Amended March 9, 2015 Iowa Supreme Court Attorney Disciplinary Board v. Robert Allan Wright Jr. ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 14–1406
Filed December 26, 2014
Amended March 9, 2015
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
ROBERT ALLAN WRIGHT JR.,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
The grievance commission reports respondent committed ethical
violations and recommends a one-year suspension of the attorney’s
license. LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
Alfredo Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble,
Gentry & Fisher LLP, Des Moines, for respondent.
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WIGGINS, Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against Robert Allan Wright Jr., alleging Wright violated
multiple ethical rules. A division of the Grievance Commission of the
Supreme Court of Iowa found Wright committed numerous violations
and recommended a one-year suspension from the practice of law.
On our de novo review, we find the Board established by a
convincing preponderance of the evidence that Wright practiced law
while his license was suspended and committed various trust account
violations. We also find the length of his temporary suspension for the
same conduct met or exceeded the time we would have suspended his
license, so we will not impose any further suspension for this conduct.
However, because Wright’s license is under suspension for other
conduct, he must serve that suspension before we will reinstate him to
the practice of law.
I. Prior Proceedings.
In 1981, we admitted Wright to the Iowa bar. On August 16, 2012,
we entered an order temporarily suspending Wright’s license for failing to
comply with requests from the client security commission for documents
needed to complete an audit of his client trust account. We suspended
Wright’s license until the client security commission certified Wright had
complied with all requests. At this time, we have not lifted the August
2012 suspension.
On January 23, 2013, the client security commission sent the
Board a notice, alleging a review of Wright’s trust account showed
activity consistent with an active practice of law. On January 29, Wright
submitted a request to have the August 2012 suspension lifted and his
law license reinstated. On February 5, the Board filed a petition
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requesting we immediately suspend Wright’s license under Iowa Court
Rule 35.4, for posing a substantial threat of harm to the public
predicated on the fact he may have been practicing law while suspended.
On February 7, we granted the petition for interim suspension for threat
of harm pending a final disposition of the disciplinary proceeding on this
matter. We also required the chief judge of the district court to appoint a
trustee to inventory Wright’s client files, sequester all trust funds, and
return all files, funds, and other property to Wright’s clients. On
February 8, Chief Judge Gamble appointed a trustee. We confirmed the
appointment on February 11.
On April 29, the Board filed a complaint alleging Wright was
engaged in the unauthorized practice of law and had violated the terms
of his August 2012 suspension. Wright filed an answer on May 17.
Wright admitted to some of the allegations, including that after his
suspension he continued to practice law in one case, which he settled on
the client’s behalf. Wright also denied a number of the allegations,
including that he continued to take on new clients, that he gave the
appearance he was authorized to practice law, and that he failed to
comply with the obligations of his August 2012 suspension.
On July 18, Wright filed a consent to suspension and the Board
filed an unresisted motion to stay the disciplinary proceedings. On
July 19, the commission granted the Board’s motion and indefinitely
continued the matter until we had the opportunity to review the consent
to suspension. We rejected the consent to suspension on November 21.
In a matter unrelated to the present violations, on December 6,
2013, we suspended Wright’s license for engaging in “representation of
[his] clients in violation of conflict of interest rules and engaging in
misrepresentation or deceit resulting in a client’s financial loss.” Iowa
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Supreme Ct. Att’y Disciplinary Bd. v. Wright, 840 N.W.2d 295, 303 (Iowa
2013). We sanctioned Wright with a suspension of his license to practice
law with no possibility of reinstatement for a period of no less than
twelve months that will not begin until after we lift the August 2012
temporary suspension. Id. at 304.
