Iowa Supreme Court Attorney Disciplinary Board Vs. Jeffrey Fields , 790 N.W.2d 791 ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 09–1111
Filed November 19, 2010
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
JEFFREY FIELDS,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission recommends revocation of attorney‟s license
to practice law. LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
Jeffrey Fields, Iowa City, pro se.
2
STREIT, Justice.
This matter comes before the court on the report of a division of
the Grievance Commission of the Supreme Court of Iowa. See Iowa Ct.
R. 35.10. The Iowa Supreme Court Disciplinary Board alleged the
respondent, Jeffrey Fields, violated ethical rules by neglecting two client
matters and by failing to file his income tax returns for the years 2002
through 2004. On the latter matter, he was prosecuted by the State of
Iowa and convicted of two counts of fraudulent practice in the second
degree (class “D” felonies) for which he received deferred judgments and
three years probation.
The grievance commission found Fields violated the Iowa Code of
Professional Responsibility for Lawyers and the Iowa Rules of
Professional Conduct1 and recommended the respondent‟s law license be
revoked. Upon our respectful consideration of the findings of fact,
conclusions of law, and recommendation of the commission, we find the
respondent committed several ethical violations and suspend his license
to practice law indefinitely with no possibility of reinstatement for
eighteen months.
I. Standard of Review.
Our review of attorney disciplinary proceedings is de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 55 (Iowa
2009). We give respectful consideration to the findings and
recommendations of the commission, but we are not bound by them. Id.
The burden is on the board to prove attorney misconduct by a convincing
preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd.
1The Iowa Rules of Professional Conduct became effective July 1, 2005,
replacing the Iowa Code of Professional Responsibility for Lawyers. To the extent that
some of the conduct alleged occurred before the effective date of the new rules and
some after, both sets of rules apply.
3
v. Conrad, 723 N.W.2d 791, 792 (Iowa 2006). “This burden is less than
proof beyond a reasonable doubt, but more than the preponderance
standard required in the usual civil case.” Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). Upon proof
of misconduct, we may impose a lesser or greater sanction than that
recommended by the commission. Conrad, 723 N.W.2d at 792.
II. Background Facts and Proceedings.
Jeffrey Fields has been practicing law in Iowa since 1997. Except
for a very short period of time, the respondent has been a sole
practitioner, practicing primarily in the area of criminal defense. Three
separate matters comprise the current disciplinary action. We will
consider each charge separately.
A. Townsend Civil Rights Claim. In August 2003, Fields agreed
to represent Orville and Billie Townsend in a civil rights claim. In 2005,
an action was filed in state court against Johnson County, the City of
Iowa City, and individual defendants. The defendants subsequently
removed the claim to federal court. Fields, who was not admitted to
practice in federal court, advised the federal district court that he would
associate with an admitted attorney on the case and that he would seek
admission himself. Fields failed to do either. Fields also made
representations to his clients that he did not keep. After numerous
delays, the case was dismissed due to Fields continued failure to respond
to discovery requests and his failure to file a resistance to the defendants‟
motions for summary judgment. At the time of the dismissal, the federal
district court‟s order encouraged the federal magistrate to enter
sanctions against Fields for his failure to comply with the Federal Rules
of Civil Procedure, the local rules, and the court‟s orders. In addition,
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the court forwarded a copy of its order dismissing the civil rights action
to the disciplinary board.
B. Ferguson Estate. From 2004 to 2007, Fields was the attorney
for the executor of the John H. Ferguson, Jr. estate. On June 1, 2006, a
notice of delinquency for failure to file an interlocutory report was issued
to Fields. When Fields failed to rectify the delinquency, the board sent a
letter of inquiry. After a second inquiry from the board, Fields responded
that he would file a response on or before January 5, 2007. When he
failed to respond by the self-imposed deadline, the board initiated a
notice of complaint against the respondent on January 9, 2007. The
estate was subsequently closed in March 2007, three years after it was
opened.
