Seventeen Lawyer- Legislators Go to Work in 83Rd General Assembly

THE Volume 69 Number 2 February 2009

Seventeen lawyer- legislators go to work in 83rd General Assembly

ALSO IN THIS ISSUE • Special legislative focus – • Lawyer-legislator bios • 2009 session promises to be challenging • Iowa Title Guaranty to work with ISBA • ISBA’s Affirmative legislative agenda • wHo to contact your legislator • BOG meeting highlights • State of the Judiciary address • y DisciplinarActions the Iowa Lawyer February 2009 1

41480_IL_cover.indd 1 2/2/09 10:34:02 PM ISBA leaders take time out for a photo with the governor after a meeting in his office before the State of the Judiciary address. Leaders are (from left) Legislative Counsel Jim Carney, President Dan Moore, Executive Director Dwight Dinkla, Governor Culver, President-Elect Jane Lorentzen and Vice President Frank Carroll.

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2 THE IOWA LAWYER February 2008 THE IOWA LAWYER CONTENTS Volume 69 Number 2 February 2009 ISBA leaders with governor CLE seminars ...... 15 (photo & caption) ...... 2 Published at 625 East Court Apply for ISBA committees, sections ...... 20 Des Moines, Iowa 50309 President’s letter: Reflecting on Know Your Constitution winners Steve Boeckman, Editor minority rights – ...... 4 515-697-7869 Moore (photo & caption) ...... 21 Legislative focus Nope, it’s Metadata – ...... 22 Meet the 2009 lawyer-legislators ...... 6 Weresh 2009 session looks to be Disciplinary Actions...... 24 challenging – Carney ...... 9 Classified ads ...... 27 ISBA Affirmative Legislative Program ....10 How to contact your legislator ...... 10 State of the Judiciary address...... 29 THE IOWA STATE BAR ASSOCIATION Title Guaranty to work with OFFICERS 2008-2009 ISBA – ...... 11 Around the bar Ogle Law professor to discuss President, Dan Moore Governors firm up President-Elect, Jane Lorentzen racial, gender bias ...... 21 legislative initiatives ...... 12 Vice President, Frank Carroll Drake to host roundtable Immediate Past President, Joel Greer Transitions ...... 14 Executive Director, Dwight Dinkla for IP scholars ...... 25 Drake names Vestal as new dean ...... 26 THE IOWA LAWYER Kudos ...... 14 (ISSN 1052-5327) is published monthly by The Iowa State Admission on motion ...... 14 Bar Association, 625 East Court, Des Moines, Iowa 50309. Subscription included in membership fee. Non-members, $30 per year. Periodicals postage paid at Des Moines, Iowa. THE Volume 69 Number 2 February 2009 ABOUT THE COVER Postmaster: Send address changes to The Iowa Lawyer, 625 East Court, Des Moines, IA 50309. Iowa’s lawyer-legislators take time out for a group

The Iowa Lawyer is printed by Colorfx, 10776 Aurora Ave., Seventeen lawyer- photo on one of the back staircases in the State Des Moines, IA 50322. Telephone (515) 270-0402. Capitol during the second week of the 83rd General Art Director: Melissa Thompson legislators go to work in 83rd General Assembly Assembly. Legislators (from left at the top of the Classified Advertising staircase) are: Representatives Richard Anderson, Qualifying ISBA members – 2 months free; $75 thereafter Non-members – $110 for 100 words per insertion. Clarinda; Eric Palmer, Oskaloosa; Doug Struyk, See classified section for details. Council Bluffs; Kraig Paulsen, Hiawatha; Tyler For Display Advertising Rates Olson, Cedar Rapids; Chris Hagenow, Windsor Contact David R. Larson (515) 440-2810; or write: The Iowa Lawyer, c/o Larson Enterprises, 909 50th St., Heights; Geri Huser, Altoona; Rick Olson, Des West Des Moines, IA 50265. Moines; and Senator Rob Hogg, Cedar Rapids. Communicating with online: The Iowa Lawyer ALSO IN THIS ISSUE Standing on the floor (from left) are: Representatives Send your comments and Letters to the Editor to • Special legislative focus – [email protected] • Lawyer-legislator bios Kurt Swaim, Bloomfield; Nate Willems, Lisbon; Eric . Please include your daytime phone • 2009 session promises to be challenging number should we need to contact you with an answer or for • Iowa Title Guaranty to work with ISBA Helland, Grimes; Helen Miller, Fort Dodge; Mike • ISBA’s Afﬁrmative legislative agenda verification. Executive Director Dwight Dinkla’s electronic • How to contact your legislator [email protected] • BOG meeting highlights ______Reasoner, Creston; Kevin McCarthy, Des Moines; mail address is . Assistant Executive • State of the Judiciary address Director Harry Shipley’s address is [email protected]. • What does your “metadata” say about you? and Senator Keith Kreiman, Bloomfield. Not THE IOWA LAWYER February 2009 1 pictured is Representative Jo Oldson, Des Moines.

41480_IL_cover.indd 1 1/27/09 8:19:28 PM The Iowa State Bar Association Committees and Sections

COMMITTEES INDEPENDENCE OF THE JUDICIARY MEMBERSHIP COMMITTEE ALTERNATIVE DISPUTE RESOLUTION SECTION HEALTH LAW SECTION AMERICAN CITIZENSHIP COMMITTEE COMMITTEE Kathleen M. Neylan Robert L. Fanter Heather L. Campbell Patrick N. Murphy Dwight W. James Elkader (563) 245-1561 Des Moines (515) 288-6041 Des Moines (515) 283-1000 Le Mars (712) 546-8844 Des Moines (515) 246-8484 MILITARY AFFAIRS COMMITTEE BUSINESS LAW SECTION INTELLECTUAL PROPERTY LAW SECTION ANNUAL MEETING COMMITTEE IOWA JURY INSTRUCTIONS Dennis Dietz Gregory B. Wilcox Kirk M. Hartung Deanna Clingan-Fischer Hon. Kellyann Lekar Polk City (515) 210-6343 Des Moines (515) 283-3100 Des Moines (515) 288-3667 Des Moines (515) 725-3319 Waterloo (319) 833-3332 PROFESSIONALISM COMMITTEE COMMERCIAL & BANKRUPTCY LAW SECTION INTERNATIONAL LAW SECTION Christine Keenan Iris J. Post JUDICIAL ADMINISTRATIVE COMMITTEE Charles L. Smith Hon. Larry J. Eisenhauer Ames (515) 239-5000 Des Moines (515) 243-4191 David L. Brown Council Bluffs (712) 325-9000 Des Moines (515) 281-8292 APPELLATE PRACTICE COMMITTEE PUBLIC RELATIONS COMMITTEE CORPORATE COUNSEL SECTION Des Moines (515) 244-2141 LABOR & EMPLOYMENT Christine M. Luzzie Thomas A. Lawler George S. Eichhorn LAW PRACTICE MANAGEMENT COMMITTEE Helen Adams Iowa City (319) 351-6570 Parkersburg (319) 346-2650 Grand Junction (515) 738-2571 Tyler Smith Des Moines (515) 246-4555 BAR INSURANCE SCOPE & CORRELATION COMMITTEE CRIMINAL LAW SECTION Des Moines (515) 265-6210 LITIGATION SECTION Philip D. Brooks Robert VP Waterman, Jr. Richard Phelps, II LAWYERS HELPING LAWYERS COMMITTEE Sharon Soorholtz Greer Cedar Rapids (319) 366-7331 Davenport (563) 324-3246 Mingo (641) 363-4365 Hon. Dick R. Schlegel Marshalltown (641) 752-5467 TECHNOLOGY COMMITTEE BENCH BAR CONFERENCE eCOMMERCE SECTION Ottumwa (641) 682-4641 PROBATE & TRUST LAW SECTION Robert W. “Bill” Sackett Quentin R. Boyken Jason M. Hunt Milford (712) 338-9106 LEGAL AID COMMITTEE Des Moines (515) 283-4628 Des Moines (515) 283-1000 Michel Nelson Hon. Van D. Zimmer Gary M. Lane WAYS & MEANS COMMITTEE Carroll (712) 792-9772 ENVIRONMENTAL & NATURAL Vinton (319) 472-5791 Davenport (563) 326-1000 Jennifer WendtGeisler EAL STATE ITLE AW ECTION RESOURCES SECTION R E & T L S Bruce L. Walker North Liberty (319) 626-6618 Mark Otto CLE COMMITTEE Iowa City (319) 354-1104 Thomas W. Lipps Alan O. Olson WOMEN & MINORITIES Algona (515) 295-9494 Newton (641) 792-4160 Des Moines (515) 271-9100 LEGAL FORMS COMMITTEE Romonda D. Belcher Ford TAXATION SECTION Randal Caldwell Des Moines (515) 286-2011 FAMILY & JUVENILE LAW SECTION ECONOMIC DEVELOPMENT COMMITTEE Amy Hughbanks David Repp Newton (641) 792-7235 Emily B. Gould Chafa Des Moines (515) 246-4556 John D. Shors Des Moines (515) 243-2980 Van Meter (515) 996-2050 LEGAL HERITAGE COMMITTEE Des Moines (515) 246-7983 GENERAL PRACTICE SECTION TRADE REGULATION SECTION F. Richard Lyford SECTIONS ETHICS & PRACTICE GUIDELINES COMMITTEE G. Rawson Stevens Brian McCormac Des Moines (515) 246-4514 ADMINISTRATIVE LAW SECTION Shenandoah (712) 246-4300 Des Moines (515) 248-9000 Nick V. Critelli Robert F. Holz, Jr. Des Moines (515) 243-3122 LEGISLATION COMMITTEE Des Moines (515) 288-2500 GOVERNMENT PRACTICE SECTION WORKERS’ COMPENSATION SECTION Frank Carroll Thomas Palmer FEDERAL PRACTICE COMMITTEE AGRICULTURAL LAW SECTION Cristina Kuhn Des Moines (515) 288-2500 West Des Moines (515) 223-8860 Nathan J. Overberg Lance D. Ehmcke Des Moines (515) 283-1000 Des Moines (515.) 243-7611 Sioux City (712) 255-8838 The President’s Letter – Dan Moore Reflecting on past advances in minority rights and the need to continue

This letter may be one of the more African-Americans. To the three difficult ones I write. Why you ask? of us, we were simply teammates. Because of all the feelings of outrage My dad, who worked for years and injustice that hit me as I reflected at Western Auto, had great admi- on the events occurring in our great ration for the talents and abilities country during the 1960s. of these two young men. I recall February is Black History month. I Cleo was on a homerun streak thought it only appropriate to write about and my dad would show up at our the accomplishments that have been games with a new bicycle in his made regarding minority rights since the truck to award Cleo when he 1960s, and to encourage you as members reached a certain number of of this great association to continue the homeruns that season. I’m sure progress that has been made in the associ- I have the newspaper clippings ation and society as a whole. surrounding this joyous occasion because I saved all of my news- As journalist Tom Brokaw in the pref- paper clippings on every game ace of his recent New York Times best- reported in the West Des Moines seller “Boom! Talking About The Express. Ask me sometime about Sixties,” observed: “In the Sixties, all the my no-hitter. nerve endings of American society were exposed, from left to right and all the My dad was a good man, having points in between on the political and served in World War II. He cultural compass. It was a time of taught me to treat people the electrifying, often life-altering physical, same way I would want them to intellectual and moral stimulation.” treat me. He also taught me the difference between right and Further, Mr. Brokaw stated in the pref- Romonda Belcher-Ford portrays Rosa Parks at a dinner for wrong — a lesson I learned well the Board of Governors and their guests prior to the BOG ace that “In writing “Boom!” I concentrat- and uphold to this day. It was quarterly meeting in December. Parks refused to give up her ed on what I thought were the five major beyond me why in the world seat in a city bus to a white man in Alabama in 1955. pillars of the era: the civil rights move- Romonda’s presentation was 53 years to the day after the African-Americans were discrimi- ment, the Vietnam war, national politics, incident occurred. nated against in housing, educa- women and the popular entertainment tion and jobs. It seems that the culture. As sweeping as those categories color barrier disappears in time were, they of course did not reflect all the However, in some respects, this was of war, as well as in the music and sports significant societal, political and individual only the beginning. As lawyers know, we worlds — at least today. My dad was a changes that began in the Sixties.” can have all of the laws on the books to good role model for treating all people deal with justice, dignity and fairness, but During my young life I recognized decently and respectfully, qualities that I only through our actions can we demon- the turmoil and unrest during that time. believe I have to this day. strate our respect for the rule of law. How could I not? Both morning and In the 1960s, even as a preteen and evening issues of the Des Moines Register The fears I had as a preteen and teenager, I was horrified and shocked by and Tribune and the CBS Evening News teenager have been replaced over the the way people treated each other. With with Walter Cronkite were filled with years with hope and love. I will do my the turmoil, unrest, the riots in the cities, such stories. part to initiate meaningful reform and the assassinations which occurred and diversity programs which will assist in When I played little league baseball in the horrific acts of injustice reported accomplishing our mission. West Des Moines in the early 1960s, my by Walter Cronkite on the CBS Evening teams included African-Americans. We News, quite frankly I was scared and While we have come a long way battling played together as a team, and had many outraged. None of it made sense. the injustices and discrimination which victories as well as suffered many losses. still occur, there is still much more work With the signing of the Civil Rights I was a pitcher and first baseman. Two to be done. We must make a conscience Act of 1964 by President Lyndon Baines teammates, brothers Cleo and Herbie, effort to accomplish the goals of the laws Johnson, there was a bit of a respite from were of color and became good friends that have been passed. my fears. This was a monumental act of mine. None of us gave it a second with far-reaching positive effects. It is important that we continue to thought that Cleo and Herbie were build a strong relationship with the Polk

