IN THE SUPREME COURT OF IOWA No. 08–1700
Filed February 13, 2009
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
MARC WILLIAM CASEY,
Respondent.
On review of the report of the Grievance Commission.
Grievance Commission in disciplinary proceeding recommends
suspension of respondent’s license to practice law. LICENSE
SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
Marc W. Casey, Dyersville, pro se. 2
PER CURIAM.
This matter comes before the court on the report of a division of
the Grievance Commission of the Supreme Court of Iowa. See Iowa Ct.
R. 35.10. The Iowa Supreme Court Disciplinary Board alleged the
respondent, Marc Casey, violated ethical rules by neglecting client
matters, failing to timely disburse funds, misrepresenting the status of
an estate to the court, prematurely taking probate fees, and failing to
cooperate with the Board. The Grievance Commission found Casey
violated the Iowa Code of Professional Responsibility for Lawyers and the
Iowa Rules of Professional Conduct and recommended that we suspend
Casey’s license to practice law for a period of two months.1 Upon our
respectful consideration of the findings of fact, conclusions of law, and
recommendation of the Commission, we find the respondent committed
several ethical violations and suspend his license to practice law
indefinitely with no possibility of reinstatement for three months.
I. Standard of Review.
Our review of attorney disciplinary proceedings is well established.
We review such proceedings de novo. Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Gottschalk, 729 N.W.2d 812, 815 (Iowa 2007). We give the Commission’s findings and recommendations respectful consideration,
but are not bound by them. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Isaacson, 750 N.W.2d 104, 106 (Iowa 2008). The burden is on the Board
to prove attorney misconduct by a convincing preponderance of the
evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conrad, 723 N.W.2d
791, 792 (Iowa 2006).
1The Iowa Rules of Professional Conduct became effective July 1, 2005, replacing the Iowa Code of Professional Responsibility for Lawyers. Some of the conduct in this case occurred before the effective date of the new rules and some after. 3 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.
Casey has been an attorney for thirty-four years and is currently
practicing law in Dyersville, Iowa. The charges in this disciplinary action
stem from Casey’s representation of clients in a personal injury case and
a probate matter.
A. Trenkamp Personal Injury Action. On May 13, 2001, Susan
Trenkamp was allegedly injured when a porch post fell, hitting her on the
head. Trenkamp engaged Casey to represent her. They had no written
or oral fee agreement. On May 12, 2003, Casey filed a personal injury
claim against the property owners on Trenkamp’s behalf.
After the petition was filed, Casey did little to advance the case. He
did not file any requests for discovery and took no depositions in the
matter. Moreover, he failed to respond to numerous letters and discovery
requests by defense counsel. This inaction resulted in opposing counsel
filing a motion to compel and, subsequently, a motion for sanctions.
Casey also failed to keep Trenkamp advised of the status of her claim
and did not inform Trenkamp of an impending trial until a few days
before the trial was scheduled to start. On the day of trial, September 1,
2004, the case was settled on the courthouse steps for $20,000.
According to Trenkamp, Casey advised her at that time that he would not
charge her any fee if she settled, but that she would have to pay him on
an hourly basis if they went to trial. 4
Although the defendants’ insurer sent a settlement check to Casey
on September 13, 2004, Casey failed to promptly dismiss the case. On
December 27, 2004, after the court had granted several continuances,
Casey had the plaintiff’s case dismissed. Even then, Casey failed to pay
out the settlement proceeds to the plaintiff until June 20, 2005, over
nine months after the settlement check was received by Casey.
Moreover, although his trust account shows checks were issued in 2005
on his client’s behalf for court costs and to satisfy a subrogation claim
made by Trenkamp’s medical insurance provider, Wellmark, these
payments were not received by the payees. In 2006, Trenkamp was
notified by the State of Iowa that her income tax refund would be
withheld pending payment of court costs. Thereafter, Casey paid the
court costs. On April 27, 2007, after Wellmark threatened to offset
future medical benefits due the Trenkamp family, Casey paid the $4000
subrogation claim from his client trust account, two-and-a-half years
after the settlement check was received.
B. Schockemoehl Estate. In March 2004, Casey was retained as
the attorney for the coexecutors of Magdalen Schockemoehl’s estate. The
coexecutors were two of Magdalen’s sons. Magdalen had five children.
