Iowa Supreme Court Attorney Disciplinary Board Vs. Andrea Van Beek ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 08–0488
Filed November 21, 2008
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
ANDREA VAN BEEK,
Respondent.
On review of the report of the Iowa Grievance Commission
Grievance Commission reports respondent has committed ethical
misconduct and recommends a suspension from the practice of law.
LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, for complainant.
Andrea Van Beek, Orange City, pro se.
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CADY, Justice.
The Iowa Supreme Court Attorney Disciplinary Board (Board) charged
Andrea Van Beek with numerous violations of the Iowa Code of Professional
Responsibility for Lawyers. The Grievance Commission of the Supreme
Court of Iowa (Commission) found Van Beek violated the Code of
Professional Responsibility. It recommended Van Beek be suspended from
the practice of law for two years. On our review, we find Van Beek violated
the Code of Professional Responsibility, and we suspend her license to
practice law indefinitely, with no possibility of reinstatement for two years.
I. Background Facts and Proceedings.
Andrea Van Beek is an Iowa lawyer. She was admitted to the practice
of law in 1977 and maintained an office in Orange City. She has been
publicly reprimanded for unethical conduct on two occasions during her
career. In December 1995, she was reprimanded for neglect in an estate
proceeding. In August 2002, she was reprimanded for her participation in
events that caused an elderly woman to deed 160 acres of farmland to her in
1994 as a gift.
Van Beek is also an alcoholic. On January 12, 2007, we indefinitely
suspended her license to practice law after finding she was unable to
effectively discharge her professional responsibilities due to uncontrolled
bouts of alcohol consumption. Van Beek has not practiced law since that
time, and her license remains under disability suspension. Van Beek also
suffers from severe depression and has faced many personal and family
tragedies and problems over the last several years, including her own battle
with cancer. She has struggled in her efforts to confront and treat her
depression and alcoholism.
Prior to Van Beek’s disability suspension, she began to engage in a
series of unethical conduct while engaged in the practice of law. The
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unethical conduct resulted in a multiple-count complaint filed by the Board,
which is the subject of this disciplinary proceeding. The complaint was
divided into six counts and covered a period of several years. Some of the
counts involve similar conduct.
On one occasion, Van Beek altered a will after it had been signed by
the testator. For no apparent reason, Van Beek destroyed the first page of
the original will after she learned the testator had died, and substituted a
new first page. She then filed the will with the court, together with an oath
that the will was the “original or exact reproduction.” There was no
indication she changed any substantive terms of the will or acted for
personal gain, but her conduct likely altered the outcome of a subsequent
will-contest proceeding to the detriment of some of the beneficiaries.
Van Beek also forged the name of the executor on documents filed
with the court in probate proceedings on more than one occasion. In one
estate proceeding, she signed the name of the executor to multiple
documents filed with the court, notarized the false signatures, and then later
prepared a false affidavit declaring the forged signatures to be authentic. In
another estate action, she forged the signature of the executor on the final
report and on an application for attorney fees. As before, she notarized the
false signatures. She then accepted the attorney fees from the executor
without prior court approval or authorization and prior to the time the fees
were fully earned. She then failed to deposit the fees into her trust account.
To compound matters, she failed to perform subsequent legal services in the
case in a timely manner.
On another occasion, Van Beek signed the name of a client on a tax
form without authorization from the client and filed the document with the
Internal Revenue Service. In another case, she filed an appeal from a
decision by the district court in a child custody proceeding without the
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knowledge or consent of the client. The appeal was later dismissed for the
failure to file a brief, and Van Beek billed the client for pursuing the appeal.
