Iowa Professional Conduct Rules
The Iowa Rules of Professional Conduct are rules promulgated by the Iowa Supreme Court to govern the professional conduct of, and relationships between, lawyers in the state of Iowa and their clients, prospective clients, and other third parties. They were adopted on August 27, 2015, and became effective December 1, 2015. The Iowa Rules of Professional Conduct replaced the Iowa Code of Professional Responsibility for Lawyers, and as such, generally correspond to and expand upon the American Bar Association’s Model Rules of Professional Conduct. The Iowa Rules of Professional Conduct are available in full on the Iowa Judicial Branch website.
The Rules apply to all lawyers admitted to the practice of law in Iowa, as well as those lawyers with whom they share the same professional legal practice. This includes both lawyers practicing within the State of Iowa and lawyers from another jurisdiction who provide legal services within Iowa, which is a broad definition that may be applicable to an increasing number of attorneys. However , the Rules do not apply to judges or magistrates. Pursuant to Iowa Supreme Court Rule 39.17, violators may be subject to discipline or disbarment by the court’s Grievance Commission or attorneys disciplinary Board.
The Iowa Rules of Professional Conduct are considered "permissible indirect regulation of the practice of law because they restrict conduct and enter presumptively into areas beyond the ethical arena." State ex rel. Iowa State Bar Ass’n v. Rogers, 670 N.W.2d 219, 237 (Iowa 2003). As the Iowa Supreme Court previously explained, the Iowa Rules of Professional Conduct "expand on eight Canons previously articulated in the [Iowa] Code of Professional Responsibility for Lawyers," which held that "a lawyer, as an officer of the court, [or a member of the bench] has special obligation to protect the interests of those unable to do so on their own." First Iowa State Bank of Creston v. Peters, 408 N.W.2d 147, 149 (Iowa 1987). In other words, the Iowa Rules of Professional Conduct carry additional significance beyond professional ethics in the State of Iowa.
The Historic Nature of Iowa’s Rules
Ethical standards for Iowa attorneys can be traced back in various forms to the 19th century, with the first formal set adopted in 1970. Just as the rules are numerous, their history is robust. They have evolved over the past five decades as law practice technology has revolutionized the profession and increased the risks of information misuse, and headway has been made to ensure that Iowans have the right to ethical representation in all legal matters.
The first formal codification of ethical rules for attorneys was in Title III of the Iowa Rules of Civil Procedure. That set of rules was adopted in 1970, and was later amended to account for the adoption of the Iowa Rules of Evidence in 1983. The present version of the IRE as well as the current IRPC were both published in 1984.
The IRPC as we know it today was modeled after the American Bar Association’s Model Rules of Professional Conduct, developed by the ABA’s Standing Committee on Ethics and Professional Responsibility. The ABA updated its Model rules in 2003, and the IRPC were substantially amended in 2005 to bring them into closer conformity with the Model Rules.
Since then, the IRPC have seen a mix of substantive and administrative amendments, including adding rules regarding confidentiality concerns in technology and identifying and reporting the unauthorized for-fee practice of law by non-lawyers.
As legal technology advances, the IRPC will continue to evolve as situations emerge where technology outpaces the rules. The changes to Iowans’ ethical rights in Iowa will come from the Iowa Supreme Court, which is responsible for the adoption and amendment of court rules in Iowa.
Major Tenet of Conduct
The Iowa Rules of Professional Conduct for Attorneys is rooted in several fundamental principles that guide lawyers in their practice. Among these principles is the notion that client confidentiality is paramount. Section 32:1.6 of the Iowa code states a, "a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to advance the best interests of the client and reasonably appears necessary to carry out the representation." Keeping in mind that a majority of the cases that I handle are based on confidentiality or privacy claims, this is an important rule because it helps maintain trust in the attorney-client relationship.
An additional principle of ethical conduct is competence: "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education, and keep abreast of the benefits and risks associated with relevant technology[?]" Section 32:1.1. The legal field is constantly changing as is technology. Understanding the law and advances in technology, such as changes in social media, can be the key to winning a case.