Although Casey filed the necessary papers opening the estate, his
representation in the probate matter was plagued by delay. On
January 31, 2006, Casey advised the district court that he would have
the estate resolved in thirty days. This did not happen, and the district
court certified the matter as delinquent and ordered a show-cause
hearing as to why the coexecutors should not be removed from their
positions. After reassurances from Casey and the coexecutors that they
would move expeditiously in closing the estate, the court did not remove
the coexecutors. 5
On June 26, 2006, the court signed an order approving the final
report and discharging the coexecutors subject to payment of remaining
court costs and documentation that the bequest for Catholic masses had
been paid. On September 20, 2006, the coexecutors sought to reopen
the estate when it was determined Magdalen’s interest in certain real
property had not been properly transferred. The coexecutors hired a new
attorney to assist them in this endeavor. Although the coexecutors
believed the estate was closed on June 26, 2006, it was discovered that
the district court’s contingency—documentation of the payment of the
bequest for masses—had never been complied with, and therefore, the
estate had never closed. Once these matters were addressed and the real
estate was sold, the estate was finally closed.
The Board, having been notified of the delinquency under the
probate rules, sent letters to Casey on April 5, 2006, May 16, 2006, and
July 13, 2006, regarding his dilatory handling of the matter. Casey
failed to respond to these inquiries. During its investigation of the
delinquency issue, the Board uncovered other matters of concern.
Documents revealed Casey misrepresented the decedent’s marital status
to the court and to the Iowa Department of Revenue and Finance.
Papers prepared, signed, and filed by Casey with the court erroneously
stated Magdalen did not have a spouse when, in fact, Magdalen had a
surviving spouse, William Schockemoehl, to whom Magdalen’s will
bequeathed $5000. Casey also prepared tax documents that erroneously
stated Magdalen had no surviving spouse. The erroneous court and tax
documents were also signed by the coexecutors. In addition, Casey did
not give William the required notice regarding taking under the will. See
Iowa Code §§ 633.237, .304 (2003). William was not paid his bequest
under the will while Casey was the attorney for the estate, although he 6
eventually did take under the will after representation of the estate was
undertaken by another attorney.
The Board also discovered that, on April 7, 2006, Casey took his
entire fee for the probate matter and placed it in his firm’s operating
account before the final report was filed on May 31, 2006. This action
was contrary to the district court’s order, which stated the fees were to
be paid consistent with Iowa Supreme Court Probate Rule 7.2. See Iowa
Ct. R. 7.2(4) (requiring final report be filed prior to attorney receiving the
second half of his or her legal fees in a probate matter).
C. Disciplinary Board’s Complaint. On January 4, 2008, the
Board filed a two-count complaint against Casey. Count I involved the
Trenkamp personal injury lawsuit, and Count II concerned the
Schockemoehl estate. The complaint was amended on June 4, 2008, to
add additional claims to Count II.
With regard to Count I, the Board alleged Casey’s actions in the
Trenkamp matter constituted neglect, failure to promptly disperse
proceeds, and failure to respond to a disciplinary inquiry in violation of
the Iowa Code of Professional Responsibility for Lawyers DR 6–101(A)(2)
and (3) (“A lawyer shall not . . . [h]andle a legal matter without
preparation adequate in the circumstances [or] neglect a client matter.”);
DR 7–101(A) (“A lawyer shall not intentionally fail to seek the lawful
objectives of a client . . . .”); and DR 1–102(A)(1), (4), (5), and (6) (“A
lawyer shall not violate a disciplinary rule[,] . . . [e]ngage in conduct
involving dishonesty, fraud, deceit, or misrepresentation[,] . . . [e]ngage in
conduct that is prejudicial to the administration of justice[,] [and]
[e]ngage in any other conduct that adversely reflects on the fitness to
practice law.”). To the extent Casey’s actions occurred after the adoption
of the Iowa Rules of Professional Conduct on July 1, 2005, the Board 7
contended Casey violated Iowa Rules of Professional Conduct 32:1.15(d)
(“[A] lawyer shall promptly deliver to the client or third person any funds
or other property that the client or third person is entitled to receive
. . . .”); 32:8.1 (“[A] lawyer . . . shall not . . . knowingly fail to respond to a
lawful demand for information from [a] . . . disciplinary authority . . . .”);
32:8.4(a), (c), and (d) (“It is professional misconduct for a lawyer to . . .
violate . . . the Iowa Rules of Professional Conduct[,] . . . engage in
conduct involving dishonesty, fraud, deceit, or misrepresentation, [and]
engage in conduct that is prejudicial to the administration of justice[.]”);
and 32:1.4 (“A lawyer shall . . . reasonably consult with the client about
the means by which the client’s objectives are to be accomplished[,] keep
the client reasonably informed about the status of the matter[,] [and]
promptly comply with reasonable requests for information[.]”).