C. Failure to File Income Tax Returns. On April 25, 2008,
Fields was charged with three counts of fraudulent practice in the second
degree as a result of his failure to file state income tax returns for tax
years 2002, 2003 and 2004. See Iowa Code §§ 422.25(5), 714.8(10),
714.10 (2003).2 On September 26, 2008, Fields pleaded guilty to two
counts of fraudulent practice in the second degree. Judgment on each
count was deferred for three years, and Fields was placed on probation
with the department of corrections until September 26, 2011. He was
2Iowa Code section 714.8(10) defines a fraudulent practice as “any act expressly
declared to be a fraudulent practice by any other section of the Code.” Section 422.25(5)
provides that
[a] person . . . required to supply information, to pay tax, or to make,
sign or file a deposit form or [income tax] return . . ., who willfully makes
a false or fraudulent deposit form or return, or willfully fails to pay the
tax, supply the information, or make, sign, or file the deposit form or
return, at the time or times required by law, is guilty of a fraudulent
practice.
Such a practice constitutes fraudulent practice in the second degree “where the
amount of money or value of property or services involved exceeds one thousand dollars
but does not exceed ten thousand dollars.” Iowa Code § 714.10(1) (2003).
5
also ordered to pay civil penalties and to make full restitution of taxes,
penalties, and interest to the State of Iowa for the tax liability incurred
for the tax years covered in the trial information. The state agreed not to
file any additional tax-related criminal charges against Fields for tax
years 1997 through 2007, provided all returns for those years were filed
within thirty days of the date of sentencing.
D. Board Complaint. On November 21, 2008, the disciplinary
board filed a complaint against Fields.3 The board alleged Fields‟ neglect
and misrepresentations in the Townsend civil rights claim violated the
Iowa Code of Professional Responsibility DR 1–102(A)(1) (prohibiting
conduct that violates a disciplinary rule), DR 1–102(A)(4) (prohibiting
conduct involving misrepresentation), DR 1–102(A)(5) (prohibiting
conduct prejudicial to the administration of justice), DR 1–102(A)(6)
(prohibiting conduct that adversely reflects on the fitness to practice law),
and DR 6–101(A)(3) (prohibiting neglect of a client matter), as well as the
Iowa Rules of Professional Conduct 32:1.1 (requiring a lawyer to provide
competent representation to a client), 32:1.3 (requiring a lawyer to act
with reasonable diligence and promptness), 32:1.4 (requiring a lawyer to
keep his client reasonably informed), 32:8.4(a) (providing it is misconduct
to violate a disciplinary rule), 32:8.4(c) (providing it is misconduct to
engage in conduct involving misrepresentation), and 32:8.4(d) (providing
it is misconduct to engage in conduct prejudicial to the administration of
justice).
The board alleged Fields‟ conduct in his representation of the
executor in the Ferguson estate constituted neglect and incompetence.
3The complaint originally contained four counts. After Fields rectified the issue
involved in the third count, the board moved to amend the complaint to delete this
count. For this reason, we give this claim no further consideration.
6
Combined with his failure to cooperate with the investigation, the board
alleged the respondent violated DR 1–102(A)(1), (5), and (6) and DR 6–
101(A)(3) of the Iowa Code of Professional Responsibility for Lawyers and
rules 32:1.1, 32:1.3, 32:8.4(a) and (d) of the Iowa Rules of Professional
Conduct.
The board alleged Fields‟ failure to file his state income tax returns
for the years 2002 through 2004 and his subsequent guilty plea to two
counts of fraudulent practice in the second degree supported a finding
Fields violated DR 1–102(A)(3) (prohibiting conduct involving moral
turpitude), as well as DR 1–102(A)(4), (5), and (6).
E. Disciplinary Hearing and Commission Recommendation.
On May 1, 2009, a hearing on this matter came before a division of the
commission. Due to his failure to respond to the board‟s inquiries, the
allegations against Fields were deemed admitted, and the hearing was
limited to the issue of the appropriate sanction.
At the hearing, Fields did testify on his own behalf. In his
testimony, Fields did not deny the allegations brought against him. He
admitted he neglected his clients and failed to file his state income
returns for the years alleged. He also admitted he had still not filed the
delinquent returns, although it was a condition of his probation.
Fields testified to the circumstances surrounding the time upon
which the allegations are based. According to Fields, during this period
of time, he would often go to work but be unable to complete the tasks at
hand. Although he knew how to complete tax returns and had
completed many client returns in the past, Fields found himself putting
off his own tax returns until completing them became a huge task that
he was unable to address. He experienced severe financial problems and
7
had difficulty keeping his office open. Until recently, Fields testified, he
did not understand why this was occurring.