Conflict of interest is also an important principle for the Iowa Rules of Professional Conduct. Lawyers are advised to avoid a conflict of interest at all costs. A conflict of interest occurs when a lawyer’s independent judgment may be compromised because of a personal stake in the outcome of a case. Section 32:1.7 of the Iowa code says, "A concurrent conflict of interest exists if…there is a significant risk that the representation of a client will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person …"
Enforcement of Attorney Violations
Failure to follow the Iowa Rules of Professional Conduct can result in disciplinary action. The attorney disciplinary process begins with a complaint filed against the attorney. Complaints may be filed by the public, by other lawyers, by courts, or by the Grievance Commission. Grievance Commission complaints are initiated by the Board when it determines that a reasonable basis exists to investigate an attorney for a possible violation of the Iowa Rules of Professional Conduct. The Board has 60 days to resolve the complaint, failing which an Application for Resignation with Permission Not to Practice Must Be Filed.
The Grievance Commission, if it determines that a lawyer’s conduct has violated the Iowa Rules of Professional Conduct, or if there is evidence that an attorney is not following the Rules regarding advertising and solicitation, shall recommend to the Supreme Court that a formal complaint be filed against that lawyer. If the Supreme Court accepts the recommendation and there are no mitigating circumstances or no more than three aggravating circumstances, the Grievance Commission may recommend a reprimand and order further education or monitoring. If the lawyer has been the subject of more than three aggravating circumstances then the Grievance Commission may recommend a suspension. Suspensions may be of varying lengths from 30 days to permanent disbarment. A permanent revoke (i.e, disbarment) occurs only in the most serious of cases.
Lawyers should be careful to avoid even informal disciplinary proceedings. They can be time consuming, costly, and bring a great deal of stress on the personal and professional lives of the subject attorney.
What’s Been Added (and Changed) in 2015
The Iowa Rules of Professional Conduct are not static. The Iowa Supreme Court and the Board of Professional Ethics and Conduct (the "Board") are charged with the duty of interpreting, maintaining, and amending the Iowa Rules of Professional Conduct to ensure that they best safeguard the interests of attorneys and their clients, the integrity of the courts, and the public as a whole. As such, the Board periodically reviews Iowa case law and the state and federal codes of procedure to analyze whether the Iowa Rules of Professional Conduct are still applicable and relevant.
In 2014, the Iowa Rules of Professional Conduct, Chapter 32 of the Iowa Court Rules, were heavily revised to maintain conformity with the American Bar Association’s Model Rules of Professional Conduct. However, Iowa is a "stand-alone" jurisdiction and modification of the ABA’s Model Rules does not automatically translate into amendments to the Iowa Rules of Professional Conduct. Under Iowa Court Rule 34.2, "The Board shall periodically review the rules of professional ethics and conduct to determine whether revision is necessary or appropriate. The board also shall consider proposed changes in the rules that are submitted to it." While changes to the ABA’s Model Rules may lead to changes in the Iowa Rules of Professional Conduct, revisions are not automatic and some revisions come with significant delay.
Over the past year, the Iowa Supreme Court and the Board have appropriately acted on proposed changes to the Iowa Rules of Professional Conduct. The first substantive change examined by the Board was the requirement under Rule 32:1.7 that a lawyer may not represent two or more unrelated clients in the same matter . Following the Board’s examination, the Iowa Supreme Court invited public comment on the proposed amendment to the rule. On September 8, 2017, the Iowa Supreme Court released Order No. 17-08, adopting the amendment to Rule 32:1.7 to remove the first part of the rule’s requirement, allowing counsel to represent two or more related clients in the same matter subject to Issue Spotting and Conflict Waiver considerations. This amendment to Rule 32:1.7 became effective December 27, 2017.