II. Board Complaint.
The Board charged Van Beek with multiple violations of the rules of
professional responsibility. Count I involved the alteration of the will by
substituting a page of the will with another page and then presenting the will
to the court without disclosing her actions. This count also charged
Van Beek with falsely attesting that the will filed in probate was “the original
or exact reproduction.” This count alleged violations of numerous provisions
of the Code of Professional Responsibility, including DR 1–102(A)(5) (conduct
prejudicial to the administration of justice), DR 1–102(A)(6) (fitness to
practice law), DR 1–102(A)(4) (dishonesty and misrepresentation), and DR 7–
102(A)(5) (false statement of fact). Count II involved the alteration of a will
by completing the signature of an elderly testator outside the presence of the
testator and the witnesses to the will, in violation of DR 1–102(A)(4), DR 1–
102(A)(5), and DR 1–102(A)(6). Count III involved signing the name of the
executor to court documents and falsely attesting that the signatures were
authentic, in violation of DR 1–102(A)(4), DR 1–102(A)(5), DR 1–102(A)(6),
and DR 9–102(B)(1) (signing document in representative capacity). Count IV
involved forgery of the executor’s signature on court documents, accepting
fees without court authorization, failing to deposit unearned fees into a trust
account, and neglect, in violation of DR 9–102(B)(1), DR 1–102(A)(4), DR 1–
102(A)(5), DR 1–102(A)(6), DR 1–106(A) (illegal fees), DR 9–102(A) (trust
fund), and DR 6–101(A)(3) (neglect of client matters). Count V involved
signing a client’s name to a tax form, in violation of DR 9–102(B)(1), and
DR 1–102(A)(4), (5), and (6). Finally, Count VI involved filing the appeal
without the consent of the client, in violation of DR 7–101(A) (failed to seek
lawful objectives) and DR 1–102(A)(5), DR 1–102(A)(6), and DR 6–101(A).
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The Commission found the Board established violations under Counts
I, III, IV, V, and VI. It found the Board did not establish Count II and further
did not establish the false attestation portion of Count I. It recommended
Van Beek be suspended from the practice of law for two years. It further
recommended that reinstatement be conditioned upon a mental health
evaluation that establishes her competency to practice law and the
successful completion of the multistate professional responsibility portion of
the Iowa bar examination. It also recognized Van Beek would need to take
the appropriate action to lift the disability suspension as a condition to
reinstatement.
III. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa
2002). We give weight to the findings of the commission, but are not bound
by them. Id.
IV. Violations.
We concur with the findings and conclusions made by the Commission
in its detailed and thoughtful report. We find Van Beek violated the Code of
Professional Responsibility as found by the Commission. In particular, she
altered a will, forged the names of clients and executors to documents,
falsely declared documents and signatures to be authentic, received attorney
fees in an estate proceeding without a court order, failed to deposit unearned
fees into her trust account, neglected client matters, and failed to seek the
lawful objectives of a client.
V. Discipline.
We decide the appropriate level of discipline in an attorney disciplinary
action by considering “ ‘the nature of the alleged violations, the need for
deterrence, the protection of the public, maintenance of the reputation of the
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[bar] as a whole, and the respondent’s fitness to continue’ to practice law.”
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Walters, 646 N.W.2d 111,
113–14 (Iowa 2002) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct
v. Hohenadel, 634 N.W.2d 652, 655 (Iowa 2001)). We consider both
mitigating and aggravating circumstances. Id. In the end, we strive to
impose discipline based on the particular facts of each case. Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. McKittrick, 683 N.W.2d 554, 563 (Iowa
2004).
Van Beek engaged in numerous acts of misrepresentation and
dishonesty in several cases over several years. She improperly signed client
names to documents and misrepresented the authenticity of these
signatures. She also altered a will and misrepresented its authenticity.
