If Bar Counsel’s investigative records are protected from discovery based upon the work product doctrine, a discovery deposition of Bar Counsel’s staff regarding those records is inappropriate.
Iowa Supreme Court Attorney Disciplinary Board v. James W. McGrath,___ N.W.2d ___, 2006 WL 1085933 (Iowa, April 21, 2006). McGrath, who was licensed in 1971, was suspended indefinitely with no possibility of reinstatement for three years. He long practiced in the personal injury and marital dissolution fields and, at the time of the misconduct in question, was in his mid-to-late 50’s and was three-times divorced. The Iowa Supreme Court Board of Professional Ethics and Conduct (now the Iowa Supreme Court Attorney Disciplinary Board) filed a one-count complaint alleging that he made sexual advances to a woman-client named Heather by proposing an exchange of sex for fees. After formal charges were filed, McGrath sought production of the Board’s complete investigative file. The Board turned over 345 pages of documents but objected to the production of “the work product of staff counsel, investigators or administrators of the board.” McGrath sought to compel production of the withheld work-product materials, claiming that the failure to produce the items violated his due process rights. He also raised an equal protection argument, stating that judges subject to judicial disciplinary proceedings in Iowa were allowed to view all papers held by the Commission on Judicial Qualifications. Finally, he sought to depose the Board’s paralegal-investigator, Elayne Sobel, who had investigated McGrath’s misconduct. Based upon the work-product doctrine, the Disciplinary Commission denied McGrath’s request to produce documents and depose the employee. The Board was ordered however, to furnish McGrath with a list of those persons who had been interviewed by Sobel. Soon after the ruling, the Board added a second count of misconduct and alleged that McGrath had sex with another female client, identified in the amended complaint as ‘Jane Doe’. The Board amended its discovery to indicate that Doe and Doe’s ex-husband would testify and that Sobel might be called as a witness “[i]f necessary” to testify that Doe told her that Doe had sex with McGrath in exchange for legal services. Not surprisingly, McGrath renewed his production request and again sought to take Sobel’s deposition. In response, the Board filed a signed affidavit from Doe admitting her sex-for-fees arrangement with McGrath. A few days later, the Board withdrew Sobel’s name from its witness list. After her name was removed, McGrath’s discovery requests were denied and the matter proceeding to hearing. After hearing, the Disciplinary Commission ruled that misconduct had only been established as to one of the clients, Heather, but not as to Doe, and recommended a one-year suspension. McGrath appealed. On appeal, the Iowa Supreme Court concluded that court rules protected the Board’s investigative reports from discovery and that the work product doctrine protected its counsel and staff from being deposed about those reports. As noted by the Court, the privilege accorded to the Board’s work product “would have little value if the person preparing that work product could be compelled to testify.” The Court’s conclusion was not altered by the fact that Sobel was briefly listed by the Board as a potential witness. The Court held that the Board’s removal of Sobel from its witness list before hearing constituted a withdrawal of any implied waiver of the work product privilege. As to McGrath’s due process arguments, the Court ruled that the Due Process Clause does not give a Respondent the right to rummage through the Board’s file to search for exculpatory material. McGrath managed to raise a rather creative Brady v. Maryland argument. Specifically, he alleged that, because the trier of fact found that the Board was unable to establish misconduct in the Doe count due to questions about Doe’s credibility, he was entitled, at a minimum, to all documentation relating to Sobel’s communications with Doe taken before the hearing. Certainly, the surmise goes, Sobel’s notes would have revealed fundamental questions about Doe’s credibility that should have been revealed to him by the disciplinary prosecutor. The Court rejected this argument because it did not consider evidence of Sobel’s conversations with Doe to be material as that term is used for purposes of the Brady rule. Because there was no reasonable probability that cumulative impeachment evidence would change the outcome of the proceeding, and because McGrath had amassed substantial impeachment evidence against Doe, Sobel’s information was immaterial. As to the equal protection argument, the Court concluded that, judicial discipline is not equivalent to attorney discipline. Although the Iowa Commission on Judicial Qualifications has an open file policy, the judicial prosecutor, the Iowa Attorney General serves in a capacity similar to the Board in lawyer discipline. Because no judge can obtain the work product of the Attorney General, no equal protection violation exists because the Board and the Attorney General treat the work product doctrine in the same manner.
The Court affirmed the misconduct finding as it related to the Heather allegations. As to the Doe count, the Court disagreed with the ruling below. Although it acknowledged that it rarely disturbed the credibility findings in a disciplinary case, it concluded that Doe’s testimony ‘rang true’ at the hearing and reversed the findings that misconduct had not been established. The Court found especially compelling the fact that McGrath was unable to explain how Doe was able to testify at the disciplinary hearing that, when they had sexual relations, she had observed that McGrath was uncircumcised.