With regards to Count II, the Schockemoehl estate, the Board
alleged Casey’s actions constituted neglect, misrepresentation,
premature taking of fees, and failure to respond in violation of DR 6–
101(A); DR 7–102(A)(3), (5), (7), and (8) (“[A] lawyer shall not . . . [c]onceal
or knowingly fail to disclose that which the lawyer is required by law to
reveal[,] . . . [k]nowingly make a false statement of law or fact[,] . . .
[c]ounsel or assist a client in conduct that the lawyer knows to be illegal
or fraudulent[,] [or] [k]nowingly engage in other illegal conduct or
conduct contrary to a disciplinary rule.”); and DR 1–102(A)(1), (3), (4), (5),
and (6) (subsection (3) prohibits a lawyer from “[e]ngag[ing] in illegal
conduct involving moral turpitude”). Again, to the extent Casey’s actions
occurred after July 1, 2005, the Board contended his actions violated
rules 32:1.1 (requiring competent representation); 32:1.2(d) (“A lawyer
shall not counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent . . . .”); 32:1.3 (“A lawyer shall act 8
with reasonable diligence and promptness in representing a client.”);
32:1.5(a) (“A lawyer shall not . . . violate any restrictions imposed by law
[on fees].”); 32:1.15(c) (“A lawyer shall deposit into a client trust account
legal fees and expenses that have been paid in advance, to be withdrawn
by the lawyer only as fees are earned or expenses incurred.”); 32:3.3(a)(1)
(“A lawyer shall not knowingly . . . make a false statement of fact or law
to a tribunal or fail to correct a false statement of material fact . . .
previously made to the tribunal by the lawyer.”); and 32:8.4(a), (c), and
(d).
D. Grievance Commission Findings and Conclusions. Although
Casey answered the initial complaint with a general denial of any
violation, he did not file a timely answer to the amended complaint. This
omission resulted in an order from the Commission relieving the Board of
any further burden of proof on the additional claims. See Iowa Ct. R.
36.7 (failure to file an answer within the specified time results in the
admission of allegations contained within the complaint). Casey also
failed to respond to discovery responses, and therefore, the Commission
imposed sanctions precluding Casey from offering exhibits, testifying, or
calling witnesses regarding claims contained in the amended complaint.
Irrespective of these orders, Casey was permitted to testify at the
disciplinary hearing. With the exception of the fee agreement, Casey did
not refute the Board’s evidence in the Trenkamp matter. On that issue,
Casey denied offering to waive the fee contingent upon Trenkamp’s
agreement to settle and forego a trial. Furthermore, although he
acknowledged that he did not pursue the matter as he should have, in
his defense, Casey contended Trenkamp was a difficult client who was
not realistic about the merits of her case. Casey also asserted his belief 9
the $20,000 settlement was fair. Casey had no explanation, however, for
the untimely disbursement of the settlement funds.
With regards to the Schockemoehl estate, Casey again
acknowledged that he made mistakes in the handling of the estate.
Casey admitted that, when he became aware of a surviving spouse, he
took no action to amend the documents filed with the court or
department. He attributed this misstep to difficulties between the
coexecutors and to their advising him—Casey—that “there was no jointly
or commonly owned property” between the decedent and the surviving
spouse, their stepfather. Casey also acknowledged taking the entire
probate fee prior to the filing of the final report.
Based upon the evidence and testimony presented, the
Commission concluded the Board proved by a convincing preponderance
of the evidence the allegations made in Counts I and II. Specifically, the
Commission concluded the Board proved Casey neglected the Trenkamp
and Schockemoehl matters in violation of DR 6–101(A)(2) and (3) and
rules 32:1.3 and 32:1.15(d). The Commission also found that Casey’s
misrepresentations in the Schockemoehl estate constituted violations of
DR 1–102(A)(4) and rules 32:3.3(a)(1) and 32:8.4(c). The Commission
determined his premature taking of probate fees was a violation of Iowa
Court Rule 7.2(4). Casey’s failure to respond to the Board’s inquiries, all
occurring after July 1, 2005, violated rules 32:8.1(b) and 32:8.4(d). The
Commission further concluded a two-month suspension of Casey’s law
license was warranted.
