Iowa Supreme Court Attorney Disciplinary Board Vs. Donna P. Lesyshen

• Court: Supreme Court of Iowa
• Decided: April 7, 2006
• Docket: 45 / 05-1954
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 45 / 05-1954

Filed April 7, 2006

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

DONNA P. LESYSHEN,

Respondent.

________________________________________________________________________ On review of the report of the Grievance Commission.

Grievance Commission reports that respondent has committed

ethical misconduct and recommends suspension of respondent’s license

to practice law. LICENSE SUSPENDED.

Charles L. Harrington and David J. Grace, Des Moines, for

complainant.

Donna P. Lesyshen, Waterloo, pro se. 2

STREIT, Justice.

An Iowa attorney with a history of ethical problems is here with

more ethical violations. The Iowa Supreme Court Attorney Disciplinary

Board (“Board”) accused Donna Lesyshen of neglecting client matters,

failing to respond to inquiries from the Board, mishandling trust account

funds, and inadequate withdrawal. The Grievance Commission of the

Supreme Court of Iowa (“Commission”), upon reviewing a joint

stipulation of facts from Lesyshen and the Board, found Lesyshen

violated the Iowa Code of Professional Responsibility and recommended a

five-year suspension. Based on the record before us, an indefinite

suspension with no possibility of reinstatement for at least two years is

appropriate.

I. Background

Lesyshen was admitted to practice law in 1982. She served as a

prosecutor in the Black Hawk County Attorney’s office and then as an

assistant city attorney for the City of Waterloo. Following her tenure as

assistant city attorney, she entered private practice. She had a general

practice, which included trial work. Lesyshen no longer wishes to

practice law, and she has found other employment. Lesyshen’s license to practice law is currently on inactive status.

This is not the first time Lesyshen has been before this court for

disciplinary action. Lesyshen was publicly reprimanded in 1994 for

aiding the unauthorized practice of law contrary to DR 3-101(A).

Additionally, in October 1998, we imposed a six-month suspension for

neglect, forgery, and false notarization. Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Lesyshen, 585 N.W.2d 281, 288 (Iowa 1998).

The Board filed this complaint with the Commission for neglect,

failure to cooperate with the Board, inadequate withdrawal, and a trust 3

account violation. Both parties waived the hearing and agreed to submit

the matter to the Commission on the basis of the complaint,

corresponding exhibits, and a joint stipulation that recommended

Lesyshen’s license to practice law be suspended for a period of four

years. Based on the joint stipulation, the Commission found Lesyshen’s

conduct violated the disciplinary rules designated in the complaint, and

recommended Lesyshen’s license be suspended for a period of five years.

II. Standard of Review

We review attorney disciplinary proceedings de novo. Iowa

Supreme Ct. Attorney Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 405

(Iowa 2005); Iowa Ct. R. 35.10(1). The Board has the burden to prove

disciplinary violations by a convincing preponderance of the evidence.

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Williams, 675 N.W.2d

530, 531 (Iowa 2004). 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 give respectful

consideration to the Commission’s findings and recommendations, but

we are not bound by them. See Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Bell, 650 N.W.2d 648, 650 (Iowa 2002) (revoking license even

though Commission recommended five-year suspension). We review this

matter pursuant to Iowa Court Rule 35.10, and depart from the

sanctions recommended by the Commission and the joint stipulation.

III. Factual Findings

Lesyshen admitted all of the factual claims and ethical violations

made against her by the Board. We find convincing evidence to prove the

following: 4

A. C.S. Matter

Lesyshen was appointed to represent C.S. in an appeal from a

juvenile court order terminating C.S.’s parental rights. Leyshen filed a

notice of appeal, but she failed to pursue the appeal, resulting in its

dismissal pursuant to Iowa Rule of Appellate Procedure 6.19. Lesyshen

claims she was unable to contact her client. The joint stipulation is

silent as to how Lesyshen was able to initially contact C.S. to sign the

notice of appeal, but could not reach her client shortly thereafter. C.S.

requested that her appeal be reinstated, and the supreme court did so,

and ordered the district court to replace Lesyshen. Lesyshen did not

respond to the Board’s notices of complaint.

