In the Iowa Supreme Court
No. 24–0538
Submitted September 11, 2024—Filed October 4, 2024
Iowa Supreme Court Attorney Disciplinary Board,
Complainant,
vs.
Joel E. Fenton,
Respondent.
On review of the report of the Iowa Supreme Court Grievance Commission.
The grievance commission recommends ninety-day suspension for ethical
violations. License Suspended.
Waterman, J., delivered the opinion of the court, in which all justices
joined.
Tara van Brederode, Allison A. Schmidt, and Robert A. Howard III,
Des Moines, for complainant.
Joel E. Fenton, Des Moines, pro se. 2
Waterman, Justice. The Iowa Supreme Court Disciplinary Board in August 2023 charged
attorney Joel E. Fenton with violating rules of professional conduct while he was
under a deferral agreement entered after he served a sixty-day disciplinary
suspension in 2020 for similar violations. Fenton is a sole practitioner who has
struggled with depression and anxiety for many years. His recurring misconduct
includes missing court hearings, neglect, and failure to communicate with
clients. A panel of the Iowa Supreme Court Grievance Commission found Fenton
violated multiple rules and recommended a ninety-day suspension.
On our de novo review, we agree Fenton violated our ethical rules. We
suspend his law license indefinitely with no possibility for reinstatement for
ninety days. As recommended by the Board, we require that Fenton provide an
evaluation by a licensed healthcare practitioner verifying his fitness to practice
law as a condition for his reinstatement.
I. Background Facts and Proceedings.
We find the following facts as stipulated or otherwise established by the
record. Fenton received his Iowa law license in 1996. In 2002, due to his “chronic
difficulties with anxiety and depression,” our court placed Fenton on a disability
suspension. Ten years later, Fenton’s law license was reinstated. He opened a
solo practice in Des Moines and began accepting court-appointed cases through
the State Public Defender’s Office. Fenton works without any support staff,
meaning he is responsible for administrative tasks, including ensuring deadlines
and hearings are properly placed on his calendar. By his own admission, Fenton
has not developed an effective calendaring system and has turned down
suggestions that he hire support staff to assist him. 3
In 2017, Fenton received a private admonishment based on his failure to
communicate with his client over several months, his failure to attend a court
hearing, and his failure to ensure his client appeared at that same hearing.
A. Fenton’s Sixty-Day Consent Suspension. Fenton admittedly failed to
adequately represent eight clients from 2018 through 2020. Specifically, Fenton
failed to communicate with these clients and missed multiple court hearings. He
repeatedly missed filing deadlines, and his failure to resist motions for summary
judgment in two cases resulted in dismissal of his clients’ claims. The federal
district court ordered monetary sanctions against Fenton in three cases for
failing to comply with deadlines. Fenton did not timely pay the sanctions and
paid belatedly only after the district court scheduled a show-cause contempt
hearing.
Fenton also failed to timely file appellate documents for other clients,
resulting in thirty default penalties being assessed against him. Fenton
consented to a sixty-day disciplinary suspension of his license in 2020. His
license was reinstated in August of that year.
B. Deferral Agreement. Fenton’s problems persisted the following year.
On June 8, 2021, Fenton agreed to represent Shanell Peavy in a federal workers’
compensation case. Peavy attempted to contact Fenton multiple times that
summer, and eventually they exchanged signed documents in August. Fenton
did not contact Peavy again despite her persistent efforts to reach him. Fenton
took no action on her case. The following February, Fenton withdrew from
representing Peavy after she filed an ethics complaint against him.
In December, Fenton agreed to represent Paul Sanborn in a workers’
compensation case. Fenton took no action on the case and failed to communicate
with Sanborn for over four months despite Sanborn’s email asking if he still 4
represented him. Fenton withdrew his representation in May when Sanborn filed
an ethics complaint against him.
On September 13, 2022, based on the complaints of Peavy and Sanborn,
the Board and Fenton entered into a one-year deferral agreement pursuant to
Iowa Court Rule 35.14. Under this rule, the Board “may defer further
proceedings [against an attorney] pending the attorney’s compliance with
conditions the board imposes for supervision of the attorney for a specified period
of time not to exceed one year unless the board extends the time prior to the
conclusion of the specified period.” Iowa Ct. R. 35.14(1). The attorney must
execute an affidavit admitting the conduct that the Board is investigating,
agreeing on the conditions the Board will impose, and acknowledging that the
Board may file a formal complaint against the attorney and use the attorney’s
admissions in the affidavit as evidence if the attorney fails to comply with the
conditions. Id. r. 35.14(3).
