Iowa Supreme Court Attorney Disciplinary Board Vs. Kermit Lee Dunahoo

• Court: Supreme Court of Iowa
• Decided: April 13, 2007
• Docket: 20 / 06-1754
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 20 / 06-1754

Filed April 13, 2007

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

KERMIT LEE DUNAHOO,

Respondent.

On review of the report of the Grievance Commission.

Grievance Commission reports respondent violated DR 1-102(A)(1),

DR 6-101(A)(3), and DR 9-102(B)(3) and recommends public reprimand.

RESPONDENT REPRIMANDED.

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

complainant.

Kermit Dunahoo, Des Moines, pro se. 2 HECHT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board filed a

complaint against Kermit Dunahoo alleging he violated several Iowa Rules of

Professional Responsibility: DR 1-102(A), DR 6-101(A), DR 7-101(A), DR 7-

102(A)(8), and DR 9-102(B)(3). Dunahoo and the Board filed a stipulation of

facts. The Grievance Commission adopted the parties’ stipulation of facts,

concluded Dunahoo violated DR 1-102(A), DR 6-101(A), and DR 9-102(B)(3),

and recommended a public reprimand. Upon our de novo review of the

Commission’s findings and recommendation, we find Dunahoo violated DR

1-102(A)(1), DR 6-101(A)(3), and DR 9-102(B)(3) and impose a public

reprimand.

I. Background Facts.

We find the following facts by a convincing preponderance of the

evidence.

A) Wheeler Matter.

Phillip Wheeler retained Dunahoo to represent him with regard to a

charge of operating while intoxicated (OWI), second offense. Neither

Wheeler nor Dunahoo attended Wheeler’s arraignment scheduled for

July 11, 2000. The court continued the arraignment. The same day,

Dunahoo filed Wheeler’s written arraignment, waiver of speedy trial and

plea of not guilty. Wheeler later changed his plea to guilty and received the

mandatory minimum sentence.

Wheeler paid Dunahoo $1100 as an initial retainer. On four

occasions, Dunahoo withdrew funds from Wheeler’s trust account, but did

not provide an accounting to Wheeler.

B) Winter Matter.

Victoria and James Winter hired Dunahoo to handle the estate of

their father, Luke Winter, who died testate on April 4, 1996. Dunahoo 3 opened the estate on February 18, 1997. The clerk of court issued a

probate delinquency notice in December of 2000 because the estate had not

been closed. Upon receipt of the notice, Dunahoo sought and obtained an

order extending the time to cure the delinquency. Dunahoo discovered that

the attorney who had been assisting him with the Winter estate had taken

the Winter estate file with him when the attorney severed his relationship

with Dunahoo’s law firm. After meeting with no success in his effort to

retrieve the firm’s estate file, Dunahoo made copies of the court’s file and

hired an attorney from outside the firm to finish the work required to close

the Winter estate. The estate was closed on May 1, 2001, with no pecuniary

loss or delay in distribution of estate assets to the beneficiaries.

C) Meyer Matter.

Amy Meyer retained Dunahoo on July 12, 2000, to represent her in a

dissolution of marriage action. Dunahoo filed an application for hearing on

temporary custody, temporary child support and visitation on August 16,

2000. The Meyers were ordered to engage in mediation as to these

temporary matters before September 9, 2000. A proposed stipulation

requiring Meyer’s husband to pay guideline-based temporary child support

in the amount of $457.12 per month was prepared by Dunahoo and mailed

to Meyer, but the document was never signed by the parties. Meyer

contacted Dunahoo’s office and disclosed that her husband would agree to

pay no more than $300 per month for child support. A hearing on

temporary matters was not held, however, because Meyer requested it be

cancelled after she and her husband executed a handwritten agreement

calling for Mr. Meyer to commence guidelines-based child support payments

on January 1, 2001. Meyer expressed satisfaction with the agreement on

temporary matters in a conversation with Dunahoo’s legal assistant. 4 An associate attorney in Dunahoo’s law firm began managing the case

approximately one week prior to the pretrial conference, which was held on

December 8, 2000. The associate attorney apparently relied upon opposing

counsel to prepare a wage withholding order. Meyer’s husband did not

begin to pay child support on January 1, 2001, as he had agreed. He

deceived his attorney and Meyer by representing that child support was

being withheld from his paycheck. This deception caused Dunahoo’s

associate to make inquiries of the Child Support Recovery Unit and place

telephone calls to opposing counsel seeking an explanation as to why Meyer

was not receiving child support payments. By the time Meyer and

Dunahoo’s associate attorney discovered the truth, March had arrived. The

parties continued to negotiate a resolution of their dispute as the March 22,

2001, trial date approached, and Meyer’s husband agreed to pay child

support retroactive to January 1. Settlement negotiations continued, and a

draft of a proposed dissolution decree was prepared by Dunahoo’s associate

attorney. For reasons that are not clear in the record, the trial did not

occur as scheduled, and Meyer terminated the attorney-client relationship.

