IN THE SUPREME COURT OF IOWA No. 09–0701
Filed October 16, 2009
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
BRIAN L. EARLEY,
Respondent.
On review of the report of the grievance commission.
Grievance commission reports respondent has committed ethical
infractions and recommends revocation of respondent’s license to
practice law. LICENSED REVOKED.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
complainant.
Brian L. Earley, Malcolm, pro se. 2
TERNUS, Chief Justice.
The complainant, Iowa Supreme Court Attorney Disciplinary
Board, filed charges against the respondent, Brian L. Earley, alleging
numerous violations of the Iowa Code of Professional Responsibility for
Lawyers and the Iowa Rules of Professional Conduct. 1 The complaint
was based on Earley’s representation of four separate clients. While
most of the misconduct centered on Earley’s neglect of his clients’ legal
matters, the most egregious of the alleged violations involved his
misappropriation of client funds. Earley did not file an answer to the
complaint, and the allegations of the board were, therefore, deemed
admitted. See Iowa Ct. R. 36.7. A panel of the Iowa Supreme Court
Grievance Commission, after hearing, concluded that Earley engaged in
the charged misconduct and recommended that we revoke his license to
practice law. We agree with the commission and revoke Earley's license
to practice law.
I. Standard of Review.
Our review of attorney disciplinary proceedings is de novo. Iowa
Ct. R. 35.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729
N.W.2d 812, 815 (Iowa 2007). The commission’s findings and recommendations are given respectful consideration, but we are not
bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Isaacson, 750
N.W.2d 104, 106 (Iowa 2008). The board has the burden of proving
attorney misconduct by a convincing preponderance of the evidence.
1The Iowa Rules of Professional Conduct became effective on July 1, 2005, replacing the Iowa Code of Professional Responsibility for Lawyers. The Iowa Rules of Professional Conduct are sometimes referred to in this opinion as “rule” or “rules.” The provisions of the Iowa Code of Professional Conduct for Lawyers are sometimes referred to in this opinion as “Code” or “DR – .” 3
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792
(Iowa 2006).
“This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case. Once misconduct is proven, we ‘may impose a lesser or greater sanction than the discipline recommended by the grievance commission.’ ”
Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674
N.W.2d 139, 142 (Iowa 2004)).
II. Factual Background and Prior Proceedings.
A. Prior Disciplinary Proceedings. Earley has been practicing
law in Iowa since 1993. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Earley, 729 N.W.2d 437, 440 (Iowa 2007). On March 30, 2007, this
court disciplined Earley by suspending his license for a period of not less
than four months. Id. at 439. The violations that led to his suspension
included neglecting cases, failing to deposit retainer fees to his trust
account, failing to account for retainer fees paid to him by his clients,
failing to return a file to a client, failing to cooperate with the board’s
inquiries, engaging in conduct reflecting poorly on his fitness to practice
law, and engaging in misconduct that is prejudicial to the administration
of justice. Id. at 442–43 (finding Earley violated DR 1–102(A)(1), (5), (6);
DR 2–110(A)(2); DR 6–101(A)(3); DR 7–101(A)(1); and DR 9–102(A), (B)(3)).
Although we concluded Earley’s mishandling of retainers paid by clients
“stemm[ed] from poor office organization and management,” as opposed
to deliberate misconduct and dishonesty, we determined his ethical
infractions were serious enough to warrant a four-month suspension. Id.
at 443.
B. Current Disciplinary Proceedings. On October 28, 2008, the
board initiated this action by filing its complaint. In the complaint, the 4
board alleged Earley had violated his ethical duties in his representation
of four clients, Hal Runner, Nicole Cleary, Michelle Fuller, and Mollie
Marti. The claimed violations largely mirrored the charges in the earlier
disciplinary action.
On February 5, 2009, Earley participated in a telephone
conference during which he stated that he would send an answer to the
complaint on that day and would admit to all allegations in the
complaint. The parties also agreed at that time they would submit a
joint recommendation as to the appropriate sanction. Earley did not
send an answer, and a joint recommendation was never submitted to the
commission. Subsequently, the board filed a motion to amend the
complaint to include allegations regarding Earley’s misappropriation of
settlement money owed to his client, Mollie Marti. Earley did not
respond to the motion, which was eventually granted by the commission.
At the hearing before the commission, evidence in support of the
board’s charges was admitted. Earley did not appear at the hearing, and
therefore, the board’s evidence was uncontested. In its findings and
conclusions, the commission properly held that, under Iowa Court Rule
36.7, Earley’s failure to file an answer resulted in his admission of the
allegations in the amended complaint.