4 THE IOWA LAWYER February 2009 County Women Attorneys’ Association and the I.O.W.A. (Iowa Organization of Women Attorneys). I am also mindful of the relationship we must build with the National Bar Association, which was founded in Des Moines in 1925. Romonda Belcher Ford and Emily Gould Chafa, Co-Chairs of the ISBA Women and Minorities Committee, have worked tirelessly to improve the environment of equal treatment for all people. During our Board of Governors’ pre- meeting dinner in December, Romonda role-played Rosa Parks, an African- American woman who was arrested on Dan’s little league baseball team lined up for a photo in 1962. Herbie and Cleo, who are mentioned in Dec. 1, 1955 after she refused to give her this president’s letter are in the back row, with Herbie standing in front of one of the coaches and Cleo seat to a white man on a Montgomery, standing on the end. To Dan, they were simply friends and teammates. Ala. bus. Interestingly, Romonda pre- Can you pick out Dan in the photo? Send an e-mail to [email protected] with your guess. sented Rosa Parks 53 years to the day The correct answer will be published in the March 2009 president’s letter. Ms. Parks was arrested. Romonda Joel Greer, inspired the dinner guests with a stirring As we celebrate the accomplishments Marshalltown Gail Sheridan-Lucht, presentation that drove home the injus- of African-Americans during Black Des Moines Patricia Zamora, tice of a society that categorized a major History Month, we must be ever mindful Davenport Henry Bevel, segment of its population in this manner. of all that is yet to be achieved. My Waterloo charge to you is to be more proactive in Mary Zambreno, Des Moines We must protect our individual liber- encouraging minority lawyers to partici- ties and our freedoms. The civil rights pate in The Iowa State Bar Association. movement had a profound effect not I encourage you to ask Romonda and only for African-American citizens but Emily, or any of the committee members also for women and persons with disabili- listed below, how you can contribute to ties. I have seen firsthand the discrimi- the cause and the mission of removing nation which occurs with my son who is all barriers still existing today. We are all a quadriplegic. Dan suffered injuries in in this together and together we can an automobile accident Memorial Day continue to make a difference. weekend in 2000. One of the many good things coming out of his rehabilita- Thank you for giving me the opportu- tion treatment at Craig Hospital in Denver nity to serve as your 122nd President. was the recreational therapy aspect. Dan Chinyere Ukabiala, Des Moines learned to deal with the many, many Sara Sersland, Des Moines barriers — physical and emotional — Judith Morrell, Davenport for persons confined to a wheelchair. Ellen Ramsey-Kacena, Cedar Rapids The Honorable Judge Don Nickerson, Lisa Peterson, Dakota Dunes, S.D. whose remarks appeared in the Des Mohummed Sadden, South Sioux City, Moines Register on Feb. 10, 2007, stated: Neb. “Iowans of all races and backgrounds can Kristin Collinson, Des Moines take pride in the more than century-long Andrew Knuth, Atlantic efforts of the hundreds of ‘homegrown’ Stefanie Bowers, Iowa City African-Americans who have positioned Laura Lockard, Des Moines Iowa at the forefront of human rights. Katie Ervin Carlson, Urbandale Susan Jacobs Aden, Des Moines “The lesson of the African-American Michelle McGovern, Des Moines experience in Iowa is the same lesson for Kelly Meier, Des Moines all Iowans. If provided real opportunity, Emily Gould Chafa, Des Moines our entire populace can ‘grow’ citizens Kerrie Murphy, West Des Moines who will go forward to distinguish them- Romonda Belcher Ford, Des Moines selves as well as all Iowans.” Jayme Richards, Monroe Black History is fascinating and should Heather Palmer, Indianola be taught in our public schools. There is Heather Wood, Des Moines much to be learned by all citizens. Felicia Bertin Rocha, Des Moines

THE IOWA LAWYER February 2009 5 Meet the 2009 lawyer-legislators (Editor’s note: Seventeen lawyer-legislators will and Linn County Bar Associations. He also Representative Chris serve in this first biennium of Iowa’s 83rd volunteers at Erskine Elementary School. Hagenow – District 59 – General Assembly. Fourteen are returning after Leadership positions: Chair, Senate Republican having served varying lengths of time in the Rebuild Iowa Committee; Vice Chair, Senate Chris is serving his first legislature. Three, including one who is a law Environment & Energy Independence term in the House. A resi- student, are beginning their first year of serv- Committee, Judiciary Committee, and Justice dent of Windsor Heights, he ice. They are listed below, along with a brief System Appropriations Subcommittee received his B.A. degree in political sci- biography and the committees which they lead Committees: Appropriations, Environment ence and French in 1994, and his J.D. or on which they serve for the 2009 session. from the University of Iowa College of Their e-mail addresses are also included.) & Energy Independence, Judiciary, Rebuild Iowa, Ways and Means; Justice Systems Law in 1997. He works for the C Wenger In the Senate — Appropriations Subcommittee. Group of Urbandale as a project manager. E-mail: [email protected] He is a member of the Windsor Heights Senator Rob Hogg – Lions Club and Westkirk Presbyterian District 19 – Democrat Senator Keith Kreiman – Church in Urbandale. Rob is serving his first term District 47 – Democrat Committees: Environmental Protection, in the Senate after serving Keith is serving his second Public Safety, Transportation, Ways and four years in the House. He term in the Senate after serv- Means; Transportation, Infrastructure and received his B.A. degree from ing five terms in the House. Capitals Appropriations Subcommittee. E-mail: the University of Iowa in 1988, his M.A. He received his A.A. degree in [email protected].; from the University of Minnesota in 1991, 1974, his B.A. in 1976 and his J.D. in 1978. [email protected] and his J.D. from the University of A resident of Bloomfield, he is a member of Representative Erik Minnesota in 1995. Rob is a resident of the Davis County Board of Education, the Helland – District 69 – Cedar Rapids and practices with Elderkin & Volunteer Lawyers Project, the Davis Republican Pirnie, PLC. He and his wife, Kate, have County Council for Prevention of Child Erik is serving his first three children. He is a member of Christ Abuse, and is the assistant coach for the term in the House. A resi- Episcopal Church, the Sierra Club, the Iowa Royals softball team. He and his wife Rose dent of Grimes, he graduat- Environmental Council and The Iowa State Ann have three daughters. Leadership positions: ed from Drake University in 2004 with a Chair, Senate bachelor’s degree in biochemistry/molec- Judiciary Committee. Committees: ular biology. He will receive his law degree Education, Human Resources, from Drake in 2009. A law/compliance Judiciary, Local Government; Administration clerk for West Bank, he is involved in the and Regulation Appropriations Subcommittee. Lions Club, the Young Professionals and E-mail: [email protected] Bull Moose in his community. Committees: Commerce, Judiciary, Rebuild In the House — Iowa and Disaster Recovery, Ways and Means; Representative Richard Administration and Regulation Appropriations Anderson – District 97 – Subcommittee. Republican E-mail: [email protected]; [email protected] A third-term member of the Iowa House, he practices with Representative Geri Huser Millhone & Anderson, P.C., in Clarinda, – District 42 – Democrat and was an adjunct assistant professor at Geri is serving her seventh Des Moines University. He has a B.A. and term in the House. An attor- Physical Therapy graduate certificate from ney and social worker, she the University of Iowa and J.D. from Drake practices at Skinner Law University Law School. He chairs the board Office in Altoona. Her B.A. degree is in of directors of the Clarinda Academy, a social work from Briar Cliff College and residential program for adjudicated juvenile her M.P.A. and J.D. degrees are from delinquents. Drake University. A resident of Altoona, Leadership positions: Ranking member of she served two terms on the Altoona City House Judiciary Committee. Council. She is the current chair of the Committees: Economic Growth, Metropolitan Planning Organization, Environmental Protection, Judiciary, Labor; serves on the Polk County Oversight Justice System Appropriations Subcommittee. Committee and is a member of the Polk E-mail: [email protected] County 4-H and FFA Boards. She and her husband Dan have a son and daughter. Committees: Judiciary, Local Government,

6 THE IOWA LAWYER February 2009 Rebuild Iowa and Disaster Recovery. Representative Jo Oldson – Representative Tyler Olson E-mail: [email protected] District 61 – Democrat – District 38 – Democrat Jo is in her fourth term in This is Tyler’s second term Representative Kevin the House. She is a former in the Iowa House. A Cedar McCarthy – District 67 – Rapids native, he received his Democrat first deputy insurance commissioner and former advisor B.A. in government and histo- While serving as an execu- to Governor Thomas J. Vilsack. She has a ry in 1998 from Claremont McKenna tive officer for Attorney B.A. and a J.D. from Drake University. Jo College, and his J.D. from the University of General Tom Miller from late was president of the Young Women’s Iowa College of Law in 2003. Currently, he 1994-1999, Kevin obtained his law degree Resource Center Board of Directors, and works for Paulson Electric Company, a from Drake University. He then worked as has been active in fund raising for a num- fourth-generation family business with an Assistant Iowa Attorney General from ber of community organizations. She offices in Cedar Rapids, Waterloo and 1999-2001 before accepting a position for a resides in Des Moines. Dubuque. He is a member of the Cedar year in Washington D.C. as the Litigation Leadership positions: Chair, House Rapids Rotary and served as director of and Compliance Counsel for the Tobacco Appropriations Committee. Neighborhood Revitalization Service, mem- Project at the National Association of Committees: Appropriations, Commerce, ber of the New Bohemia Arts and Culture Attorneys General, representing the settling Judiciary. District and founding director of Corridor states under the 1998 tobacco Master Free Wireless, Inc. E-mail: [email protected] Settlement Agreement. Kevin came back to Leadership Positions: Vice Chair House Iowa and was elected to the Iowa House in Representative Rick Olson Ethics Committee, Vice Chair House Ways and an open seat and began serving his first – District 68 – Democrat Means Committee. term in 2003. For four years he was Committees: Administrative Rules Review, This is Rick’s third term in Ranking Member of the House Public Commerce, Ethics, Human Resources, Safety Committee. During this time, he was the House. He received his Judiciary, Rebuild Iowa and Disaster Recovery, also hired as a criminal prosecutor for the undergraduate and law Ways and Means. Polk County Attorney's Office, a position he degrees from Drake E-mail: [email protected] held until the fall of 2007 when he moved University. A resident of Des Moines, he to private practice as a member of the firm serves on the Polk County Magistrate Representative Eric Palmer of Wandro and Baer, P.C. A native and cur- Appointing Commission and the Polk – District 75 – Democrat rent resident of Des Moines, he is serving County-wide Oversight Committee. He and Born, raised and residing his fourth term in the House and starting his wife, Brenda, have three daughters. in Oskaloosa, Eric is serving Leadership positions: his second term as House Majority Leader. Chair, House Labor his second term in the Iowa Leadership positions: Majority leader Committee House. He is a 1982 gradu- Committees: House Administration and Committees: Judiciary, Labor, Public Safety; ate of William Penn University with a Rules Justice System Appropriations Subcommittee. major in social science composite, and E-mail: [email protected] E-mail: [email protected] a 1986 graduate of Drake University Law School. He currently practices law as Representative Helen Miller – District 49 – Democrat Helen is a fourth-term member of the House. She has a B.S. in business administration from Howard University, an M.S. in library science from Our Lady of the Lake University and a J.D. from Georgetown University Law Center. A resident of Fort Dodge, she serves locally on the Fort Dodge Correctional Facility Advisory Board, Webster County Crimestoppers and Young At Art. Nationally she serves on the boards of State Agricultural and Rural Leaders and the National Black Caucus of Black Legislators, and is the Agriculture Policy Committee chair for the National Black Caucus of State Legislators. Leadership positions: Chair, House Ethics Committee. Committees: Administration and Rules, Agriculture, Economic Growth, Environmental Protection, Ethics and International Relations. E-mail: [email protected]

THE IOWA LAWYER February 2009 7 a solo practitioner with the Palmer Law his B.B.A. at Iowa State University, his and his wife, Jill, have one daughter. Firm. A former judicial magistrate, he M.B.A. from Embry Riddle Aeronautical Committees: Agriculture, Commerce, is a member, elder, and past treasurer University and his J.D. from the University Judiciary, State Government (ranking member), and deacon of the First Christian of Iowa College of Law. He is a board Ways and Means. Church/Disciples of Christ. He also is a member of Four Oaks Family and E-mail: [email protected] board member and past president of the Children’s Services. Kraig is the corporate Oskaloosa Kiwanis Club, Mahaska County counsel at CRST International, Inc. He Representative Kurt Swaim Democrats, and is treasurer of the Nelson and his wife, Cathy, have four children. – District 94 – Democrat Trust. He is a former board member of Leadership positions: House Republican A resident of Bloomfield, the Oskaloosa Municipal Housing Agency, Leader Kurt is serving his fourth Red Cross, William Penn University Committees: Administration and Rules. term in the House. He has a Alumni Board, Kids Korner, and the E-mail: [email protected] degree in economics and Mahaska County Sesquicentenial business administration from Iowa Commission. In addition, he is the former Representative Mike Wesleyan, and received his J.D. from the state legal counsel for the Jaycee’s. He Reasoner – District 95 – University of Iowa College of Law. He is a and his wife, Laurie, have four children. Democrat past board member and secretary-treasur- Leadership positions: Vice chair House A Creston resident, Mike is er of Citizens Mutual Telephone Company Judiciary Committee. Vice Chair Justice Systems serving his fourth term in the in Bloomfield and a former Davis County Appropriations Subcommittee House. He received his B.A. Attorney. He and his wife, Julie, have four Committees: Education, Ethics, Judiciary, from Creighton University and his J.D. from children and five grandchildren. Natural Resources; Justice Systems the Creighton University School of Law. Leadership positions: Chair of House Appropriations Subcommittee. The former owner-operator of Reasoner Oil Judiciary. E-mail: [email protected] Company, he served on the Union County Committees: Appropriations, Economic Board of Supervisors from 1995 – 2003. Growth, Government Oversight. Representative Kraig Currently he is a member of the Midwest E-mail: [email protected] Paulsen – District 35 – Opportunities Board of Trustees. He and Republican his wife, Margaret, have three children. Representative Nate A resident of Hiawatha, Leadership positions: Assistant Majority Willems – District 29 – Kraig is in his fourth term Leader of the House. Vice Chair, House Democrat in the House. He earned Administration and Rules. This is Nate’s first term in Committees: Administration and Rules, the Iowa House. A resident

Agriculture, Commerce, Ways and Means. of Lisbon, he received his E-mail: [email protected] B.S.F.S. in International Politics in 2001 from Georgetown University, and his J.D. Representative Doug from the University of Iowa College of Struyk – District 99 – Law in 2007. He practices with Sole, Republican McManus, Pearson, and Willems, P.C.