Upon the attorney’s successful compliance with the conditions the disciplinary board imposed, the board must dismiss or close the investigations pending before it at the time it determined to defer further proceedings. The attorney will not be considered to have been disciplined, but the attorney’s admission of misconduct may be considered in imposing sanctions in a subsequent disciplinary matter not arising out of the same conduct.
Id. r. 35.14(5).
As part of the deferral agreement, Fenton acknowledged that he violated
Iowa Rules of Professional Conduct 32:1.3 and 32:1.4 by failing to communicate
with his clients and neglecting their cases. Fenton agreed to:
• Comply with all provisions of the Iowa Rules of Professional Conduct
and the Iowa Court Rules.
• Cooperate with any investigation or inquiry by the Board. 5
• Complete the “Attorney Self-Assessment” within the first three months
of the deferral period.
• Comply with all deadlines and scheduled appearances.
• Continue to monitor mental health, implement self-care practices, and
comply with any mental health treatment recommendations from his
primary care provider.
• Meet with his appointed supervisor monthly and certify to the Board
that he has done so.
• Certify written reports to the Board documenting his compliance with
each condition.
If he failed to meet any of the conditions, Fenton acknowledged that the Board
may file a formal complaint against him.
C. Violations of Deferral Agreement. During the term of the deferral
agreement, Fenton violated its conditions in five different matters. The Board
revoked the deferral agreement and filed its complaint.
1. Nicholl-Embree representation. On April 12, 2022, Stephen Robert
Nicholl-Embree filed a pro se complaint in federal court alleging claims under
42 U.S.C. section 1983. Several months later, the court appointed Fenton to
represent him. A scheduling order entered that October set the dispositive
motion deadline for February 28, 2023. Fenton failed to conduct any discovery
or communicate with Nicholl-Embree. On March 24, 2023, Nicholl-Embree wrote
to the court asking for new counsel, stating that Fenton had never
communicated with him. The defendants moved for summary judgment on
March 28. Fenton obtained several extensions without preparing a resistance,
conducting any discovery, or communicating with his client. Fenton moved to
withdraw on April 27 and to extend deadlines. On May 31, the district court
granted Fenton’s motion to withdraw and faulted Fenton for not stating “why he 6
failed to conduct discovery on Plaintiff’s behalf or that he had any physical or
mental impairment that prevented him from doing so prior to the dispositive
motion deadline.”
2. George representation. On September 9, 2022, Joshua George filed a
pro se complaint in federal court alleging claims under 42 U.S.C. section 1983.
The court appointed Fenton to represent George. Fenton was to file an amended
complaint by November 4 but failed to do so. The district court, on its own,
extended the deadline to December 23. That deadline was extended another four
times, either sua sponte or at Fenton’s request, with the final deadline on April 7,
2023. On April 27, Fenton missed a status conference, moved for another
extension (which the court denied), and moved to withdraw, which the court
granted.
3. Andre representation. On September 19, 2022, Alan Andre filed a pro se
complaint in federal court alleging claims under 42 U.S.C. section 1983. Fenton
was appointed to represent Andre on September 25. The court set November 21
as the deadline for filing an amended complaint. Fenton missed that deadline,
as well as another three extended deadlines. Fenton moved to withdraw and
missed an April status conference, and the court declined to reschedule. The
court granted his withdrawal, citing Fenton’s failure “to meet deadlines and
appear at a status conference” in both Andre’s and George’s cases.
4. Sarceno Aguire representation. On March 1, 2023, Fenton was
appointed to represent Manuel Antonio Sarceno Aguire in a Polk County criminal
case. Fenton failed to appear at the pretrial conference, which had already been
continued once at his request. The court removed Fenton from the case.
5. Haynes representation. On March 20, 2023, Fenton entered his
appearance as court-appointed counsel for Devon Haynes in a criminal case. The
court granted Fenton’s request to continue a plea hearing to May 9. Fenton failed 7
to appear at the hearing, which the court reset for May 16. He failed to appear
again. The court removed Fenton from the case, noting his absence from two
hearings and his failure to communicate with his client.
D. Disciplinary Proceeding. After revoking the deferral agreement, the
Board charged Fenton with multiple rule violations in a two-count complaint.