III. Ethical Violations.
A. Count I. Our rules of ethics do not define neglect, but “it has
generally been recognized to involve indifference and a consistent failure
to perform those obligations that a lawyer has assumed, or a conscious 10
disregard for the responsibilities a lawyer owes to a client.” Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549,
551 (Iowa 2004). “It is a form of professional incompetence that often
involves procrastination, such as a lawyer doing little or nothing to
advance the interests of a client after agreeing to represent the client.”
Id.
The evidence in this case supports the Commission’s conclusion
that Casey neglected the Trenkamp personal injury matter, and in so
doing, he failed to advance the interests of his client. Despite frequent
prompting from defense counsel, Casey failed on multiple occasions to
respond to requests for discovery. He also failed to keep his client
informed of the status of her claim and untimely notified her of the
upcoming trial. Such failure to communicate did not serve to advance
the client’s interests, who, having had limited discussions with Casey,
was suddenly faced with making a determination about settlement on
the courthouse steps.
More troubling, however, is Casey’s neglect of his client once a
settlement was reached. His procrastination in obtaining a dismissal of
the claim and his untimely disbursement of the settlement proceeds had
a detrimental effect on his client’s interests. Although there was some
evidence that Casey attempted in 2005 to pay the court costs and
subrogation lien out of his client trust account, he failed to appropriately
respond to his client’s complaints that neither the court nor Wellmark
had received payment until the state sought to withhold his client’s tax
refund and Wellmark threatened to offset future medical benefits due the
Trenkamp family. Casey’s neglect of these matters caused his client
additional stress for an unnecessarily lengthy period of time and
supports a finding by a convincing preponderance of the evidence that 11
Casey violated DR 6–101(A)(3) and DR 1–102(A)(5) and (6). See Moorman,
683 N.W.2d at 551–52 (multiple acts of procrastination and indifference
to the interests of client constituted neglect and amounted to conduct
prejudicial to the administration of justice and adversely reflected upon
attorney’s fitness to practice law); see also Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 408–09 (Iowa 2005)
(“[D]ilatory handling of client matters is a disservice not only to the
client, but also to the judicial system and is a violation of DR 1–
102(A)(5).”). Because ethical rules were violated, Casey’s actions
necessarily violated DR 1–102(A)(1).
Under the Iowa Rules of Professional Conduct, this same conduct
occurring after July 1, 2005, violated rules 32:1.3, 32:1.4, 32:1.15(d),
and 32:8.4(a) and (d). Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Curtis, 749 N.W.2d 694, 700 (Iowa 2008) (handling of estate by leaving it
open for a protracted period of time, together with numerous associated
violations, constituted conduct prejudicial to the administration of
justice in violation of rule 32:8.4(d)).
We have long held that an attorney has an obligation to cooperate
with disciplinary authorities and that failure to respond to an
investigation committee’s request constitutes a separate act of
misconduct subjecting the attorney to discipline. Comm. on Prof’l Ethics
& Conduct v. Horn, 379 N.W.2d 6, 8 (Iowa 1985). Although Casey
ultimately responded to the Board’s inquiry, his response was not timely
and required additional correspondence from the Board. Because the
Board’s investigation was instituted after July 1, 2005, Casey’s untimely
response constituted a violation of rules 32:8.1 and 32:8.4(d). See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 331 (Iowa
2009) (failure to respond to Board in a timely fashion was prejudicial to 12
the administration of justice); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Adams, 749 N.W.2d 666, 669 (Iowa 2008) (failure to respond to Board
demands for information violated rule 32:8.1(b)). However, upon our
de novo review, we find the Board failed to establish by a preponderance
of the evidence that Casey violated DR 1–102(A)(4), DR 6–101(A)(2),
DR 7–101(A), and rule 32:8.4(c) in his handling of the Trenkamp matter.
B. Count II. Casey’s delinquent handling of the Schockemoehl
estate, including his failure to supply the requested documentation to
close the estate, supports a finding Casey neglected the estate in
violation of DR 6–101(A)(3) and rule 32:1.3. The Board also established
by a preponderance of the evidence that Casey violated DR 7–102(A)(3),
(5), (7), and (8) and DR 1–102(A)(3) and (4) when he filed papers with the
court and the department misrepresenting the marital status of the
decedent.
In response to the Board’s inquiry, Casey acknowledged he was
aware the decedent had a surviving spouse, but attempted to excuse his
concealment of this fact on the basis the coexecutors “informed [him]
that there was no jointly or commonly owned property.” Regardless of
this assertion, Casey had an obligation to truthfully prepare documents
filed with the court and to provide the surviving spouse with his required
notice regarding taking under the will. He had an ethical obligation not
to assist his clients—the coexecutors—in conduct he knew to be
fraudulent. See Gottschalk, 729 N.W.2d at 818 (misrepresentation to the
court in estate final report violated DR 1–102(A)(4)); Iowa Supreme Ct.
