Amended April 7, 2015 Iowa Supreme Court Attorney Disciplinary Board v. Cami N. Eslick

• Court: Supreme Court of Iowa
• Decided: January 30, 2015
• Docket: 14–1577
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 14–1577

Filed January 30, 2015

Amended April 7, 2015

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

CAMI N. ESLICK,

Respondent.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

The grievance commission reports an attorney violated several

court rules and rules of professional conduct and recommends

suspension. LICENSE SUSPENDED.

Charles L. Harrington, David J. Grace (until withdrawal), and Elizabeth E. Quinlan, Des Moines, for complainant.

Cami N. Eslick, Indianola, pro se. 2

HECHT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (the Board)

charged attorney Cami Noelle Eslick with violating rules of professional

conduct after a trust account audit revealed numerous deficiencies.

Eslick admitted all allegations in the Board’s complaint. After a hearing,

the grievance commission found Eslick violated several rules and

recommended suspension of her license for thirty days.

I. Background Facts and Proceedings.

Eslick was admitted to the Iowa bar in 2005. She has operated her

solo practice in Warren County since 2008. In 2011, an auditor from the

Client Security Commission instructed Eslick to rectify several

deficiencies in her trust accounting practices. Following up on those

instructions, the Client Security Commission audited Eslick again in

January 2013 after she received several trust account overdraft notices.

The auditor requested numerous documents from Eslick, including trust

account bank statements, receipt and disbursement journals, ledger

records, reconciliations, and a check register. However, Eslick failed to

provide them promptly.

A month passed, and the auditor’s request for access to Eslick’s

records had not been honored. Eslick and the auditor attempted to meet

for a follow-up appointment several times, but weather and illness

interfered and the appointment was never rescheduled. The Client

Security Commission issued a notice of delinquency on March 22, 2013,

and on April 8, Eslick produced some of the requested documents.

When she provided them, Eslick stated, “I will admit my account is a

mess. I kept thinking I could get it straightened out, but I didn’t realize

h[ow] bad of a mess it was.” 3

The auditor examined the documents and found the funds in

Eslick’s trust account were nearly $8000 short. In several instances,

Eslick’s records showed clients were credited for funds received, but no

corresponding deposits were made to the trust account. Exacerbating

the problem, Eslick failed to maintain records mandated by court rules

and neglected her obligation to perform monthly trust account

reconciliations. Further, the auditor determined Eslick had commingled

personal funds—derived from an operating loan from her father—with

client funds in the trust account. Eslick explained that she considered

the clients’ funds she did not deposit in the trust account “as funds

being removed from” that operating loan. However, she completely

depleted the loaned funds and withdrew client funds before earning

them. In April 2013, Eslick deposited funds to bring the trust account

into balance.

On May 6, 2014, the Board filed a complaint with the grievance

commission alleging Eslick violated Iowa Rule of Professional Conduct

32:1.15 and Iowa Court Rules 45.1, 45.2, and 45.7. The complaint

alleged the audit revealed several instances of misconduct on Eslick’s

part: failing to deposit all unearned fees and prepaid expenses into her

trust account, commingling personal funds with those of her clients,

failing to maintain a receipt and disbursement journal and check ledger

for the trust account, failing to perform trust account reconciliations,

withdrawing fees from the account without notifying clients, failing to

maintain copies of accountings to clients, and operating with a deficiency

of nearly $8000 in her trust account. On June 27, Eslick filed an answer

admitting each of the violations alleged in the complaint.

On August 27, the matter came on for hearing before the grievance

commission. Eslick expressed remorse, stating, “There are no excuses 4

for not keeping my books. I knew better.” She explained she had

neglected her trust accounting obligations because she took on more

clients than she could handle and became overwhelmed. She noted

despite her record-keeping and accounting missteps, no clients were

financially harmed; and since the 2013 audit, she has reformed her trust

accounting procedures such that her accounts balance “to the penny”

every month. Further, she now takes medication for attention deficit

disorder and has learned coping skills through therapy. These

measures, she explained, now equip her to manage her very full

workload without becoming overwhelmed. Eslick emphasized her

violations of the applicable rules were committed without intent to

defraud or steal from her clients.

Following the hearing, the commission found Eslick violated Iowa

Rule of Professional Conduct 32:1.15 and Iowa Court Rules 45.1, 45.2,

and 45.7. Specifically, the commission found Eslick violated rule

32:1.15(b) by commingling personal funds with those of her clients; that

she violated rule 45.2(3)(a)(9) by failing to perform trust account

reconciliations; that she violated rules 32:1.15(c), 45.1, and 45.7(3) by

failing to deposit advance fee payments into the trust account; and that

she violated rule 45.7(4) by failing to notify clients when their funds were

withdrawn from her trust account. Taking into account Eslick’s prior

reprimand for rules violations unrelated to trust account management,

the commission recommended a thirty-day suspension.

II. Scope of Review.

We review attorney disciplinary matters de novo. Iowa Ct. R.