Council Bluffs resident where he has a labor and employment law Doug Struyk is serving his practice. Nate is a member of the Lincoln x fourth term in the House. A Highway (Lisbon) Lions Club, and the small business owner and attorney, he Mount Vernon Athletic Boosters. He and x x received his B.S. from Iowa State his wife, Maggie, have one child. University and his J.D. with honors from Leadership positions: Vice Chair, Labor x Creighton University. He worked in the Committee x Iowa Department of Agriculture as chief Committees: Education, Judiciary, Labor,

of the Agricultural Diversification Bureau State Government, Ways and Means; Justice and state horticulturist. He is a member of System Appropriations Subcommittee. the Iowa State Horticultural Society. He E-mail: [email protected]

8 THE IOWA LAWYER February 2009 2009 legislative session promises to be challenging by James Carney, ISBA Legislative Counsel Having had the privilege of representing Attorney General’s Office, Polk County During the period I have had the privi- The Iowa State Bar Association as legislative Attorney’s Office and private practice. lege of representing the ISBA, the method counsel since 1975, my “legislative anten- Representative Kraig Paulsen has recently and form of communication with legislators nas” tell me that the 2009 legislative session been elected Minority Leader by the House has changed dramatically. From snail mail could prove to be the most challenging in Republican caucus. Kraig brings both days and land-line phones to emails and cell 34 years — and perhaps longer. private practice and business experience phones, communication has become much We all know that we are in a recession. to his position. easier. Whether it be by snail mail, fax, calls We know that unemployment is the high- Representative Kurt Swaim of Bloomfield to the Capitol or contacts back home, we est it has been since 1948 and continuing returns as the House Judiciary Chair. encourage you to maintain communica- to increase. Nearly one in 10 Americans Senator Keith Kreiman of Bloomfield tions with your local legislators. We have are currently unemployed. While better returns as the Senate Judiciary Chair. included a table on page 10 outlining off than many states, the Iowa budget is Lawyer-legislators have traditionally held how you may contact your local legislators in trouble. Governor Chet Culver has leadership positions and been sought out by at any time on any given issue. already ordered $180 million in budget their caucus members for advise on legal Better yet, why not invite them to your cuts. Of great concern is the effect the issues and the drafting of legislation. We office for coffee or personally meet with budget cuts will have on the judicial are fortunate to have an experienced dele- them in some manner while they are back branch, indigent defense funding and gation of lawyer-legislators serving in such home in the district and thank them for legal aid appropriations. difficult times. (See the biographies of all their public service and discuss issues of Regardless of one’s political persuasion, lawyer-legislators starting on page 6) importance with them. we all are concerned about the budget cri- Affirmative legislative program Thank you for your great support of the sis. We are, however, fortunate that histori- ISBA legislative efforts. For those members cally Iowa legislators regardless of party The ISBA Board of Governors (BOG) who have contributed to LawPAC we thank have been fiscally responsible by requiring has approved an array of legislative pro- you for the resources to fight the fight on a “rainy day fund” that results in the state posals to be presented to the legislature behalf of the entire ISBA. having approximately $620 million in (see chart on page 10). The proposals If you have any questions regarding the reserves. These reserves will, however, be were prepared by various sections and ISBA affirmative legislative program or any depleted quickly if increased government presented to the BOG for approval and other legislative matter, please feel free to adopted as a part of the ISBA legislative spending and declining revenue are not contact us at any time. I can be reached by program. We will update the progress addressed in a responsible manner. cell phone at 515-689-3189. Jenny Tyler can on the legislation throughout the year. Lawyer-legislators be reached by cell phone at 515-238-2750. All politics is local We are fortunate that we will have a The famous quote by Speaker Tip total of 16 lawyers and one law student Family Law Mediation O’Neill that “all politics is local” is very serving in the legislature during the 2009 important to remember. Iowa legisla- session --14 in the House, with one law tors are responsive to constituents. student, and two in the Senate. LawPAC IANE ORNBURG Far too often constituents fail to D L. D was supportive of all lawyer-legislator appreciate the importance of commu- CARNEY & APPLEBY, P.L.C. candidates and played an important nication with legislators. Even though part in their election. a legislator may not agree with you PHONE • 515-282-6803 Additionally, lawyer-legislator Kevin 100 percent of the time, we can assure McCarthy returns as Majority Leader of the B394-5611 BCC Update Lawyer Ad Horizontal:that 7.5”W they x do 2.5”H value contacts from back [email protected] Iowa House. Kevin brings to his leadership home and they are concerned about www.carneylawfirmiowa.com position practice experiences in the Iowa their constituency. Business Valuations and Litigation Support

1707 High Street Des Moines, Iowa 50309 515-282-8019 1-866-787-8019 Fax 515-282-0325 www.bccadvisers.com Alan D. Ryerson Gregory L. Weber James D. Nalley CPA/ABV, ASA CPA/ABV, ASA CPA/ABV, CVA

THE IOWA LAWYER February 2009 9 IOWA STATE BAR ASSOCIATION 2009 Affirmative Legislative Program Bill No. Bill Subject Bill Description Bill Status Mechanic’s Lien Law Revises Iowa Code Chapter 572, Mechanic’s Lien Law, to require contractors and material providers to give public notice of their rights in order to perfect a mechanic’s lien. Notice will be posted on a State Construction Registry. Also expands the right to recover attorney fees to any prevailing plaintiff and allows any prevailing defendant to recover attorney fees, not just those defending claims involving owner-occupied properties. Commercial construction is exempt from the central registry requirements. Tax Sale • Amends Iowa Code Section 446.16 to require a business entity, in Amendments order to be authorized to bid at a tax sale or own any tax sale certificate, to have a federal tax I.D. number and one of the following: desig- nation of an agent for service of process on file with the Secretary of State; a Statement of Authority on file with the Secretary of State or county recorder. Revised Uniform Promulgated by the National Conference of Commissioner on State Laws, Unincorporated RUUNAA governs all unincorporated nonprofit associations (“UNAs”) that Nonprofit are formed or operate in a state that adopts RUUNAA. Association Act UNAs are often classified as public benefit, mutual benefit or religious organ- (RUUNAA). izations, and may or may not be tax-exempt. Members may be individuals, corporations, other legal entities, or a mix. The proposal contains some modifications specific to Iowa law. Probate/Trust Law Update amendments to Iowa Probate Code, Trust Code, Small Estates Chapter, and Uniform Principal and Income Act.

Taxation Amend Iowa Code Section 422.7(21)(a)(1) to extend the Iowa capital gains exemption on the sale of a business held 10 years or more to sales of stock or other equity interests in addition to a sale of assets of the business. Iowa Mortgage Iowa is experiencing significant increases in IA mortgage foreclosure pro- Foreclosure Law ceedings due to national circumstances. The proposed amendments adjust Amendments provisions in Iowa mortgage foreclosure law in ways that will improve their effectiveness in achieving appropriate resolutions to current mortgage difficulties. The proposed changes seek to preserve the relative rights of lenders and borrowers presently reflected in Iowa foreclosure law.

In addition to the above legislative proposals, The Iowa State Bar 5. Full funding of the Office of Substitute Decision Maker Association supports the following positions as a part of its 2009 established pursuant to Iowa Code Chapter 231E. Affirmative Legislative Program: 6. Oppose the legalization of title insurance. 1. Full funding of the Judicial Branch. 7. Opposition to the Iowa Land Title Association’s proposal 2. Adoption of legislation providing for an automatic, to restrict lawyer abstracting under Iowa Title Guaranty. periodic increase in indigent defense fees. 8. Oppose absolute immunity legislation. 3. Full funding for Legal Services. 9. Expand and/or increase the historical tax credits to 4. Child abuse prevention and treatment efforts and full incentify economic development as proposed by the funding for child abuse prevention and treatment. Economic Development Committee of the ISBA and approved by the Board of Governors. Last updated 1/14/2009 How to contact your legislator Today it is very easy to communicate E-Mail Web access with your elected representatives. You can A list of Iowa legislators and their e-mail See calendars of legislative meetings, track do it by mail, phone, e-mail or by meeting addresses, as well as home contact informa- legislation, find your lawmaker, and even lis- with them in your home district. tion, is on the web at www.legis.state.ia.us. ten to live debate on the General Assembly’s Click on “Legislators.” Legislators read their web site at www.legis.state.ia.us. Phone e-mails. It is a great way to communicate SENATORS: Call 515-281-3371 to reach with them. General information the Iowa Senate switchboard. U.S. Mail Legislative Information Office REPRESENTATIVES: Call 515-281-3221 Address correspondence to members 515-281-5129. to reach the Iowa House switchboard. of the Legislature at State Capitol, Des Moines, IA 50319.

