Iowa Supreme Court Attorney Disciplinary Board v. Jeffrey K. McGinness. attorney discipline
Jeffrey McGinness graduated from law school in 2001 and got a job with a law firm in Chicago. In 2007, he returned home to Iowa where he practiced law with a prominent firm. In 2012, he forgot to mail some discovery requests. His client's deposition was coming up in a few days, and he realized that failing to send the discovery requests was a big mistake. As the Iowa Supreme Court later pointed out, his best course of action would have been to talk to one of the lawyers down the hall and ask them what he should do. As the high court later pointed out, they probably would have advised him to ask for an extension, ask the opposing lawyer for some leaway, or simply make the best of a bad situation. Instead, in what appears to be an abherration in the lawyer's normal behavior, he decided to lie about it.
He started by sending an angry e-mail to the opposing lawyer asking why he didn't have the answers to the discovery. Understandably, the opposing lawyer replied that he had never received them. McGinnis then e-mailed the discovery requests, which he had apparently prepared but forgotten to mail. He also attached an affidavit indicating that the requests had been sent by U.S. Mail months earlier. This affidavit purportedly bore the signature of McGinness's administrative assistance. But the document was a forgery. McGinness had taken another certificate of service from the same case, photocopied it, and turned it into an affidavit that the documents had been mailed.
The opposing attorney, as is often the case, got suspicious. First of all, he examined electronic data embedded in the documents and concluded that they had recently been created. He also hired a handwriting expert, who determined that the forgery was, indeed, a photocopy of the earlier document.
When confronted with this information, McGinness, as the Supreme Court later put it, "did not fess up; he embellished." The opposing attorney asked for sanctions, and McGinness continued to embellish his story rather than admit what had happened. He even hired his own handwriting expert who testified that the identical signatures really weren't identical.
The district court in Polk County held a hearing and concluded that McGinness was lying. The trial judge opined that a handwriting expert wasn't necessary to see that the two certificates were identical. (The administrative assistant, who prepared many such documents each week, didn't have any recollection of signing either the original or the forgery.) The judge opined that the "behavior is so shocking and egregious that it is hard even to know what to say about it,” and that it was "deeply disappointing to find that a member of the bar has engaged in such elaborate, calculated, and premeditated deceit." The district court ordered McGinness to pay $5152 to the opposing attorney and $2348 to the Iowa Judicial Branch. The court also sent a copy of the order to the state court administrator.
It was only then that McGinness admitted the truth. He talked to a senior partner at his firm, who urged McGinness to report his conduct. However, before he could do so, McGinness received an inquiry from the disciplinary board. He was fired from the firm for betraying their trust, although some members of his firm later testified that the conduct was an aberration.
In response to the Disciplinary Board's inquiry, McGinness finally confessed, expressed remorse, and asked for leniency. In addition to his character witnesses, McGinness offered evidence of his service to the school board, municipal boards, volunteer organizations, and coaching wrestling, soccer, and baseball.
On appeal to the Supreme Court, McGinness asked for leniency, and requested a three month suspension. The Supreme Court, after reviewing the evidence, held that a minimum six month suspension was the appropriate discipline.
No. 13-1213 (Iowa Mar. 21, 2104).
Please see the original opinion for the court's exact language.
Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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