35.11(1); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morris, 847

N.W.2d 428, 433 (Iowa 2014). “The Board must prove the attorney’s . . .

misconduct by a convincing preponderance of the evidence.” Iowa 5

Supreme Ct. Att’y Disciplinary Bd. v. Barnhill, 847 N.W.2d 466, 470 (Iowa

2014). This standard “places a burden on the Board that is higher than

the burden in civil cases but lower than the burden in criminal matters.”

Id. The Board’s burden is also lower than “clear and convincing,” the

highest civil standard of proof. Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Kennedy, 837 N.W.2d 659, 667 (Iowa 2013); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. McCuskey, 814 N.W.2d 250, 254 (Iowa 2012). “We

respectfully consider the commission’s recommendations, but they are

not binding upon us.” Morris, 847 N.W.2d at 433.

III. Analysis.

A. Rule Violations. The Board alleged that Eslick violated Iowa

Rule of Professional Conduct 32:1.15 and Iowa Court Rules 45.1, 45.2,

and 45.7. Eslick admitted each paragraph of the Board’s complaint.

“Factual matters admitted by an attorney in an answer are deemed

established, regardless of the evidence in the record.” Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa 2013); accord

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Alexander, 727 N.W.2d 120,

122 (Iowa 2007).

1. Rule 32:1.15. Three portions of rule 32:1.15 are relevant to our

adjudication of this case. First, “[a] lawyer may deposit the lawyer’s own

funds in a client trust account for the sole purpose of paying bank

service charges on that account, but only in an amount necessary for

that purpose.” Iowa R. Prof’l Conduct 32:1.15(b). Second, “[a] lawyer

shall deposit into a client trust account legal fees and expenses that have

been paid in advance, to be withdrawn by the lawyer only as fees are

earned or expenses incurred.” Id. r. 32:1.15(c). Finally, rule 32:1.15

incorporates chapter 45 of the Iowa Court Rules governing trust account

procedures. Id. r. 32:1.15(f). Therefore, a violation of an attorney’s 6

obligations under chapter 45 also constitutes a violation of rule

32:1.15(f).

We find Eslick violated rule 32:1.15(b) because the funds loaned by

her father and deposited in the trust account were personal funds and

were not used for the sole purpose of paying bank service charges. We

further find Eslick violated rule 32:1.15(c) by failing to deposit in her

trust account advance fees received from her clients.

2. Rule 45.1. Rule 45.1 provides that “[f]unds a lawyer receives

from clients . . . for matters arising out of the practice of law in Iowa shall

be deposited” in a client trust account. Iowa Ct. R. 45.1 (emphasis

added). We find that Eslick’s failure to deposit all client funds in a trust

account, as required by rule 32:1.15(c), also constituted a violation of

rule 45.1.

3. Rule 45.2. Rule 45.2(3)(a) requires lawyers to maintain current

financial records. Iowa Ct. R. 45.2(3)(a). In particular, lawyers must

keep receipt and disbursement journals, keep ledger records, and

perform monthly account reconciliations. Id. r. 45.2(3)(a)(1)–(2), (9).

Eslick admitted she did not maintain the journals or ledger records and

did not perform monthly reconciliations. We find Eslick violated rule

45.2(3).

4. Rule 45.7. Two provisions of rule 45.7 are applicable here.

First, “[a] lawyer must deposit advance fee and expense payments from a

client into the trust account and may withdraw such payments only as

the fee is earned or the expense is incurred.” Iowa Ct. R. 45.7(3)

(emphasis added). Second, “[a] lawyer accepting advance fee or expense

payments must notify the client in writing of the time, amount, and

purpose of any withdrawal of the fee or expense, together with a complete

accounting.” Id. r. 45.7(4). 7

We find Eslick violated both of these provisions because she failed

to deposit client funds in the trust account and failed to notify clients

when she made withdrawals from the account containing funds loaned

by her father. Accordingly, we find the Board has proven Eslick violated

rule 45.7(4). Together, the violations of chapter 45 also resulted in a

violation of rule 32:1.15(f).

B. Sanction. When we review attorney disciplinary matters, we

“may impose a lesser or greater sanction than the discipline

recommended by the grievance commission.” Iowa Ct. R. 35.11(1); see

also Morris, 847 N.W.2d at 435. “We give respectful consideration to the

commission’s recommendation. However, the issue of appropriate

sanction is exclusively within this court’s authority.” Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Baldwin, 857 N.W.2d 195, 213 (Iowa 2014).

There is no standard sanction for any individual rule violation; we

evaluate each case individually but still consider prior cases instructive.

Morris, 847 N.W.2d at 435. When determining a sanction, we consider

the type of violation, a deterrent purpose for other lawyers, the need to

protect the public, and the need to maintain our profession’s reputation.

Id. We also consider any aggravating and mitigating circumstances. Id.

at 435–36.

We have considered previous discipline—including reprimands—to

be aggravating factors when determining appropriate disciplinary

sanctions. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wright,

840 N.W.2d 295, 303 (Iowa 2013); Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Taylor, 814 N.W.2d 259, 269 (Iowa 2012); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 869 (Iowa 2010). Eslick was

publicly reprimanded in 2012 for neglecting client matters. Although the

conduct for which she was reprimanded in 2012 did not involve trust 8

account violations, we nonetheless consider Eslick’s previous reprimand

an aggravating factor here.