The parties submitted a partial stipulation but disagreed over mitigating and
aggravating circumstances, one rule violation, and the appropriate sanction. The
commission held a hearing on December 18. When asked whether any physical
or mental impairment prevented him from properly representing his clients,
Fenton testified,
Well, that’s difficult to say because the frustrating thing about my experience is and my situation is how well I do in cases 95, 96, 97 percent of the time. It’s the cases that I don’t that are the problems. And I can say in that period of time I would have been feeling pretty good. I would be getting things done.
At the same time, these federal cases that I accepted on top of my regular caseload, the problems I’ve had traditionally is a procrastination-type problem. And when you’re in the middle of everything and trying to get all this stuff done, it’s very easy to rationalize things to yourself and say, “I’ll get this done later. I’ll get this done this weekend. I’ll do this. I’ll do that.”
And it’s just something that didn’t get done, and it’s not because I don’t feel like these clients deserved quality, adequate representation even though they’re pro bono cases or they’re incarcerated people or whatever. I wouldn’t have taken these cases if I didn’t think I was going to be able to make a difference and do the right thing.
And that’s the difficulty I have is understanding why I accept these matters and then with all good intentions in trying to do what needs to be done and then it just doesn’t get done because I’m so busy, and I’m dealing with the mental health issues and things that I do have.
I do well sometimes. I have good and bad days. Therapy has helped, medication has helped, but I still have difficulties and I’m still working on those. So the only thing I can say to this is it’s 8
another example of where with the best of intentions I did not follow through.
The parties filed post-hearing briefs. The Board argued for a ninety-day
suspension; Fenton argued for a public reprimand.
The commission issued its findings of fact, conclusions of law, and
recommendations on April 1, 2024. The commission found that Fenton violated
multiple rules. The commission found several mitigating factors: Fenton’s history
of taking pro bono cases and serving marginalized communities, his service to
the bar association, his court appointments, his mental health difficulties, his
mother passing away in September 2023, and his acceptance of responsibility
for his actions.
The commission also found several aggravating factors: Fenton’s
seventeen years of practice, his admission that “it was easy” to neglect his
marginalized clients because of their status, his prior discipline for similar
misconduct, the multiple rule violations with multiple clients, and his violation
of his deferral agreement. The commission recommended a ninety-day
suspension.
II. Standard of Review.
“We review attorney disciplinary proceedings de novo.” Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Capotosto, 927 N.W.2d 585, 587 (Iowa 2019). While we are
not bound by the commission’s factual findings and recommendations, we give
them respectful consideration. Id. “The Board must prove attorney misconduct
by a convincing preponderance of the evidence, a burden greater than a
preponderance of the evidence but less than proof beyond a reasonable doubt.”
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130, 144 (Iowa 2018)
(quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Morse, 887 N.W.2d 131, 138 (Iowa
2016)). “Stipulations of fact are binding on the parties, but we are not bound by 9
stipulations of violations or sanctions.” Id. “Instead, we review the stipulation
and record to determine whether a violation occurred and what sanction is
appropriate.” Id. If we find the Board proved misconduct, we may choose a
sanction that is greater or lesser than what the commission recommended. Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Stoller, 879 N.W.2d 199, 207 (Iowa 2016).
III. Ethical Violations.
On our de novo review, we agree with the Board and commission that
Fenton violated multiple rules.
A. Count I—Peavy and Sanborn. The Board argues, and the commission
found, that Fenton’s actions violated Iowa Rules of Professional Conduct 32:1.3
and 32:1.4(a)(4) as to Peavy and Sanborn. We agree. The Board further argues
that Fenton’s actions violated rule 32:8.4(d) as to those clients, but the
commission found that they did not. We agree with the commission.
1. Neglect. Iowa Rule of Professional Conduct 32:1.3 states, “A lawyer shall
act with reasonable diligence and promptness in representing a client.” “We have
previously recognized that an attorney violates this rule when he or she neglects
a client’s case.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Weiland, 885 N.W.2d 198,
208 (Iowa 2016). Neglect is “a consistent failure to perform those obligations that
a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer
owes to a client.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860,
867 (Iowa 2010) (quoting Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Moorman,
683 N.W.2d 549, 551 (Iowa 2004)). An attorney violates this rule by “consistently
failing to perform functions required of an attorney.” Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Conroy, 845 N.W.2d 59, 64 (Iowa 2014).
Fenton failed to act diligently in his representation of Peavy and Sanborn.
He went months without communicating with either client. He filed nothing for
either client. He withdrew from representing both clients after each filed an 10
ethics complaint against him. We determine that Fenton violated rule 32:1.3.
