Justice Wiggins Authors Rare Dissent in Attorney-Discipline Case

By: Administrator on December 10th, 2012

By Ryan Koopmans

On Friday, Justice Wiggins departed from his six colleagues in two attorney-discipline cases.  That’s news, mostly because it’s rare.  According to Justice Wiggins, no justice has dissented in an attorney-discipline case in sixteen years.

In both cases–Iowa Supreme Court Attorney Disciplinary  Board v. Bieber and Iowa Supreme Court Attorney Disciplinary  Board v. Wheelerthe attorneys were facing punishment for committing bank fraud–essentially for helping their clients receive more in loans than the banks would have authorized.  In the first case, Paul Bieber drafted documents showing that his client was purchasing a house for $155,000; the actual price was $100,000, but the client wanted more from the bank, allegedly to make repairs.  But the repairs never happened, and Beiber’s client defaulted on the loan.

In the second case, Ronald Wheeler agreed to act as a “straw man” for his client–applying for a $796,000 mortgage and a telling the bank that he (Wheeler) would be living in the house, when his client would be doing so.  The mortgage application, which Wheeler claims not to have drafted or reviewed, listed his monthly income at about $30,000 ; his actual monthly income was closer to $8,000.  Wheeler’s client defaulted on the loan.

The Iowa Supreme Court Disciplinary Board recommended that both men be suspended from practicing law, with no possibility of reinstatement for six months.  On appeal, six justices of the Iowa Supreme Court agreed.

Justice Wiggins thought that the punishment was too lenient.  In his view, Bieber and Wheeler stole from the bank, so they should never practice law again: “There is no place in our profession for an attorney who steals from another.”

Justice Wiggins’ colleagues agreed with his major premise–that a lawyer who steals should lose his license–but they disagreed with how he characterized Bieber’s and Wheeler’s conduct.  Writing for the Court, Chief Justice Cady explained that although Wheeler made a misrepresentation to the bank, “the misrepresentation was for the purpose of obtaining the loan,” which Wheeler believed his client would refinance and pay off.   And writing for the Court in Bieber, Justice Mansfield noted the absence of any evidence that Bieber knew that his client would not repay the loan: “The record shows at most that Bieber enabled a lender to be defrauded into lending more than it would otherwise have been willing to lend.”  That, everyone agreed, was very serious.  And suspension, without possibility of restatement for at least six months, is a “very serious sanction,” a majority of the Court concluded.

Justice Waterman authored a concurring opinion in Bieber, specifically to take on Justice Wiggins’ dissent.  Joined by Justice Zager (who was signing on to only his second concurring opinion), Justice Waterman concluded that Justice Wiggins’ “dissent gets the facts wrong, and then misapplies our precedent.”  Reemphasizing the majority opinion’s reasoning, Justice Waterman noted the lack of evidence that Bieber knew his clients would “steal or fail to repay the bank loan,” and that without such knowledge, Bieber did not commit theft.  Justice Waterman agreed fully with suspending Bieber’s license for at least six months.

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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