On December 27, the Board filed an amendment to the complaint,
alleging that on May 27, 2013, Wright engaged in another act of
unauthorized practice of law. Wright denied this allegation. The parties
filed a stipulation of facts on April 2, 2014. The parties stipulated to the
procedural history of the case, to Wright’s continued representation of a
client after his August 2012 suspension, and to certain trust account
activity after his suspension was in effect. The commission held a
hearing on the complaints on May 5. The commission found by a
convincing preponderance of the evidence Wright had
violated rules 32:5.5 (prohibiting the unauthorized practice
of law in any jurisdiction in which a lawyer is licensed);
32:1.16(a)(1) (prohibiting representation of a client when
representation of the client will result in violation of the Iowa
Rules of Professional Conduct); 32:1.4 (requiring a lawyer to
inform his or her clients of decisions or circumstances that
will impact the outcome of their cases); and 32:1.15(c)
(prohibiting withdrawal of funds in client trust account prior
to earning the fee).
The commission also found violations of
Iowa Court Rules 45.2(2) (requiring a lawyer to promptly
account for client’s property and promptly deliver to client
any property to which the client is entitled); 45.7(5)
(requiring unearned advance fees be refunded); and
45.2(3)(b)(3) (prohibiting withdrawals made to cash rather
than by check payable to a named payee from client trust
fund account).
The commission then recommended we suspend Wright’s license with no
possibility of reinstatement for one year.
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II. Scope of Review.
Neither the Board nor Wright filed an appeal of the commission’s
recommendation. By rule, we review the recommendation of the
commission. Iowa R. Prof’l Conduct 35.11(1). We review attorney
disciplinary proceedings de novo. Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Nelson, 838 N.W.2d 528, 531–32 (Iowa 2013). The Board must prove
violations by a convincing preponderance of the evidence. Id. at 532. “A
convincing preponderance of the evidence is more than a preponderance
of the evidence, but less than proof beyond a reasonable doubt.” Id.
(internal quotation marks omitted).
We deem factual matters admitted by an attorney in an answer to
a complaint established without any further investigation into the
supporting evidence in the record. Id. Stipulations of facts are also
binding on the parties. Id. We interpret stipulations “ ‘with reference to
their subject matter and in light of the surrounding circumstances and
the whole record, including the state of the pleadings and issues
involved.’ ” Id. (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf,
793 N.W.2d 525, 528 (Iowa 2011)). If a stipulation concedes a rule
violation, we will only find a violation if the facts are sufficient to support
the stipulated violation. Id.III. Finding of Facts.
On August 10, 2012, Wright received an email regarding his client,
Salome Macedo, from a workers’ compensation case manager. On
August 16, we temporarily suspended Wright’s license for failing to
comply with requests for documents from the client security commission.
After we temporarily suspended Wright’s license, Wright transferred
almost all of his active cases to an attorney he once shared office space
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with, Pamela Vandel. Vandel did all of the work on the transferred cases
and gifted any fees she earned in Wright’s cases back to Wright.
On August 26, ten days after we suspended Wright’s license,
Wright responded to the workers’ compensation case manager’s email.
He asked the case manager to contact him about a resolution to the case
or he would have to file something with the workers’ compensation
commissioner. Wright and the case manager continued to exchange
emails for the next few months discussing the case. During this time,
Wright sent Macedo for an independent medical evaluation and engaged
in settlement discussions. Wright admits and stipulates that on
December 20, he settled Macedo’s case for $7982.70. Wright never told
the case manager his license was under suspension.
Around the same time, Wright met with Rachena Johnson to
discuss issues she was having regarding visitation with her children.
Wright told Johnson he was not an attorney and was not authorized to
practice law, but he was working with Vandel, an attorney who might be
able to take her case. Wright attempted to have Vandel attend the
weekend meeting with Johnson, but she was unavailable. Wright met
with Johnson, again reminding her he would not be able to represent
her, and gathered all the details of her contempt case against her former
husband. Wright took $500 from Johnson and deposited the money into
his trust account. Wright communicated the information to Vandel and
she took Johnson on as a client. On January 10, 2013, Wright wrote a
check directly to Jasper County for the filing fee in the contempt case.
This activity in Wright’s trust account led the Board to believe
Wright was practicing law during his August 2012 suspension and to his
February 2013 interim suspension.
