Iowa Supreme Court Attorney Disciplinary Board Vs. Ivan J. Ackerman

• Court: Supreme Court of Iowa
• Decided: July 30, 2010
• Docket: 09–1808
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 09–1808

Filed July 30, 2010

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

IVAN J. ACKERMAN,

Respondent.

On review of the report of the Grievance Commission of the Supreme

Court of Iowa.

Grievance commission recommends attorney’s license be suspended

for ninety days. LICENSE SUSPENDED.

Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for

complainant.

Ivan J. Ackerman, Waverly, pro se. 2

BAKER, Justice.

The complainant, Iowa Supreme Court Attorney Disciplinary Board,

filed charges against the respondent, Ivan J. Ackerman, alleging violations of

the Iowa Code of Professional Responsibility for Lawyers and Iowa Rules of

Professional Conduct in two separate probate matters. 1 The parties entered

into a stipulation with regard to Ackerman’s ethical violations. The Iowa

Supreme Court Grievance Commission found Ackerman violated our ethical

rules and recommended a ninety-day suspension. Upon our de novo review,

we concur in the commission’s conclusion that the respondent violated our

ethical rules, and we suspend his license to practice law indefinitely with no

possibility of reinstatement for ninety days.

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. Earley, 774 N.W.2d 301,

304 (Iowa 2009). “The commission’s findings and recommendations are

given respectful consideration, but we are not bound by them.” Earley, 774

N.W.2d at 304. “The board has the burden of proving attorney misconduct

by a convincing preponderance of the evidence.” Id. “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). Once we find the

misconduct has been proven, “we ‘may impose a lesser or greater sanction

than the discipline recommended by the grievance commission.’ ” Id.

(quoting (rule 35.10(1)).

1The Iowa Rules of Professional Conduct became effective July 1, 2005, replacing the

Iowa Code of Professional Responsibility for Lawyers. To the extent that some of the conduct alleged occurred both before the effective date of the new rules and some after, both sets of rules apply. 3

II. Factual Background.

On June 12, 2008, the board filed its complaint against Ackerman.

The complaint alleged ethical violations in two probate matters. Essentially,

the complaint alleged the respondent violated our ethical rules by his

dilatory handling of the probate matters, which resulted in numerous notices

of delinquency, his misrepresentations pertaining to the status of the

matters, and his premature taking of probate fees in one of the estates. On

October 28, 2009, the parties entered into a stipulation to facts, ethical

violations, and discipline wherein Ackerman stipulated to the alleged

violations, the board acknowledged certain mitigating factors, and the

parties agreed a ninety-day suspension was warranted. The parties waived a

hearing, and the matter was submitted to a panel of the grievance

commission on the stipulation. On December 7, 2009, the commission filed

its findings of fact, conclusions of law, and recommendations, finding the

alleged ethical violations occurred and recommending a ninety-day

suspension.

Upon our de novo review, we adopt the parties’ stipulated facts

pertaining to Ackerman’s ethical violations. The stipulation and the

commission’s findings are discussed herein.

A. Smith Estate. In April 1995, Ackerman filed, in Butler County,

a petition for probate of will on behalf of the estate of Jerry J. Smith. After

filing the affidavits of publication and mailing notices to the beneficiaries,

Ackerman filed inventory reports in September and October 1995. From the

beginning of the administration of the estate to the time the estate was

closed, the clerk of court issued eighteen probate delinquency notices to

Ackerman and filed five reports of delinquency notices to the state court

administrator. In addition, in a January 2002 final report, Ackerman

misrepresented the status of the estate, asserting that all statutory 4

requirements pertaining to taxes had been satisfied. The Iowa inheritance

tax clearance was not filed until March 2008.

Beginning in 2008, Judge Foy was appointed to monitor delinquent

estates in Butler County. Judge Foy set a number of review hearings to

monitor Ackerman’s progress toward closing the estate. Ultimately, the

estate remained open for more than fourteen years before it was finally

closed in October 2009.