See Conroy, 845 N.W.2d at 65–66 (holding that an attorney violated rule 32:1.3
when he only spoke with a client once during the year he represented him and
filed nothing on his behalf).
2. Communication. Rule 32:1.4(a)(4) states that a lawyer shall “promptly
comply with reasonable requests for information” from a client. Iowa R. of Prof’l
Conduct 32:1.4(a)(4). “Reasonable communication between the lawyer and the
client is necessary for the client effectively to participate in the representation.”
Id. r. 32:1.4 cmt. 1. “When a client makes a reasonable request for information,
[the rule] requires prompt compliance with the request, or if a prompt response
is not feasible, that the lawyer . . . acknowledge receipt of the request and advise
the client when a response may be expected.” Id. r. 32:1.4 cmt. 4.
In a case with a one-year deadline to file an appeal, Fenton went over six
months without responding to Peavy’s repeated attempts to contact him. He went
over three months without communicating with Sanborn, even after Sanborn
asked if Fenton still represented him. We agree with the Board and commission
that Fenton violated rule 32:1.4(a)(4). See id. r. 32:1.4(a)(4); Conroy, 845 N.W.2d
at 65 (holding that the attorney violated the rule because he only communicated
with his client once and did not respond to any requests for information or
updates on the case).
3. Conduct prejudicial to the administration of justice. Rule 32:8.4(d)
prohibits “conduct that is prejudicial to the administration of justice.” Iowa R. of
Prof’l Conduct at 32:8.4(d). The rule is violated by acts that have “hampered the
efficient and proper operation of the courts or of ancillary systems upon which
the courts rely.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Wright, 758 N.W.2d 227,
230 (Iowa 2008) (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Borth, 728 N.W.2d
205, 211 (Iowa 2007)). We have concluded that an attorney violates this rule 11
when they miss deadlines. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Dolezal,
796 N.W.2d 910, 914 (Iowa 2011) (concluding that the attorney violated the rule
by failing to comply with appellate deadlines, resulting in administrative
dismissals of two client appeals). And, “[w]e have consistently held an attorney
violates rule 32:8.4(d) when the ‘misconduct results in additional court
proceedings or causes court proceedings to be delayed or dismissed.’ ” Iowa Sup.
Ct. Att’y Disciplinary Bd. v. Johnson, 988 N.W.2d 399, 413 (Iowa 2023) (quoting
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Noel, 933 N.W.2d 190, 204 (Iowa 2019)).
Fenton was dilatory in representing Peavy and Sanborn but missed no
deadlines and caused no dismissals or additional court proceedings in their
workers’ compensation cases. The commission found that Fenton did not violate
rule 32:8.4(d) as to those clients. We agree with the commission.
The Board argues that Fenton’s violation of his deferral agreement itself
constitutes a violation of rule 32:8.4(d) as to Peavy and Sanborn. See Capotosto,
927 N.W.2d at 589. We disagree with the Board as to that specific ground.
Fenton’s mishandling of his representation of Peavy and Sanborn led to the
deferral agreement, but he had withdrawn from representing each of them before
entering the agreement. Fenton’s breach of the deferral agreement involved other
clients, which we address below.
B. Count II—Misconduct During the Deferral Agreement. The Board
argues, and the commission found, that Fenton’s actions while the deferral
agreement was in place violate rules 32:1.3, 32:1.4(a)(2), 32:1.4(a)(3), 32:3.2, and
32:8.4(d). We agree.
1. Neglect. As noted, rule 32:1.3 states that “[a] lawyer shall act with
reasonable diligence and promptness in representing a client.” Iowa R. of Prof’l
Conduct 32:1.3. “A lawyer’s work load must be controlled so that each matter
can be handled competently.” Id. r. 32:1.3 cmt. 2. “When an attorney fails to 12
appear at scheduled court proceedings, does not make the proper filings, or is
slow to act on matters, he or she violates rule 32:1.3.” Turner, 918 N.W.2d at
145 (quoting Weiland, 885 N.W.2d at 208). In Iowa Supreme Court Attorney
Disciplinary Board v. Turner, we held that the attorney violated rule 32:1.3 when
he repeatedly failed to attend hearings, failed to tell his clients about the
hearings, and missed deadlines on motions and briefs. Id.
Fenton missed two plea hearings in his Haynes representation and a
pretrial conference in his Sarceno Aguire representation. These failures violate
rule 32:1.3. See Weiland, 885 N.W.2d at 208 (concluding that “an attorney
violate[s] rule 32:1.3 when he fail[s] to appear for a client’s pretrial conference”).
