Learning from Other’s Mistakes: Recent Ethics Opinions

1. Learning from Other’s Mistakes: Recent Ethics Opinions Rebecca A. Brommel BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-242-2452 Facsimile: 515-323-8552 E-mail: brommel@brownwinick.com

2. Attorney Discipline Procedures • Attorney Disciplinary Board • Investigates all complaints with help of its staff • Investigations are confidential • Board can dismiss, admonish/reprimand attorney or file and prosecute complaint before Commission • Reprimand becomes public if attorney does not file an exception to it

3. Attorney Discipline Procedures • Grievance Commission • Hears complaints prosecuted by Board • Attorney has right to file answer • Matters are confidential • Hearing • Commission can dismiss, issue a private admonition or recommend reprimand, suspension or revocation to Supreme Court • Report/recommendation to Supreme Court is public record • Attorney may then file an appeal

4. Attorney Discipline Procedures • Iowa Supreme Court • May grant appeal by attorney – follow interlocutory appeal rules • May impose sanction different from the Commission’s recommendation

5. Sanctions • Revocation • Suspension • Specific amount of time (ie: 30 days, 1 year) • Indefinite with time period before reinstatement can be requested • Public Reprimand • Additional or alternative sanctions: • Restitution • Costs • Practice Limitations • Appointment of trustee/receiver • Passage of bar or MPRE • CLE requirements

6. Reasons for Discipline • Violation of Iowa Rules of Professional Conduct • Conviction of a Crime • Disability Suspension • Reciprocal Discipline • Failure to comply with support order • Failure to comply with student loan obligation • Interim suspension (pending final disposition; violation poses substantial threat of serious harm to public) • Temporary suspension for failure to respond to Board inquiries

7. 2011 Statistics • 542 complaint files (526 in 2010; 517 in 2009) • 70.5% of complaints filed were dismissed by Board • 15.1% private admonition • 6.1% public reprimand • 8.3% referred to Grievance Commission

8. Who would complain about lawyers? • Prisoners & Criminal Defendants - 28.4% of complaints • Clients (other than criminal defendants, prisoners and family law clients) – 21.6% • Family law clients – 10.3% • Judges & attorneys – 7.9% • Beneficiaries/Involved in Probate – 7.0% • Adverse parties (family law matters) – 6.3% • Adverse parties (other than family law matters) – 5.4%

9. What do they complain about? • Neglect or incompetence (over half) • Trial-related misconduct • Dishonesty/Misrepresentation • Conflict of Interest • Mishandling of money/property • Excessive or illegal fees

10. What did the Supreme Court see in 2012? • Engaging in Dishonesty, Fraud, Deceit or Misrepresentation – Iowa R. Prof’l Conduct 32:8.4(c) • False statements on mortgage applications • Aided and abetted client’s conversion of bank funds • Assisted client in concealing actual sales price from lender • Misrepresentation of facts to Board of Immigration Appeals and on Appeal • False statements to client security commission re: status of trust accounting procedures • False statement to court regarding status of suspension • False statement to client and client’s divorce attorney re: status of filing bankruptcy • Misrepresentation to client re: filing of certain documents • Leading client to believe appeal was pending when it had been dismissed • Taking funds from client’s trust account without colorable claim to funds and used money for his own purposes • Forged client’s signature • Forged witness signature on will • Filed forged guilty plea • Failure to file income tax returns for 3 years • Failing to comply with order re: suspension (obtained fees and stated he was working on file)

11. What did the Supreme Court see in 2012? (con’t) • Commission of Criminal Act that Reflects Adversely on Lawyer’s Honesty, Trustworthiness, or Fitness as a Lawyer in other Respects – Iowa R. Prof’l Conduct 32:8.4(b) • False statements on mortgage applications • Assisted client in concealing actual sales price from lender • Extortion – emailed officer of corporation involved in litigation with his wife and demanded $100k charitable donation in wife’s name in exchange for dismissal of lawsuit • 3rd Offense OWI and 3rd degree harassment • Pattern of misconduct (operating boat while intoxicated, OWI, possession of cocaine, substance abuse and mental health issues)

