IN THE SUPREME COURT OF IOWA 

No. 28 / 07-1866 

Filed April 18, 2008 

IOWA SUPREME COURT ATTORNEY 

DISCIPLINARY BOARD, 

 Appellant, 

vs. 

ATTORNEY DOE NO. 639, 

 Appellee. 

 On review of a disposition of the Grievance Commission. 

 An attorney moves to dismiss the Iowa Supreme Court Attorney 

Disciplinary Board’s application for permission to review a disposition of 

the Grievance Commission of the Supreme Court of Iowa. APPEAL 

DISMISSED.

 

 Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for 

appellant. 

David L. Brown and Alex Wonio of Hansen, McClintock & Riley, 

Des Moines, for appellee. 
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WIGGINS, Justice. 

Attorney Doe No. 6391 is an Iowa attorney who had an ethics 

complaint filed against him with the Iowa Supreme Court Attorney 

Disciplinary Board (Board). The Board is responsible for investigating 

ethics complaints made against attorneys licensed to practice law in 

Iowa. Iowa Ct. R. 34.8(1). After completing its investigation, the Board 

has the option to continue the matter, dismiss the ethics complaint, 

privately admonish the attorney, publicly reprimand the attorney, or file 

a formal complaint with the Grievance Commission of the Supreme Court 

of Iowa (Commission). Id. r. 34.11(1)–(5). After completing its 

investigation, the Board decided to file a formal complaint against 

Attorney Doe with the Commission. 

The Commission is a separate entity from the Board. Id. r. 35.1(1). 

Our court has given the Commission the task of conducting a hearing on 

a formal complaint filed by the Board. Id. r. 35.1(2). The Board has the 

obligation to prosecute any complaint it files with the Commission. Id. r. 

34.11(5). After conducting a hearing, the Commission may dismiss a 

formal complaint, privately admonish the attorney, or file a report with 

our court recommending the attorney be reprimanded or the attorney’s 

license be suspended or revoked. Id. r. 35.9. In the matter before us, 

the Commission found Attorney Doe’s conduct violated various 

provisions of the Iowa Code of Professional Conduct and issued Attorney 

Doe a private admonition. 

When the Commission issues a private admonition, the Board can 

ask our court for permission to appeal the Commission’s disposition. Id. 

r. 35.11(2). To do so the Board must file an application seeking 

 1The identity of an attorney who receives a private admonition from the 

Commission is to remain confidential unless the supreme court, on review of the 

disposition of the Commission, decides to impose discipline. Iowa Ct. R. 35.11(3). 
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permission to appeal, and the application must be filed within ten days 

after the Commission files its disposition with the clerk of the supreme 

court. Id. We “may grant such appeal in a manner similar to the 

granting of interlocutory appeals in civil cases under the Iowa Rules of 

Appellate Procedure.” Id. If the Board fails to file an application seeking 

permission to appeal the disposition of the Commission within ten days 

after the Commission files its disposition, the Commission’s 

determination is final. Id. r. 35.9. 

The Board decided to file an application requesting us to review the 

Commission’s decision to issue Attorney Doe a private admonition. 

Attorney Doe filed a resistance to the application and a motion to dismiss 

the Board’s application alleging the Board was one day late in filing its 

application; therefore, this court should not consider the application. 

The Board admitted it filed its application one day late due to its 

inadvertence, but resisted the motion to dismiss relying on our decisions 

in Committee on Professional Ethics & Conduct v. Michelson, 345 N.W.2d 

112 (Iowa 1984), Committee on Professional Ethics & Conduct v. Behnke, 

276 N.W.2d 838 (Iowa 1979), and Taylor v. Department of Transportation, 

260 N.W.2d 521 (Iowa 1977). We granted the Board’s application for 

permission to appeal and ordered the parties to brief and submit the 

motion to dismiss with the appeal on the merits. 

Relying on Michelson, Behnke, and Taylor, the Board contends the 

ten-day time limit to file an application for permission to appeal a 

disposition of the Commission is not a mandatory deadline and will not 

prevent this court from reviewing the Commission’s disposition unless 

Attorney Doe can show the delay was prejudicial. Attorney Doe contends 

the ten-day deadline is mandatory and the principles of law we applied in 

those cases do not apply to a late application filed under rule 35.11(2). 
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We have drawn a distinction between those statutes and rules that 

are mandatory and jurisdictional and those that are merely directory. 