“Personal illnesses, such as . . . attention deficit disorder, do not

excuse a lawyer’s misconduct but can be mitigating factors.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 703 (Iowa

2008); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bowles, 794

N.W.2d 1, 7 (Iowa 2011); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Fields, 790 N.W.2d 791, 799–800 (Iowa 2010). Eslick testified before the

commission that she is receiving treatment for attention deficit disorder

and that the treatment will assist her in managing her trust account

going forward. We acknowledge her recognition of the need for

treatment, and her pursuit of treatment, as a mitigating factor.

Lastly, Eslick made no attempt to deceive the auditor, the Board,

or the commission, and cooperated fully during the proceedings.

Further, she appeared genuinely remorseful in all communications with

the auditor, Board, and commission. Even though “we . . . expect

cooperation with, and candid responses to, commission auditors,”

remorse and cooperation generally mitigate our sanction. Iowa Supreme

Ct. Bd. of Prof’l Ethics & Conduct v. Herrera, 560 N.W.2d 592, 595 (Iowa

1997); see also, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Qualley,

828 N.W.2d 282, 294 (Iowa 2013); Taylor, 814 N.W.2d at 268; cf. Morris,

847 N.W.2d at 437 (considering the lawyer’s false representation that he

regularly reconciled his trust account to be an aggravating factor). So,

too, does the fact that no clients were harmed. See, e.g., Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Marks, 831 N.W.2d 194, 202 (Iowa 2013);

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kersenbrock, 821 N.W.2d 415,

422 (Iowa 2012); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel,

809 N.W.2d 96, 110 (Iowa 2012). 9

Ultimately, “[w]hen dealing with client trust account violations, our

sanctions have ranged from a public reprimand when the violation was

relatively minor and isolated to license suspension when the violation

involved poor office management and neglect . . . .” Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 588 (Iowa 2011)

(citations omitted). In one particular case, we concluded an attorney who

violated trust account rules deserved only a public reprimand because

his “honesty, his forthright responses, and his move to correct his

operation all weigh[ed] in his favor.” Herrera, 560 N.W.2d at 595. In

Herrera, the attorney entrusted his accounting to a staff member who

was ill equipped to handle it and who may have mismanaged the affairs

because she resented Herrera. Id. Due to those unique circumstances,

we decided a suspension was too harsh. See id. In other cases involving

trust account violations, we have imposed only a public reprimand when

the violations were isolated incidents. See, e.g., Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Denton, 814 N.W.2d 548, 551 (Iowa 2012); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Sobel, 779 N.W.2d 782, 789–90

(Iowa 2010) (finding no violation of several other rules and reprimanding

the lawyer for the one remaining trust account violation); Iowa Supreme

Ct. Bd. of Prof’l Ethics & Conduct v. Apland, 577 N.W.2d 50, 60 (Iowa

1998) (reprimanding the lawyer even though his “lackadaisical

bookkeeping practices served only to compound his problems”).

However, Eslick’s trust account was, in her words, “out of whack”

for months. Her trust account deficiencies were not an isolated incident,

and therefore, her conduct is more in line with cases in which we have

imposed a suspension. See, e.g., Morris, 847 N.W.2d at 436–37

(suspending the lawyer for six months because his “record-keeping and

management deficits were severe and . . . persisted over a long period of 10

time”); Kersenbrock, 821 N.W.2d at 422 (suspending the lawyer for thirty

days because of the “cumulative impact of all violations”); Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431, 442–43 (Iowa 2012)

(suspending the lawyer for thirty days because his “trust account

problems were not isolated,” created “[a] pattern of misconduct,” and

caused “extensive problems with four clients”).

We conclude a suspension of thirty days is appropriate here.

Although Eslick did not intend to defraud her clients, her failure to make

trust account deposits or account for withdrawals, and her wholesale

neglect of the obligation to maintain records, created a pattern of rule

violations, much like the attorney in Boles whose “trust account

problems were not isolated.” Boles, 808 N.W.2d at 442. Further, her

previous public reprimand makes a suspension appropriate in this case.

In Boles, we also considered “the need to motivate attorneys to maintain

proper trust account and billing practices” as a reason to impose a

suspension. Id. at 443. We do so again here.

IV. Conclusion.

We suspend Eslick’s license to practice law with no possibility of

reinstatement for thirty days from the date this opinion is filed. The

suspension applies to “all facets of the ordinary law practice.” Iowa Ct.

R. 35.13(3). Unless the Board files an objection, Eslick will be

automatically reinstated after the thirty-day-suspension period on

condition that all costs have been paid. See id. r. 35.13(2). Eslick must

also notify all clients of the suspension as required by Iowa Court Rule

35.23. Costs are assessed against Eslick pursuant to Iowa Court Rule

35.27(1).

LICENSE SUSPENDED.