On January 9, 2018, Chief Justice Cady announced a proposed amendment to Iowa Rule of Professional Conduct 32:1.7, seeking to prohibit subject-matter conflict waivers. After an initial review of the proposed amendment, the Board decided to hold additional meetings following the February 2018 Iowa State Bar Association "Taking Your Practice Beyond Iowa" conference to allow attorneys across the state ample opportunity to provide comments to the Board. Following a review of the Board’s Report and Recommendations, on August 30, 2018, the Iowa Supreme Court released Order No. 18-07 and adopted a modification to Rule 32:1.7(4)(c)(1). While a subject-matter conflict waiver is now prohibited by the rule, a lawyer may continue to represent two or more clients with respect to issues that arise within the same matter when the representation conforms to Rule 32:1.7(4)(c)(i) to (iv). The rule became effective September 1, 2018.
With the addition of these amendments and revisions to the Iowa Rules of Professional Conduct, I would continue to encourage attorneys to review the Iowa Court Rules when examining the professional and ethical obligations of the practice of law. Failure to do so could result in disciplinary action.
Comparison to Other States
A comparative analysis of Iowa’s Rules of Professional Conduct and the rules of other states shows that Iowan’s have robust protection for their personal information, likely exacerbated by the fact that Iowa is one of just five states holding onto its pre-Model Code Rules. While the Iowa Model Rules are the mirror image of the ABA Model Rules, the ABA Model Rules themselves remain a foundation upon which Iowa’s rules have made significant changes to ensure the protection of Iowa consumers.
The bottom line is that Section 32:1.6, the Duty of Confidentiality, is the same as the ABA Model Rule and as a result, when a lawyer seeks confidential information with the permission of the affected client, in Iowa that client’s permission must be "informed consent," whereas the ABA Model Rules use the much more lenient "consent."
As an example, if an attorney is sued for malpractice and their malpractice carrier wants to review all of the client’s file, they would be required to obtain the consent of the client before providing even any redacted version to their insurance company, in Iowa, whereas in other states, such as those utilizing the ABA Model Rules, a simple consent of the client in the malpractice case suffices.
The ABA Model Rules permit lawyers to disclose information to the extent they reasonably believe necessary to prevent reasonably certain death or substantial bodily harm or to prevent the client from committing a crime or fraud using the lawyer’s services. Our Rules 32:1.6 permit disclosure by a lawyer only if the lawyer reasonably believes that disclosure is necessary to prevent reasonably certain death or substantial bodily harm, but not to prevent a crime or fraud. Iowa and more than half the other states adopting some form of the ABA Model Rules have the stricter standard, rather than the lenient ABA standard.
The biggest difference between our Rules and the ABA Model Rules, and between our Rules and those of the other states that have adopted some form of the ABA Model Rules is found in Rule 32:1.9, Conflict of Interest – Former Clients. The Iowa Rules permit an attorney to represent a client against a former client, whereas the ABA Model Rules, and more than half of the other states, do not permit so long as the matter is "substantially related" to the prior representation and "the client consents after consultation." With regard to this provision of these Rules, no state presently has an Ethics Hotline that can answer questions concerning its meaning, leaving it to the practitioners to educate themselves on these Rules that can create significant problems.
Reference Material for Iowa Attorneys
Professional Organizations: Membership in professional organizations, such as the Iowa State Bar Association and the Iowa Defense Counsel Association, provides access to a variety of informative resources, including newsletters and alerts regarding developments in the law and ethics. They also present opportunities for networking and collegial opportunities for exchanging information with other attorneys.
Continuing Legal Education: The annual summer Iowa State Bar Association (ISBA) meeting in Destin, Florida , offers collegial learning experience that includes presentations from national experts in legal ethics and professional responsibility. The Iowa Defense Counsel Association also offers periodic webinar presentations on ethics topics.
Committee Opinions: Both the ISBA and the Iowa Supreme Court Board of Professional Responsibility publish attorney disciplinary opinions in particular fact situations. These opinions are meant to be advisory and do not have to be followed to avoid disciplinary action against an attorney. The appellate committee opinions have been helpful in identifying and clarifying what types of conduct may or may not be sanctionable.
Law School Clinics: The Drake University law school has a clinic program that allows practicing attorneys to consult with law students and supervising faculty on ethical issues.
