No license? Still gotcha!

NOBC

April 2010

Featured Regulatory Case

Topic:

A lawyer practicing federal law in a host jurisdiction where that lawyer is not licensed is nevertheless subject to the regulatory authority of the host jurisdiction.

Summary:

William Shaw Carpenter was admitted to practice law in Minnesota in 2001. He was never licensed in Iowa. From 2005 to 2007, however, he maintained a law office in Windsor Heights, a Des Moines suburb, and provided legal services to Iowans on federal immigration matters. He was able to practice where he was not licensed based upon Iowa’s multi-jurisdictional practice guidelines. Specifically, Iowa Rule of Professional Conduct 32:5.5(d)(2) provides that a lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, can provide legal services in Iowa if that lawyer is authorized to practice federal law. The rule is similar to the law as it exists in many states, and it is based largely on model rules developed by the American Bar Association. Consistent with those ABA guidelines, the Iowa disciplinary agency has express authority to regulate any non-Iowa licensed lawyer practicing federal law within Iowa borders.

A number of Carpenter’s Iowa clients found their way to the Office of the Director for Attorney Discipline in Des Moines to complain about him. Several of the clients alleged that he had failed to adequately communicate with them. Many others alleged neglect.

After an investigation, formal disciplinary charges were filed against Carpenter in Iowa based on his representation of clients in seventeen separate federal immigration matters. In addition, Iowa regulatory authorities charged him with misconduct based upon two separate misdemeanor convictions. Carpenter was convicted of the aggravated misdemeanor of operating a motor vehicle while intoxicated, second offense and he was later convicted of a serious misdemeanor of driving while his license was suspended in Iowa. He was also charged with violating lawyer trust fund account guidelines by failing to deposit unearned fees in his client trust account and withdrawing funds without a proper accounting to the client as to the services that he provided.

Carpenter filed a motion to dismiss the formal charges. After a hearing panel denied the motion, the parties entered into a stipulation recommending a thirty-month suspension, as well as a requirement that any application for reinstatement include an evaluation by a licensed health care professional verifying Carpenter's fitness to practice law. Carpenter suffers from depression, for which he is apparently receiving treatment. Upon the parties' request, a hearing panel of the Grievance Commission of the Supreme Court of Iowa convened without the parties' participation. Subsequent to the panel's discussion of the issues, the panel adopted the proposed stipulation and recommended sanction. The panel also recommended the return of all client funds taken without a proper accounting.

The Supreme Court of Iowa had occasion to review the unique jurisdictional and sanction factors present in the case. The Court noted that the conduct of a lawyer admitted to practice in Iowa has long been subject to the Iowa disciplinary authority. Extension of that disciplinary authority to non-Iowa lawyers who provide or offer to provide legal services in Iowa was deemed necessary by the Court to protect the citizens of Iowa. Thus, multi-jurisdictional practice guidelines allowed the Iowa courts the authority to investigate and prosecute Carpenter's practice in Iowa

The Court outlined Carpenter’s disciplinary history. On October 18, 2007, he was prohibited from practicing law in Iowa due to a disability related to his depression. His Minnesota license was placed on "disability inactive status" beginning in September 2008. The Minnesota transfer was ordered in the wake of allegations of misconduct in regards to five different immigration matters. See,   http://www.courts.state.mn.us/lprb/ArchivedSCOpsOrds/CARPENTER-A08-1440-09192008.pdf . His Minnesota reinstatement is conditioned upon a showing of psychological or psychiatric evidence that he is once again fit to practice.

As to an appropriate ultimate sanction given the facts of the instant proceeding, the Iowa high court stated that, in cases in which an Iowa-licensed practitioner is disciplined, Iowa rules permit the imposition of a suspension or revocation of the attorney's license, as well as additional or alternative sanctions such as reprimand, restitution, payment of costs, practice limitations, appointment of a trustee or receiver, or any “other measures consistent with the purposes of attorney discipline.” When a non-Iowa licensed attorney commits misconduct warranting a sanction directly affecting licensure, such as suspension or revocation, such sanctions are not feasible because there is no Iowa law license to suspend or revoke. Nevertheless, the Court noted that sister jurisdictions such as Maryland, Nevada and Delaware have been able to fashion an adequate sanction against non-licensed lawyers to protect the citizenry of the host jurisdiction. The Iowa Court therefore concluded that its authority to discipline non-Iowa licensed attorneys included the ability to craft practice limitations through injunctive and equitable relief that were the functional equivalent of license suspension, disbarment, or any other sanction related to an attorney's license. As a result, the Court ordered Carpenter to cease and desist from all practice of law in Iowa indefinitely with no opportunity to request that the order be lifted for a period of not less than two years. The Justices also ordered Carpenter to submit, with any request to lift this order, an evaluation by a licensed health care professional that he is fit to practice law.

The case is Iowa Supreme Court Attorney Disciplinary Board v. William Shaw Carpenter, No. 09-1343 (Iowa, April 16, 2010).

As an aside, Carpenter’s immigration practice was effectively neutered by the time of the final Iowa decision. In 2008, the Executive Office for Immigration Review (EOIR) entered an order suspending him indefinitely from practice before immigration tribunals, effective Feb. 12, 2008, based on his interim discipline in Iowa.

JAMES J. GROGAN, DACC, Illinois ARDC

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