How To Avoid Having a Complaint Filed Against You
Recent Iowa ethics opinions and orders suggest the following areas in which Iowa lawyers are more likely to experience difficulty, and prompt the following advice:
- Conduct Yourself Professionally On and Off Duty:
Iowa Rule of Professional Conduct 32:8.4 (Misconduct) provides that professional misconduct includes a criminal act reflecting adversely on honesty, trustworthiness, or fitness as a lawyer in other respects; conduct involving dishonesty, fraud, deceit, or misrepresentation; and conduct prejudicial to the administration of justice.E.g.,Iowa Supreme Ct. Att’y Disciplinary Bd. v. Stowe, 830 N.W.2d 737 (Iowa 2013)(forgery of two checks stolen from client and housemate resulting in felony convictions; license revoked); Iowa Supreme Ct. Att’y Disciplinary Board v. Polsley, 796 N.W.2d 881 (Iowa 2011)(conversion of government benefits; licenses revoked); Iowa Supreme Ct. Att’y Disciplinary Board v. Knopf, 793 N.W.2d 525 (2011)(failure to file returns and pay state income tax; three month suspension); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761 (Iowa 2010)(invasion of privacy – nudity; three month suspension); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen, 779 N.W.2d 757 (Iowa 2010)(sexual contact with client; six month suspension); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 774 N.W.2d 496 (Iowa 2009)(third offense OWI; six month suspension); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71 (Iowa 2008)(second offense OWI plus extrajudicial statements regarding trial judge; three month suspension); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kress, 747 N.W.2d 530 (Iowa 2008)(falsifying student evaluations; three month suspension); cf. Iowa Supreme Ct Att’y Disciplinary Board v. Bowles, 794 N.W.2d 1 (2011)(sexual relations with client violated rule 32:1.8(j); eighteen month suspension); Iowa Supreme Ct. Att’y Disciplinary Board v. Nelsen, No. 11-0114 (Iowa December 9, 2011)(aiding and abetting client conversion of property subject to a creditor’s security interest violated DR 7-102(A)(5) and (7); license revoked).
- Do Your Homework Before Undertaking Work in a New Field of Practice:
An Iowa lawyer is expected to provide competent representation to clients, which requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Iowa R. Prof’l Conduct 32:1.3; e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694 (Iowa 2008)(repeated failure to meet appeal deadlines; numerous errors in handling of probate estate; errors in handling claim in bankruptcy; one year suspension); Iowa Supreme Ct. Bd. of Prof’l Ethics and Conduct v. Moorman, 683 N.W.2d 549 (Iowa 2004)(neglect of client matters in multiple cases; two year suspension); cf. Iowa Supreme Court Att’y Disciplinary Bd. v. Hoglan, 781 N.W.2d 279 (Iowa 2010)(neglect warranted 30 day suspension, but did not constitute incompetence).
- Keep Your Clients Informed: Iowa Rule of Professional Conduct 32:1.4 provides for various aspects of an Iowa lawyer’s duty to communicate with a client. Nothing antagonizes clients as quickly and effectively as their lawyer’s failure to keep them informed of the status of their matter and promptly respond to their queries. E.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860 (Iowa 2010)(neglect of four probate matters, taking probate fees without court order, and failure to keep the clients informed; three month suspension); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carpenter, 781 N.W.2d 263 (Iowa 2010)(numerous trust account violations and failures to keep immigration law clients informed regarding their cases, along with second offense OWI and driving while suspended; two year suspension); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147 (Iowa 2010)(failure to notify client of dissolution trial or appear at trial, coupled with mishandling advance for fees; six month suspension).
- Promptly Respond to Any Board or Commission:
Iowa Court Rule 34.7 provides a summary suspension process if a lawyer fails to timely respond to a notice from the Attorney Disciplinary Board. Iowa Court Rule 39.12(1)(a) provides a similar summary suspension process if a lawyer fails to cooperate with the Client Security Commission.
- Properly Handle Fees and Expenses:
- Notify Clients Regarding IOLTA Deposits:
Iowa Court Rule 45.4(1) requires that clients be notified regarding the IOLTA provisions when their monies are deposited in a pooled (IOLTA) trust account. Iowa Court Rules 45.7 through 45.10 require deposit of client advances for fees or expenses in a lawyer trust account, to be withdrawn only when proper notice and accounting have been given to the client. E.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580 (2011)(withdrawal of advance fees from trust account before earned and without accounting to client, plus failure to return unearned advance fees; sixty day suspension); Iowa Supreme Court Att’y Disciplinary Bd. v. Piazza, 756 N.W.2d 690 (Iowa 2008)(failure to deposit advance fees in trust, failure to timely account to client; public reprimand); Iowa Supreme Court Att’y Disciplinary Bd. v. Isaacson, 750 N.W.2d 104 (Iowa 2008)(numerous instances of failure to deposit client advances in trust account, coupled with numerous conversions of client funds, failure to account to law firm partners; six month suspension); Iowa Supreme Ct. Bd. on Prof’l Ethics and Conduct v. Apland, 577 N.W.2d 50 (Iowa 1998)(unethical to contract for nonrefundable advance fee unless a general retainer; all advances for fees other than general retainers must be placed in trust and not withdrawn until earned).