10 THE IOWA LAWYER February 2009 2009 legislative session — Iowa Title Guaranty to work with ISBA on mechanic’s lien law; will introduce changes for regulating escrow agents By Loyd Ogle* Iowa Title Guaranty will work with The protected from surprise mechanic’s liens. insurance industry. Approximately 19 Iowa State Bar Association to support a bill This system is currently in place elsewhere states regulate escrow agents independent- revising the mechanic’s lien statute, as well in the country to the satisfaction of home- ly of title insurance. In Iowa, this industry as introduce a bill to license escrow agents builders, lenders, consumer protection is completely unregulated. Anyone can set during the 2009 legislative session. advocates and other interested parties. up an escrow operation regardless of qual- Mechanic’s liens We understand some in the industry will ifications, education, financial security or criminal history. The goal of the mechanics lien legislation have reservations about this change, but we Unfortunately, there have been notable is to replace Iowa’s confusing and cumber- believe it will prove superior to the unwork- situations in Iowa where closing compa- some mechanic’s lien law with a straightfor- able system we now have in place. We are ward and effective system. The objective is hopeful that the ISBA proposal will reduce nies have been involved with negligent or to create a process where those providing the transaction costs of residential new con- fraudulent mortgage transactions that labor and materials are paid as they deserve struction and provide greater protection have hurt homeowners and lenders alike. while protecting home buyers and lenders and fairness to all involved in the new con- One of the most frequent circumstances from surprise liens filed days or weeks after struction industry. we encounter is an escrow agent suddenly closing. We believe we have arrived at a Escrow licensing ceasing operations, many times with unfin- solution that will be of benefit to all seg- ished files. We’ve heard from lenders who Title Guaranty will introduce a bill to cannot get the final documents necessary ments of the industry. regulate independent real estate closing The collapse of high profile builders to sell their loans because they can no companies (escrow agents) in Iowa. across Iowa and the resulting flurry of longer locate the escrow agent. We’ve also Escrow agents, or closers, act as fiduciaries mechanic’s lien filings provided an object had situations where escrow agents have to facilitate the real estate transaction and lesson to all in the industry. Lenders and misdirected closing funds, causing losses are expected to act with fairness and in closing companies have significantly tight- to buyers, sellers and lenders. good faith. ened their standards for closing. General In the past year, Title Guaranty has contractors have been forced to produce A closing involves the receipt and dis- worked with the real estate industry to bursement of funds from the lender, and more paperwork and documentation than develop a fair and efficient mechanism managing the actual closing and docu- they’ve ever had to before and closings are to regulate entities specializing in closing ment signing with the buyer. Escrow often delayed. real estate transactions. Our proposal to agents often work on behalf of mortgage Many Realtors are hesitant to show new license and regulate escrow agents is construction because they are concerned lenders who trust the closer will perform duties as directed, including assuring a designed to limit the risk of fraud and about potential liability. These difficulties negligent practices without adding undue highlight many of the challenges we face first-lien position for the lender and marketable title for the buyer. In addition, cost or burden to the industry. The pro- with our current system. posed legislation establishes an Escrow The ISBA’s vision is to implement a escrow agents serve as a last line of defense against mortgage fraud; they have Agent Examining Board to issue licenses, State Construction Registry as the cen- conduct examinations and establish tralized database to file mechanic’s lien responsibility to verify the identities of minimum education requirements. notices. Under the current system, sub- everyone signing the closing documents. contractors and suppliers are required In many states, escrow agents are regu- *Loyd Ogle is the director of Iowa Title Guaranty. to give owner-occupants a notice in lated as part of the oversight of the title order to preserve the right to file a mechanic’s lien. However, it’s difficult to decide who to give this notice to, where to send it and, ultimately, to determine whether the notice was actually provided. A centralized registry offers a clear-cut mechanism for contractors and suppliers to preserve their rights. For general contractors, this change will significantly streamline closings — it’ll be easier to get buyers in new construction properties. Closing companies will check the State Construction Registry to make certain that all legitimate claims are resolved prior to conducting the closing. Homebuyers and lenders will be THE IOWA LAWYER February 2009 11 Governors firm up legislative initiatives during quarterly board meeting The Iowa State Bar Association Board of Guidelines Committee as requested by the stock sale or asset sale of a business Governors took numerous actions, mainly the committee chair. held 10 years or more. Presently, the capi- focused on legislative matters, and heard tal gains exclusion applies only when a • Honor deceased members who died reports from a number of committees and company is sold on an asset basis. during 2008. outside groups during its regular quarterly • Accept the Real Estate and Title meeting Dec. 2 at the ISBA headquarters. • Accept changes to the jury instructions Law Section’s modifications to the approved by the Jury Instruction Mechanic’s Lien proposal that was Actions Committee. Those changes include: 1) approved by the BOG at its September Approved were actions to: adding a proposed instruction 400.1 meeting. That proposal, which is part • Support an increase in the state historic regarding concert of action whereby of the ISBA’s Affirmative Legislative tax credit. Presently SHTC is capped at whenever two or more persons commit a Agenda (see page 10), would establish $15 million, or 25 percent of a rehabilita- negligent act in concert, each becomes a State Construction Registry and tion project. Raising the cap would per- subject to liability for the “act(s) of others require all contractors and material mit more and larger rehabilitation proj- as well as for his or her own act(s)”; 2) providers to give public notice of their ects to be undertaken. modifying instruction 900.5 on indecent rights in order to perfect a mechanic’s exposure to remove a reference to the • Install four new board policies to ensure lien. The MasterBuilders of Iowa “lesser included offense.” that matters involving the leadership of requested that the proposal approved the association remain transparent. The • Authorize President Dan Moore and by the BOG in September be modified four policies are: “Whistleblower,” BOG member Leon Spies to form a task to define and exempt commercial “Document Retention and Destruction,” force that would work on a legislative pro- construction from the central registry. “Compensation,” and “Joint Venture.” posal requiring the recording of custodial • Accept the Real Estate and Title Law interrogations. Although no statute • Amend Article VII, section 13 of the ISBA Section’s proposed changes to the Iowa requiring such electronic records present- bylaws to include a non-voting member Mortgage Foreclosure Law. Those ly exists in Iowa, many law enforcement on the Administrative Committee with changes would add two new sections agencies in the state already make elec- such member to be appointed by the (654.4B) and (654.4C) to the existing tronic records of interrogations, particu- president. According to the bylaws, the law. Both are designed to address the larly since the Iowa Supreme Court ruling Administrative Committee consists of the increased mortgage foreclosures brought in State v. Hajtic (Iowa 2006) that ISBA officers, the immediate past presi- about by the subprime loan disaster. affirmed a conviction in which a custodial dent, the YLD president, and the chairs Section 654.4B would require that credi- interrogation was recorded. of the Scope and Correlations and Ways tors provide borrowers with written and Means Committees. • Accept the Private Cause of Action notices of the availability of mortgage Committee’s recommendation that the counseling and mediation services provid- • Strike the language in the June 2005 ISBA take a neutral position on any pri- ed by Iowa Mortgage Help — an existing resolution that established the Ethics vate cause of action bill that contains an joint effort by the Iowa Attorney General and Practice Guidelines Committee exclusion for professionals and a statute and the Iowa Finance Authority. Section requiring that two of the members of of limitations. 654.4C would give judges discretionary the nine-member committee be non- authority to continue foreclosure pro- lawyers representing the public at large. • Accept the Tax Section Council’s legisla- ceedings for no more than 60 days to The BOG also voted to add Maureen tive proposal that there be no difference permit a borrower and creditor to Hefferman to the Ethics and Practice in Iowa capital gains exclusion between mediate the debt. • Accept the Business Law Section’s pro- COMPUTER FORENSICS • ELECTRONIC DISCOVERY posed changes to the Revised Uniform If you have not yet selected what firm you are going to Unincorporated Nonprofit Association use for your e-discovery and Computer Forensic support, Act (RUUNAA). The changes would delete Section 31 of the bill, “Transition we can help you with your cases. Our certified technicians Concerning Real and Personal Property,” search computer disk drives and other electronic media and delete Section 35 of the bill, which to capture hidden or deleted data. repeals Iowa Code Section 613.19. Iowa Code Section 613.19 provides for a liabili- THE CONLEY GROUP,INC. • DES MOINES,IOWA ty shield for volunteers of unincorporated nonprofits. RUUNAA also provides a Toll Free: (800) 383-6813 or Local: (515) 277-7437 liability shield. Because the two shields E-mail: [email protected] aren’t exactly the same, the Business Law Web: www.theconleygroup.com Section thinks both shields should be maintained at this time. 12 THE IOWA LAWYER February 2009 Reports board that $117,700 in checks were handed In other activities at the meeting, the out in late November to attorneys and firms governors heard reports from a number most affected by last summer’s disasters. of committees and outside groups. Those receiving the checks had nearly Remembering $600,000 in documented damage that was Ethics and Practice Guidelines not covered by insurance, he said. The Committee checks given to them represented 20 per- their legacy Nick Critelli, chair of the Ethics and cent of their documented uninsured losses. Practice Guidelines Committee, discussed A total of $120,000 was collected for disas- with the governors the importance of ter relief as of the time of the disbursals, One of the best ways to marketing their services. Joel said. About half of that money came remember a deceased lawyer The current social and economic condi- from outside the state. is through a memorial gift to tions are tough on a lot of people. Clients President Moore asked all BOG members the profession to which he or need legal help, he said. who hadn’t contributed to the disaster relief “We have an ethical obligation to market fund to do so, even if the contribution was she devoted an entire life. ourselves and our profession to the public only $10 to $25. The task force will decide Surviving family members and to do it properly,” he emphasized. “We how to disburse additional moneys once can point with pride to the need to determine what we can do to received. There is some discussion about accomplishments memorialized inform the public that we provide a legal starting an ongoing permanent disaster in a tangible form. service that can benefit them.” relief fund so that assistance can be given It’s evident a lot of lawyers are concerned more quickly following a disaster. The Iowa State Bar Foundation about what they can and can’t do to market their services, he said, based on the 400 or Legislative is a fitting place for more people who signed on for a recent Jim Carney, ISBA legislative counsel, contributions made in the webinar he hosted on the subject. He plans gave the governors an overview of the honor of a deceased member. to host more marketing webinars in the upcoming 83rd General Assembly (see There the gift will be used near future. In addition, he said he has also his report on page 9). It’ll be a to support the Foundation’s asked bar staff to look into establishing a challenging session, he said. bulletin board and forum on the ISBA’s Obviously, the big challenge is the charitable purposes for website so people can post questions as budget. However, Iowa is not alone in the advancement of the well as look at answers that have been budget challenges. Forty three states law and justice. posted on the forum. have looming budget deficits, he said. He expects the state’s budget woes to To memorialize a respected Bar Foundation impact the ISBA in three areas: judicial, colleague, a spouse, a parent, Bill Scherle, treasurer of the Iowa State legal services and indigent defense. In their a grandparent, or just a friend, Bar Foundation, informed the governors attempt to find money, three states tax legal about the foundation board’s decision to services, he told the governors. The last send contributions to: The impose a moratorium on all grant requests time Iowa had a budget crunch, there was Iowa State Bar Foundation, until the end of the fiscal year June 30 talk about an increase in tax on services. 625 East Court, Des Moines, IA (see article “Foundation board suspends “We’ll be watching that,” he said. 50309. A representative of the grant approvals for balance of fiscal year” Foundation will contact in the January Iowa Lawyer). However, he President added, that if an issue arises that the BOG As his first order of business, Dan recog- the family, acknowledge thinks is important, the directors of the nized all of the past presidents attending the gift, and a permanent foundation will review their decision on the meeting and praised and thanked record will be made. the moratorium. them for their service to the association The foundation’s investment policy is to and for their continued interest in staying For more information, contact place 50 percent of its principal in equities involved in it. The Iowa State Bar Foundation He also paid tribute to the district bar and 50 percent in fixed income instru- at the address above, or via ments, he said. Its policy also has been to meetings many of which he has had the fund grants up to five percent of its assets privilege of attending. They represent the phone at 515-697-7870, or e-mail using gains from its investments so as not grassroots of the association, and are top at [email protected]. to touch the principal. of the line in importance, he said. In the past six months, the foundation Dan acknowledged that some members has seen its unrealized gains evaporate. have asked about the ISBA’s relationship This has no effect on the money that with the court. He responded that the was pledged for the building and paid association and the court continue to have to the foundation. periodic meetings, and are discussing issues of mutual concern. He is optimistic Disaster Assistance Task Force that the two entities will improve and Past President Joel Greer reported to the maintain their relationship. THE IOWA LAWYER February 2009 13 TRANSITIONS KUDOS

Ashley M. Emick has joined Amy received her undergraduate degree from Peter B. Welch of the the law firm of Arends & Lee, in Iowa State University in 2000 and her J.D. from Crawford, Sullivan, Read & Humboldt, as an associate. the University of Iowa College of Law in 2003. Roemerman, P.C. law firm in Ashley received her B.A. from the Her practice has concentrated on employment Cedar Rapids, was recently elect- University of Iowa in 2005, with a law. She is licensed to practice law in Iowa, ed to the governing Board of double major in Communication Missouri and Kansas. Directors of the Military Officers Ashley M. Studies and Political Science and Peter B. Welch Association of America based in Emick received her law degree from the Julia L. Vyskocil has recently Washington, D.C. He was University of Iowa College of Law joined the Beving, Swanson & appointed to the Government in 2008. Forrest, P.C. law firm in Des Relations Committee. Moines as an associate attorney. Chet A. Mellema has joined the Des Julie received her B.S. in Larry James, Jr. of the Dickinson, Moines law firm of Bradshaw, Fowler, Proctor Agriculture and Natural Resources Mackaman, Tyler & Hagen law firm in Des Moines & Fairgrave, P.C. as an associate. He received Julia L. Communications from Michigan recently received the 2008 Amy Jennings Young his B.S. from Drake University in 2000 and his Vyskocil State University in 2004 and her Professional of the Year Award from the Greater J.D. from the University of Iowa College of Law J.D. from Drake University Law Des Moines Partnership’s Young Professionals in 2003. Chet will be joining Bradshaw’s trans- School in 2008. She will engage Connection. Larry received the award for exempli- actional division, representing clients on a vari- in a general practice at the firm, with primary fying the organization’s goal of attracting and ety of issues, including real estate, business emphasis in wills, trusts, estate planning, probate retaining young professionals in central Iowa transactions and estate planning. law, agricultural law and environmental law. through civic, charitable, social and professional development endeavors. Lisa Perdue has become Attorneys J. Richard Johnson a Member/Partner of Grefe & and Robert J. Legislador Sidney, P.L.C. in Des Moines announce the opening of their new ADMISSION ON MOTION effective Jan. 1. She received a law firm, Johnson & Legislador, B.A. in History in 1997 from the P.L.C. located The following individuals have University of Northern Iowa and at Northridge applied for admission on motion Lisa Perdue J. Richard Professional Park, to the Iowa Bar: her J.D. in 2000 from Drake George Wood, University Law School. Lisa Johnson 1636 42nd Street, Littler Mendelson, Ann S. has been practicing in the litiga- N.E., Cedar Rapids, PC, Minneapolis, Minn.; Viksnins, tion division of Grefe & Sidney, P.L.C. since 2001. Iowa. Phone: 319-395-0700; Viksnins, Harris & Padys Fax: 319-395-9192; Website: PLLP, Bloomington, Minn.; Rodney Robert J. Joseph Janis, Adams, Coogler, Nathan J. Barber has been www.jllawplc.com. Legislador promoted to member of Belin Watson, Merkel, Barry & Kellner, Lamson McCormick Zumbach Stacie M. Codr has been P.A., West Palm Beach, Fla. Flynn, P.C. in Des Moines. named a shareholder with the Anyone with questions or com- Nathan is a 2002 graduate of the law firm of Finley, Alt, Smith, ments should contact Dave Ewert at University of California, Berkeley Scharnberg, Craig, Hilmes & the Office of Professional Regulation, Nathan J. Law School. He practices in the Gaffney, P.C. in Des Moines. 1111 East Court Avenue, Des Moines, Barber areas of real estate and com- Stacie is a 2002 graduate of the IA 50319; Phone: 515-725-8029. mercial and secured lending. Stacie M. Codr University of Iowa College of law and joined the firm in 2007. TRANSITIONS SUBMISSIONS Pope S. Yamada has been ONLY BY E-MAIL named a Partner with the Phelan, Jill R. Jensen-Welch has Tucker, Mullen, Walker, Tucker & become a shareholder in Copy deadline for Transitions is 30 Gelman, LLP Law Firm in Iowa Dickinson, Mackaman, Tyler & days before the month of publication. City. He received his B.S. from Hagen, P.C., in Des Moines. She Please follow the same style published Wesleyan University, Connecticut, received her B.A. from Drake here and keep submissions short and Pope S. in 1996, and his J.D. from the University in 1982, her M.A. from to the point. For new hires and promo- Jill R. Jensen- tions, the name of the law firm is not Yamada University of Iowa Law School Drake University in 1994, and her Welch as important as the individual in 2003. Pope joined the law J.D. from Drake University Law School in 2003. Her practice involved, so mention the lawyer first. firm in 2003 as an associate. Always submit a photo of the subject. areas include employment law and litigation. If it is to be digital, please use the Peter D. Arling has become .jpg a shareholder of O’Connor & On Jan. 1, 2009, Nazette, Marner, “ ” format only. Make all submis- Thomas, P.C. in Dubuque. Peter Nathanson & Shea, L.L.P., began operating sions in plain text or Microsoft Word “.doc” format via e-mail to joined the firm after graduating as a new law firm in Cedar Rapids. The attorneys [email protected] and please do not from Creighton University in at this newly formed firm are: David L. Marner Sr., Randall A. Nazette, Henry E. Nathanson, Mona expect late submissions to be published 2003. He is admitted to practice immediately. We need at least a 30-day Peter D. Arling in Iowa, Illinois, Minnesota Knoll, David L. Marner Jr., Crystal L. Usher, Kevin P. Shea, Marty A. Hagge, and Caitlin L. Slessor. interval before publication. Include and Wisconsin. office phone number and name of the The firm’s location is 100 1st Street SW, Suite. person furnishing the copy. Questions? Amy R. Miller has joined the law firm 100, Cedar Rapids, Iowa, 52404. Phone: Call Chris Fritz at 515-697-7873. of Foss, Kuiken, Gookin, & Cochran, PC of 319-366-1000; Fax: 319-364-1116. Thank you for your assistance. Fairfield, as a part-time associate attorney.