In its report to this court, the commission found the board had
proven its charges and recommended revocation of Earley’s license to
practice law due to his misappropriation of client funds. Upon our de
novo review of the record, we agree with the findings, conclusions, and
recommended sanction of the commission, as detailed below.
III. Factual Findings.
A. Hal Runner Matter. In March or April 2006, Earley began
representing Hal Runner in a suit against Tamara Kriegel, who allegedly 5
had stolen money from Runner. On May 2, 2006, Earley sent a letter to
Runner stating Earley expected to receive a portion of the stolen money,
$3808.51, from Kriegel’s attorney. This payment was subsequently
made, and Earley retained $2500 for a retainer and paid the balance,
$1308.51, to Runner. On August 3, 2006, Earley filed a petition for the
remaining money against Kriegel on Runner’s behalf. After August 2006,
Runner tried to contact Earley between forty and fifty times, but Earley
did not respond. On December 13, 2006, an order setting a trial date of
July 11, 2007, was issued. Earley did not inform Runner of the trial
date. Earley also failed to inform Runner that this court suspended his
license to practice law in March 2007. Eventually, Runner heard of the
suspension “through the grapevine” and hired another attorney to handle
the matter. Earley never provided Runner with an accounting of his
retainer fee nor did he turn over the case file as Runner requested.
B. Nicole Cleary Matter. In spring 2006, Earley began
representation of Nicole Cleary in two matters. The first involved
establishing child custody and obtaining child support. The second
involved terminating the parental rights of her son’s father. Cleary paid
Earley retainer fees totaling $750. Despite Cleary’s numerous attempts
to contact Earley about the status of the first case, he did not respond.
Cleary found out the status of her case by contacting opposing counsel.
The case was eventually resolved in Cleary’s favor, but Earley’s failure to
respond to her inquiries caused her stress and anxiety about whether
she would retain custody of her child. With regard to the second case,
Earley was to locate the father, as his whereabouts were not known.
Earley failed to respond to his client’s requests for information, and the
second case remains unresolved. Earley did not provide Cleary with an
accounting of the retainer fee, did not provide Cleary with her case file 6
despite her requests for the file, and did not inform Cleary of his license
suspension.
C. Michelle Lee Fuller Matter. In 2002 Earley began
representation of Michelle Lee Fuller in a dissolution-of-marriage and
child-custody matter. Fuller paid a retainer fee of $1500. At a trial of
the case on September 12, 2002, the parties reached a stipulation on all
issues and read the settlement into the record. The trial judge ordered
Earley to prepare the final decree, but he failed to do so. On numerous
occasions, Fuller attempted to contact Earley, but he did not respond.
Without the final decree, Fuller’s case remained unresolved. On
August 13, 2007, another attorney presented the final decree to the trial
judge, thereby resolving the matter. Earley ignored Fuller’s requests for
her case file, did not provide her with an accounting of the retainer fee,
and did not inform her of his license suspension.
D. Mollie W. Marti Matter. In 2004 Earley began representing
Mollie W. Marti in a personal injury action. Marti was a law school friend
of Earley. They did not have a formal retainer contract, but agreed that
Earley would charge Marti on an hourly basis. Earley obtained a
settlement of Marti’s claim in the sum of $65,000, and on September 16,
2004, he paid $32,500 to Marti. Earley retained the balance of the
settlement proceeds, advising Marti that he would use the money to pay
insurance subrogation claims, costs and fees, and then remit the
remainder to her. Marti expected to receive about $15,000 to $20,000
from the second half of the settlement. Despite Marti’s multiple requests
for information over the subsequent three years, Earley never responded,
and Marti received no additional monies. Marti eventually contacted a
subrogated liability insurer and discovered it had not been paid its
subrogation claim. Marti did not determine whether the claim of her 7
health insurer was also unpaid. Nonetheless, since Earley did not
respond to the complaint, the allegation that he did not pay the health
insurer’s subrogation claim was deemed admitted.
Marti finally reached Earley, who initially claimed he had paid the
subrogation claims. When Marti informed him of her contact with the
liability insurer, Earley admitted he had not paid the claims and the
money was “gone,” as he had used it for personal reasons. He promised
to pay it back. In addition to misappropriating the $32,500, Earley failed
to inform Marti that his license had been suspended.