In March 2009, at the recommendation of his probation officer,
Fields sought medical treatment. He has since been diagnosed as
suffering from several mental health conditions, including
manic/depressive bipolar disorder for which he is currently receiving
treatment including medication. He was also diagnosed with attention
deficit disorder. Fields acknowledged that, in his current condition, he is
unable to practice law. He admitted he needs to make behavioral
changes, and even then, he might never be able to function as a sole
practitioner again.
Fields requested the commission not revoke his license, but
instead suspend it so that he might have the opportunity in the future,
should he establish his medical competency, to practice law again. The
commission, however, recommended the Fields‟ license to practice law be
revoked.
III. Ethical Violations.
The commission found, and we agree, that in his representation of
the Townsends and the Ferguson estate, the respondent neglected his
clients‟ matters in violation of DR 6–101(A)(3) and rule 32:1.3. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 283 (Iowa
2009) (dilatory handling of estate violated Iowa Court Rule 32:1.3);
Casey, 761 N.W.2d at 59 (neglect of probate matters violated DR 6–
101(A)(3)). We also agree that the undisputed allegations support a
finding Fields made misrepresentations to the Townsends and to the
court in violation of DR 1–102(A)(4), (5), and (6) and rules 32:8.4(c) and
(d); failed to keep the Townsends reasonably informed in violation of rule
32:1.4; failed to provide the Townsends with competent representation in
8
violation of rule 32:1.1, when he did not associate with an attorney
admitted to practice in federal court; and failed to respond to the board‟s
inquiries in both the Townsend and Ferguson cases in violation of DR 1–
102(A)(5) and (6) and rule 32:8.4(d). See, e.g., Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Earley, 774 N.W.2d 301, 307–08 (Iowa 2009) (finding
attorney‟s failure to keep clients informed about the status of their cases
violated rule 32:1.4(a)(3) and misrepresentations violated DR 1–102(A)(4),
(5), and (6), as well as rule 32:8.4(d)); Wagner, 768 N.W.2d at 286–87
(holding repeated claims by attorney to client that documents were
forthcoming when they were not ready constituted misrepresentations in
violation of rule 32:8.4(c)); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Marks, 759 N.W.2d 328, 331 (Iowa 2009) (holding attorney‟s failure to
respond to board‟s inquiries in a timely manner constituted conduct
prejudicial to the administration of justice and adversely reflected on
counsel‟s fitness to practice law); Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Curtis, 749 N.W.2d 694, 700 (Iowa 2008) (holding lawyer inexperienced
in an area of law who did not associate with lawyer competent to handle
the matter violated rule 32:1.1).
However, we conclude the board has failed to establish by a
convincing preponderance of the evidence Fields‟ actions in the Ferguson
estate constituted incompetence. Although his dilatory handling of the
probate matter evidenced serious neglect, the board has provided no
evidence Fields was incompetent in this matter. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 153 (Iowa 2010)
(providing that a finding of incompetence requires a showing the attorney
9
lacked the necessary legal knowledge and skill to complete the tasks or
had not made a competent analysis of the problem).4
The final count of the complaint involves Fields‟ failure to file state
income tax returns for the years 2002 through 2004. The State of Iowa
has done audits for these years, and the respondent has yet to pay his
income taxes for 2003 and 2004. In addition, at the hearing Fields
admitted that he has not filed any tax returns since 1996. In September
2008, Fields pleaded guilty to two counts of fraudulent practice in the
second degree in connection with his failure to pay his taxes and file his
returns.5 Such actions are undisputed violations of our ethical rules. As
we have previously stated:
“[W]hen a lawyer‟s income exceeds the sum triggering the tax
return filing requirement, failure to file a tax return
constitutes misrepresentation of that income” in violation of
DR 1–102(A)(4). In addition, “[s]uch misrepresentation is a
deceitful offense involving moral turpitude” in violation of DR
1–102(A)(3). It is also conduct . . . that adversely reflects on
the fitness to practice law in violation of DR 1–102(A)(6).6
4We do not consider DR 1–102(A)(1) and rule 32:8.4(a), which provide that a
lawyer shall not violate a disciplinary rule, as separate violations. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010).