12. What did the Supreme Court see in 2012? (con’t) • Engaging in Conduct Prejudicial to the Administration of Justice – Iowa R. Prof’l Conduct 32:8.4(d) • Cases: • Emails requesting documents subject to a protective order by attorney to adverse party in wife’s litigation (triggered a series of legal proceedings) • Failure to cooperate with disciplinary Board and respond to demands for information • Failure to respond to client complaint and inquires from Board • Filing of forged guilty plea • Submission of will containing forged witness signature • Failure to close estate • Failure to prosecute client’s appeal • Withdrawal of probate fees based upon partially prepared return and without confirming payment of court costs • Dilatory conduct in failing to file bankruptcy petition for client who was planning divorce

13. What did the Supreme Court see in 2012? (con’t) • Communication with person represented by counsel – Iowa R. Prof’l Conduct 32:4.2 • Attorney sent emails asking for documents to officer of non-profit when he represented his wife in her litigation with the non-profit • Court distinguished between contact with officer (not allowed) and member of Board of Directors (allowed) – Board member was not a constituent because he did not have individual authority to bind the non-profit • In another case, no violation was found because the represented party initiated the communication and the Court was unable to determine whether the contact was authorized by the corporation’s attorney

14. What did the Supreme Court see in 2012? (con’t) • Conflict of Interest – Iowa R. Prof’l Conduct 1.7 • Attorney continued to represent client without disclosing to him that client could have a ground to overturn an order based upon an ineffective assistance of counsel claim – conflict between client interest and attorney’s personal interest • Attorney had a conflict when he represented his wife in drafting a contract where former client was the purchaser and the purchase was substantially related to the foreclosure action he handled for the client (same property) – needed to obtain informed consent • Failures re: to Withdrawal of Representation – Iowa R. Prof’l Conduct 32:1.16 • Attorney failed to withdraw for 5 months after client discharged his services • Attorney ceased representing client on appeal without asking for permission to withdraw • Attorney failed to take steps to safeguard client interests or return files after withdrawing without notice

15. What did the Supreme Court see in 2012? (con’t) • Failing to Explain Matter to Allow Client to Make an Informed Decision re: Representation – Iowa R. Prof’l Conduct 32:1.4(b) • Attorney failed to tell client about potential ineffective assistance of counsel motion as an option for overturning the over entered by immigration court – attorney owed client an explanation of the alternative course of action in order to permit client to make informed decision • Attorney failed to comply with his suspension from practice by informing clients of his suspension and his inability to represent them • Failing to Keep Client Reasonably Informed about Status of Matters and to Respond to Requests for Information – Iowa R. Prof’l Conduct 32:1.4(a)(3, 4) • Attorney failed to answer phone, return message, attend appointments with clients and to appear for hearing • Attorney failed to inform clients of dismissal of their appeal for 2 months and did not respond to 3 letters from the clients requesting information • Attorney only contacted client 3 times in a 17 month period, and client had made numerous requests; Attorney did not tell client about 2 letters he did send on client’s behalf • Attorney failed to keep client informed of status of her divorce matter or respond to client's requests for information

16. What did the Supreme Court see in 2012? (con’t) • Failure to Act with Reasonable Diligence & Promptness – Iowa R. Prof’l Conduct 32:1.3 • In numerous matters, attorney failed to take timely action for clients, failed to file client interrogatory answers, failed to comply with orders and notices re: deficient filings • In a 20 month period, only action attorney took was to send out two delayed letters to claims adjuster • Attorney neglected estate for over 3 ½ years • Attorney failed to meet deadline on 7 occasions in an estate proceeding • Attorney failed to ensure that client completed discovery requests, failed to attend sanction hearing or inform client of sanctions and failed to file bankruptcy petition • Attorney took 14 months to re-file a post-conviction relief matter, failed to respond to client inquiries and sought 3 continuances of the trial date • Failure to Make Reasonable Efforts to Expedite Litigation Consistent with Client’s Interests – Iowa R. Prof’l Conduct 32:3.2 • Attorney failed to appear in court and remedy deficient filings • Attorney used delay tactics in order to mask dilatory estate filings • Attorney failed to appear at hearings, participate in discovery or file bankruptcy petition