14 THE IOWA LAWYER February 2009 ISBA’s CLE... simply the best!

CLE Calendar Appellate Practice Seminar February 20, 2009 * February 20 Appellate Practice The Iowa State Bar Association Building ISBA Building, Des Moines 625 East Court Avenue, Des Moines, Iowa 3.5 State CLE Hours March 6 *Please note date change Labor & Employment ISBA Building, Des Moines 12:30 - 1:00 Registration March 11 Law Over Lunch: 1:00 - 2:15 Inside the Court Title Opinions - A Checklist Panel moderated by William J. Miller, Dorsey & Whitney Panel Members: Justice David L. Baker, Iowa Supreme Court, April 16 Judge Richard Doyle, Iowa Court of Appeals, Government Practice Spring CLE Conference and Christine Mayberry, Deputy Clerk of Court ISBA Building, Des Moines 2:15 - 2:30 Break Donna Humpal, Clerk of the Supreme Court (effective February 2009) April 23-24 2:30 - 3:45 Introduction to the New Rules of Appellate Procedure Juvenile Law Justice Daryl L. Hecht, Iowa Supreme Court and ISBA Building, Des Moines Kevin Cmelik, Assistant Attorney General, Criminal Appeals Division 3:45 - 4:45 Appellate Practice Tips May 1-2 Justice David S. Wiggins, Iowa Supreme Court and Spring Tax Theresa Wilson, Assistant Appellate Defender May 7-8 Bridge the Gap Registration Form: Appellate Practice Seminar Downtown Marriott Des Moines, IA Name : ______Member # ______Phone #______May 15 Address: ______City, State, Zip: ______Commercial & Bankruptcy ISBA Building, Des Moines E-mail: ______

May 29 Criminal Law Registration:Method of Payment: ____$85 ___ Check ISBA enclosedMember Check Number ____$130 ______Non-ISBA Member ISBA Building, Des Moines ___ Master Card ___ Visa ___ American Express ___CLE Season Pass June 24-26 Annual Meeting Credit Card #:______Exp. Date: ______Downtown Marriott Des Moines, IA Cardholder Signature: ______July 10-11 - Summer Seminar Return Registration form to: ISBA CLE, 625 E. Court Avenue, Des Moines, IA 50309. For ques Arrowwood Resort Cancellation Policy/Walk-in Registration Fee: Registration refunds will be issued only if writ- Okoboji, IA tions call: (515) 697-7874 or fax (515) 243-2511

July 22-24 ten notification is received by the Bar Office by February 13, 2009. Written notification can be Solo & Small Firm mailed, faxed, or e-mailed to the Bar Office. Walk-in registration fee will be an additional $50

Honey Creek Resort (fee will begin on February 19,CLE 2009). opportunities sponsored by: Moravia, IA CLE Division of The Iowa State Bar Association

THE IOWA LAWYER February 2009

CLE Insert February.indd 1 2/2/2009 11:44:51 AM INES, IT’S DES MO BRIDG OM E TH FR E G VE AP LI !!!

Downtown Marriott • 700 Grand Avenue • Des Moines, Iowa 50309 • 800-514-4681 Thursday, May 7, 2009

Kevin Nealon as “Subliminal Guy” 8-8:30 Speaker: Legislative State Update Rep. Robert Hogg

Chris Farley lives in a “Van by the River” 8:30-9:00 ForeclosureSpeaker: Nancy Thompson

Darrell Hammond as “Al Gore” 9:00-9:30 FederalSpeaker: E-discovery Kevin Papp (0.5 Federal)

Molly Shannon as “M.K. Gallagher” 9:30-10:00 AssetSpeaker: Protection David Repp

10:00-10:15 Will Break Ferrell as “Harry Caray” 10:15-10:45 SubstanceSpeaker: Hugh Abuse Grady and other Attorney Issues

Phil Hartman as “Caveman Lawyer” 10:45-11:30 TrialSpeaker: Practices: TimothyBRIDGE Suing Semelroth a Government Entity (0.75 Federal) Adam Sandler with Chris Farley as the “Lunch Lady” 11:30-12:00 JuvenileSpeaker: Representation/Due Barbara Davis Processes

12:00-1:00 Mike Lunch Myers and Dana Carvey in “Wayne’s World” 1:00-2:00 FederalSpeaker: Case Hon. THEUpdate Ross Walters (1.0 Federal) GAP

David Spade says “Bye Bye” 2:00-2:30 EstateSpeaker: Planning Mark Gray Primer

Chevy Chase is “Shark” 2:30-3:00 FairSpeaker: Debt David CollectionLIVE Wetsch Act (0.5 Federal)

3:00-3:15 Chris Break Farley and Patrick Swayze are “Chippendales” 3:15-3:45 EmploymentSpeaker: Mark Law Hudson (0.5 Federal)

Al Franken is “Stuart Smalley” 3:45-4:15 Negotiations/MediationsSpeaker: Paul Thune

Dan Akroyd and Jane Curtin are “Coneheads” 4:15-5:15 ImmigrationSpeaker: Ferzana in Employment Hashmi (1.0 Federal)

THE IOWA LAWYER February 2009

CLE Insert February.indd 2 2/2/2009 11:44:52 AM INES, IT’S Friday, May 8, 2009 DES MO BRIDG OM E TH FR E G VE AP Adam Sandler as“Cajun Man” LI !!! 8:00-8:30 Speaker: Title Examination Timothy Gartin(Basics) 12:00-1:00 Will Lunch Ferrell and Cheri Oteri are 1:00-2:00 “Spartan Case Law Cheerleaders” Update Dan Akroyd as the “Toy Salesman” Speaker: Hon. Collin Witt 8:30-9:15 Speaker: Trial Practice Patrick (0.75 Roby Federal) Rob Schneider as the “Richmeister” Julia Sweeney is “Pat” 2:00-2:30 Speaker: Technology Tyler for SmithSmall Firms 9:15-9:45 Speaker: 1031 Like-kind David BrownExchanges (0.5 Federal) John Lovitz as the “Devil” 2:30-3:00 Speaker: Pro Se Issues Hon. Colleen Weiland 9:45-10:00 Tina Break Fey as “Sarah Palin” 10:00-10:30 Speaker: Election Law Administrative (0.5 Federal) Law Judge Christie Scase 3:00-3:15 Mike Break Myers as “Simon” Amy Poehler in “The Needlers” 3:15-3:45 Speaker:Written CommunicationProf. Caroline Sheerin Skills 10:30-11:00 Speaker: Prenuptial Daniel Agreement Bray

John Lovitz in “That’s the Ticket” Moderator Justice Michael Streit 3:45-4:45 Ethics Panel (1.0 Ethics) 11:00-11:30 Ethics (0.5 Ethics) Mike Myers in “Coffee Talk” Dana Carvey is the “Church Lady” 11:30-12:00 Fee Collection (0.5 Ethics) Pending: 15 State CLE hours which includes 2 Ethics and 6 Federal hours Form: Bridge th Registration e Gap Name : ______Member # ______Phone # ______Address: ______City, State, Zip: ______2009 E-mail: ______

Advance Registration:

ISBA Members ______$265 Members Admitted to Practice After 2004 ______$225 Non-ISBA Members ______$375 Para-professionals (Legal Assistants & Office Employees) ______$175 Judges ______$50 Method of Payment: ___ Check Law enclosed Students Check Number ______CLE Season ______Pass ______$25 ___ Master Card ___ Visa ___ Discover ___ American Express

Credit Card #:______Exp. Date: ______

Cardholder Signature: ______Return Registration form to:

ISBA CLE, 625 E. Court Avenue, Des Moines, IA 50309. For questions call: (515)Cancellation 697-7874 Policy/Walk-in or fax (515) 243-2511 Registration Fee: Registration refunds will be issued only if written notification is received by the Bar Office by May 1, 2009. Written notification can be mailed/faxed or e-mailed to the Bar Office.

Walk-in registration fee will be an additional $50 (fee will begin on May 6, 2009).

For hotel reservations please call the Downtown MarriottTHE atIOWA 800-514-4681 LAWYER February 2009

CLE Insert February.indd 3 2/2/2009 11:44:52 AM Labor and Employment Seminar March 6, 2009 The Iowa State Bar Association Building 625 East Court Avenue, Des Moines, Iowa Pending: 6 State CLE hours which includes 2.25 Federal and 1 Ethics hours

8:00-8:20 Helen Registration C. Adams, Dickinson Law Firm 8:20-8:30 Welcome Speaker: Richard Autry, Employment Appeal Board 8:30-9:30 Case Law Update Moderator: Iris Muchmore, Simmons Perrine Moyer Berman Law Firm 9:30-10:30 MediationMediator: inJudge Employment Thomas Shields, Cases: ChiefWhat MagistrateWorks/What Judge, Does Not (Mediator’s Viewpoint) Mediator: Elizabeth Kennedy, Ahlers Law Firm United States District Court for the Southern District of Iowa

10:30-10:45 Will Break Change 10:45-11:55 The Amended Americans with Disabilities Act: Anticipating How ADA Litigation ModeratorDefendant’s - AttorneyProf. Leonard - Jill Jensen-Welch,Sandler, University Dickinson of Iowa Law Law Firm School Plaintiff’sGovernment Attorney Representative - Mike Carroll, - Ralph Babich Rosenberg, Law Firm ICRC

11:55-1:10 Speaker: Lunch (Roundtable Dan Anderson, Discussion) Chief Administrative Law Judge, 1:10-1:30 Traps for the Unwary in Unemployment Compensation Claims Unemployment Insurance Division, Workforce Development 1:30-2:35 A Primer on the New FMLA Regulations Speaker: Mike Staebell, U.S. Department of Labor 2:35-2:50 Speaker: Break Barbara Tapscott, Employment Law Attorney, Workforce Development 2:50-3:20 Drug Testing and Unemployment Claims Moderator: Ann Holden Kendell, Brown Winick 3:20-4:20 Ethical Issues in Employment Cases Speaker: Tom Newkirk, Fiedler & Newkirk Speaker: KellySharon Baier, Malheir Bradleyo, Davis & Riley Law firm

4:20-4:30 Closing Remarks Registration Form: Labor and Employment

Name : ______Member # ______Phone # ______Address: ______City, State, Zip: ______E-mail: ______Advance Registration:

ISBA Members _____$150 Method of Payment: ___ Check enclosed Section Members Check Number ______CLE Season Pass ______$140 Non-ISBA Members _____$225 ___ Master Card ___ Visa ___ Discover ___ American Express Credit Card #:______Exp. Date: ______Cardholder Signature: ______Return Registration form to:

Cancellation Policy/Walk-in Registration ISBA CLE, 625 Fee: E. Court Avenue, Des Moines, IA 50309. For questions call: (515) 697-7874 or fax (515) 243-2511 Registration refunds will be issued only if written notification is received by the Bar Office by February 27, 2009. Written notification can be mailed/faxed or e-mailed to the Bar Office. Walk-in

registrationTHE IOWA LAWYER fee will be February an additional 2009 $50 (fee will begin on March 5, 2009).

CLE Insert February.indd 4 2/2/2009 11:44:55 AM Commercial and Bankruptcy Law Seminar May 15, 2009 The Iowa State Bar Association Building 625 East Court Avenue, Des Moines, Iowa Pending: 6.25 State and Federal hours which includes 1 hour of Ethics

Sponsored by the Commercial and Bankruptcy Law Section of the Iowa State Bar Association

7:30 - 8:30 a.m. Speaker: Registration Eric Lam 8:30 - 9:15 Update on the Law of Fraudulent Transfers Speakers: Paula Roby and Don Neiman 9:15 - 10:15 Ethics “Issues of Representation, Conflict or Not?”