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In late May 2013, Wright received a phone call from a former
client, Jesse Taylor, asking Wright to meet with him. Wright was careful
to tell Taylor and his stepdaughter that we suspended his license to
practice law and that he could not represent anyone. Wright informed
the pair he was working with Vandel and that he would pass all the
information, including the documents Taylor brought to the meeting, to
Vandel for her to make a determination about the merits of the case.
Wright admitted he may have told Taylor and the child that they “may
have something there,” but that Vandel would have to be the one to
evaluate the claim. Wright took $250 in cash from Taylor after
explaining Taylor needed to pay Vandel to research the merits of the
claim. Wright gave the cash to Vandel who eventually refunded the
money after determining it would not be worth the effort to bring a claim
against the child’s school.
In Wright’s answer, he admitted that after his August 2012
suspension, he deposited $73,860 in his trust account. He admitted in
his answer that he overdrew his trust account in October 2012. In the
stipulation filed by Wright and the Board, Wright stipulated he overdrew
his trust account subsequent to the August 2012 temporary suspension.
He also stipulated he withdrew money from the trust account and gave it
to a former client to use to pay rent and utilities. Finally, in exhibit 11, a
letter dated January 7, 2013, from Wright to the office of professional
regulation, Wright refuted the finding that his trust account had a
deficiency of over $20,000, but acknowledged it had a deficiency of
$8891.27.
From these admissions and stipulations, we find Wright was
depositing money in his trust account from sources other than client
funds. We reach this conclusion because after August 2012 he was not
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supposed to be practicing law. Although, the record shows he settled the
Macedo case for around $8000, and he collected fees from Johnson for
$500, these amounts are far less than the $73,860 he ran through his
trust account.
Additionally, he made withdrawals from the trust account in
excess of the funds in the account. There are no records showing why he
made the withdrawals. Moreover, he withdrew the money from the trust
account without providing a notice to his clients. Finally, he presented
no evidence that the withdrawals from the trust account were for client
expenses or for work he had done.
IV. Violations.
A. Iowa Rule of Professional Conduct 32:5.5(a). Our rules of
professional conduct provide that “[a] lawyer shall not practice law in a
jurisdiction in violation of the regulation of the legal profession in that
jurisdiction, or assist another in doing so.” Iowa R. Prof’l Conduct
32:5.5(a). Wright violated this rule when he continued to work on
Macedo’s case after his August 2012 suspension. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. McCuskey, 814 N.W.2d 250, 254–55 (Iowa 2012)
(representing a client after the court suspended an attorney’s license
violated Iowa Rule of Professional Conduct 32:5.5(a)).
We do not find he violated rule 32:5.5(a) in regards to the Johnson
or Taylor matters. Wright informed both Johnson and Taylor that his
license was under suspension and he could not represent them. He also
told them Vandel would be handling their cases if she took them. His
receipt of fees and depositing them in his account, before transferring
them to Vandel, may be a basis for other violations. The mere fact he
took the fees with the intent to give them to Vandel after he disclosed he
could not represent them because his license was under suspension is
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insufficient to find he was engaged in the unauthorized practice of law
regarding Johnson and Taylor.
B. Iowa Rule of Professional Conduct 32:8.4(c). Our rules of
professional conduct provide that “[i]t is professional misconduct for a
lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.” Iowa R. Prof’l Conduct 32:8.4(c). A violation of this
rule requires an attorney to act with the intent to deceive. See
McCuskey, 814 N.W.2d at 255. By knowingly practicing law while his
license was suspended, Wright deceived the workers’ compensation case
manager into believing Wright had the authority under the law to
negotiate the settlement. This conduct violates rule 32:8.4(c). See id.
(suspended attorney’s conduct indicating to creditors he was working on
client’s bankruptcy was a violation of rule 32:8.4(c)).
C. Iowa Rule of Professional Conduct 32:1.16(a). Rule
32:1.16(a) states that a “lawyer shall not represent a client . . . if . . . the
representation will result in violation of the Iowa Rules of Professional
Conduct.” Iowa R. Prof’l Conduct 32:1.16(a). Wright’s representation of
Macedo after his suspension violates this rule. See McCuskey, 814
N.W.2d at 255.
