Iowa Supreme Court Attorney Disciplinary Board v. Marc R. Engelmann

840 N.W.2d 156, 2013 WL 6145298, 2013 Iowa Sup. LEXIS 122
CourtSupreme Court of Iowa
DecidedNovember 22, 2013
Docket13–1029
StatusPublished
Cited by20 cases

This text of 840 N.W.2d 156 (Iowa Supreme Court Attorney Disciplinary Board v. Marc R. Engelmann) 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. Marc R. Engelmann, 840 N.W.2d 156, 2013 WL 6145298, 2013 Iowa Sup. LEXIS 122 (iowa 2013).

Opinion

WATERMAN, Justice.

Marc R. Engelmann, an experienced real estate attorney, is serving a three-year sentence in federal prison after a jury convicted him on nine felony counts, alleging bank fraud, wire fraud, and conspiracy. His convictions were affirmed on appeal. He represented a seller in nine real estate transactions in which he submitted HUD-1 statements that falsely overstated the sales prices in order to secure inflated mortgage loans. The jury found he *158 “act[ed] knowingly and with intent to deceive [the lenders] for the purpose of causing some financial loss, loss of property or property rights, or ... detriment.” The lenders suffered losses of $392,937.78, which Engelmann was ordered to pay in restitution. Disciplinary proceedings were held in abeyance pending resolution of his criminal appeal. His license to practice law has been under temporary suspension.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against Engelmann, alleging he committed multiple violations of the Iowa Rules of Professional Conduct during these nine transactions. The Board recommended revocation, and Engelmann, through counsel, offered to “surrender his license” if his convictions were affirmed. A division of the Grievance Commission of the Supreme Court of Iowa found Engelmann violated the rules as charged and, after considering his temporary suspension and thirty-six-month prison sentence, recommended an additional six-month disciplinary suspension. For the reasons explained below, we revoke his license to practice law.

I. Scope of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Ct. R. 35.11(1). The burden is on the Board to prove attorney misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864 (Iowa 2010). “This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). We respectfully consider the commission’s findings and recommendations, but are not bound by them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 171 (Iowa 2013). If we find a violation, we “may impose a lesser or greater sanction than the discipline recommended by the grievance commission.” Iowa Ct. R. 35.11(1).

II. Background Facts and Proceedings.

Engelmann has been practicing law in the Quad Cities since graduating from law school in 1976. He started with a general practice, but became increasingly focused on real estate law. Several decades ago, the Iowa Title Guaranty Division certified Engelmann to write title guarantees and generate abstracts. Engelmann primarily represented lenders, and this area of his practice thrived. He represented up to twenty lenders in real estate closings, including Wells Fargo Bank, Valley Bank, Quad City Bank, and First Central State Bank. Engelmann also represented buyers and sellers. By 2006, eighty percent of his practice was real estate related. In one two-month period that year, Engelmann represented lenders at over fifty closings and represented buyers or sellers at another fifty closings. By the time of the misconduct at issue, he had practiced law for three decades with an unblemished record and had closed thousands of real estate transactions for his clients.

Engelmann was among the many casualties of the market crash in 2008, after purchasers of real estate sold by his clients defaulted on nine mortgage loans he helped obtain through fraud. On May 17, 2011, federal prosecutors filed a nine-count felony criminal indictment against him, alleging one count of conspiracy to commit bank fraud or wire fraud, two counts of bank fraud, and six counts of wire fraud. He pled not guilty, and his case proceeded to a jury trial. The federal district court summarized the evidence presented at trial:

*159 Defendant is an attorney in the Quad Cities area and represented James Laures (Laures) in the mortgage closings of at least nine residential properties. The transactions involved Laures as seller and Robert Herdrich (Herd-rich) and Darryl Hanneken (Hanneken) as buyers. The parties agreed upon the purchase price for each property, but also agreed to list on the loan documents an inflated price of between $30,000 and $35,000 more than the actual purchase price for each property. The various lenders then loaned Herdrich and Han-neken money for the transaction based on the inflated price listed on the loan documents. Laures received the inflated price for each sale and then returned approximately $30,000 for each property to Herdrich and Hanneken after each closing as a “kickback.”

Defendant admits he knew about the two different prices and that Laures returned money to the buyers. Defendant also knew that the inflated price was not being listed on the HUD-1 forms that were submitted to the lenders. Government witnesses testified that Defendant never disclosed the inflated price or the kickbacks to the lenders or the closing company, Excel Title. Defendant’s assistant, Cathy Gockel, testified that Defendant instructed her not to disclose the inflated price or kickbacks to Excel

Title. FBI Special Agents Jeff Huber (SA Huber) and Jim McMillan (SA McMillan) testified that Defendant admitted during an interview that the lenders did not know about the inflated price or the kickbacks. Defendant, however, testified that Excel Title was aware of the dual prices and kickbacks because Defendant had disclosed that information to Excel Title and believed that Excel Title would have informed the lenders of this information, and, therefore, he had no intent to defraud.

United States v. Engelmann, 827 F.Supp.2d 985, 987 (S.D.Iowa 2011), vacated in part, 701 F.3d 874 (8th Cir.2012), aff'd after remand, 720 F.3d 1005 (8th Cir.2013). Engelmann charged a $350 fee for each of the nine closings, a volume discount from his standard $400 fee. There is no evidence or claim he otherwise personally benefited financially from these transactions.

On September 13, 2011, the jury convicted Engelmann on all nine counts. The jury rejected Engelmann’s defense that he acted in good faith and had no intent to defraud because the lenders’ agent was aware of the true sale prices and the kickbacks. To convict on each count, the jury instructions required the jury to find En-gelmann possessed an “intent to defraud” 1 defined as follows:

*160

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Iowa Supreme Court Attorney Disciplinary Board v. Springer
904 N.W.2d 589 (Supreme Court of Iowa, 2017)
In re Temple
792 S.E.2d 322 (Supreme Court of Georgia, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
840 N.W.2d 156, 2013 WL 6145298, 2013 Iowa Sup. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iowa-supreme-court-attorney-disciplinary-board-v-marc-r-engelmann-iowa-2013.