Att’y Disciplinary Bd. v. D’Angelo, 710 N.W.2d 226, 234 (Iowa 2006)
(misrepresentations to court in estate matter constituted violations of
DR 1–102(A)(4) and DR 7–102(A)(3) and (5)); Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002) 13
(casual, reckless disregard for the truth resulting in misrepresentations
to court in estate matter constituted violation of DR 1–102(A)(4)); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Romeo, 554 N.W.2d 552,
554 (Iowa 1996) (“In relation to lawyer conduct, the term ‘moral
turpitude’ connotes behavior involving ‘ “fraudulent or dishonest
intent.” ’ ” (quoting Comm. on Prof’l Ethics & Conduct v. Cody, 412 N.W.2d
637, 639 (Iowa 1987))). To the extent this misrepresentation continued
uncorrected after July 1, 2005, Casey violated rules 32:3.3(a)(1) and
32:8.4(c).
Iowa Court Rule 7.2(4) restricts an attorney in a probate matter
from taking the second half of his court-approved fees until the final
report is filed. See Iowa Code §§ 633.197, .198 (2005) (requiring lawyers
and executors to obtain court approval before taking a probate fee); Iowa
Ct. R. 7.2(4). We agree that the Board has proven by a preponderance of
the evidence Casey’s conduct in taking his entire fee prior to his filing of
the final report constituted a violation of rule 32:1.5(a). Moreover,
Casey’s failure to deposit the fee award in his trust account violated rule
32:1.15(c) (requiring an attorney to deposit unearned fees into the trust
account). Curtis, 749 N.W.2d at 701. This conduct, along with Casey’s
neglect and misrepresentations, was improper and, as such, reflects
adversely on Casey’s fitness to practice law in violation of DR 1–102(A)(6).
See Moorman, 683 N.W.2d at 553 (finding improper conduct adversely
reflects on fitness to practice law). The same conduct was prejudicial to
the administration of justice in violation of DR 1–102(A)(5) and rule
32:8.4(d). See Curtis, 749 N.W.2d at 702.
Upon our de novo review, we further conclude that, as in the
Trenkamp matter, Casey’s failure to respond to the Board’s inquiries in
the Schockemoehl estate constituted a violation of rules 32:8.1 and 14
32:8.4(d). However, the Board’s allegation that Casey violated rule
32:1.1, relating to competence and preparedness in his representation of
the estate, is not supported by the evidence in the record.
IV. Sanctions.
The Commission has recommended Casey’s license to practice law
be suspended. Casey believes a public reprimand would be sufficient.
We conclude under the facts and circumstances a three-month
suspension is warranted.
“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. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d
437, 443 (Iowa 2007); accord Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Piazza, 756 N.W.2d 690, 699 (Iowa 2008).
In fashioning an appropriate sanction, we consider the nature of the violations, the attorney’s fitness to continue in the practice of law, the protection of society from those unfit to practice law, the need to uphold public confidence in the justice system, deterrence, maintenance of the reputation of the bar as a whole, and any aggravating or mitigating circumstances.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502
(Iowa 2008). “Specific facts and circumstances, including instances of
past disciplinary problems, often determine the discipline imposed.”
Piazza, 756 N.W.2d at 699.
When attorney misconduct involves neglect alone, this court has
generally imposed discipline ranging from a public reprimand to a six-
month suspension. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Tompkins, 733 N.W.2d 661, 670 (Iowa 2007). “When neglect is
compounded by other misconduct, a more severe sanction may be 15
required.” Id. An important consideration in determining the
appropriate sanction is the harm caused by the neglect. Id. We turn
now to the specific circumstances in this case.
Although there was no evidence Trenkamp would have been able to
procure a better settlement had Casey diligently pursued her lawsuit, it
is clear Trenkamp suffered some harm from Casey’s neglect, specifically
his failure to timely disburse the proceeds from the settlement. Years
went by before Casey properly distributed the settlement to third-party
claimants. During this time, Trenkamp was forced to deal with creditors
who eventually threatened to withhold tax refunds and medical benefits.
She was also deprived of her share of the settlement for nine months.