D. Iowa Rule of Professional Conduct 32:1.4. Rule 32.1.4
provides in relevant part:
(a) A lawyer shall:
....
(3) keep the client reasonably informed about the
status of the matter;
....
(5) consult with the client about any relevant limitation
on the lawyer’s conduct when the lawyer knows that the
client expects assistance not permitted by the Iowa Rules of
Professional Conduct or other law.
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Iowa R. Prof’l Conduct 32:1.4(a)(3), (5). Wright’s continued
representation of Macedo after his suspension, without informing
Macedo of his suspension violates this rule. See McCuskey, 814 N.W.2d
at 255–56 (finding the attorney’s failure to inform his clients of his
suspension violated rule 32:1.4(a)).
E. Iowa Rule of Professional Conduct 32:1.15(c). Rule
32:1.15(c) states, “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.” Iowa R. Prof’l
Conduct 32:1.15(c). Wright was making withdrawals from his trust
account after we suspended his license to practice law. This activity
violates rule 32:1.15(c). See McCuskey, 814 N.W.2d at 256.
F. Iowa Court Rule 45.1. Rule 45.1 prohibits comingling of
funds and only allows an attorney to withdraw funds from the trust
account when earned. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Kelsen, 855 N.W.2d 175, 181 (Iowa 2014). Wright deposited funds
received from Johnson in his trust account after his suspension.
Although Vandel deducted these funds from the client’s bill, Wright never
should have put these funds in the trust account because the funds did
not arise out of his practice of law. Moreover, he was writing checks to
third parties, making cash withdrawals, and running a deficit in the
trust account of at least $8891.27. We find he was using the trust
account for purposes other than those allowed by this rule. This conduct
violates rule 45.1. See id. (finding attorney’s mishandling of trust
account violated rule 45.1).
G. Iowa Court Rule 45.2(2). Rule 45.2(2) requires an attorney to
promptly account for a client’s property and promptly deliver to the client
any property the client is entitled to receive. Iowa Ct. R. 45.2(2).
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Wright’s trust account records are devoid of any accounting. This
conduct violates rule 45.2(2). Id.H. Iowa Court Rule 45.2(3)(b)(3). Rule 45.2(3)(b)(3) provides
cash withdrawals from trust accounts are prohibited. Id. r. 45.2(3)(b)(3).
Exhibit 6 shows numerous cash withdrawals. This conduct violates rule
45.2(3)(b)(3).
I. Iowa Court Rule 45.7(4). Rule 45.7(4) requires attorneys to
notify and provide accountings when they withdraw funds from advance
fee payments. Id. r. 45.7(4). Wright’s trust account records are devoid of
any accounting. This conduct violates rule 45.7(4). Id.J. Iowa Court Rule 45.7(5). Rule 45.7(5) provides “advance fee
and expense payments are refundable to the client if the fee is not earned
or the expense is not incurred.” Id. r. 45.7(5). We have held an attorney
who collects a fee for legal work while under suspension violates this
rule. See McCuskey, 814 N.W.2d at 256 n.6. Wright violated rule
45.7(5).
V. Sanction for These Violations.
Wright’s unauthorized practice of law, coupled with his numerous
trust account violations is serious. His prior disciplinary record makes
these violations even more egregious. See Wright, 840 N.W.2d at 303
(discussing Wright’s prior disciplinary history).
In a recent case, we suspended the license of an attorney who
continued to practice while his license was suspended and committed
similar trust account violations as Wright for one year. See McCuskey,
814 N.W.2d at 251–52. McCuskey did not have a prior disciplinary
history. Id. at 258. Wright does. Based on Wright’s conduct and his
prior disciplinary history, we believe his suspension should be more than
one year but less than two years. We need not decide a definitive time
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based upon our coordination of sanctions found in division VI of this
opinion.
VI. Coordination of Sanctions.
Wright has the following sanctions presently pending against him.