10:15 – 10:30 Speakers: BREAK Wesley B. Huisinga and Dan Childers 10:30 – 11:15 Trade Creditor Reclamation Issues and Claims Under Section 503(b)(9) Speakers: Janet Hong and Gary Norton 11:15 – 12:00 “Low Hanging Fruit and Picking Rotten Cherries—Disputing Your Client’s Credit Report

12:00 – 1:00 LUNCH 1:00 – 1:45 TheSpeakers: New Agricultural Steven Moline Crisis and (Future Steven DeliveryWandro Contracts, Credit Swap Agreements, Hedge to Arrive and Grain Indemnity Claims) Speaker: Steven Turner 1:45 – 2:30 UCC Case Law Update

2:30 – 2:45 Speakers: BREAK Michael R. Blaser and Eldon McAfee 2:45 – 3:30 Agricultural Liens-Priority, Perfection and Enforcement Speakers: Paul Drey and Brooke VanVliet 3:30 – 4:15 Bankruptcy Case Law Update

Registration Form: Commercial and Bankruptcy

Name : ______Member # ______Phone # ______

Address: ______City, State, Zip: ______

E-mail: ______Advance Registration:

ISBA Members _____$150

Section Members _____$140 Method of Payment: ___ Check enclosed Check Number ______CLE Season Pass ______Non-ISBA Members _____$225 ___ Master Card ___ Visa ___ Discover ___ American Express

Credit Card #:______Exp. Date: ______

Cardholder Signature: ______

Return Registration form to:

ISBA CLE, 625 E. Court Avenue, Des Moines, IA 50309. For questions call: (515)Cancellation 697-7874 Policy/Walk-in or fax (515) 243-2511 Registration Fee:

Registration refunds will be issued only if written notification is received by the Bar Office by May 8, 2009. Written notification can be mailed/faxed or e-mailed to the Bar Office. Walk-in registration fee will be an additional $50 (fee will begin on May 14, 2009). THE IOWA LAWYER February 2009

CLE Insert February.indd 5 2/2/2009 11:44:57 AM Deadline is Feb. 20 -- Apply now for 2009-10 ISBA committees, section councils Application Committees, Section Councils, Boards, Commissions Fiscal Year July 1, 2009-June 30, 2010

Name ______Judicial Election District # _____ ISBA Member # ______

Optional Information (to assist in the appointment of diverse committees and commissions): Gender ______Age ______Ethnic Minority ______

Type of practice: _Solo _2-10 lawyers _11-25 lawyers _25+ lawyers _Government Attorney _In-house Corporate Counsel _Judge _Legal Aid _Other ______

Primary areas of practice (i.e. Business Law, Criminal Law, Family Law, Probate, Real Estate, etc.): ______

Please indicate desired appointments

I would like to be considered for appointment to the following committees (If multiple choices, please indicate order of preference): _ American Citizenship _ Annual Meeting _ Appellate Practice _ Federal Practice _ Iowa Jury Instructions (3) _ Judicial Administration _ Law Practice Management _ Legal Aid _ Legal Forms _ Legal Heritage _ Membership _ Professionalism _ Public Relations _ Women and Minorities

I would like to be considered for appointment to the following section councils (must be a current dues-paid section member; number of potential vacancies in parenthesis) (If multiple choices, please indicate order of preference): _ Administrative Law (3) _ Agricultural Law (2) _ Alternative Dispute Resolution (4) _ Business Law (2) _ Commercial & Bankruptcy Law (3) _ Corporate Counsel (3) _ Criminal Law (2) _ eCommerce (4) _ Environmental & Natural Resources (2) _ Family & Juvenile Law (3) _ General Practice (3) _ Government Practice (1) _ Health Law (2) _ Intellectual Property Law (6) _ International Law (8) _ Labor & Employment Law (4) _ Litigation (3) _ Probate & Trust Law (3) _ Real Estate & Title Law (3) _ Taxation (3) _ Trade Regulations (5) _ Workers’ Compensation (6)

I would like to be considered for appointment to the following Supreme Court boards and commissions (Numbers in parenthesis indicate openings available): _ Board of Law Examiners (1) _ Grievance Commission: 3B (1), 4 (1), 5B (1), 5C (1), 6 (1), 7 (2), 8A (2) _ Supreme Court Iowa Attorney Disciplinary Board (3)

Please return application by Feb. 20 to: E-mail: [email protected] Fax: 866-798-7097 Mail: The Iowa State Bar Association 625 East Court Avenue Des Moines, IA 50309-1904

20 THE IOWA LAWYER February 2009 Law professor to discuss racial and gender bias in the 21st Century Phoebe Haddon, an expert on racial and gender bias, will deliver Drake University Law School’s Constitutional Law Distinguished Lecture at 3 p.m., Feb. 19, in room 213 of Five students from four Iowa high schools won a trip to Washington, D.C. as part of the Know Your Constitution pro- Cartwright Hall, 2621 Carpenter Avenue. gram. The five are (front row, left to right) Whitney Wagenbach, Mediapolis High School; Sarah Bishop, Jefferson Haddon, professor of law at Temple High School; Spencer Abbe, Des Moines Central Academy; Ellie Henson, Des Moines Central Academy; and Kayla University and the Beasley School of Law, will Erlandson, Spirit Lake High School. Standing with the students are (from left) ISBA President Dan Moore, YLD present “Can the U.S. Supreme Court’s ‘Keyes’ Know Your Constitution Co-chair Robert Gainer, Mediapolis High School Teacher Cathy Isley, Jefferson High School Desegregation Decision Unlock Opportunities Teacher Chris Rolwes, Spirit Lake High School Teacher Roland Schmidt and YLD Know Your Constitution Co-chair HE B Tto RethinkA ‘Brown’R in the 21st Century?" The Lance Lange. A total of 88 students across the state became finalists in the program by completing a series of mul- D tiple choice questions and writing an essay about the U.S. Constitution. They and their teachers were treated to a N lecture is free and open to the public. luncheon and address by Iowa Supreme Court Justice Brent Appel at the West Des Moines Marriott in early January U At Temple University, Haddon teaches to celebrate their selection as finalists. The ISBA Young Lawyers Division sponsors the annual program. O constitutional law, torts, products liability

R and a seminar on race and ethnicity. She was

A the Charles Klein professor of law and government from 1996-98. She graduated from Smith College with honors in 1972, attended and graduated cum laude from Duquesne School of Law, where she was editor-in chief of the law review, and received her Master of Laws from Yale Law School in 1985. Drake’s Constitutional Law Distinguished Lecture series began when the university was chosen as one of four universities to receive a permanent endowment from Congress to encourage study of the American Constitution in honor of the bicentennial. At that time, Drake created the Constitutional Law Center. For questions regarding the Constitutional Law Distinguished Lecture series, contact Drake Law School at 515-271-2988.

THE IOWA LAWYER February 2009 21 Pardon me, but is that toilet paper stuck to your shoe? Nope, it’s Metadata. By Melissa H. Weresh* Ever get the feeling that you brought Metadata includes information such as the Sender’s Duty: something along you didn’t intend to bring? author of the document, when the docu- Privilege Well, it is likely drug manufacturer Merck ment was created, what software was used to In the context felt that way too when the New England create the document, users who viewed the of electronic Journal of Medicine revealed that Merck was document and comments and revisions document pro- aware of potential adverse side effects of made to the document. Some metadata is duction, you Vioxx — including the risk of heart attacks harmless, but some may include confiden- inadvertently send opposing counsel privi- — two years before Merck placed Vioxx on tial or privileged information. leged documents. Does the disclosure the market. So, with the current practice of communi- operate as a waiver of the privilege? Where did the Journal find this infor- cating extensively by electronic means, there Under the newly enacted Federal Rule mation? are concerns for lawyers in terms of protect- of Evidence 502, when an inadvertent dis- In metadata embedded in a study Merck ing confidentiality. Those concerns include closure is made in a federal proceeding or had provided to the Journal. Editors of the the inadvertent disclosure of information, to a federal office or agency, the disclo- Journal used Microsoft’s “Track Changes” the receipt of unintended information and sure does not operate as a waiver in a fed- feature to discover that Merck had deleted issues regarding retention and spoliation. eral or state proceeding if: the damaging information from a report This article focuses on the ethical and (1) the disclosure is inadvertent; Merck submitted to the Journal. In fact, professional considerations associated with (2) the holder of the privilege or the material was deleted from the report the inadvertent exchange of metadata. protection took reasonable steps only two days before Merck submitted the Specifically, what is the sender’s responsibili- to prevent disclosure; and report to the Journal. This information ty with respect to transmission? What is the (3) the holder promptly took reasonable became vital to plaintiffs’ lawyers in the recipient’s responsibility with regard to noti- steps to rectify the error, including Vioxx litigation. fication and/or mining and use of metadata? (if applicable) following Fed.R.Civ.P. Metadata is commonly defined as “data 26(b)(5)(B). about data.” It refers to information Sender’s Duty: Transmission embedded in an electronic data file. You have an electronic document that The new rule was drafted to respond to you plan to send opposing counsel. What the problems associated with inadvertent is your responsibility with regard to possi- disclosure in the context of massive docu- ble metadata in the document? ment production in litigation. Prior to the Ethics decisions from around the coun- enactment of FRE 502, courts had been try reveal a continuum of responsibility split on the effect of inadvertent disclosure with respect to the sender’s obligation to of confidential information — some treat- Mediations & Arbitrations protect against disclosure of metadata. ed it as a waiver of privilege or work prod- The ethics rules do not prohibit transmis- uct only if disclosure was intentional, or sion of material electronically. With regard careless. At the opposite extreme were Workers’ Compensation Mediators to interception, bar associations have gen- courts that held that any disclosure consti- Frank T. Harrison erally agreed that an e-mail is no more sus- tuted a waiver of privilege, regardless of pre- Former Deputy Iowa Industrial Commissioner ceptible to interception than a hardcopy cautions taken. The new rule was designed E. J. Kelly letter. With respect to metadata, the ABA to present a middle ground, insofar as an Former Deputy Iowa Industrial Commissioner Formal Ethics Opinions 06-442 and 05-437 inadvertent disclosure does not operate as a are perhaps the most lenient, imposing no waiver provided that the sender took rea- Robert C. Landess explicit obligation with respect to metada- sonable steps to prevent disclosure and also Former Iowa Industrial Commissioner ta, although the opinions do suggest took prompt steps to rectify the error. Valerie A. Landis methods for eliminating metadata, includ- In Rhoads Indus., Inc. v. Bldg. Materials Matthew A. Grotnes ing scrubbing the document or sending Corp. of Am., 2008 WL 4916026 (E.D. Pa. files in a different format (fax or pdf. file). Nov. 14, 2008), the court had an opportu- M. Anne McAtee Senders may also elect to negotiate confi- nity to decide the first case under the new dentiality agreements. rule. Rhoades was the plaintiff in a breach Civil Litigation of contract dispute. Anticipating exten- Mediator & Arbitrator Most state ethics opinions impose a duty sive electronic discovery, Rhoades had an of reasonable care, which typically includes Jeff H. Jeffries information technology (IT) consultant a review of what steps were taken to prevent purchase software known as Sherpa to disclosure, and the nature, scope and sub- Probate/Estate Mediator search through records to identify poten- ject matter of the information revealed. tially responsive documents. Sherpa had a James E. Van Werden The Maine Board of Overseers of the Bar filter system to search for privileged docu- Professional Ethics Commission Opinion ments in the responsive documents file. Des Moines • Adel • Quad Cities #196 requires attorneys to have a basic During the first search using Sherpa, the understanding of the existence of metadata IT consultant identified 210,635 responsive 515-244-0111 and the means to purge and/or protect e-mail messages. Using the filter feature, www.hopkinsandhuebner.com the information. approximately 2,000 were determined to 22 THE IOWA LAWYER February 2009 be privileged, but were not placed on a Rhoades in light of the severity of the in doing so it clearly prejudices the privilege log. Because of the number of waiver and the fact that the defendants administration of justice.” responsive documents, a new search for would not be prejudiced by a denial of With respect to the recipient’s duty responsive documents was completed. access to the documents because they to notify the sender of the inadvertent Two additional searches, one electronic had no right or expectation to privileged transmission of metadata, most jurisdic- and one manual, were then conducted to communications. tions do impose a notification obligation remove privileged documents. Logs were on the recipient to notify the sender. made identifying privileged documents Recipient’s Duty: Mining, The Washington D.C. Bar Legal Ethics from those searches. Rhoades then pro- Use and Notification Committee Opinion 341 advises that duced three hard drives of responsive You have received an electronic trans- the recipient lawyer should notify the materials to opposing counsel, along mission. Can you search for, or mine, sending lawyer and should “comply with with the two privilege logs. metadata in the document? Also, do you the instructions of the sender.” In con- have a responsibility to notifiy the sender? trast, the Maryland State Bar Association Upon receipt of the files, opposing coun- As to whether you may mine for and Committee on Ethics determined in sel notified Rhoades that the production use metadata, there is some disagreement Docket No. 2007-09 that a receiving lawyer included privileged documents. The court among courts that have considered the does not have to notify the sending lawyer noted that the primary analysis under rule issue. Both the ABA Formal Opinion that there has been an inadvertent trans- 502 was the three-factor inquiry, namely, 06-442 and the Maryland State Bar mission, but that the receiving lawyer whether the disclosure was inadvertent, Association Committee on Ethics decision “can, and probably should, communicate whether reasonable steps had been taken Docket No. 2007-09 allow attorneys to with his or her client concerning the pros to prevent disclosure, and whether reason- mine and use metadata. Bar associations and cons of whether to notify the sending able steps were taken to rectify the error. in Colorado and Washington, D.C. also attorney and/or to take such other action Concluding that Rhoades had demonstrat- allow the use of metadata, unless the which they believe is appropriate.” ed minimal compliance, but that the rea- sending attorney notifies the recipient sonableness of steps taken to prevent dis- of the inadvertent transmission prior to *Melissa Weresh is professor of law, Director of closure was in dispute, the court turned to Legal Writing, Drake University Law School. This the recipient’s viewing of the metadata. the traditional five-factor waiver analysis, series of articles explores professionalism, communi- In contrast, the Alabama State Bar which questioned: cation, and interpersonal dynamics in law prac- Office of General Counsel Formal (1) the reasonableness of the precau- tice. The author welcomes suggestions as to con- Opinion 2007-02 notes that mining “con- tent, and can be reached at tions taken to prevent inadvertent stitutes a knowing and deliberate attempt disclosure in view of the extent of by the recipient to acquire confidential the document production, and privileged information in order to (2) the number of inadvertent obtain an unfair advantage.” Several juris- disclosures, dictions, including Alabama, Arizona, (3) the extent of the disclosure, Florida, Maine, and New York agree, and (4) any delay in measures taken prohibit lawyers from mining and using to rectify the disclosure, and embedded information. In Maine Board (5) whether the overriding interests of Overseers of the Bar Professional Ethics of justice would be served by Commission Opinion #196, the Board relieving the party of its errors. concluded “[n]ot only is the attorney’s The court found that the first four conduct dishonest in purposefully seeking factors favored the defendant. Notably, by this method to uncover confidential the court determined that Rhoades had information of another party, that conduct failed to adequately prepare for the im- strikes at the foundational principles that pending, extensive discovery. The fifth protect attorney-client confidences, and factor, however, weighed in favor of