The parties stipulated that these actions constituted violations of the

Iowa Code of Professional Responsibility for Lawyers DR 1–102(A)(1) (“A

lawyer shall not . . . [v]iolate a disciplinary rule.”), DR 1–102(A)(4) (“A lawyer

shall not . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or

misrepresentation.”), DR 1–102(A)(5) (“A lawyer shall not . . . [e]ngage in

conduct that is prejudicial to the administration of justice.”), DR 1–102(A)(6)

(“A lawyer shall not . . . [e]ngage in any other conduct that adversely reflects

on the fitness to practice law.”), DR 6–101(A)(3) (“A lawyer shall not . . .

[n]eglect a client’s legal matter.”), DR 7–101(A)(1) (“A lawyer shall not

intentionally . . . [f]ail to seek the lawful objectives of a client . . . .”), and DR

7–101(A)(3) (“A lawyer shall not intentionally . . . [p]rejudice or damage a

client . . . .”).

The parties also stipulated that these actions violated the Iowa Rules

of Professional Conduct 32:1.3 (“A lawyer shall act with reasonable diligence

and promptness in representing a client.”), 32:8.4(a) (“It is professional

misconduct for a lawyer to . . . violate . . . [a disciplinary rule.]”), and

32:8.4(d) (“It is professional misconduct for a lawyer to . . . engage in

conduct that is prejudicial to the administration of justice[.]”). The

commission adopted the parties’ stipulation and issued findings that the

stipulated ethical violations occurred. 5

B. Beu Estate. In February 1998, Ackerman was appointed the

attorney for the estate of Bertha Beu and filed this probate matter in Bremer

County. After the publication of notice to creditors was made in February

1998 and the inventory was filed in November 1998, partial distributions of

the estate were made to the beneficiaries in May 1998, October 1998, July

1999, October 1999, and January 2000.

Beginning in January 2000, Ackerman began communicating with the

beneficiaries with regard to the final distribution of the estate. He sent

letters to the beneficiaries in January 2000, May 2000, and March 2001.

With regard to the March 2001 letter, Ackerman included a final distribution

check and stated no further distributions would be forthcoming.

Subsequently, Ackerman did not respond to requests for information about

beneficiary tax liability. In February 2004, Ackerman communicated with

the beneficiaries, stating the estate was ready to be closed, all assets had

been sold and divided, and they would receive an accounting of income and

expenses by March 10, 2004. This letter was Ackerman’s final

communication with the beneficiaries.

In June 2001, November 2001, and December 2002, Ackerman filed

interlocutory reports representing various estimated dates of closing. On

several occasions, the district court ordered deadlines for the filing of final

reports. When Ackerman failed to satisfy these deadlines, notices of

delinquency were filed in December 2003, June 2005, June 2006, June

2007, August 2007, December 2007, and February 2008. In August 2005,

Ackerman filed a final report. In July 2006, Ackerman filed a supplemental

final report and attached an accounting. However, as of the date of the

parties’ stipulation, the estate remained open even though it was statutorily

required to be closed by February 2001. 6

In November 1999, the district court entered an order setting

Ackerman’s entire fee at $43,692, which was disbursed to him and his law

firm in January 2000. The taking of the entire fee at this time was contrary

to court rules.

The parties stipulated that Ackerman’s actions constitute violations of

DR 1–102(A)(1), (4), (5) and (6); DR 2–106(A) (“A lawyer shall not . . . collect

an illegal . . . fee.”); DR 6–101(A)(3); and DR 7–101(A)(1) and (3). Moreover,

the parties stipulated that these actions violated rules 32:1.3, 32:8.4(a), and

32:8.4(d). The commission approved the parties’ stipulation and issued

findings that the stipulated ethical violations occurred.

III. Ethical Violations.

Under our rules prohibiting neglect, an attorney must advance and

protect his clients’ interests. Earley, 774 N.W.2d at 307. “[A]n attorney

[must] attend to matters entrusted to his care and . . . do so in a reasonably

timely manner.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo, 730

N.W.2d 202, 205 (Iowa 2007); accord Earley, 774 N.W.2d at 307. “Neglect is

more than negligence, and it often involves procrastination, ‘such as a lawyer

doing little or nothing to advance the interests of a client.’ ” Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 817 (Iowa 2007)

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

N.W.2d 549, 552 (Iowa 2004)).

