Lawyer's actions in discipline matter lead to worse penalty
Photo illustration by Sara Wadford/Shutterstock.
Knowing when to fight a charge, or accept it when the evidence isn’t great and you’re offered a decent outcome, is a significant part of practicing law. Mike Mbanza, an Iowa lawyer, may have learned that the hard way.
What started as a suggested public reprimand from the Iowa Supreme Court Attorney Disciplinary Board grew to a 30-day suspension from practice after Mbanza refused to answer discovery questions and threatened to sue lawyers prosecuting the case.
“Although a lawyer has the right to defend himself zealously against ethics charges in a grievance commission proceeding, Mbanza’s conduct in this case, unfortunately, far exceeded that right,” the Iowa Supreme Court wrote in its October 2023 opinion. Ultimately, according to the court, Mbanza’s conduct during the disciplinary hearing “eclipsed the gravity of the underlying charges from which the case arose.”
“We give respectful consideration to the commission’s findings and recommendations but may impose a greater or lesser sanction than what the commission recommends,” the Iowa Supreme Court wrote.
According to the Iowa Judicial Branch’s Office of Professional Regulation, Mbanza is now in good standing.
Mbanza founded and serves as executive director at Path of Hope, a nonprofit focused on helping immigrants and refugees with legal and resettlement matters.
Admitted to the Iowa bar in 2019, Mbanza in 2020 faced disciplinary charges focused mainly on false statements in an immigration application on behalf of a client. He acknowledged the error but said the statements were prepared by a nonlawyer staff member, according to the opinion. The incorrect information included saying a client was married when he was not and failing to disclose his guilty plea to domestic abuse assault charges and deferred judgment.
Mbanza represented the man on the criminal charges and was also his divorce lawyer, according to the opinion. And while Mbanza claimed the immigration application errors were made by a nonlawyer staff member, he signed the certification even though he did not prepare or review the document, the opinion states.
It also states that Mbanza did make an effort to correct the false information in his client’s immigration application.
The disciplinary board charged Mbanza with violating multiple Iowa ethics rules and federal regulations regarding immigration law. Mbanza did not respond to an ABA Journal interview request.
David L. Hudson Jr. Photo courtesy of David L. Hudson Jr.According to the opinion, Mbanza threatened two board lawyers in an email, stating that they “should expect claims of malicious prosecution and intentional infliction of emotional distress naming you personally and professionally as a defendant” if they did not withdraw the ethics charges.
Five days before his hearing, Mbanza filed a motion that he called a counterclaim, contending that the discipline lawyers engaged in malicious prosecution and intentional infliction of emotional distress.
The Iowa Judicial Branch’s “grievance commission’s rules provide no mechanism for an attorney to pursue a counterclaim against the board, its agents, or anyone else, and the motion was promptly denied,” the opinion notes.
Also, Mbanza refused to “provide meaningful answers” to discovery requests, according to the opinion. In response, the board sought sanctions, which were granted.
“Most of the requests for admission dealt simply with the authenticity of documents in the case,” the opinion states.
Mbanza also filed a motion to shorten the deadline to respond to his counterclaim, a motion to disqualify the board’s attorneys and a motion for summary judgment. All were denied. The disciplinary hearing lasted two days, with Mbanza representing himself.
It ended with the Iowa Judicial Branch’s grievance commission recommending Mbanza receive a 30-day suspension and be required to take six additional hours of continuing legal education classes on ethics and civil procedure.
The matter then went to the Iowa Supreme Court. Mbanza argued to the court that it should dismiss the complaint entirely or, in the alternative, issue a private admonition. However, the Iowa Supreme Court ultimately agreed with the grievance commission’s recommendation regarding a 30-day suspension. It did not impose additional continuing legal education requirements.
The Iowa Supreme Court identified some mitigating factors, including that Mbanza had not been practicing law very long, that his spouse had been diagnosed with a serious health condition and that Mbanza had corrected statements on the underlying immigration filing. The court also recognized as a mitigating factor that Mbanza had devoted his legal skills to representing an “underserved community.”
However, the Iowa Supreme Court identified a “considerable” number of aggravating factors. Most concerning to the court was his conduct during the disciplinary proceeding.
“Mbanza refused to substantively answer virtually every request for discovery that the board made to him, leaving the grievance commission little choice but to impose harsh sanctions for his repeated refusals to provide answers,” Justice Matthew McDermott wrote for the court.
Standard 9.22 of the ABA Standards for Imposing Lawyer Discipline identifies aggravating factors in attorney discipline proceedings. Two common ones mentioned involve intentionally failing to comply with the rules or orders of a discipline agency and submitting false evidence or statements.
But what if the attorney genuinely believes that the underlying charges are bogus and attempts to zealously defend herself during the disciplinary proceedings?
“A lawyer can zealously defend against disciplinary charges, but the lawyer crosses the line by failing to follow required procedures or by filing frivolous motions. This occurs more frequently when the lawyer goes pro se,” says Peter Joy, who teaches professional responsibility at Washington University in St. Louis School of Law.
Joy identifies two chief lessons from the Mbanza case and those like it.
“When a lawyer is notified of a disciplinary investigation, one should at least consult with an attorney with experience defending disciplinary charges,” he explains. “If charges are filed, the lawyer should retain an attorney. If the lawyer decides to go pro se, the lawyer must cooperate with the process and proceed in good faith. Failure to do so will most likely result in greater sanctions.”
Leslie Levin, who teaches ethics at the University of Connecticut School of Law, agrees that attorneys should not represent themselves in disciplinary hearings.
“They don’t understand the culture of the process and are too adversarial,” she says, adding that most malpractice insurance policies provide some money for defense in professional discipline proceedings. “Many lawyers don’t know this.”
This story was originally published in the April-May 2024 issue of the ABA Journal under the headline: “An Unreasonable Defense: Lawyer’s actions in discipline matter lead to worse penalty”
David L. Hudson Jr. is an associate professor at Belmont University College of Law. He is the author, co-author or co-editor of more than 40 books. For much of his career, he has focused on the First Amendment and professional responsibility.