IV. Ethical Violations. 2
A. Neglect. Our rules regarding neglect and an attorney’s
obligation to advance and protect his clients’ interests require “ ‘an
attorney to attend to matters entrusted to his care and to do so in a
reasonably timely manner.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Ramey, 746 N.W.2d 50, 54 (Iowa 2008) (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Dunahoo, 730 N.W.2d 202, 205 (Iowa 2007));
Gottschalk, 729 N.W.2d at 817–18. Neglect subjecting an attorney to
discipline “involves ‘indifference and 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 Supreme Ct. Att'y
Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 817 (Iowa 2007) (quoting Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549,
551 (Iowa 2004)). Earley neglected his clients’ legal matters and failed to
advance and protect his clients’ interests in his representation of the four
2Earley’s misconduct in the Runner and Cleary matters began in 2006, and therefore, the Rules apply in these cases. Earley’s misconduct in the Fuller matter spans from 2002 to 2007, and therefore, both the Rules and the Code apply in that matter. Earley’s misconduct in the Marti matter spans from 2004 to 2007, and therefore, the Rules and the Code apply in that matter. 8
individuals that are the subject of the board’s complaint. In doing so, he
violated rule 32:1.3 (failing to act with reasonable diligence and
promptness in representing a client), rule 32:1.16(d) (failing to take steps
to protect a client’s interests upon termination of a matter), DR 6–
101(A)(3) (neglecting a client’s matter), and DR 7–101(A)(1) (intentionally
failing to seek the lawful objectives of a client). Ramey, 746 N.W.2d at
54; Earley, 729 N.W.2d at 442.
B. Failure to Return Files. Earley engaged in misconduct when
he refused to return client files upon request in the Runner, Cleary, and
Fuller matters. This conduct violated rule 32:1.15(d) (failing to promptly
deliver to the client any property that the client is entitled to receive),
DR 1–102(A)(5) (engaging in conduct that is prejudicial to the
administration of justice), DR 1–102(A)(6) (engaging in conduct that
adversely reflects on the fitness to practice law), and DR 7–101(A)(1). 3
Ramey, 746 N.W.2d at 55–56; Earley, 729 N.W.2d at 442.
C. Failure to Inform, Communicate, Account, and Return
Property. In all four matters, Earley engaged in misconduct when he
failed to keep his clients informed about the status of their cases in
violation of rule 32:1.3, rule 32:1.4(a)(3) (failing to keep the client informed about the status of a matter), DR 6–101(A)(3), and DR 7–
101(A)(1). Ramey, 746 N.W.2d at 54–56; Earley, 729 N.W.2d at 442–43.
He also engaged in misconduct when he failed to communicate with his
clients after their repeated requests for information. This conduct
violated rule 32:1.3, rule 32:1.4(a)(3), DR 6–101(A)(3), and DR 7–
3DR 9–102(B)(4) (a lawyer shall promptly deliver to the client property that a client is entitled to receive) also applies. Gottschalk, 729 N.W.2d at 820. Because Earley was not charged with violating this rule, we do not find that he violated it. The other ethical infractions we have found here are, nonetheless, sufficient for the discipline imposed. 9
101(A)(1). Ramey, 746 N.W.2d at 54–56; Earley, 729 N.W.2d at 442–43.
In addition, Earley committed ethical infractions in all four matters when
he failed to keep his clients informed with regard to money entrusted to
him and to account for or return client money from retainer fees or
settlement proceeds. These actions violated rule 32:1.4(a)(3), rule
32:1.4(a)(4) (failing to comply with reasonable requests for information),
rule 32:1.15(d), rule 32:1.16(d), DR 1–102(A)(5), DR 1–102(A)(6), DR 6–
101(A)(3), and DR 7–101(A)(1). Ramey, 746 N.W.2d at 55; Earley, 729
N.W.2d at 443. Finally, Earley engaged in misconduct when he failed to
inform his clients of his suspension. This failure resulted in violations of
rule 32:1.4(a)(3), rule 32:1.16(d), rule 32:8.4(d) (engaging in conduct that
is prejudicial to the administration of justice), DR 1–102(A)(5), DR 1–
102(A)(6), DR 6–101(A)(3), and DR 7–101(A)(1). Ramey, 746 N.W.2d at
54–55.
D. Misappropriation and Dishonesty. The most egregious
misconduct committed by Earley concerns his handling of the settlement
funds he held on behalf of his client, Marti. In response to Marti’s
inquiries, Earley falsely informed Marti that the subrogation claims had
been paid. He then admitted that the claims had not been paid and
stated the money was “gone,” he had used it for personal reasons, and he
would pay it back.