Meyer did not begin receiving child support payments from her husband

until after Dunahoo and his associate withdrew as her attorneys on

April 26, 2001.

II. Scope and Standards of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa

2006). The Board must prove 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 generally

applied in civil cases. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett,

674 N.W.2d 139, 142 (Iowa 2004). If misconduct is proved, we “may impose 5 a lesser or greater sanction than the discipline recommended by the

grievance commission.” Id.

III. Analysis.

A) Failure to Account.

DR 9-102(B)(3) requires attorneys to “[m]aintain complete records of

all funds . . . of a client coming into the possession of the lawyer and render

appropriate accounts to the client regarding them.” Dunahoo failed to

render an account to Wheeler, in violation of DR 9-102(B)(3). See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Dull, 713 N.W.2d 199, 205 (Iowa 2006)

(finding an attorney’s failure to render a timely account to her client violated

DR 9-102(B)); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moonen, 706 N.W.2d

391, 399 (Iowa 2005) (finding that an attorney “who took fees without

accounting for his time” violated DR 9-102(B)); Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Apland, 577 N.W.2d 50, 57 (Iowa 1998)

(concluding lawyers who accept advance fee payments must notify their

clients in writing of the time, amount, and purpose of any withdrawal of the

fee together with a complete accounting).

B) Neglect.

DR 6-101(A)(3) directs that attorneys shall not neglect clients’ legal

matters. The rule requires an attorney to attend to matters entrusted to his

care and to do so in a reasonably timely manner. See Dull, 713 N.W.2d at 204 (“Application of the rule should require a lawyer to complete legal

matters entrusted to him in a reasonably timely manner.”); Comm. on Prof’l

Ethics & Conduct v. Freed, 341 N.W.2d 757, 759 (Iowa 1983) (suspending an

attorney’s license for filing an appeal and taking no further action).

We find by a convincing preponderance of the evidence that Dunahoo

neglected the Winter estate. Although Dunahoo assigned the file to a 6 person he describes as “a subordinate case attorney,” he concedes that he

remained ultimately responsible for the handling of the estate. 1 Dunahoo

failed to monitor the legal services provided to the estate until he was

notified by the clerk of court on December 1, 2000, that the estate had not

been closed. The record contains no evidence tending to prove the estate

involved complex matters. As a consequence of Dunahoo’s neglect of his

professional responsibilities, the estate remained open for more than four

years.

We disagree with the Commission’s finding that the Board proved

Dunahoo violated DR 6-101(A) by failing to attend Wheeler’s arraignment.

Because Dunahoo filed a written arraignment on the day of the

arraignment, we are not convinced Dunahoo neglected the Wheeler matter

in a fashion that would constitute a violation of DR 6-101(A)(3).

We also disagree with the Commission’s finding that Dunahoo

neglected Meyer’s interests. Any error in assuming that a wage withholding

arrangement was in place to increase the likelihood that Meyer’s husband

would pay child support was not the result of neglect of either Dunahoo or

the attorney over whom he had managerial responsibility. Acts or

omissions resulting from mere inadvertence or errors of judgment made in

good faith do not generally justify attorney discipline. Comm. on Prof’l Ethics

& Conduct v. Rogers, 313 N.W.2d 535, 536 (Iowa 1981). Furthermore, DR

6-101(A)(3) does not proscribe mere delay. Discipline is imposed under this

1Current Iowa Rules of Professional Conduct 32:5.1 (requiring a lawyer with

managerial authority in a law firm to make reasonable efforts to ensure the firm has in effect “measures giving reasonable assurance that [other] lawyers in the firm conform to the Iowa Rules of Professional Conduct”) and 32:8.4(a) (proscribing misconduct committed through the acts of another) were not in effect at the time of the occurrences that are the subject of this case. However, we view the parties’ stipulation that Dunahoo was responsible for the services provided to the clients in this case as a concession that he may be sanctioned for the neglect, if any, of the lawyer who performed the delegated work subject to his supervision under the rules of professional responsibility prevailing at the time the legal services were provided. 7 rule only if the attorney’s conduct constitutes neglect. Although Meyer’s

receipt of child support payments was delayed until after the attorney-client

relationship with Dunahoo was terminated, we are not persuaded under the

circumstances of this case that the delay constituted neglect attributable to

Dunahoo or the attorney working under his supervision.