The first is a temporary suspension issued on August 16, 2012, for
failing to comply with requests for documents from the client security
commission that were needed to complete an audit of his client trust
account. The second is a temporary suspension issued on February 7,
2013, for threat of harm pending a final disposition of the disciplinary
proceeding on this matter. The basis of this suspension was his
unauthorized practice of law and trust account activity while under the
August 2012 suspension. Both of these suspensions are still in effect.
We issued the third suspension on December 6, 2013, for engaging
in representation of his clients in violation of conflict of interest rules and
engaging in misrepresentation or deceit resulting in a client’s financial
loss. In this suspension, we stated Wright’s license to practice law was
suspended with no possibility of reinstatement for a period of no less
than twelve months, and it was to begin after we lifted the August 2012
temporary suspension. Wright, 840 N.W.2d at 303.
The last suspension is the one we issue today for Wright’s
continued practice of law while his license was suspended and for
various trust account violations. Without deciding a definite time for this
suspension, we noted this suspension should be more than one year, but
less than two years.
Upon the filing of this opinion, we are terminating the August 16,
2012 suspension for failing to comply with the requests for documents
from the client security commission that were needed to complete an
audit of his client trust account. We reach this conclusion because when
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we temporarily suspended Wright’s license on February 7, 2013, for the
unauthorized practice of law and irregularities in his trust account, we
also entered an order appointing a trustee to gather all of Wright’s trust
account records and make an accounting to the client security
commission. Under these circumstances, Wright has provided those
records to the client security commission, thus, allowing us to lift the
August 16, 2012 suspension.
Wright’s February 7, 2013 temporary suspension for practicing
while his license was suspended and various trust account violations
was to continue pending the outcome of this disciplinary proceeding.
Because this opinion concludes the pending disciplinary proceeding, we
lift the February 7, 2013 suspension. We also found Wright violated our
rules and that his license should be suspended because of these
violations for a period of at least one year but less than two years. When
we order an attorney’s temporary suspension pending the outcome of a
disciplinary proceeding for the same conduct, we should give credit for
the time served for the temporary suspension if the time served equals or
exceeds the appropriate sanction. See Comm. on Prof’l Ethics & Conduct
v. Halleck, 325 N.W.2d 117, 118 (Iowa 1982). But see Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Powell, 830 N.W.2d 355, 359–60 (Iowa 2013)
(holding the time served during the temporary suspension for conduct
intertwined in the current case did not equal or exceed the appropriate
sanction, and therefore, the interim suspension “can be considered as a
mitigating factor in determining the length and adequacy of a suspension
as a sanction in the case”).
We suspended Wright’s license to practice law on February 7,
2013, for practicing law while his license was suspended and for various
trust account violations. This period of temporary suspension
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constitutes a sufficient minimum period of suspension for Wright’s
misconduct. Accordingly, we will consider Wright’s suspension for
practicing law while his license was suspended and for various trust
account violations served.
These findings still leave Wright with the December 6, 2013
suspension of his license to practice law with no possibility of
reinstatement for a period of no less than twelve months that does not
begin until after we lift the August 2012 suspension. Upon the filing of
this opinion, we lift the August 2012 suspension. Therefore, from the
date of filing this opinion, Wright shall begin serving his suspension
pursuant to the terms of our December 6 opinion.
VII. Disposition.
After fully considering the matter, we lift the temporary
suspensions of Wright’s license to practice law issued on August 16,
2012, and February 6, 2013. We further find Wright practiced law while
his license was under suspension and had various trust account
violations. However, because his temporary suspension for the same
conduct meets or exceeds the sanction we would impose, we will not
sanction him any further for that conduct.
Finally, Wright shall begin serving the suspension we issued him
in our December 6, 2013 opinion upon the filing of this opinion. Wright
shall comply with all the conditions we imposed on him in our
December 6, 2013 opinion. In addition, before we will reinstate his
license the client security commission should certify that Wright has
taken care of any deficiencies in his trust account. Costs of this action
are assessed against Wright.
LICENSE SUSPENDED.