We agree with the commission’s assessment that Earley’s
misrepresentations and misappropriation of client funds constituted
dishonesty and theft in violation of rule 32:1.15(d); rule 32:1.16(d); rule
32:8.4(d); and DR 1–102(A)(4), (5), (6). Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Carroll, 721 N.W.2d 788, 791–92 (Iowa 2006); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bell, 650 N.W.2d 648, 651– 10
52 (Iowa 2002); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Carr,
588 N.W.2d 127, 129 (Iowa 1999).
V. Sanction.
There is no standard sanction for a particular type of misconduct,
and though prior cases can be instructive, we ultimately determine an
appropriate sanction based on the particular circumstances of each case.
Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 589 N.W.2d
746, 748–49 (Iowa 1999). “In determining an appropriate sanction, we
consider ‘the nature of the violations, the need for deterrence, protection
of the public, maintenance of the reputation of the Bar as a whole, and
the violator’s fitness to continue to practice law,’ as well as any
aggravating and mitigating circumstances.” Earley, 729 N.W.2d at 443
(quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ramey, 639
N.W.2d 243, 245 (Iowa 2002)); accord Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009). The form and extent of
the sanction “ ‘must be tailored to the specific facts and circumstances of
each individual case.’ ” Marks, 759 N.W.2d at 332 (quoting Comm. on
Prof'l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa 1981)).
Significant distinguishing factors in the imposition of punishment center
on “ ‘the existence of multiple instances of neglect, past disciplinary
problems, and other companion violations.’ ” Id. (quoting Iowa Supreme
Ct. Att'y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006)).
Because we conclude Earley’s misappropriation of client funds
warrants revocation of his license, we focus our discussion on the
appropriate sanction for that violation. We have held on several
occasions that an attorney’s misappropriation of client funds is
sufficiently egregious to warrant permanent license revocation. See, e.g.,
Carroll, 721 N.W.2d at 792; Bell, 650 N.W.2d at 655; Carr, 588 N.W.2d at 11
129–30. Unless the attorney “ ‘had a colorable future claim to the funds
or did not take the funds for [the lawyer's] own use,’ ” revocation will be
ordered. Carroll, 721 N.W.2d at 792 (quoting Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Anderson, 687 N.W.2d 587, 590 (Iowa 2004)).
As we explained in Carr,
we have previously indicated conversion of client funds by lawyers will not be tolerated. We have also emphasized our obligation to protect the public from theft and deceit. The public, as well as the bar, needs to know disbarment will nearly always follow such wrongdoing.
588 N.W.2d at 129 (citations omitted).
In the instant action, Earley failed to appear at the hearing and
only belatedly filed a statement in this court, asking that his license not
be revoked. Although he now claims he did not misappropriate his
client’s funds, but merely failed to properly manage his law office, he has
already forgone his opportunity to offer evidence contesting the board’s
charges. With respect to sanctions, Earley makes no assertion in his
statement that he had a colorable claim to the $32,500 that disappeared
from his trust account. Consequently, we are faced with a situation in
which the aggravating nature of Earley’s misconduct is extensive and the
misappropriation of client monies intolerable.
We are aware that Earley’s misappropriation of client funds in this
case occurred in the same time frame as some of the misconduct for
which he was previously disciplined. See Earley, 729 N.W.2d at 442.
This court has held that when an attorney already under a disciplinary
sanction is found to have committed additional violations during the
same time as the sanctioned misconduct, we may choose not to impose
additional discipline if we conclude that a more severe sanction would
not have been imposed had the additional misconduct been known when 12
the initial discipline was ordered. Ramey, 746 N.W.2d at 56; Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Moorman, 729 N.W.2d 801, 805–06
(Iowa 2007). This option is not appropriate in the present case due to
the seriousness of Earley’s misappropriation. Had we known of this
misconduct during Earley’s prior disciplinary action, we would certainly
have imposed a more severe sanction than the four-month suspension
previously ordered. Consequently, we conclude the appropriate sanction
for Earley’s egregious misconduct is license revocation.
VI. Disposition.
Earley's license to practice law is revoked. Iowa Ct. R. 35.10(2).
Earley shall provide all of the notifications required by Iowa Court Rule
35.22. Costs are taxed to Earley pursuant to Iowa Court Rule 35.26(1).
LICENSE REVOKED.