- Don’t Take Probate Fees Until Authorized:
Iowa Rule of Probate Procedure 7.2 provides guidance regarding applications for fees and the time when fees may be paid in probate matters. In general, one-half of a probate fee may be paid when the estate and inheritance tax returns are prepared, and the remainder may be paid when the final report has been filed and the costs have been paid. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ginkel, 809 N.W.2d 96 (Iowa 2012)(taking fee before inheritance tax return was completely prepared, coupled with neglect of estates and false statement to a tribunal; sixty day suspension); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ackerman, 786 N.W.2d 491 (Iowa 2010)(neglect of probate estates, and taking entire probate fee when only one-half was payable; ninety day suspension).
- Account to Your Firm for Earned Fees: Fees you collect while an employee or member of a law firm must be accounted for under the terms of your employment agreement or the law firm’s establishing agreement. Iowa Supreme Court Att’y Disciplinary Bd. v. Henrichsen, 825 N.W.2d 525 (Iowa 2013)(conversion of fees that were law firm property; three month suspension); Iowa Supreme Ct. Bd. on Prof’l Ethics and Conduct v. Irwin, 679 N.W.2d 641 (Iowa 2004)(license revoked).
- Don’t Use Nonrefundable Fees: Provisions for nonrefundable special retainers are unethical and void. Iowa Supreme Ct. Bd. of Prof’l Ethics and Conduct v. Frerichs, 671 N.W.2d 470, 475 (Iowa 2003)(four month suspension). All advance fee payments other than general retainers are subject to refund regardless of contract provisions, and must be placed in a trust account until earned and accounted for. Id
- Properly Handle Flat Fees: A flat fee “embraces all services that a lawyer is to perform, whether the work is relatively simple or complex.” Iowa Ct. R. 45.10(1). If a flat fee is paid prior to performance of the services, it must be deposited in the trust account. Iowa Ct. R. 45.10(2). Contracts providing for nonrefundable flat fees are unethical and void. Frerichs, 671 N.W.2d at 475. Absent an agreement with the client to the contrary, a lawyer is entitled to the flat fee when the contemplated services have been completed. However, the lawyer and client may agree regarding when and how much of the flat fee will be earned and may be withdrawn as the work progresses to completion. The agreement must reasonably protect the client’s right to a refund of the unearned portion of the flat fee in the event the client engages new counsel or the lawyer fails to complete the work. Iowa Ct. R. 45.10(3). Any withdrawal of a portion of the flat fee from the trust account requires notice and accounting to the client. Iowa Ct. R. 45.7. Flat fee arrangements in criminal defense cases can involve issues of attorney overreaching and self-interest, and should be approached with caution. See Frerichs, 671 N.W.2d at 476 n.1.
- Notify Clients Regarding IOLTA Deposits:
Who considers ethics complaint in Iowa?
The attorney disciplinary process in Iowa involves two separate entities. The first is the Attorney Disciplinary Board. The second is the Grievance Commission.
The Attorney Disciplinary Board receives the initial complaint of unethical conduct by Iowa attorneys. It can initiate an investigation or disciplinary action on its own or by a complaint filed by someone else. The ADB investigates the complaint and meets quarterly to make determinations. The ADB can dismiss meritless complaints and can issue certain types of discipline. It can order mental or physical examination or treatment. Lastly, it can file complaints with the Grievance Commission.
The Grievance Commission holds fact-finding hearings on ethical complaints not able to be resolved through the ADB process. It is physically and operationally separate from the Attorney Disciplinary Board. It accepts complaints only from the ADB ethics counsel and does not accept complaints directly from the public, reimburse victims of theft or conversion by Iowa attorneys or handle complaints of non-lawyers practicing law.
The Grievance Commission is made up of members that are geographically and gender-balanced. It consists of 25 lawyers from District 5C, 15 lawyers from District 5A,10 lawyers from District 6, and 5 lawyers from each other judicial election district. It also has 35 lay members. All members are unpaid volunteers appointed by the Supreme Court. The Grievance Commission chair appoints a panel of 4 lawyers and 1 lay member who hear the testimony and evidence regarding the alleged misconduct. They then issue a Finding of Fact and Recommendation of Sanction. Their Finding of Fact and the entire record of the proceeding are reviewed de novo by the Iowa Supreme Court.
What is the disciplinary process before the ADB?
The following flow-chart shows the steps involved upon the filing of a complaint with the attorney disciplinary board:
What is the disciplinary system process before the Grievance Commission?
The Grievance Commission does not get involved in an attorney disciplinary matter unless and until the ADB has filed a formal complaint of charges against an Iowa lawyer. Once the complaint is filed by the ADB, the following procedure then takes place: