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
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
Attorney Discipline Procedures
• Grievance Commission
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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
Attorney Discipline Procedures
• Iowa Supreme Court
– May grant appeal by attorney – follow
interlocutory appeal rules
– May impose sanction different from the
Commission’s recommendation
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:
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Restitution
Costs
Practice Limitations
Appointment of trustee/receiver
Passage of bar or MPRE
CLE requirements
Reasons for Discipline
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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
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
Who would complain about
lawyers?
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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%
What do they complain about?
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Neglect or incompetence (over half)
Trial-related misconduct
Dishonesty/Misrepresentation
Conflict of Interest
Mishandling of money/property
Excessive or illegal fees
What did the Supreme Court see
in 2012?
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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)
What did the Supreme Court see
in 2012? (con’t)
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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)
What did the Supreme Court see
in 2012? (con’t)
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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
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
What did the Supreme Court see
in 2012? (con’t)
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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
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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
What did the Supreme Court see
in 2012? (con’t)
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Failing to Explain Matter to Allow Client to Make an Informed Decision re:
Representation – Iowa R. Prof’l Conduct 32:1.4(b)
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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)
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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
What did the Supreme Court see
in 2012? (con’t)
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Failure to Act with Reasonable Diligence & Promptness – Iowa R. Prof’l
Conduct 32:1.3
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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
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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
What did the Supreme Court see
in 2012? (con’t)
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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
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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
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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
What did the Supreme Court see
in 2012? (con’t)
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Trust Account Issues – Iowa R. Prof’l Conduct 32:1.15; 45
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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
What did the Supreme Court see
in 2012? (con’t)
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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
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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
What did the Supreme Court see
in 2012? (con’t)
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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
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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
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
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
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
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