During the six-month period he represented George, Fenton failed to file
an amended complaint on behalf of his client—even though the district court
extended the deadline five times—and failed to attend a status conference.
During the seven-month period he represented Andre, Fenton again failed to file
an amended complaint on behalf of his client—even though the district court
extended the deadline four times—and failed to attend Andre’s status conference.
This conduct also violates rule 32:1.3. See id.
Fenton also failed to perform any discovery on behalf of Nicholl-Embree
during the eight-month period he represented him. This, too, violates
rule 32:1.3. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519,
524 (Iowa 2017) (concluding that an attorney violates this rule when they do
“little or nothing to advance the interests of a client after agreeing to represent
the client” (quoting Moorman, 683 N.W.2d at 552)).
2. Communication. Rule 32:1.4(a)(2) states, “A lawyer shall . . . reasonably
consult with the client about the means by which the client’s objectives are to be
accomplished.” Iowa R. of Prof’l Conduct 32:1.4(a)(2). And rule 32:1.4(a)(3)
requires the lawyer to “keep the client reasonably informed about the status of 13
the matter.” Id. r. 32:1.4(a)(3). The lawyer must inform the client about any
“significant developments affecting the timing or the substance of the
representation.” Id. r. 32:1.4 cmt. 3.
Fenton failed to communicate with Nicholl-Embree from August 15 until
his withdrawal on May 31, even though Nicholl-Embree repeatedly attempted to
contact him. Thus, Fenton did not do what rule 32:1.4(a)(2) requires: consult
with the client. Fenton also violated rule 32:1.4(a)(3) by failing to inform
Nicholl-Embree about the defendants’ motion for summary judgment. See
Conroy, 845 N.W.2d at 65 (concluding that the attorney violated rule 32:1.4 by
failing to communicate with six clients about the status of their appeals and only
spoke to another client once in a year).
3. Expedite litigation. Rule 32:3.2 states, “A lawyer shall make reasonable
efforts to expedite litigation consistent with the interests of the client.” Iowa R.
of Prof’l Conduct 32:3.2. “An attorney violates this rule when he or she fails to
timely ‘file documents, pursue appeals, and meet deadlines.’ ” Weiland,
885 N.W.2d at 211 (quoting Conroy, 845 N.W.2d at 65). An attorney also violates
this rule when he or she fails “to appear at hearings and participate in discovery.”
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Cunningham, 812 N.W.2d 541, 548 (Iowa
2012).
Fenton did not conduct any discovery in the Nicholl-Embree matter. See
id. Fenton did not appear at hearings or conferences in the George, Andre,
Sarceno Aguire, and Haynes matters. See id. Fenton missed deadlines to file
amended complaints in the Andre and George matters. See Weiland, 885 N.W.2d
at 211. Fenton violated rule 32:3.2 many times over.
4. Conduct prejudicial to the administration of justice. As noted,
rule 32:8.4(d) states, “It is professional misconduct for a lawyer to . . . engage in
conduct that is prejudicial to the administration of justice . . . .” Iowa R. of Prof’l 14
Conduct 32:8.4(d). An attorney violates this rule by actions or inactions that
“hamper[] the efficient and proper operation of the courts or of ancillary systems
upon which the courts rely.” Wright, 758 N.W.2d at 230 (quoting Borth,
728 N.W.2d at 211).
Fenton missed numerous deadlines in the George and Andre matters. See
Dolezal, 796 N.W.2d at 914 (Iowa 2011) (concluding that the attorney violated
the rule by failing to comply with appellate deadlines, resulting in administrative
dismissals of two client appeals). Fenton procrastinated in filing amended
complaints on behalf of Andre and George, requiring the district court to
continually grant extensions, which ultimately resulted in Fenton’s withdrawal.
See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 103 (Iowa
2012) (concluding that the attorney violated rule 32:8.4(d) because the attorney’s
multi-year procrastination caused the district court to expend valuable judicial
resources to issue orders, extend deadlines, and clean up the ongoing probate
proceedings). Fenton did not conduct any discovery on behalf of Nicholl-Embree
and never filed a resistance to the defendant’s motion for summary judgment,
requesting only extensions. See Johnson, 988 N.W.2d at 413–14; see also Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 591, 605 (Iowa 2011)
(concluding that the attorney’s failure to do any work in a client matter
“hampered the efficient operation of the courts” and “was not the type of conduct
within the well-understood norms and conventions of the practice of law”). When
Fenton failed to show up at the pretrial conference for Sarceno Aguire, the
district court had to remove Fenton from representing him. See Johnson,
988 N.W.2d at 413–14. Fenton’s repeated misconduct in these cases caused
delays and additional court proceedings, thereby violating rule 32:8.4(d). See id.