THE IOWA LAWYER February 2009 23 (Editor’s Note: The following summaries of disciplinary matter, in violation of DR 1–102(A)(4) (prohibiting a derance of the evidence showed Isaacson violated DR actions taken by the Iowa Supreme Court are provided lawyer from engaging in conduct involving dishonesty 9-102(A) (now Rule 32:1.15) when he failed to deposit by a committee of attorneys who are members of the fraud, deceit, or misrepresentation). Finally, the the client’s funds into a trust account. The court reject- ISBA’s Young Lawyers Division. YLD members gra- Supreme Court found Rauch committed an additional ed Isaacson’s argument that his violation was technical ciously undertook the task after a year of inactivity fol- ethical violation by failing to respond to the Board after and that he complied with his client’s wishes. The duty lowing the retirement of the person on the Supreme Court’s Grievance Commission who had previously pro- being served with Howser’s complaint. imposed by the rule “is not constrained by a client’s vided the summaries. Summaries of disciplinary actions The Board’s complaint also alleged that, in 2001, instruction or preference.” are published periodically as they become available. Rauch neglected another client matter for which he had The court also found that Isaacson violated DR 9- They are provided as a service to attorneys to provide received a $500 retainer. Rauch failed to act when the 103 (now Rule 32:1.15) because he did not maintain guidance in what they can and cannot do in their own client’s family sent him a certified letter asking him to records to show he complied with DR 9-102. The fail- practices. They are for educational purposes only, not to “do the job” or return the retainer, and failed to respond ure to deposit funds in to a trust account necessarily punish or embarrass the individuals who were disciplined. Oftentimes, due to the time required between to the Board’s inquiry after the client’s family lodged a violated DR 9-103. Disciplinary complaint with the Board. The record showed that Isaacson collected fees from submitting the information and when it is printed, an attorney whose license was suspended may have been In discussing the appropriate sanction, the Supreme other clients and deposited them into his personal reinstated prior to the summary being published.) Court stated that Rauch “has demonstrated a penchant account instead of a trust account. This resulted in the Allan H. Rauch for deceit and a total lack of respect toward the courts firm in which Isaacson was a partner billing clients that ACTIONSof this state. He thumbed his nose at this court by had already paid their bills. Isaacson argued this was Windsor Heights accepting Howser’s case just days after we suspended not dishonest because the partnership agreement did License Revoked his license.” The Court further stated that Rauch “tried not require him to share fees with his partner. Supreme Court Order to hide his involvement by omitting his name on the His partner testified that the partners were required March 21, 2008 motion to quash,” and referred to his ghostwriting as to deposit all fees into the partnership account so that The Supreme Court revoked Allan H. Rauch’s “deliberate evasion of the responsibilities imposed on each partner’s share of the overhead was paid before license to practice law after Rauch practiced law an attorney.” the partners’ draws were distributed. The court rejected while his license was suspended, deceived a client In light of Rauch’s “pattern of unethical conduct over this argument and found that Isaacson violated DR 1- and the district court, neglected a client’s matter, a number of years,” the Supreme Court revoked 102 (now Rule 32:8.4). The court also found that failed to account for and refund a portion of a client’s Rauch’s license to practice law in Iowa. Isaacson violated DR 1-102 when he filled out his 2004 retainer, and failed to cooperate with the investigation Combined Statement and Questionnaire with the Iowa of the Iowa Supreme Court Attorney Disciplinary David John Isaacson Supreme Court Client Security Commission. In the Board (the “Board”). Des Moines questionnaire, Isaacson asserted that he kept “all funds The present case concerns a complaint the Board License suspended for six months of clients for matters involving the practice of law in filed against Rauch in 2004. Rauch had previously Supreme Court Order Iowa in separate interest bearing trust accounts” when been disciplined on four separate occasions since June 6, 2008 he clearly did not do so. 1988, and at the time of the complaint his license was The Supreme Court found that Isaacson violated To determine the appropriate sanction, the court on suspension from the most-recent discipline in 2002. several ethical rules for failing to deposit a client’s looked at Isaacson’s violations and that he was not The Board claimed, among other things, that Rauch, funds into a trust account and failing to maintain honest with the board, the client security commission just 15 days after the Court suspended his license in records of his trust account. The Grievance and his partner. The court also noted that Isaacson’s 2002, agreed to represent Neal Howser. Howser Commission recommended a public reprimand. The license was suspended in 1997 for engaging in conduct agreed to pay Rauch $250 in two installments. Rauch court, however, exercised its authority to impose a involving dishonesty, fraud, deceit or misrepresentation. did not inform Howser of the suspension. After greater sanction and suspended Isaacson’s license Howser paid Rauch $100, Rauch prepared a motion to for a period of six months. Todd R. Buchanan quash. Rauch took the motion to Howser’s home for In 2003, Isaacson represented a client in an action to Algona Howser to sign, and then filed the motion with the dis- collect rent owed to the client. The tenant agreed to Public Reprimand trict court. The motion did not contain any indicia make payments to settle the case. The tenant made Supreme Court Order Rauch prepared it or that he represented Howser. payments pursuant to the agreement. Isaacson deposit- September 12, 2008 About a week later, Howser went to Rauch’s office to ed the funds into his personal bank account that was The Supreme Court Publicly Reprimanded attorney pay him the final $150. Rauch’s office was completely periodically overdrawn. From his personal account, Todd Buchanan for ethical violations. empty. Howser was unsuccessful in his attempts to Isaacson made payments to the client in cash. The ten- Attorney Todd Buchanan (hereinafter, Buchanan) contact Rauch. Howser filed a complaint with the ant made all of the payments to Isaacson before the was retained by Scott Miller (hereinafter, Miller) to rep- Board to which Rauch never responded. end of 2003, as agreed. resent Miller in a contract dispute with Flooring Gallery The Supreme Court found Rauch engaged in the When the board inquired about the funds, Isaacson regarding a shower installed by Miller that subsequently unauthorized practice of law by agreeing to represent represented that the funds were not received until after developed problems and required extensive repairs. Howser while his law license was suspended, in viola- Dec. 31, 2003. Isaacson also told the board that he The attorney for Flooring Gallery, Michael Reck, made a tion of Iowa Code of Professional Responsibility for could provide an accounting for the funds. Both of written settlement demand on Miller for payment in Lawyers DR 3–101(B) (prohibiting a lawyer from prac- these statements were false. excess of $4,600, based upon a claim that Miller had ticing in a jurisdiction where to do so would be in viola- Isaacson testified that his client preferred to receive warranted his work for one year. Miller denied that a tion of regulations of the profession in that jurisdiction) the payments in cash. An affidavit signed by the client, warranty existed, so Buchanan requested a copy of the and DR 7–106(A) (prohibiting a lawyer from disregard- that Isaacson prepared, also stated that Isaacson warranty. Upon receipt, Miller denied signing the war- ing a court’s ruling). cashed the checks at the direction of the client and that ranty and told Buchanan the document was a forgery. It also found Rauch was guilty of deceit by failing to the client was satisfied with Isaacson’s services and Buchanan then sent Reck a letter, stating: inform Howser that his license was suspended, and by consulted with Isaacson on subsequent matters. “Thank you for sending the copy of the Warranty ghostwriting and filing a pleading on behalf of Howser The Supreme Court found that a convincing prepon- Agreement that is “purportedly a copy of an original” without disclosing to the court his involvement in the 24 THE IOWA LAWYER February 2009 Drake to host document signed by Scott Miller (See Iowa Code Section an accounting to the client upon depositing the fees into 715A.2). I would appreciate you obtaining the original docu- his office account. Piazza argued as to both counts second annual ment and making that available for inspection. Once you that he was not required to do so. obtain custody of the original document I ask that you pre- After a discussion of the different types of fee roundtable for serve it so the document may be examined by Roland arrangements, the Court decided that this was a intellectual Dippold, a document and handwriting analyst. I am assum- flat-fee arrangement where Piazza agreed to provide ing at some point we will want handwriting samples from a defense to his client for a set amount of money. property scholars Terry [sic] Stalzer and possibly other employees of Flooring Because flat fees are also advance fees, all advance fees Intellectual property and technology Gallery. My client has authorized me to make an offer to set- are required to be placed in client trust accounts coupled law scholars from around the world will tle this matter. Upon the Stalzers’ payment to Scott Miller of with a contemporaneous accounting to the client prior gather at Drake University’s Neal and the sum of $1,000, he will sign a reciprocal release of claims to the withdrawal of fees from the trust account. Bea Smith Law Center Courtroom Feb. that would include an affirmation that all evidence of the war- 27-28 for the 2009 Intellectual Property ranty agreement, that allegedly has Scott Miller’s signature Samuel Z. Marks Scholars Roundtable. on it, will be destroyed. Furthermore, Scott Miller will agree Des Moines The event, which runs from 8:30 a.m. to not cooperate with any criminal investigation against the HE B Licensed suspended for 30 days T to 6 p.m.AR each day, features presenta- Stalzers relating to that document. Last, he will agree that the Supreme Court Order D tions from more than 50 experts from N terms of the settlement will remain confidential.” the United States, as well as Australia, January 9, 2009 U Upon receipt of Buchanan’s letter, Reck informed Samuel Z. Marks was found to have neglected two Canada, China, Finland, Israel, Singapore Buchanan that he could not ethically respond to the offer, and O

probate estates and failed to cooperate with the Iowa R and the United Kingdom. Scholars will Reck forwarded Buchanan’s letter to the disciplinary board. Supreme Court Attorney Disciplinary Board (“Board”). A share their latest research in the areas of The Board filed a disciplinary complaint alleging numer- In the first case, the Rumley estate, Marks failed to close copyright, cyberspace, patent, trademark ous Disciplinary Rule violations. The Commission ultimately the estate or do any substantial work on it from spring and international intellectual property concluded that Buchanan violated DR 1-102(A)(5)(a lawyer 2004 to the present time. Just before the hearing on these laws. Participants will also interact with shall not engage in conduct that is prejudicial to the adminis- matters, Marks finally met with the judge to discuss the Drake law students studying in the field. tration of justice), and reported no conclusion on another possibility of appointing one of the decedent’s other To highlight the teaching quality of the charge of DR 1-102(a)(6)(a lawyer shall not engage in con- children as administrator. Drake faculty and the university’s mis- duct that adversely reflects on the fitness to practice law). In the Albach estate, Marks only closed this estate after sion to provide an exceptional learning The Commission did not recommend any discipline, instead receiving the complaint that was filed in this matter. This environment, this year’s roundtable issuing a private admonition. The Board appealed the estate was opened in 2004. Finally, Marks did not file an includes a special session on pedagogy Commission’s decision. answer to the Board’s complaint within 20 days as required in the intellectual property field. The Supreme Court found that Buchanan’s offer to by Iowa Court Rule 34.6(4). It took Marks three months to “Since its establishment, this round- destroy and withhold evidence, and not cooperate with any answer the complaint and nearly four months to file answers table has attracted to the Drake campus criminal investigation, was clearly conduct prejudicial to the to the interrogatories. a large number of leading scholars in the administration of justice, and in violation of DR 1-102(A)(5). The Supreme Court found that Marks’ handling of the fields of intellectual property and tech- The Court also determined that Buchanan’s conduct reflects estate matters was neglect. Marks’ conduct violated DR1- nology laws,” said Professor Peter K. adversely on his fitness to practice law, as such conduct 102(A)(5), a lawyer shall not engage in conduct that is preju- Yu, founding director of the Drake’s demonstrates Buchanan was amenable to obstructing the dicial to the administration of justice; DR1-102(A)(6), a Intellectual Property Law Center. criminal investigation of a forgery. The Court held that lawyer shall not engage in conduct that adversely reflects on To register for the roundtable Buchanan’s actions reflect adversely on his fitness to prac- the fitness to practice law and DR6-101(A)(3), a lawyer shall contact Landra Carty at 515-271-2141 tice law in violation of DR 1-102(A)(6), thereby expanding on not neglect a client’s legal matter. Marks’ failure to cooperate or [email protected]. Cost is the Commission’s initial holding. The Court found that a with the disciplinary process is an independent act of mis- $150 for non-Drake, non-student Public Reprimand was the appropriate sanction. conduct. Comm. On Prof’l Ethics & Conduct v. Pracht, 505 participants and free for students N.W.2d 199 (Iowa 1993). and Drake alumni and faculty. James P. Piazza, Sr. The Supreme Court found there were both mitigating and Des Moines aggravating circumstances in this case. There was no evi- suspended in 2006 for failure to cooperate Public Reprimand dence that Marks’ clients or beneficiaries of the estates were with the Board. Supreme Court Order harmed. Additionally, Marks had been diagnosed with Taking all of these factors into account, October 3, 2008 depression and is currently undergoing treatment. the Supreme Court found that a suspen- The complaint in this case involves the lawyer’s mishan- Aggravating circumstances included the fact that Marks was sion of 30 days was more appropriate than dling and misappropriation of client funds. Piazza was publicly reprimanded in 2007 and had his license temporarily the 90 days recommended by the Board. approached by the client’s family to represent the client in criminal defense work. Piazza agreed to the representation and informed the client’s family of his retainer. Late in the day, another relative of the client brought in $5,000 in cash as partial payment of the retainer. Piazza did not deposit the money into his client trust account but instead locked it in a desk drawer over the weekend for safekeeping. That weekend, Piazza appears to have done a substantial amount of work on his client’s case and so upon returning to the office on Monday, he deposited most of the retainer into a personal account and withheld the rest for various personal expenses because he believed that he had already earned all $5,000. The client’s relative later returned with an additional $2,500 as payment of the retainer and again, Piazza took possession of the money instead of depositing it in the client trust account because he believed the money had already been earned. The client eventually fired Piazza. The Board alleged that Piazza failed to deposit the payments into his client trust account and failed to provide THE IOWA LAWYER February 2009 25 Drake University names Allan Vestal dean of law school Allan W. Vestal, professor of law and former dean of the University of Kentucky College of Law, has been named dean of Drake University Law School. A native of Iowa City, he will begin his new position on June 1. Vestal received both his bachelor’s degree and his law degree from Yale University and is a member of the American Law Institute. He is the author HE B T AR or co-author of more than 30 law review articles D N and several book chapters, primarily in the area of U unincorporated business associations. He also is O

