Iowa Supreme Court Attorney Disciplinary Board Vs. Hugh Michael Neary

• Court: Supreme Court of Iowa
• Decided: March 5, 2007
• Docket: 139 / 06-1297
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 139 / 06-1297

Filed March 5, 2007

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

HUGH MICHAEL NEARY,

Respondent.

On review of the findings and recommendations of the Grievance

Commission.

Appeal from report of Grievance Commission. LICENSE

SUSPENDED.

Charles L. Harrington and Wendell Harms, Des Moines, for

complainant.

H. Michael Neary, Ottumwa, pro se. 2

PER CURIAM.

The Iowa Supreme Court Attorney Disciplinary Board filed a

complaint against the respondent, Hugh Michael Neary, charging numerous

instances of misconduct arising out of his handling of probate cases.

Following a hearing, our Grievance Commission found that the respondent

failed to complete probate matters in a timely fashion, accepted fees prior to

obtaining court authorization, failed to cooperate with the chief judge and

another attorney in resolving the problems, and failed to respond to the

board’s inquiries. The commission recommended a minimum suspension of

twelve months with conditions precedent to his readmission. We agree with

the commission’s recommendations.

I. The Facts.

These disciplinary charges arose out of the respondent’s serious

neglect of thirteen probate cases—neglect that caused the clerk of the

district court to send him forty-six notices of delinquency. The commission

concluded that the respondent violated DR 1—102(A)(5) (lawyer shall not

engage in conduct that is prejudicial to the administration of justice),

DR 1—102(A)(6) (lawyer shall not engage in any conduct adversely reflecting

on fitness to practice law), DR 6—101(A)(3) (lawyer shall not neglect client matters), and DR 7—101(A)(2) (lawyer to complete contract of employment).

In addition, the commission found that, as to five estates, the respondent

collected his fees in violation of DR 2—106(A) because he received them

prematurely in violation of Iowa Court Rule 7.2(4).

Our disciplinary board, after receiving complaints regarding the

probate matters, sent thirty notices to the respondent requesting his

response. He received four notices each in six of the estates. The

respondent failed to respond to any of the board’s requests. 3

In addition, the commission found that the respondent had ignored

requests from another attorney and the chief judge of the district to act with

respect to the estates and that substantial expenses, including attorney

fees, had been incurred due to his failure to promptly resolve the probate

matters.

II. The Disposition.

It is difficult to draw on other disciplinary cases to determine a

sanction to be imposed because there are seldom identical circumstances.

In this case, the respondent’s substantial neglect in thirteen probate

matters was exacerbated by (1) his taking of fees prematurely in five cases,

(2) his failure to cooperate with the judge and another attorney, (3) his

failure to respond to thirty requests from the board, (4) the fact that others

incurred additional expenses because of his neglect, and (5) the fact he had

three times previously been publicly reprimanded.

In Iowa Supreme Court Attorney Disciplinary Board v. Schumacher, 723

N.W.2d 802 (Iowa 2006), three of the respondent’s cases were involved, all

of which concerned neglect and procrastination. In addition, the lawyer had

failed to respond to numerous inquiries by the board. We suspended her

license indefinitely, with no possibility of reinstatement for six months. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Jay, 606

N.W.2d 1 (Iowa 2000), the attorney had neglected client matters in several

estates, accepted fees prior to obtaining court authorization, and

misrepresented the status of the estate to the court. We suspended this

attorney’s license for a minimum of one year. In Iowa Supreme Court Board

of Professional Ethics & Conduct v. Hovda, 578 N.W.2d 673 (Iowa 1998), the

attorney had neglected seventeen probate cases and failed to respond to

notices of delinquency by the clerk’s office and offers of assistance from

experienced probate lawyers. We suspended the attorney’s license for a 4

minimum of two months and ordered that, on any reinstatement, he be

required to associate in all probate cases with a recognized probate lawyer.

In Iowa Supreme Court Board of Professional Ethics & Conduct v. Winkel, 542

N.W.2d 252 (Iowa 1996), the attorney neglected fifteen probate matters and

failed to respond to delinquency notices by the clerk and inquiries from the

board. We suspended his license for a minimum of six months and ordered

that, on any application for reinstatement, the attorney show proof of a plan

to handle all future probate matters expeditiously or to show that he had

associated with qualified probate counsel. In Committee on Professional

Ethics & Conduct v. Batschelet, 402 N.W.2d 429 (Iowa 1987), the attorney

neglected twenty-one probate matters and failed to respond to the board’s

notices of investigation. We suspended his license for a minimum of six

months.

We believe in view of all of the circumstances of this case, including

the extent of the respondent’s neglect in the probate matters, the

respondent’s receipt of fees in five estates prior to court authorization, his

failure to cooperate with the judge and another attorney in concluding the

estate matters, the fact he had caused parties to incur expenses in dealing

with his neglect, and the fact that he had previously been publicly reprimanded all support the commission’s recommendation—suspension for

a minimum of one year with conditions for reinstatement.

Accordingly, we suspend this respondent’s license indefinitely with no

possibility of reinstatement for a period of twelve months from the filing of

this opinion. 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. Upon application for reinstatement,

the respondent shall have the burden to establish that he has not practiced

law during the period of suspension, that he meets all requirements of Iowa 5

Court Rule 35.13, and that he has paid the costs of this proceeding. Any

costs incurred in connection with the resolution of the underlying probate

matters in the district court shall be paid. Several expenses were incurred

in completing the probate matters that had been neglected by the

respondent. Those expenses included fees and advanced costs by Randy

DeGeest for his work as successor executor of one of the estates, expenses

incurred by attorney John N. Wehr for his work on the same estate, and

expenses incurred by attorney Greg Life for his work as guardian ad litem in

a number of the cases. It is not possible under the existing record to tell

whether any of these expenses have been paid, nor is it certain that this is

even a complete list of the expenses incurred. Therefore, prior to any order

reinstating the respondent, he shall certify to this court that he has paid all

costs incident to the completion of the work, as set out above, and any

other expenses that we have not specifically identified.

In addition, if he is reinstated, the respondent shall not engage in

probate matters pending further order of this court unless he associates

with an experienced lawyer approved by the chief judge of the Eighth

Judicial District.

LICENSE SUSPENDED. All justices concur except Streit, J., who takes no part.

This opinion shall be published.