at 413 (misconduct causing delays and additional court proceedings violates
rule 32:8.4(d)). 15
We agree with the Board that Fenton’s violations of the deferral agreement
also violate rule 32:8.4(d) because “[t]he formation of the [Deferral] Agreement,
as well as the Board and commission’s intervention, also constitute the use of
judicial resources.” See Capotosto, 927 N.W.2d at 589.
IV. Sanction.
When determining an appropriate sanction, we give the commission’s
recommendation respectful consideration but are not bound by it. Turner,
918 N.W.2d at 144. We weigh several factors to determine an appropriate
sanction. Id. at 152. The factors include:
[T]he nature of the violations, the attorney’s fitness to continue in the practice of law, the protection of society from those unfit to practice law, the need to uphold public confidence in the justice system, deterrence, maintenance of the reputation of the bar as a whole, and any aggravating or mitigating circumstances.
Id. (quoting Morse, 887 N.W.2d at 143). “We strive for consistency with our
precedents.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Daniels, 984 N.W.2d 757, 765
(Iowa 2023).
The Board and commission recommended a ninety-day suspension.
Fenton recommended a public reprimand but acknowledged in his brief before
the commission that his misconduct “will almost certainly result in a
suspension.” Based on the following factors and our court’s precedents, we
conclude that a ninety-day suspension is warranted.
A. Aggravating Factors. Fenton has practiced for seventeen years. This is
an aggravating factor. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Parrish, 925 N.W.2d
163, 181 (Iowa 2019) (concluding that the attorney’s seventeen years of practice
is an aggravating factor). Of course, a lawyer at “any level of experience would
understand that” missing court hearings is “deplorable” regardless of whoever
the client is. Turner, 918 N.W.2d at 155 (concluding that the attorney’s 16
inexperience was not a mitigating factor because any lawyer should know not to
miss court hearings).
Fenton has been disciplined previously for essentially the same
misconduct. “Prior discipline is ‘an aggravating factor because an attorney did
not learn from his or her prior misconduct.’ ” Daniels, 984 N.W.2d at 766
(quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Marzen, 949 N.W.2d 229, 244
(Iowa 2020)). This factor is even stronger when the prior discipline was based on
the same or similar conduct. Id. Fenton received a private admonition in 2017
for failing to communicate with clients and missing a hearing. Fenton consented
to a sixty-day suspension in 2020 and entered into a deferral agreement in 2022
for failing to communicate with clients and missing hearings and court
deadlines. Fenton then violated the deferral agreement by continuing to fail to
communicate with clients and miss hearings and court deadlines. “These current
violations demonstrate that [Fenton] has not learned from his previous
disciplinary history.” Weiland, 885 N.W.2d at 215. Instead, “it seems, neglect has
become an unfortunate but recurrent theme.” Conroy, 845 N.W.2d at 67.
Fenton’s multiple rule violations are an aggravating factor. Turner,
918 N.W.2d at 154 (“[M]ultiple violations of disciplinary rules generally support
enhanced sanctions.” (alteration in original) (quoting Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 339 (Iowa 2015))). Fenton’s “clear
pattern of misconduct across several clients” is also an aggravating factor. Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Fisher, 965 N.W.2d 470, 474 (Iowa 2021).
Lastly, Fenton violated his deferral agreement with the Board. In Iowa
Supreme Court Attorney Disciplinary Board v. Capotosto, we held that the
attorney’s failure to comply with the deferral agreement was an aggravating
factor. 927 N.W.2d at 590. The attorney’s “inaction, at the very least,
demonstrate[d] a disregard for the Board’s authority.” Id. More importantly, 17
Fenton’s misconduct escalated—rather than diminished—after entering into the
deferral agreement. This is a significant aggravating factor.
B. Mitigating Factors. Fenton reported that he has been under
psychiatric care. He states that he voluntarily ceased practicing law in
mid-January 2024 and had withdrawn from over 150 cases, with the intention
of withdrawing from all his cases by early February. He states that he does not
intend to return to practicing law in 2024 or seek reinstatement without
substantial progress in his ability to practice. At the commission hearing, Fenton
testified that he was one of the few attorneys in the Southern District of Iowa
willing to take prisoner rights cases. He also stated that he has been cooperative
with the Board throughout this process. Fenton claimed that the actual harm
from his misconduct caused to his clients was minimal.
