Committee on Professional Ethics & Conduct of the Iowa State Bar Ass'n v. Thompson

328 N.W.2d 520, 1983 Iowa Sup. LEXIS 1380
CourtSupreme Court of Iowa
DecidedJanuary 19, 1983
DocketNo. 68719
StatusPublished
Cited by15 cases

This text of 328 N.W.2d 520 (Committee on Professional Ethics & Conduct of the Iowa State Bar Ass'n v. Thompson) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Committee on Professional Ethics & Conduct of the Iowa State Bar Ass'n v. Thompson, 328 N.W.2d 520, 1983 Iowa Sup. LEXIS 1380 (iowa 1983).

Opinion

CARTER, Justice.

This matter is before us for review of the decision of the Grievance Commission of the court recommending disciplinary action against respondent Don W. Thompson. The Committee on Professional Ethics and Conduct filed a complaint charging respondent with several violations of the Iowa Code of Professional Responsibility for Lawyers. The matter was heard before the fourth division of the Grievance Commission. On our review of the record, we conclude that serious violations which have been established warrant revocation of respondent’s license to practice law.

The commission’s burden of proof is to establish by a convincing preponderance of the evidence that respondent has violated the ethical considerations and disciplinary rules of the code of professional conduct. Committee on Professional Ethics and Conduct v. Brodsky, 318 N.W.2d 180 (Iowa 1982). Our review of the record is de novo. Committee on Professional Ethics and Conduct v. Rabe, 284 N.W.2d 234, 235 (Iowa 1979); Committee on Professional Ethics and Conduct v. Bitter, 279 N.W.2d 521, 522 (Iowa 1979). Pursuant to court rule 118.10, we determine anew the appropriate discipline, if any, to be imposed. The Grievance Commission found that certain charges against respondent had not been established; We consider on this review only the following transactions in which the Grievance Commission found a breach of professional conduct had been established.

I. Failure to File 1979 State Income Tax Return.

The commission showed that respondent did not file his 1979 state income tax return until May 1981, when he was being audited by the Client Security and Attorney Disciplinary Commission. Respondent explained his failure by saying that when he prepared his 1979 federal return, he computed his state return far enough to know that he did not owe any taxes. He testified that he apparently “relaxed,” knowing no tax was due, and then forgot to file the return or ask for an extension.

The commission found that the amount of respondent’s adjusted gross income for 1979 was such that he was re[522]*522quired to file a return, and that he knowingly and willfully failed to file his return. Failure to file income tax returns warrants professional disciplinary action. Committee on Professional Ethics and Conduct v. Roberts, 246 N.W.2d 259, 262 (Iowa 1976). “[0]ne who is familiar with income tax laws and whose gross income exceeds the sum which triggers the filing requirement impliedly misrepresents that income when he willfully elects not to file. There is an element of deceit involved which .. . impels the conclusion respondent has committed an offense involving moral turpitude.” Committee on Professional Ethics and Conduct v. Bromwell, 221 N.W.2d 777, 780 (Iowa 1974). In Bromwell, the court found a violation of Disciplinary Rule 1-102 although there was no tax owing. We find that respondent, by his failure to file a required income tax return, has violated Disciplinary Rule 1-102(A)(1), (4), (5) and (6).

II. Probate Delinquencies.

The Commission found that in twenty different estates in which respondent was attorney for the personal representative, he neglected to diligently represent his clients. We briefly recount several of these transactions to show respondent’s deficiency. In one estate which respondent opened in February, 1967, his last filing was November 30, 1970 — an application for distribution. The estate has never been closed. Another estate was opened June 7, 1969, the last filing was September 29, 1969, and respondent has received twenty-five delinquency notices. The estate remains open. Similarly, nothing has been filed since October 1970 in an estate which respondent opened in June 1970. There have been fourteen delinquency notices in that estate, and that estate remains open. In another estate opened in February 1977, the family has had to go to another attorney. Respondent’s last filing, a release from state income taxes, was filed in July 1978, with nothing further completed by respondent. Respondent offers excuses for some of the delays in these estates, but he also concedes a lack of diligence on his part.

Considering the large number of delinquency notices received, the length of the delinquencies, and the lack of adequate explanation for these delays, the evidence is clear that respondent “neglected” these matters. Neglect of legal matters entrusted to counsel, within the meaning of Disciplinary Rule 6-101(A)(3), has been discussed in Bitter, 279 N.W.2d at 524:

The rule, however, does not proscribe mere delay — it must amount to “neglect.” Application of the rule should require a lawyer to complete legal matters entrusted to him in a reasonably timely manner. If necessary, he should decline additional legal matters if accepting them would result in neglecting pending matters, seek assistance, or disengage himself from these lingering matters and allow another lawyer to complete them. Reasonable adherence to the rule should also involve positive response to the prodding of the district court and its personnel.

Respondent’s explanations of his delay are insufficient to either explain or justify his conduct. His failure either to respond positively by working on the estates, or to transfer the estates to an attorney who would complete the work, clearly falls under the proscription aimed at “neglect” in Canon 6. Ethical Consideration 6-4 provides that a lawyer’s obligation to his client “requires him to prepare adequately for and give appropriate attention to his legal work.” Disciplinary Rule 6-101(A)(3) is violated when there is “indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client.... Neglect usually involves more than a single act or omission.” Committee on Professional Ethics and Conduct v. Rogers, 313 N.W.2d 535, 536 (Iowa 1981), quoting ABA Comm. on Professional Ethics, Informal Opinions, No. 1273 (1973).

We find respondent has violated Ethical Consideration 6-4 and Disciplinary Rule 6-101(A)(3).

[523]*523III. Trust Account.

The commission found that respondent used his client trust account for both client trust funds and personal funds. The auditor for the Client Security and Attorney Disciplinary Commission testified that his audit showed that respondent had transferred $20,000 in personal funds into the client trust account. Respondent’s explanation was that his personal account had been closed by the bank as a result of overdrafts, so he needed an account in which he could deposit his funds.

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328 N.W.2d 520, 1983 Iowa Sup. LEXIS 1380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/committee-on-professional-ethics-conduct-of-the-iowa-state-bar-assn-v-iowa-1983.