See Taylor, 260 N.W.2d at 522. We have stated: 

Mandatory and directory statutes each impose duties. The 

difference between them lies in the consequence for failure to 

perform the duty . . . . If the prescribed duty is essential to 

the main objective of the statute, the statute ordinarily is 

mandatory and a violation will invalidate subsequent 

proceedings under it. If the duty is not essential to 

accomplishing the principal purpose of the statute but is 

designed to assure order and promptness in the proceeding, 

the statute ordinarily is directory and a violation will not 

invalidate subsequent proceedings unless prejudice is 

shown. 

Id. at 522–23. 

“Whether the statute [or rule] is mandatory or directory depends 

upon legislative intent. When statutes [or rules] do not resolve the issue 

expressly, statutory construction is necessary.” Id. at 522. Therefore, we 

look to the purpose of a rule when determining whether it is mandatory 

or directory. 

In Taylor, the appellant sought a dismissal of a license revocation 

proceeding because the department failed to provide a hearing within the 

statutory period. Id. We held Iowa Code section 321B.8, which 

established the time limit in which a hearing must be set, was directory 

because the statute was passed to keep dangerous drivers off the road, 

and construing the statute as mandatory would undermine the 

legislative objective by providing a technical basis for avoiding license 

revocation. Id. at 523. We also held the violation of this directory statute 

did not prejudice Taylor because he was able to keep his license for a 

longer period of time than he otherwise would have had his hearing been 

held during the statutory time frame. Id. at 524. 
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We applied the same analysis in Michelson where the Commission 

failed to provide an attorney a hearing within thirty days from the date of 

service of the complaint as required by rule 118.7, currently rule 35.7. 

Michelson, 345 N.W.2d at 117. We held the rule was directory because 

the purpose of the time limit contained in the rule is to expedite 

disciplinary proceedings in order to protect both the public and the 

lawyer concerned. Id. Further, we found Michelson was not prejudiced 

by the delay; therefore, the failure of the Commission to comply with the 

deadline did not invalidate the proceedings. Id. 

A similar approach was applied in Behnke, when the Commission 

failed to file its disposition within the time required by rule 118.9, 

currently rule 35.9. Behnke, 276 N.W.2d at 841–42. For the same 

reasons given in Michelson, we held the rule is directory, the delay did 

not prejudice Behnke, and the Commission’s failure to comply with the 

deadline did not invalidate the proceedings. Id. at 842. 

Our opinions in Michelson, Behnke, and Taylor are distinguishable 

from the present case. In all three of these opinions, the matter being 

decided by the tribunal was properly before it. Additionally, the statutes 

and rules discussed in those opinions did not provide consequences for 

the tribunals’ failure to timely carry out their duties. Finally, the 

tribunals, not the parties invoking the jurisdiction of the tribunals, 

caused the delay in the proceedings. 

The Board must file its application for permission to appeal within 

ten days from when the Commission files its disposition. Iowa Ct. R. 

35.11(2). Here, a party, not the tribunal, caused the delay in 

proceedings by failing to meet this deadline. The rule states the 

consequence for failing to file an appeal within the required time is that 

the Commission’s decision becomes final. Id. r. 35.9. This language 
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clearly evidences intent by this court to make the ten-day filing 

requirement mandatory, not directory. See Zick v. Haugh, 165 N.W.2d 

836, 837 (Iowa 1969) (holding rule pertaining to time for taking an 

appeal to supreme court from an order, judgment, or decree of the lower 

court is mandatory and jurisdictional). 

Once the ten-day period for seeking permission to appeal expired, 

the Commission’s private admonition of Attorney Doe became final. 

Accordingly, the Board’s untimely application was insufficient to allow 

this court to review the Commission’s action. Therefore, we grant 

Attorney Doe’s motion to dismiss the Board’s application. 

APPEAL DISMISSED. 

All justices concur except Larson, J., who takes no part.