Fenton’s representation of clients in underserved and marginalized
communities is a mitigating factor. See Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Heggen, 981 N.W.2d 701, 713 (Iowa 2022) (concluding that the attorney
providing legal services to an “underserved and vulnerable population” was a
mitigating factor). Fenton’s pro bono and reduced-fee casework is also a
mitigating factor. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Leitner, 998 N.W.2d
627, 647 (Iowa 2023) (concluding that the attorney’s history of pro bono and
reduced-fee work was a mitigating factor).
The parties stipulated that Fenton’s depression contributed to the
violations. “Personal illnesses, such as depression, do not excuse a lawyer’s
misconduct but can be mitigating factors and influence our approach to
discipline.” West, 901 N.W.2d at 527 (quoting Iowa Sup. Ct. Att’y Disciplinary
Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009)). The illness must be related to
the misconduct for it to be considered mitigating. Fisher, 965 N.W.2d at 474.
“We also consider [the attorney’s] attempts to address his depression through 18
therapy and medication.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Frerichs,
718 N.W.2d 763, 768 (Iowa 2006); see also Iowa Sup. Ct. Att’y Disciplinary Bd.
v. Clarity, 838 N.W.2d 648, 661 (Iowa 2013) (“To be considered in mitigation, the
alcoholism must have contributed to the ethical misconduct, and the lawyer
must undertake rehabilitative efforts to control his addiction.”). We find that
Fenton’s depression contributed to his misconduct, and his seeking treatment is
a mitigating factor.
Fenton’s cooperation with the Board is a mitigating factor. Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Sobel, 997 N.W.2d 421, 434 (Iowa 2023). But we expect
and require cooperation with the Board, so cooperation “is not a significant
mitigating circumstance.” Id. (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Dunahoo, 730 N.W.2d 202, 207 (Iowa 2007)).
Accepting responsibility and acknowledging wrongdoing is a mitigating
factor, and Fenton has done so here. See Turner, 918 N.W.2d at 156. He
stipulated to the facts, and he expressed remorse in the commission hearing.
Fenton’s stress from his mother passing away is a mitigating factor but
only “to the extent it adversely influenced his behavior or actions during the
disciplinary case.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Mbanza, 996 N.W.2d
711, 721 (Iowa 2023). His mother died after the Board had filed its complaint
against him. His bereavement mitigates his tardiness during these disciplinary
proceedings but does not excuse his underlying ethical violations.
Fenton’s voluntary cessation from the practice of law is a consideration
“when evaluating whether our sanction will serve its purposes of deterring future
misconduct and protecting the public.” Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Kingery, 871 N.W.2d 109, 124–25 (Iowa 2015). But the period that Fenton ceased
practicing law is not credited against any suspension imposed. Id. 19
Fenton argues there was no significant client harm. Certainly, the clients
suffered delays in their cases. See Iowa Sup. Ct. Att’y Disciplinary Bd. v.
McGinness, 844 N.W.2d 456, 467 (Iowa 2014) (holding that lack of client harm
is a mitigating factor, “although the need to find successor counsel was certainly
an inconvenience”).
We agree with the Board that Fenton’s status as a solo practitioner, and
the resulting financial hardship of a suspension, is not a significant mitigating
factor. See Conroy, 845 N.W.2d at 67 (declining “to give any significant weight”
as a mitigating factor to attorney’s financial difficulties); see also, In re Neitlich,
597 N.E.2d 425, 429–30 (Mass. 1992) (“[T]hat a term of suspension will disrupt
the respondent’s solo practice cannot influence our decision, as ‘[w]e cannot
sensibly have or apply a rule which excuses solo practitioners from warranted
discipline’ ” while the discipline is imposed on “others who happen to be engaged
in group practice.” (quoting In re Driscoll, 575 N.E.2d 46, 51 (Mass. 1991)
(Greaney, J. dissenting))).
C. Appropriate Sanction. “When neglect of client matters is the principal
violation in an attorney disciplinary case, the resulting discipline normally
ranges from a public reprimand to a six-month suspension.” Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Baldwin, 857 N.W.2d 195, 213 (Iowa 2014) (quoting Moorman,
683 N.W.2d at 553). On the low end, if there is only one instance of neglect, a
public reprimand may be appropriate. Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Silich, 872 N.W.2d 181, 193 (Iowa 2015). But if there is a “recurring pattern of
misconduct or multiple ethical violations,” a suspension is appropriate. Id.