co-author of the Thomson West treatise on the R

Revised Uniform Partnership Act. A He joined the University of Kentucky College of Law faculty in 2000 and served as dean for eight years. He returned to the faculty last July and is on sabbatical for the 2008-09 academic year. Vestal’s strong commitment to diversity led him to work with the Kentucky Supreme Court to create the Kentucky Legal Education Opportunities program, which provides five substantial scholarships for diverse students annually at each of Kentucky’s three law schools. He also conceived and secured federal funding for a program to interest diverse middle school students in becoming lawyers and to provide scholarships for diverse students at the College of Law. In addition, he worked with the university’s Appointments Committee to increase the diversity of the faculty, adding four African-American faculty members over the past two years. “I am very excited to have the opportunity to join the Drake Law School community,” he said. “Drake has a wonderful combination of an excellent traditional law faculty together with nationally recognized clinical, legal practicum and writing programs. It is truly a place where Tired of “guessing” at the accomplished students are prepared to practice value of your cases? law, provide leadership for their communities try... and serve the public.” Vestal began his career by practicing law at Foley & Lardner in Milwaukee, from 1979 to 1982. He went on to become an associate and partner in the Cedar Rapids law firm of Shuttleworth & Ingersoll PC from 1982 to 1989. From 1989 to 2000, he was on the faculty of Tailored for your needs the Washington and Lee University School of Law, • where he taught in the areas of partnership and (simple to complex) Robert E. Tucker corporation law, commercial law and real estate. Ph.D, J.D. • Obtain focus-jurors names He also served as associate dean at Washington Trial Attorney & Consultant and Lee in his last year there. from trial venue jury lists He will succeed Benjamin B. Ullem, a senior 2400 86th Street, Suite 35 partner at the Des Moines law firm of Whitfield • Can test and evaluate for Des Moines, IA 50322 & Eddy PLC, who took a leave of absence from trial strategies & tactics (515) 276-8282 Drake’s Board of Trustees to serve a one-year term as dean in 2008-09. • Yields real-world results (800) 276-5076 (no more guesswork) [email protected]

26 THE IOWA LAWYER February 2009 CLASSIFIED ADS

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28 THE IOWA LAWYER February 2009 State of the Judiciary address – Chief Justice Ternus pledged cooperation with budget-constrained lawmakers while stressing the need to provide justice for all Iowans In her third annual State of the Judiciary the payback for Iowans will be immeasura- address on Jan. 14, Iowa Supreme Court ble,” she said. Chief Justice Marsha Ternus demonstrated A third step involves streamlining, or speed- the court’s understanding of, and apprecia- ing up, the court process for certain types of tion for, the state’s current financial situa- civil cases. Contract claims, personal injury tion, while at the same time making clear lawsuits, malpractice claims and commercial that court operations must continue to disputes are some of the cases that individuals provide justice for all Iowans. don’t pursue because of the cost and the Chief Justice Marsha Ternus delivers her State of the Numerous times in her prepared remarks, length of time they require. And, when they Judiciary address to members of the Iowa House and the chief justice assured legislators that the don’t justice is not served. Senate while Govenor Chet Culver listens. This is the court recognizes the budgetary challenges An expedited process such as the “summary third year Justice Ternus has addressed the joint leg- ahead and the court’s willingness to assist trial” that New York state courts use might be islative body. with those challenges. At the same time, she an option for improving the trial process for stressed emphatically that the court needs these kinds of cases, she told legislators. This people, the chief said. Use of interpreters is resources and the support of the legislature would be a voluntary option structured like an essential court service, and is reinforced in other areas to continue providing justice a traditional trial, but the scope of discovery by a federal law that states that all agencies for the state’s citizens. would be limited and the length of the trial and courts receiving federal funds are “Government cannot do everything, and would be restricted to one or two days as responsible for providing access to limited- in times like these it cannot afford to do long as all parties agree. English-proficient individuals. everything,” she said. “But bear these simple A specialized “business court” that handles While the judicial branch has adopted truths in mind: there are some things that cases involving disputes between businesses measures to make sure the courts use well only government can do, and these things is another option that some states are using qualified interpreters, it still struggles to offer it must do well. Administering justice under to speed up the court process, she said. the service particularly in rural areas and for the law equally to all people is a function Participation is usually voluntary. Such litigants who speak a language other than that only government can fulfill.” courts also offer the option of limited Spanish, Justice Ternus said. The chief justice went on to outline discovery and a fast-track timetable. Judges She proposed to lawmakers that the state challenges the judicial system is facing assigned to business courts are experienced consider a statewide language interpreter cen- and how legislators can help. in commercial litigation. ter that the courts as well as all other state An added plus to business courts is that agencies could draw from. Such a Access to justice businesses like them, and some states see center would be better able to meet the Meeting the civil legal needs of people them as a way of attracting new businesses demands for different languages. It would who can’t afford a lawyer is one of the most to their states. enhance quality control and be able to match serious challenges facing Iowa’s court system interpreter qualifications to different jobs. and, in fact, the nation’s court systems, the Interpreters And, it would regulate costs through chief told lawmakers. There is no magical Because courts have a constitutional obliga- economies of scale. solution, but there are some practical steps tion to ensure equal justice for everyone, that can be taken to address this challenge. including people who speak and understand Juveniles One step is to continue funding legal little or no English, it is critical that the courts The court has shifted some resources to service organizations. She complimented find a solution to the challenge of serving a address its work with troubled juveniles. lawmakers on their appropriation of state growing number of non-English-speaking funds to legal service organizations in the past as evidence they understand the impor- Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-Find-A- Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer A-Lawyer tance of this public service, and encouraged them to maintain the current level of fund- ISBA’s ing for these organizations. The second step is to increase opportuni- “FIND-A-LAWYER” ties for individuals to “navigate through the The NEW Lawyer Referral Program courts on their own.” The Iowa Supreme Court has adopted some forms that pro se Grow your practice litigants can use in court, but the forms Reach out to potential new clients alone aren’t enough. Ideally, the court would Receive referrals targeted to you like to set up self-help centers in courthous- Capitalize on advertising and promotion provided by the ISBA es, self-help hotlines, online how-to videos Help the public access Iowa lawyers and live-chat e-mail services. Improve ISBA’s response to public inquiries Courts in other states offer some of these Find-A-Lawyer services and they have been helpful to pro se E-mail Mary Hill at [email protected] or call 515-697-7870

Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer

Lawyer litigants. “If and when we find the resources Find-A- Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Find-A-Lawyer Lawyer to enable us to provide these new services, THE IOWA LAWYER February 2009 29 However, the head of Iowa’s judicial as demonstrated by more participants fol- However, there aren’t many areas where branch said the court urgently needs more lowing through with their treatments, which cuts can be made since 96 percent of the juvenile court officers and support staff to in turn reduces the chances of these partici- judicial branch budget is labor. strengthen the work. pants committing more crimes. The down- She said it’s very possible the judicial The need is due in part to a relatively side is drug courts are labor intensive, she branch will have to impose furloughs if its new federal law that requires juvenile court told lawmakers. A recent Iowa time study budget is cut very much. Furloughs are officers to visit youths in out-of-home place- shows that a judge-centered drug court uses preferable to layoffs, she said, because layoffs ments and their parents more frequently. as much as 12 times more judge time than would cripple the court’s ability to fulfill its Noncompliance with the federal law jeop- the traditional criminal process. constitutional responsibility — a lesson the ardizes the availability of federal funds. She acknowledged that expansion will have court learned during Fiscal Year 2000 when to wait until the state has more resources, it had to make substantial layoffs. Drug courts unless federal money becomes available. On the revenue side, the chief told law- Iowa currently has 15 drug courts includ- makers the judicial branch has been able ing family and juvenile courts. The judicial Resources to collect sizable amounts of the unpaid branch would like to expand that number The chief justice told legislators that court fees and fines. Nonetheless, millions to benefit more people and communities. the judicial branch will do its part to help of dollars of fees and fines remain unpaid. Experience shows that these courts work, reduce the state’s operating expenses. The statutory changes the legislature made last year are in the process of being implemented now and should help in the collection efforts. Collections will never reach 100 percent, though, because 22 percent of all unpaid court debts are the result of providing state-paid legal representation to indigent defendants, who by definition have no money to pay. While many of the changes the court would like to do require monetary resources, “we know that in the current environment new resources are out of the question,” Justice Ternus said. She outlined a three-pronged approach — updating, innovating and reallocating — the court can use to implement a number of commonsense proposals, and said the court hopes to work with the legislature to implement those proposals. Streamlining clerks-of-court offices is a key element in bringing the courts into the 21st Century. There are a number of statutes that require clerks of court to perform obsolete and cumbersome tasks. The court proposes to amend those statutes and eliminate others. Based on a recent update of the judicial officer formula, which is the gauge of how many judges are needed to handle Iowa’s caseload, judges spend significantly more time on certain types of cases than they did nine years ago. Sex offender cases are one of the main time robbers. Certainly more judges are needed, the chief said. But in the interim, an update of the statutory scheme for selecting and assigning district associate judges would generate more judge time. Specifically, she called for the statute to be changed so that district associate judges have district-wide jurisdiction, and their selection involve the district nominating commissions. “We know you cannot provide the courts with more judges, but you can pass legislation to give us the management flexibility we need to more effec- tively use our current judicial resources,” she said. Magistrates are another area of judicial manpower that can be used more effi- ciently with some changes, Justice Ternus

30 THE IOWA LAWYER February 2009 told lawmakers. She outlined four of the many recommendations proposed by a special task force that would increase the efficiency of the magistrate system. Among the proposals: • Require that a magistrate must be an attorney licensed in Iowa, but make an exception for current non-lawyer magistrates. • Allow a magistrate position in one county to be filled by a lawyer living in a contiguous county. • Authorize the creation of a full-time magistrate position through the conversion of two part-time positions. • Eliminate the requirement that each county have a resident magistrate or judge, but require that magistrate court be held regularly in every county.

Consolidating clerks’ offices, trial courts and judicial districts have been suggested in the past as measures for cutting expenses. The chief justice said she did not include any such measures in the suggestions she was proposing. “The omission of this topic is not meant to imply that we believe it is not worthy of examination,” she told lawmakers. “Nor do we suggest consolidation is a good idea. We simply don’t want to spend precious time on a concept that you are not prepared to consider, and in the past, you have acted to prevent any movement toward consolidating court operations.” The chief sees increased use of technology as holding “great promise for increasing our efficiency and productivity. By automating labor-intensive, routine manual processes, we can shift tight resources to meet public demand … Leveraging technology is a smart approach for taxpayers,” she said. She updated legislators on the status of the electronic data management system that the court has been working on. It will be tested in two counties this summer and in the appellate courts later. While it will improve access to court records, it may also allow clerks-of-court staff to focus their time on other duties such as data quality assurance, collection of fines, working with the public and assisting pro se litigants, she said. LANE It’ll also eliminate the &WATERMAN LLP need for large amounts ATTORNEYS AT LAW SINCE 1854 of storage space in county courthouses. And, it’ll ensure records are safe from natural disasters and Mediations & Arbitrations prevent what happened in Linn County last summer Labor & Employment Law when flood waters caused Civil Rights the loss of more than a Civil Litigation half million cases. MEDIATOR & ARBITRATOR In conclusion, the chief justice told lawmak- William C. Davidson ers that the court has proposed a number of statutory changes needed to make the improvements Civil Litigation it envisions. With the MEDIATOR & ARBITRATOR legislature’s approval, Thomas D. Waterman she said, the court can: • Support the continued delivery of high quality Civil Litigation justice in Iowa. • Ensure that a funda- MEDIATOR & ARBITRATOR mental function of a John D. Telleen democratic government stays strong. • Build and maintain 220 North Main Street, Suite 600 public confidence Davenport, Iowa 52801 in government for 563-324-3246 years to come. www.l-wlaw.com

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