B. J.T. Matter

Lesyshen represented J.T. in an appeal to the Iowa Supreme

Court. Lesyshen filed the notice of appeal, but took no further action.

Lesyshen claims she did not follow through with the appeal because her

client changed his mind. Eventually the clerk of the supreme court

dismissed the appeal for want of prosecution. Pursuant to rule 6.19(3) of

the Iowa Rules of Appellate Procedure, the clerk forwarded the notice of

default and order of dismissal to the Board. C. Robert Wilson Estate Matter

Lesyshen was the attorney for the Estate of Robert Wilson. The

estate was opened so that a parcel of real estate could be sold. Lesyshen

sold the parcel yet neglected to take steps to close the estate. Three

delinquency notices were sent to Lesyshen by the clerk of court.

Eventually, the court removed Lesyshen and the executor, and ordered

the estate closed. Lesyshen did not respond to two complaint notices

from the Board. 5

D. Schares Matter

Lesyshen represented Melvin Schares in a dissolution of marriage

action. In May 2002, Lesyshen received a $1200 retainer, but she did

not deposit it in her trust account. Lesyshen claims this was an error by

her secretary. The stipulation does not indicate what was done with the

$1200. In June 2002, Lesyshen took other employment, and stopped

working on Schares’ case. In August, Schares filed a complaint with the

Board. Lesyshen then refunded the unearned portion of the retainer and

formally withdrew from the case.

IV. Ethical Violations

A. Neglect

The record supports the Commission’s finding that Lesyshen

committed professional neglect on numerous occasions. See DR 6-

101(A)(3) (providing a lawyer shall not neglect a client’s legal matter); see

also Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683

N.W.2d 549, 551 (Iowa 2004) (defining professional neglect as

“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”). In the C.S. and J.T. matters, the appeals were dismissed as a

result of Lesyshen’s neglect. Even though the C.S. case was ultimately

reinstated, the subsequent reinstatement did not cure the prior neglect.

Id. at 552. Regardless of the client’s interest in the case, the onus is on

the attorney to comply with the deadlines provided in the appellate rules.

See Iowa R. App. P. 6.19. Unless the court relieves an attorney of his or

her responsibility to the client on appeal, as an officer of the court, the

attorney is required to file the appropriate documents and briefs.

Anything less may be considered neglect. See Moorman, 683 N.W.2d at 6

552-53 (holding attorney’s failure to comply with rules of appellate

procedure, as well as subsequent notices to cure the defaults issued by

the clerk of court, reveals a blatant pattern of neglect and constitutes a

“conscious disregard” for the responsibilities an attorney owes a client

and the court). In regard to the J.T. matter, simply because a client does

not want to pursue the case does not relieve the attorney from taking

steps necessary to end the matter. To simply wait for the court to

dismiss the case for lack of prosecution is neglect, inappropriate, and

unethical. See DR 6-101(A)(3).

Lesyshen also neglected the Robert Wilson Estate matter because

she failed to take steps to close the estate even though she received three

delinquency notices from the court. Further, Lesyshen neglected the

Schares matter when she simply stopped working on the case after she

changed employment. In considering the nature of the violations in

these matters, we note the dilatory handling of client matters is a

disservice not only to the client but also to the judicial system.

Kadenge, 706 N.W.2d at 408-09.

B. Failure to Cooperate with the Board

We have repeatedly emphasized how important it is for an attorney to cooperate with disciplinary authorities when a complaint has been

filed against the attorney. Id. at 409. Lesyshen was initially

uncooperative with the Board. She ignored two notices of complaint in

the C.S. matter. She also ignored two notices from the Board in the

Robert Wilson Estate matter. While the joint stipulation indicates

Lesyshen eventually cooperated with the Board, her initial lack of

cooperation wasted the Board’s valuable time and limited assets. Id.

Her lack of cooperation also prejudiced the Board’s ability to gather all

pertinent facts regarding the complaints. Id. Such actions clearly violate 7

DR 1-102(A)(5) (“A lawyer shall not . . . [e]ngage in conduct that is

prejudicial to the administration of justice.”). Comm. on Prof’l Ethics &

Conduct v. Bromwell, 389 N.W.2d 854, 857 (Iowa 1986) (holding failure to

respond to grievance committee violates the proscription against conduct

prejudicial to administration of justice).