“Attorneys who engage in conduct prejudicial to the administration of
justice have received suspensions ranging from sixty days to eighteen months
when . . . the conduct is ‘compounded by additional violations.’ ” Leitner, 20
998 N.W.2d at 647 (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Aeilts,
974 N.W.2d 119, 129 (Iowa 2022)).
Fenton argues for a public reprimand. That sanction would be inadequate.
See Dolezal, 796 N.W.2d at 922 (holding that a public reprimand would not be
appropriate because such a sanction is appropriate in cases involving “only a
single instance of misconduct”). Fenton’s pattern of repeated misconduct
warrants a suspension.
Next, we must determine the appropriate length of the suspension. In
Capotosto, we suspended the attorney’s license for sixty days after finding the
attorney neglected to rectify twelve delinquent cases, received prior discipline in
the form of a public reprimand and a temporary suspension, and failed to comply
with his deferral agreement. 927 N.W.2d at 589–90. We also found several
mitigating factors, such as letters written on his behalf from a judge and a county
attorney, his willingness to accept court-appointed work, and the fact that he
had completed substantial work in the delinquent cases. Id. at 590–91.
In Iowa Supreme Court Attorney Disciplinary Board v. Cohrt, we imposed a
ninety-day suspension on an attorney who neglected two client matters by failing
to respond to discovery. 784 N.W.2d 777, 783 (Iowa 2010). The attorney also
made a misrepresentation to his clients, had a history of neglect resulting in a
private admonition, and did not acknowledge his neglect but insisted he acted
ethically. Id.
We suspended an attorney’s license for ninety days in Iowa Supreme Court
Attorney Disciplinary Board v. Humphrey, even though the attorney only
neglected a single client matter, and the violations did not involve any fraud or
dishonesty. 812 N.W.2d 659, 669 (Iowa 2012). We found that a significant
aggravating factor was the attorney’s three previous violations resulting in a
public reprimand, a sixty-day suspension, and an indefinite suspension with no 21
possible reinstatement for three years. “[T]he earlier pattern of neglect and
nonresponsiveness has reemerged,” so “a substantial suspension is appropriate
to protect the public and uphold the integrity of the profession.” Id. A similar
pattern of neglect, unresponsiveness, and escalating discipline is present here.
In Iowa Supreme Court Attorney Disciplinary Board v. Hedgecoth, we
suspended an attorney’s license for ninety days based on a similar record of
recurring neglect. 862 N.W.2d 354, 366 (Iowa 2015). There, the attorney missed
deadlines in a postconviction-relief action and in a criminal appeal, and
significantly delayed discovery in a civil case for a third client. Id. at 357–59. We
found that the attorney’s prior discipline was an aggravating factor, especially
“[g]iven that some of these prior instances of discipline were imposed for conduct
almost identical to the conduct at issue in this proceeding.” Id. at 364.
On balance, we believe a ninety-day suspension is appropriate. Fenton
neglected seven client matters. He has a history of neglect and lack of client
communication—highlighted by his deferral agreement, his prior sixty-day
suspension, and his prior admonition for similar misconduct.
Given Fenton’s lengthy mental health history, we agree with the Board’s
recommendation that Fenton provide an evaluation by a licensed mental health
professional verifying his fitness to practice law as a condition for reinstatement.
See Turner, 918 N.W.2d at 158 (ordering respondent with mental health
condition to provide an evaluation verifying fitness to practice law prior to
reinstatement); see also Netti, 797 N.W.2d at 607 (same); Marks, 759 N.W.2d at
333 (same).
V. Disposition.
We suspend Fenton’s license to practice law with no possibility of
reinstatement for a minimum period of ninety days, effective ten days from the
date of this opinion. This suspension applies to all facets of the practice of law. 22
See Iowa Ct. R. 34.23(4). Fenton must comply with the notification and other
requirements of Iowa Court Rule 34.23(2). As a condition for his reinstatement,
Fenton must provide an evaluation from a licensed mental health professional
verifying his fitness to practice law.1 Costs of this action are taxed to Fenton
under Iowa Court Rule 36.24(1).
License Suspended.
1This disciplinary suspension is separate from our recent orders suspending Fenton for
his noncompliance with client security commission rules, see Iowa Ct. Rs. 39.5–39.11, and continuing legal education requirements, see id. r. 41.4. He must also fulfill his obligations under those rules as a condition of his reinstatement.