We have said “[d]ishonesty, deceit, and misrepresentation by a lawyer
are abhorrent concepts to the legal profession, and can give rise to the full
spectrum of sanctions, including revocation.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Hall, 728 N.W.2d 383, 387 (Iowa 2007). In Iowa Supreme
Court Board of Professional Ethics & Conduct v. Rylaarsdam, 636 N.W.2d 90(Iowa 2002), we imposed a six-month suspension for neglect, forging clients’
signatures, and falsifying court documents. Yet, we have disbarred lawyers
who have repeatedly violated their professional obligation to be honest and
truthful. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rickabaugh, 728
N.W.2d 375 (Iowa 2007). Honesty is mandatory in the legal profession. Hall,
728 N.W.2d at 387.
Van Beek also collected a probate fee without court approval and
violated the trust account provisions with regard to the fee. A lawyer who
receives a fee in a probate action without prior court authorization merits
discipline. Iowa Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 710 N.W.2d
226, 235 (Iowa 2006). Additionally, the seriousness of this type of conduct is
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compounded when the fee is not fully earned and is not deposited into a
trust account. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Sullins,
648 N.W.2d 127, 135 (Iowa 2002).
Van Beek also neglected client matters. The range of discipline for
neglect of a client matter generally falls between a public reprimand and a
six-month suspension. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Joy, 728
N.W.2d 806, 815 (Iowa 2007). The appropriate discipline depends on the
particular facts and circumstances. Id.
Our cases generally indicate that the scope and type of misconduct
engaged in by Van Beek supports a suspension from the practice of law for a
period up to three years. See id. at 816 (citing cases); Hall, 728 N.W.2d at
388. For example, in Iowa Supreme Court Attorney Disciplinary Board v.
McCann, 712 N.W.2d 89, 97 (Iowa 2006), we imposed a two-year suspension
for multiple acts of neglect, misrepresentation to the court, misuse of client
funds, and accounting failures. In Iowa Supreme Court Attorney Disciplinary
Board v. Moonen, 706 N.W.2d 391, 402–03 (Iowa 2005), we imposed an
eighteen-month suspension for violations that included neglect of probate
matters and taking fees without a proper accounting. In Iowa Supreme
Court Board of Professional Ethics & Conduct v. D’Angelo, 619 N.W.2d 333,
339 (Iowa 2000), we imposed a three-year suspension for misconduct that
included neglect, accepting fees without court authorization, and
misrepresentation.
Additionally, we consider a prior public reprimand to be an
aggravating factor in the imposition of discipline. Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Pracht, 656 N.W.2d 123, 126 (Iowa 2003). Harm to
a client is also an aggravating factor. Hohenadel, 634 N.W.2d at 656. On
the other hand, we recognize Van Beek was fighting depression and
alcoholism during the time period of her unethical conduct. The depression
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and alcoholism likely contributed to her misconduct and are considered in
mitigation of sanctions. See Sullins, 648 N.W.2d at 135.
We observe Van Beek has also been under a disability suspension and
has not practiced law for nearly two years. Yet, this type of suspension is
not a sanction. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Maxwell, 705
N.W.2d 477, 480–81 (Iowa 2005). Notwithstanding the existence of a
disability suspension, it is necessary to discipline Van Beek for her unethical
conduct independent of a previous finding of her unfitness to practice law.
Id.
Considering all the circumstances, we conclude Van Beek should be
suspended from the practice of law with no possibility of reinstatement for
two years. This disposition fits the multiple instances of serious misconduct
and properly considers Van Beek’s struggle with depression and alcoholism
that contributed to her misconduct. The conditions of reinstatement urged
by the Commission are reasonable and will be considered by us upon any
application for reinstatement by Van Beek.
VI. Conclusion.
We suspend Van Beek’s license to practice law in Iowa indefinitely,
with no possibility of reinstatement for a period of two years from the date of
filing of this opinion. The suspension imposed applies to all facets of the
practice of law as provided by Iowa Court Rule 35.12(3) and requires
notification to clients as provided by Iowa Court Rule 35.21. The costs of
this proceeding are taxed against Van Beek pursuant to Iowa Court Rule
35.25(1).
LICENSE SUSPENDED.
All justices concur except Ternus, C.J., and Wiggins, J., who take no
part.