17. What did the Supreme Court see in 2012? (con’t) • Failure to follow client instructions – Iowa R. Prof’l Conduct 32:1.2(a) • Attorney filed forged guilty plea • Attorney altered written arraignment and not guilty plea to waive speedy trial and falsely said that client signed it in front of him • False Statement to Tribunal – Iowa R. Prof’l Conduct 32:3.3 • Attorney falsely state that he was unaware that his license has been suspended (after he had signed a certified mail receipt for the order) • Attorney falsely stated that he was waiting on income tax remittance, even though he hadn’t even filed the return • Disobedience of Court Orders – Iowa R. Prof’l Conduct 32:3.4 • Attorney failed to comply with discovery orders, appear at hearing or respond to discovery requests

18. What did the Supreme Court see in 2012? (con’t) • Trust Account Issues – Iowa R. Prof’l Conduct 32:1.15; 45 • Attorney failed to deposit retainer fees, failed to maintain a current list of clients on a regular basis that listed their trust account balances • Attorney co-mingled trust account funds with his personal checking account and failed to provide contemporaneous notice to clients of the time, amount and purpose of his fee and the withdrawals from the trust account; Attorney also took several months to return unearned fees in one matter and failed to send bill or return retainer for nearly a year in another matter • Attorney failed to deposit a special retainer (a flat fee) into the trust account and withdraw amounts only once earned and without providing an accounting to the client • Attorney accepted funds, provided no accounting and did not timely refund his unearned fees (fees relating to activities that were done after date of suspension) • Attorney entered a minimum fee contract that has been deemed prohibited, failed to properly treat the retainer as an advance fee • Attorney failed to return $500, which was an undisputed overpayment, even after the matter was brought to his attention • Attorney delayed 17 months in one case and 4 months in another to return fees in 2 criminal cases • Attorney withdrew unearned fees and failed to keep disputed fees (they were the subject of a divorce proceeding) separate

19. What did the Supreme Court see in 2012? (con’t) • Charging an Unreasonable Fee or a Fee in Violation of Restrictions of Law – Iowa R. Prof’l Conduct 32:1.5(a) • Attorney received 1st and 2nd half probate fees before allowed • Attorney entered unethical minimum fee contract and contracted for, charged and collected an unreasonable fee for the work performed • Attorney collected $500 fee to perform work in Georgia – a state where he was not licensed – and also did no work on the matter • Failure to Communicate Fee – Iowa R. Prof’l Conduct 32:1.5(b) • Attorney’s preparation of final bill was insufficient, because it failed to disclose fee/expense rate within a reasonable time of the commencement of representation • Attorney’s oral agreement for $500 followed by bill of over $1300 just weeks later

20. What did the Supreme Court see in 2012? (con’t) • Unauthorized Practice of Law – Iowa R. Prof’l Conduct 32:5.5 • Attorney failed to comply with suspension order – took fees, advised client and corresponded with others on behalf of client • Attorney appeared in juvenile court 6 days after accepting service of the order suspending his license • Failure to Participate, Respond or Cooperate with Disciplinary Authorities – Iowa R. Prof’l Conduct 32:8.1 • Attorney failed to respond to the investigation committee inquiries • Attorney disregarded 2 letters from Board that requested copies of communications and an accounting of settlement checks • Attorney failed to respond to information demands of Board

21. What sanctions did the Supreme Court give in 2012? (con’t) • Public Reprimand • Indefinite suspension with no reinstatement for 60 days, 3 months, 6 months, 1 year, 2 years • Suspension for 30 days, 60 days, 6 months, 1 year, 18 months, 2 years • Revocation

22. Advertising Rules • Iowa R. Prof’l Conduct 32:7 • Relaxation of rules • Less specific on what can be on/in ads – still cannot be misleading • Recognition that lawyers should be able to make their services known through organized advertising and not just through reputation

23. Website: www.brownwinick.com Toll Free Phone Number: 1-888-282-3515 OFFICE LOCATIONS: 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309-2510 Telephone: (515) 242-2400 Facsimile: (515) 283-0231 616 Franklin Place Pella, Iowa 50219 Telephone: (641) 628-4513 Facsimile: (641) 628-8494 DISCLAIMER: No oral or written statement made by BrownWinick attorneys should be interpreted by the recipient as suggesting a need to obtain legal counsel from BrownWinick or any other firm, nor as suggesting a need to take legal action. Do not attempt to solve individual problems upon the basis of general information provided by any BrownWinick attorney, as slight changes in fact situations may cause a material change in legal result.