hearing before the Commission, Orton testified in more detail about his investigation. From his testimony we find that the 26 sick days that Tofflemire took represented approximately 15% of the 180 workdays for the period reviewed. In addition, Tofflemire billed the SPD for 247 of 259 calendar days during the same period. Although Tofflemire consistently told Orton that she did SPD work on weekends, his spreadsheet showed otherwise. On a number of weekends she billed no time at all to the SPD. Becker likewise testified in more detail about his investigation. From this testimony we find that the $97,438 that Tofflemire earned in 2000 was almost as much as the senior supervisors working in Becker s office were paid (senior supervisors were paid slightly over $100,000 per year). Her claims were also at the very top tier of claims paid to attorneys who had contracts with the SPD. In addition, the record reflects that in 1999 Tofflemire earned $49, in SPD work and $55, from her full-time job with IWD

23 Becker marveled that Tofflemire was able to meticulously capture her time as she did. He believed she had to be very disciplined in writing down how much time she spent doing the work. When he was told that Tofflemire had used no system to record her time for the SPD work billed in 2000, he responded that would be inconsistent with the detail he saw. Swanstrom told Becker that Tofflemire s claims were in many instances at the outer edge of reasonableness. Nevertheless, Becker would not conclude that Tofflemire had not performed the services. Of course, that is not surprising because the record reflects that the SPD has no accurate way to determine whether the services were or were not performed. The SPD has to rely on attorneys being truthful in submitting claims. Board investigator Elayne Sobel testified concerning her investigation. Sobel took information from Orton s spreadsheet, which included information from the SPD, and incorporated that information into a database. From the database, Sobel prepared a detailed analysis, which shows the following. During the period in question, Tofflemire claimed to have worked more than twenty-four hours on five different dates between her IWD and SPD employment. On one of those dates, Friday, February 25, 2000, Tofflemire claimed to have worked over twenty-nine hours between the two agencies. On thirty occasions, Tofflemire claimed to have worked over eighteen hours per day between the two agencies. On 174 of the 259 calendar days, Tofflemire claimed to have worked over ten hours per day between the two agencies. In addition, the analysis shows that contrary to Tofflemire s claim only a small portion of her work was done on weekends. Finally, consistent with Orton s testimony, Tofflemire claimed to have done SPD work for 247 days of the 259 days during the ninemonth period under investigation. Ten of the twelve days that Tofflemire did not bill the SPD fell on a Saturday or Sunday. Sobel s analysis also confirms that Tofflemire billed the SPD for work on the twenty-six days of sick leave Tofflemire took from IWD. On one of those days, Tofflemire claimed she was forced to stay at home because of an infected fingernail. On that day she attended a pretrial conference, which appeared on her weekly tickler/calendar for three weeks prior to the conference, indicating this date was a planned absence. In addition, the analysis shows that Tofflemire claimed to have written 290 letters during the period under investigation. For 282 of those letters, Tofflemire charged one-half hour, and she charged one-half hour for each of four identical short letters. Sobel also reviewed Tofflemire s subpoenaed bank records and discovered that in eight instances duplicate check copies attached to claim forms filed with the SPD did not match actual checks written on Tofflemire s checking account. For example, in one instance the original check was written to a Dave Nixon on February 14, 1999 in the amount of $5.00. However, the duplicate check copy attached to the particular indigent claim form was to Kinko s in the amount of $65.42 and was purported to be written on September 30, Sobel also reviewed the summaries Tofflemire submitted as exhibits to explain away apparent inaccuracies and inconsistencies within her timekeeping system during 1999 and Sobel found that over half of the summaries were inaccurate and the effect of each summary was to shift time from days with high SPD hours to days with low hours. Tofflemire prepared those summaries after she was given Orton s spreadsheet. III. Ethical Violations. In her testimony, Tofflemire asserted that IWD and the SPD misconstrued her billing statements to the SPD, and therefore their action against her was unwarranted. She related that in 1999 and 2000 she began taking on more complicated cases for the SPD. As a result she was no longer able to keep contemporaneous billing records as she performed services for the SPD. She testified that she resorted to what she described as block and summary billing in which she would summarize letters, documents, motions, or briefs on the date they were completed or filed, even though her work on the documents may have been completed much earlier. In effect, what Tofflemire was doing was to review the file after the case was concluded and then reconstruct time and billing records for the case. As a result, her block and summary billings had little relation to the dates when the billed work was actually done. This, she said, accounted for the erroneous conclusion that she was working more than twenty-four hours in a day. As to her billing practices, the Commission found: - 4 -