We agree with the commission that Ackerman’s dilatory handling of

these two estates, despite repeated delinquency notices and inquiries from

beneficiaries, evidences serious neglect in violation of DR 6–101(A)(3) and

rule 32:1.3. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wagner, 768

N.W.2d 279, 283 (Iowa 2009) (dilatory handling of estate violated Iowa Court

Rule 32:1.3); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d

53, 59 (Iowa 2009) (neglect of probate matters violated DR 6–101(A)(3)). We 7

also agree that his failure to diligently perform the work necessary to close

these estates supports a finding that Ackerman intentionally failed to seek

the lawful objectives of his clients, which consequently resulted in damage to

his clients. 2 Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Reese, 657

N.W.2d 457, 460 (Iowa 2003) (holding failure to meet the probate deadlines

in nine separate estates violated DR 7–101(A)). Moreover, Ackerman’s

dilatory conduct, resulting in numerous delinquency notices and eventual

intervention by a specially appointed judge, evidences conduct prejudicial to

the administration of justice in violation of DR 1–102(A)(5) and rule

32:8.4(d). 3 See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784

N.W.2d 761, 768 (Iowa 2010) (holding actions that hamper the efficient and

proper operation of the courts are prejudicial to the administration of

justice).

We also agree Ackerman violated DR 1–102(A)(4), (5) and (6), as well as

rule 32:8.4(d), when he misrepresented the status of the tax matters to the

district court in the Smith estate and misrepresented the amount of time it

would take to complete the remaining work in the Beu estate to the

beneficiaries and the court. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

2Although we are satisfied, based upon the excessive length of time the estates remained open, that the estates necessarily suffered some damage from the delays, neither the stipulation nor the record specifically addresses this issue. It is important to note, however, that it is not always possible to imply such damages. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carpenter, 781 N.W.2d 263, 271–72 (Iowa 2010) (rejecting commission’s recommendation that attorney refund unearned funds due to the lack of specificity in the stipulation and absence of evidence in the record to determine the degree of harm caused by attorney’s actions), with Comm. on Prof’l Ethics & Conduct v. Blomker, 379 N.W.2d 19, 22 (Iowa 1985) (finding estate was damaged and attorney violated DR 7–101(A)(3) when evidence established executor of the estate was required to pay interest due on late filing and to employ new attorney to complete the process of closing the estate). 3Because the board has proven other rule violations, we do not consider DR 1– 102(A)(1) and rule 32:8.4(a), which provide that a lawyer shall not violate a disciplinary rule, as separate violations. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010). 8

Walker, 712 N.W.2d 683, 684–85 (Iowa 2006) (misrepresentation violates DR

1–102(A)(4), (5) and (6)); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Humphrey, 738 N.W.2d 617, 620 (Iowa 2007) (same). Due to Ackerman’s

misrepresentations, the court was misadvised about the status of the

estates, and the estates remained open for an inexcusable amount of time to

the detriment of the beneficiaries and the legal system.

Finally, we agree Ackerman’s action in taking the entire fee in the Beu

estate violated our ethical rules. Iowa Court Rule 7.2(4) (1999) stated:

One half of the fees for ordinary services may be paid when the federal estate tax return, if required, and Iowa inheritance tax return, if required, are prepared. When an inheritance tax return is not required, an inheritance tax clearance must be filed. When a federal estate tax return is not required, the one- half fee may be paid when the Iowa inheritance tax return is prepared or, when it is not required, when the inheritance tax clearance is filed. The remainder of the fees may be paid when the final report is filed and the costs have been paid. The schedule for paying fees may be different when so provided by order of the court for good cause. 4

Under rule 7.2(4), when Ackerman took the entire $43,692 fee in November

1999, he was entitled to take only one half of that amount. He was not

entitled to the remaining one half until the final report was filed in August

2005. Iowa Court Rule 7.2(4) was enacted to promote the efficient administration of estates to ensure that the work was done prior to an

attorney being paid. We also believe that court rules define the “ ‘well-

understood norms and conventions of practice.’ ” Templeton, 784 N.W.2d at

768 (quoting 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering § 65.6, at