C. Trust Account Violation

Client funds paid to an attorney must be deposited into an

interest-bearing trust account, rather than the firm’s operating account,

until they are earned. Kadenge, 706 N.W.2d at 408. Lesyshen’s failure

to deposit Schares’ retainer of $1200 in a trust account violated DR 9-

102 (failure to deposit advance for fees in trust account). The fact that

Lesyshen paid the money back to Schares after he filed a complaint is

not a valid defense or excuse for this ethical violation. Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Stowers, 626 N.W.2d 130, 133 (Iowa

2001).

D. Inadequate Withdrawal

Lesyshen clearly violated DR 2-110 (withdrawal from

representation without completing work, to prejudice of client) in the

Schares matter. She found other employment, stopped working on Schares’ case, and failed to withdraw properly or notify Schares. See

Comm. on Prof'l Ethics & Conduct v. Freed, 341 N.W.2d 757, 759 (Iowa

1983) (stating neglect of duties to client is like “a surgeon who, without

transferring responsibility, drops his scalpel and abandons his patient in

the course of an operation”). Lesyshen’s conduct also violated DR 7-

101(A)(1) (failure to seek objectives of a client), DR 7-101(A)(2) (failure to

carry out employment contract with a client), and DR 7-101(A)(3)

(prejudice or damage to a client). 8

V. Sanction

In the joint stipulation, Lesyshen agreed to a four-year

recommended sanction saying she had found other employment and no

longer wished to practice law. The Commission recommended Lesyshen

be suspended for a period of five years given the violations that had

occurred. However, we find, based on the joint stipulation, findings of

fact, conclusions of law and recommendation, with its limited

explanation of events, a sanction of two years is appropriate.

When we impose sanctions, we only do so on the evidence before

us. We give respectful consideration to the recommendations of the

Commission, but are not bound by them. Comm. on Prof’l Ethics &

Conduct v. Nadler, 467 N.W.2d 250, 254 (Iowa 1991). Factors that help

guide our determination include “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.”

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ramey, 639 N.W.2d

243, 245 (Iowa 2002). Often, the distinction between the punishment

imposed depends upon the existence of multiple instances of neglect,

past disciplinary problems, and other companion violations, including

uncooperativeness in the disciplinary investigation. Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Sprole, 596 N.W.2d 64, 66 (Iowa 1999).

Subsequent to Lesyshen’s two prior ethical violations, Lesyshen

engaged in client neglect, a trust account violation, and inappropriate

withdrawal from a client’s case, which caused potential harm to her

clients. Further, she initially failed to cooperate with the Board, which is

an additional factor in imposing discipline. Moorman, 683 N.W.2d at

553-54. Based only on the limited facts in the record before us, we find

a suspension for a minimum of two years is appropriate. See Iowa 9

Supreme Ct. Attorney Disciplinary Bd. v. McCann, 712 N.W.2d 89, 91

(Iowa 2006) (imposing a two-year suspension for trust account violations

and aggravating factors of neglect); Iowa Supreme Ct. Attorney

Disciplinary Bd. v. Sotak, 706 N.W.2d 385, 386 (Iowa 2005) (imposing an

indefinite suspension of two years where conduct involved professional

neglect, misrepresentations, failure to notify clients of attorney’s transfer

to new law firm, and failure to promptly give settlement check to client);

Iowa Supreme Ct. Attorney Disciplinary Bd. v. Maxwell, 705 N.W.2d 477,

478 (Iowa 2005) (imposing a one-year suspension for violations stemming

from neglect and inattention in the representation of three clients, where

attorney had prior ethical violations).

VI. Conclusion

Lesyshen is suspended indefinitely from the practice of law with no

possibility of reinstatement for at least two years. This suspension shall

apply to all facets of the practice of law as provided in Iowa Court Rule

35.12(3) and requires notification of clients as outlined in Iowa Court

Rule 35.21. Costs are taxed to Lesyshen pursuant to Iowa Court Rule

35.25(1).

LICENSE SUSPENDED.