C) Failure to Represent a Client Zealously and Within the Bounds of the Law.

We note that although the Board alleged Dunahoo violated DR 7-

101(A)(1)-(3) and DR 7-102(A)(8), the Commission made no findings of fact

and stated no conclusions of law on the claim. DR 7-101(A)(1)-(3) provides

that a lawyer “shall not intentionally . . . [f]ail to seek the lawful objectives of

a client,” “[f]ail to carry out a contract of employment,” or “[p]rejudice or

damage a client during the course of the professional relationship.”

(Emphasis added.) DR 7-102(A)(8) provides that a lawyer must not

“[k]nowingly engage in other illegal conduct or conduct contrary to a

disciplinary rule.” (Emphasis added.) Because we find Dunahoo’s conduct

was neither “intentional” nor “knowing” as contemplated in these rules, we

find no sanctionable violation of Dunahoo’s duty to represent his clients

zealously and within the bounds of the law. D) Other Misconduct.

DR 1-102(A)(1) provides that a lawyer must not “[v]iolate a

disciplinary rule.” DR 1-102(A)(6) provides that a lawyer must not “[e]ngage

in any . . . conduct that adversely reflects on the fitness to practice law.”

Because Dunahoo has violated DR 6-101(A)(3) and DR 9-102(B)(3), and

violation of these rules adversely reflects on his fitness to practice law, we

conclude he violated DR 1-102(A)(1). See Comm. on Prof‘l Ethics & Conduct

v. Durham, 279 N.W.2d 280, 285 (Iowa 1979) (“Any violation of the Code of 8 Professional Responsibility necessarily reflects adversely on the fitness of an

attorney to practice law.”).

IV. Sanction.

In determining an appropriate sanction, “we consider the

respondent’s fitness to continue in the practice of law, deterrence of others

from similar conduct, and the assurance to the public that the courts will

maintain the ethics of the profession.” Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Zenor, 707 N.W.2d 176, 185 (Iowa 2005) (citation omitted) (internal

quotation marks omitted). We also consider any aggravating and mitigating

circumstances. Id.

Although the record does not support a finding of unreasonable delay

in the distribution of the Winter estate’s assets, the long delay in closing

the estate did provoke the filing of a complaint by family members of the

decedent. To his credit, once alerted by the clerk of court that the estate

had not been closed, Dunahoo promptly sought and obtained an order

extending the time to cure the default and hired an attorney to conclude

the matter at Dunahoo’s expense.

We also note that Dunahoo was cooperative with the Board

throughout these proceedings and has accepted full responsibility for his

conduct. However, cooperation is “expected and required” and therefore is

not a significant mitigating circumstance. See Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Bell, 650 N.W.2d 648, 653 (Iowa 2002).

Two aggravating circumstances are established in this case. First,

Dunahoo has substantial experience in the practice of law. See Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Vinyard, 656 N.W.2d 127, 131

(Iowa 2003) (citing Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v.

Gallner, 621 N.W.2d 183, 188 (Iowa 2001); Iowa Supreme Ct. Bd. of Prof'l

Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999)) (noting 9 substantial experience is an aggravating circumstance). Dunahoo has

practiced law for approximately thirty-five years and has operated his own

firm for twenty-five years. Second, he has a prior record of discipline for

neglect. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Adams, 623

N.W.2d 815, 819 (Iowa 2001) (noting prior violations of disciplinary rules

are an aggravating circumstance). In 1999, Dunahoo was reprimanded for

violation of DR 6-101(A)(3), EC 9-2 and DR 7-101(A)(3). Three months

later, he was admonished for violating DR 6-101(A)(3). In 2005, he was

again admonished for violating DR 6-101(A)(3).

Our decision to impose a public reprimand rather than a suspension

is affected in this case by measures taken by Dunahoo in the years after

the events that are the subject of this case. He no longer handles probate

matters. Although his representations to the court that he has reduced the

size of his practice, no longer has any associates to supervise, and will

retire and close his practice in early 2007 do not diminish the significance

of violations of the rules of professional responsibility, we conclude under

the circumstances of this case a more severe sanction is not required to

deter Dunahoo from future ethical misconduct. V. Conclusion. We conclude Dunahoo violated DR 1-102(A), DR 6-101(A)(3), and DR

9-102(B)(3). Under the circumstances of this case, we conclude a public

reprimand is the appropriate sanction. The costs of this proceeding are

assessed against Dunahoo in accordance with Iowa Court Rule 35.25(1).