65–16 (3d ed. 2009 Supp.)); see also Iowa Code § 602.4201 (stating purposes

of rules of procedure are to simplify the proceedings and promote the speedy

4Rule 7.2(4) was amended in November 2004 and that amendment was effective

February 1, 2005. While the amendment is not relevant to this case, it would also have not changed the analysis as the new rule still requires the final report be filed before the remainder of the fees may be paid. 9

determination of litigation). By taking his fees prematurely in violation of the

rule, we hold that Ackerman’s actions were prejudicial to the administration

of justice. Thus, Ackerman’s premature taking of probate fees contrary to

our court rules constituted an illegal fee in violation of DR 2–106(A), was

prejudicial to the administration of justice, and exhibited a lack of fitness to

practice law in violation of DRs 1–102(A)(5) and (6), as well as rule 32:8.4(d).

See Casey, 761 N.W.2d at 61 (finding a violation of rule 7.2(4) is a violation

of DRs 1–102(A)(5), (6) and rule 32:8.4(d)); Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Jay, 606 N.W.2d 1, 4 (Iowa 2000) (withdrawal of fees

contrary to Iowa R. Probate P. 2(d), now rule 7.2(4), violates DR 2–106(A)).

IV. Sanctions.

“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.”

Earley, 774 N.W.2d at 308. When fashioning a sanction, we examine several

factors, including “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);

accord Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328,

332 (Iowa 2009). We also examine both mitigating and aggravating

circumstances. Earley, 774 N.W.2d at 308.

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 for punishment include “ ‘the

existence of multiple instances of neglect, past disciplinary problems, and

other companion violations.’ ” Id. (quoting Iowa Supreme Ct. Att’y 10

Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006)). When

neglect is the principal violation, discipline usually ranges from a public

reprimand to a six-month suspension. Wagner, 768 N.W.2d at 287.

We find several cases illustrative of appropriate discipline in the form

of suspension with regard to the handling of probate and other matters. In

Iowa Supreme Court Board of Professional Ethics & Conduct v. Grotewold, 642

N.W.2d 288, 293, 296 (Iowa 2002), we imposed a sixty-day suspension for

failure to meet deadlines and to close an estate for nearly nine years,

misrepresentation of the status of the estate to the court, and failure to file a

timely answer in the case. In Casey, 761 N.W.2d at 63, we imposed a three-

month suspension for neglect, misrepresentations to the court, premature

taking of probate fees, mishandling of a client trust account, and failure to

respond to the board’s inquires. In Humphrey, 738 N.W.2d at 620, we

imposed a six-month suspension for neglect of six probate estates,

misrepresentations, and the depositing of probate fees in a business account

before the fees had been earned. In Iowa Supreme Court Board of

Professional Ethics & Conduct v. Daggett, 653 N.W.2d 377, 381–82 (Iowa

2002), we imposed a sixty-day suspension for neglect, misrepresentation,

failure to respond to the trial court’s order, and failure to respond to the

board. In Marks, 759 N.W.2d at 332–33, we imposed a thirty-day

suspension for neglect of probate matters and failure to cooperate with the

board.

Based on these cases, we believe the ninety-day suspension

recommended by the commission to be appropriate in light of the

misconduct in the instant action. We believe this suspension takes into

account the mitigating factors of Ackerman’s battle with cancer, as well as

his extensive community service. See Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Powell, 726 N.W.2d 397, 408 (Iowa 2007) (fact that respondent was a 11

highly respected member of the bar and the community considered

mitigating factors); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Frerichs, 671 N.W.2d 470, 474–75, 477–78 (Iowa 2003) (considering

respondent’s battle with cancer and health problems as mitigating factors).

V. Disposition.

We suspend Ackerman’s license to practice law in this state

indefinitely with no possibility of reinstatement for ninety days. This

suspension applies to all facets of the practice of law. See Iowa Ct. R.

35.12(3). Upon any application for reinstatement, Ackerman must establish

that he has not practiced law during the suspension period and has

complied in all ways with the requirements of Iowa Court Rule 35.13.

Ackerman shall also comply with the notification requirements of Iowa Court

Rule 35.22. We tax the costs of this action to Ackerman pursuant to Iowa

Court Rule 35.26.

LICENSE SUSPENDED.