Iowa Supreme Court Attorney Disciplinary Board v. Donald N. Laing and D. Scott Railsback

832 N.W.2d 366, 2013 WL 2710906, 2013 Iowa Sup. LEXIS 74
CourtSupreme Court of Iowa
DecidedJune 14, 2013
Docket13–0152
StatusPublished
Cited by17 cases

This text of 832 N.W.2d 366 (Iowa Supreme Court Attorney Disciplinary Board v. Donald N. Laing and D. Scott Railsback) 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.

Bluebook
Iowa Supreme Court Attorney Disciplinary Board v. Donald N. Laing and D. Scott Railsback, 832 N.W.2d 366, 2013 WL 2710906, 2013 Iowa Sup. LEXIS 74 (iowa 2013).

Opinion

HECHT, Justice.

Attorneys Donald N. Laing and D. Scott Railsback provided conservator services to a ward over a period of more than three decades. The attorneys were later sued by the ward who alleged, and the district court found, the attorneys had charged and received excessive fees for their services. The Iowa Supreme Court Attorney Disciplinary Board (Board) charged the attorneys with multiple violations of the ethical rules governing the conduct of Iowa lawyers. A division of the Grievance Commission of the Supreme Court of Iowa found the attorneys violated the rules and recommended their licenses to practice law be suspended for at least three years. We suspend their licenses for a period of eighteen months.

I. Scope of Review.

This court reviews attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 601 (Iowa 2012). The commission’s recommendations receive our respectful consideration, but they do not bind us. Id. If we find a violation of an ethical rule has occurred, our determination of the appropriate sanction “is guided by the nature of the alleged violations, the need for deterrence, protec *368 tion of the public, maintenance of the reputation of the bar as a whole, and [the attorney’s] fitness to continue in the practice of law.” Comm. on Prof'l Ethics & Conduct v. Kaufman, 515 N.W.2d 28, 30 (Iowa 1994). The Board must prove its allegations of misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 366 (Iowa 2005).

II. Factual Findings and Prior Proceedings.

Laing was appointed conservator for John T. Klein on May 21, 1974. Klein, a Vietnam War veteran, had a history of paranoid schizophrenia, depression, and substance abuse. He needed the assistance of a conservator, having recently inherited 160 acres of farmland and other property from his mother’s estate. Klein inherited from an aunt an undivided one-half interest in additional farm real estate in the early 1980s. 1 In 1993, he inherited from another aunt a certificate of deposit and other personal property valued at $56,947.58, and he became the life beneficiary of a trust corpus valued at $321,282. 2 Klein also owns a single lot in the state of Texas and a parcel of two acres the respondents acquired for him in an Iowa tax sale.

The respondents performed legal services in connection with a series of farm leases between the conservatorship and members of a farm family who had also long been the respondents’ clients.

During the thirty-four years following his appointment in 1974, Laing served as Klein’s conservator. Laing prepared annual reports of the conservatorship’s status — with some assistance from Railsback, who joined Laing as a partner in the practice of law in 1975 — and submitted them to the court for each of these years. The reports detailed the conservatorship’s receipts and disbursements for the reporting period and summarized the status of the ward’s assets, including an investment account managed by an investment firm. Each year Laing sought, and a district court judge entered, an order approving fees for the services provided by the respondents to the ward.

Among the services for which Laing and Railsback requested compensation were legal, accounting, and property management services, and, as we will detail below, other services typically performed by guardians rather than conservators.

At the time of Laing’s appointment as conservator, Klein was undergoing outpatient mental health treatment in Boulder, Colorado. His illness presented significant challenges for his caretakers and the respondents. During Laing’s years of service as conservator, residential care facilities in California, Colorado, and Connecticut provided Klein’s care for varying periods of time. When Klein’s behavior— including occasional acts of violence directed at care providers and others — was incompatible with the policies of residential treatment facilities housing him, when his health insurer refused to pay for care and treatment, and when he became dissatisfied with his accommodations and walked away, the respondents were involved in locating Klein and relocating him from one institutional setting to another or arranging independent residential quarters for him. 3

*369 During periods when Klein was living “independently” in Connecticut and Iowa, he encountered significant challenges, including allegations of criminal law violations, substantial difficulties managing his relationships with others, problems controlling the behavior of other persons present in his living environment, and persistent struggles with routine money management for his daily necessities. 4 These challenges, difficulties, problems, and struggles encountered by Klein — sometimes when he was situated at great distance from the respondents’ law office in Keota — -also presented challenges for the respondents as they provided assistance.

In the seventh year of the conservator-ship, the respondents submitted a claim for two hundred twenty-seven hours of services. The claim did not separate the hours spent performing legal services from the hours spent performing duties ordinarily performed by a conservator or guardian. In that reporting year, the respondents paid themselves for services from Klein’s assets and reimbursed themselves for travel expenses they had advanced before such payments were approved by the court. The annual report disclosed these payments.

Klein had no legal guardian, and no relative stepped forward to undertake the responsibility. Klein’s need for a guardian was clearly apparent by May 1983. In that month Laing filed the ninth annual conservatorship report and an application for compensation. These documents presented the respondents’ claim that together they had spent more than three hundred hours serving Klein during the previous year, including one hundred twenty hours traveling to and from Connecticut to visit him at a treatment facility. Although the court initially entered an order approving the ninth annual report and the respondents’ fees in the amount of $12,000 without notice to the ward or a guardian ad litem representing the ward, the court later reconsidered its decision and withdrew the order. The court appointed an interim conservator for Klein and scheduled a hearing with notice to the respondents, the interim conservator, and Klein’s aunt. After considering the evidence presented at a hearing, the court again approved the annual report, but found the respondents had failed to show their trip to Connecticut was necessary. Accordingly, the court reduced the respondents’ compensation for conservators’ and attorneys’ fees to $8500.

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Bluebook (online)
832 N.W.2d 366, 2013 WL 2710906, 2013 Iowa Sup. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iowa-supreme-court-attorney-disciplinary-board-v-donald-n-laing-and-d-iowa-2013.