Likewise, Casey’s neglect in failing to promptly and properly close the
Schockemoehl estate resulted in harm to his clients through additional
delay and attorney fees.2
We also have serious concerns about Casey’s misrepresentations to
the court and to the tax department. We have repeatedly stated that
“[o]ur system of justice requires ‘absolute reliability and an impeccable
reputation for honesty.’ ” Gottschalk, 729 N.W.2d at 818 (quoting Comm.
on Prof’l Ethics & Conduct v. Ramey, 512 N.W.2d 569, 571 (Iowa 1994)). “At its most basic level a court must rely, not alone on the honesty of
lawyers, but also on the reliability of factual representations submitted to
the court.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ackerman,
611 N.W.2d 473, 474 (Iowa 2000). “Misrepresentation to the court
constitutes a serious breach of professional ethics, warranting a more
severe sanction than neglect.” Gottschalk, 729 N.W.2d at 821.
2Although there is evidence in the record that real property was not appropriately transferred, there was no allegation that this error was related to Casey’s handling of the estate. 16
Another major concern we have with Casey’s conduct is his
premature taking of a probate fee and his failure to deposit the fee into a
trust account. Although in the past we have revoked an attorney’s
license when the attorney deliberately converted a client’s funds, we have
not done so when an attorney has a “ ‘colorable future claim to the
funds.’ ” Curtis, 749 N.W.2d at 704 (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. McCann, 712 N.W.2d 89, 97 (Iowa 2006)). Casey had
a colorable claim to these fees, once the estate was closed. Therefore,
while the premature appropriation was a serious one, it does not require
revocation. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Humphrey, 738
N.W.2d 617, 620 (Iowa 2007) (neglect, misrepresentation, and depositing
of probate fees in business account prior to the fees being earned
warranted suspension).
As previously noted, in determining the appropriate sanction, prior
discipline is an aggravating factor to be considered. See Piazza, 756
N.W.2d at 699. In an unrelated proceeding, Casey was privately
admonished by the Board for neglecting a client’s matter. See Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lemanski, 606 N.W.2d 11,
14 (Iowa 2000) (considering private admonition in imposing discipline).
In crafting an appropriate sanction, we look to prior similar cases
while remaining cognizant of their limited usefulness due to the
variations in their facts. We also consider the goals of discipline:
deterrence, protection of the public, maintenance of the reputation of the
Bar, and the actor’s fitness to practice law. Humphrey, 738 N.W.2d at
621. In this case, if the neglect evinced by Casey constituted his only
misconduct, under the circumstances, we would be inclined to order a
public reprimand. See Tompkins, 733 N.W.2d at 670 (neglect of two
client matters and failure to respond to Board warranted public 17
reprimand). However, based upon his misrepresentations and premature
taking of probate fees, we conclude a more serious sanction of a three-
month suspension is warranted, especially in light of our goals of
deterrence and maintenance of the reputation of the Bar. Cf. Humphrey,
738 N.W.2d at 619–21 (neglect of and misrepresentations in six estates
and premature taking of probate fees in three estates warranted six-
month suspension); Earley, 729 N.W.2d at 444 (neglect of several cases,
trust account violation, and failure to respond to Board’s inquiry
warranted four-month suspension); Grotewold, 642 N.W.2d at 293
(neglect of probate estate and small claims matter, misrepresentation,
and failure to respond to Board’s inquiry warranted sixty-day
suspension); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Hohenadel, 634 N.W.2d 652, 656–57 (Iowa 2001) (neglect of two client
matters accompanied by misrepresentation to the court and prior
discipline warranted four-month suspension); Horn, 379 N.W.2d at 9–10
(neglect of probate matter, misrepresentations, and failure to cooperate
with Board warranted three-month suspension).
V. Conclusion.
Based upon Casey’s neglect of the personal injury and estate
cases, his misrepresentations to the court and department, his
premature taking of probate fees, and his failure to promptly respond to
the Board’s investigation, we believe Casey’s license to practice law
should be suspended for a minimum of three months. Accordingly, his
license is suspended indefinitely with no possibility of reinstatement for
three months. This suspension shall apply to all facets of the practice of
law. Iowa Ct. R. 35.12(3). The respondent shall provide all notifications
required by Iowa Court Rule 35.22. Upon any application for
reinstatement, Casey shall have the burden to show he has not practiced 18
law during the period of suspension and that he meets the requirement
of Iowa Court Rule 35.13. Costs are taxed to Casey pursuant to Iowa
Court Rule 35.26(1).
LICENSE SUSPENDED.
This opinion shall be published.