5In its complaint against Fields, the board asserted the respondent is precluded
from challenging his fraud convictions as a basis for disciplinary action. Under Iowa
Court Rule 35.7(3), principles of issue preclusion may be used in a lawyer disciplinary
case when certain conditions are met. See Iowa Ct. R. 35.7(3). The conditions are met
here. Moreover, Fields has not challenged the validity of his convictions or their
consideration in this disciplinary action.
6The board‟s complaint alleged misconduct under the Iowa Code of Professional
Responsibility for Lawyers only with respect to Fields‟ failure to file tax returns for the
years 2002 through 2004. In the past, we have held that failing to file tax returns
constituted conduct prejudicial to the administration of justice in violation of DR 1–
102(A)(5). See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Runge, 588 N.W.2d
116, 118 (Iowa 1999). Recently, however, we held a violation under a comparable
provision of the Iowa Rules of Professional Conduct required an impact on the
functioning of the courts or the processing of court matters or matters ancillary to the
court. See Templeton, 784 N.W.2d at 768–69 (holding “the mere act of committing a
crime does not constitute a violation of [rule 32:8.4(d) which] specifically prohibits an
act that . . . violat[es] the well-understood norms and conventions of the practice of
law”). Therefore, unless the facts and circumstances establish a lawyer‟s failure to file
10
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Runge, 588 N.W.2d
116, 118 (Iowa 1999) (quoting Comm. on Prof’l Ethics & Conduct v. Belay,
420 N.W.2d 783, 784 (Iowa 1988)); accord Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Iverson, 723 N.W.2d 806, 810 (Iowa 2006). Therefore,
upon our de novo review, we concur with the board that Fields‟ failure to
file and pay his taxes and subsequent conviction for fraud constitute
violations of DR 1–102(A)(3), (4), and (6).
IV. Sanction.
The goal of our ethical rules is
“to maintain public confidence in the legal profession as well
as to provide a policing mechanism for poor lawyering.”
When deciding on an appropriate sanction for an attorney‟s
misconduct, we consider “the nature of the violations,
protection of the public, deterrence of similar misconduct by
others, the lawyer‟s fitness to practice, and [the court‟s] duty
to uphold the integrity of the profession in the eyes of the
public.” We also consider aggravating and mitigating
circumstances present in the disciplinary action.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Honken, 688 N.W.2d
812, 820 (Iowa 2004) (quoting Comm. on Prof’l Ethics & Conduct v. Gill,
479 N.W.2d 303, 306 (Iowa 1991) (first quote); Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. D’Angelo, 619 N.W.2d 333, 338 (Iowa 2000)
(second quote)). In this case, Fields‟ misconduct consisted of neglect,
misrepresentation, fraud in failing to file and pay his taxes, and failure to
respond to the board‟s inquiries. Although we must tailor sanctions
specific to the facts of each case, we find our prior cases involving similar
violations instructive. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Isaacson, 750 N.W.2d 104, 109 (Iowa 2008) (holding that although we
_________________________
tax returns adversely impacted the functioning of the courts, we would not find such
conduct in the future to violate rule 32:8.4(d).
11
apply no standard sanction to any particular misconduct, prior cases
can be instructive).
The sanction for attorney misconduct involving neglect typically
ranges from a public reprimand to a six-month suspension. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 868 (Iowa
2010). The sanction imposed in a particular instance often depends
upon whether there are multiple instances of neglect, other additional
violations, or a history of past disciplinary problems. Id.
In this case, Fields has been disciplined in the past for similar
conduct. In 2001, Fields received a private admonition for failing to
respond to an inquiry from the board. In 2004, he received a public
reprimand for neglecting two clients, failing to return papers to a client,
and failing to cooperate with the board. And in 2005, he was publically
reprimanded for failing to prosecute a postconviction relief appeal, which
resulted in dismissal of the client‟s appeal.
The second public reprimand for the neglect of appellate deadlines
was of the same character and occurred concurrently with the neglect
that is the basis for this disciplinary action. We have held that
when a lawyer has already been sanctioned for similar,
relatively contemporaneous misconduct, we may refrain from
imposing additional discipline for newly discovered ethical
violations if we conclude that a more severe sanction would
not have been imposed had the newly discovered ethical
violations been known when the initial discipline was
ordered.
Id. at 869; see also Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
D’Angelo, 652 N.W.2d 213, 215 (Iowa 2002) (imposing a concurrent
sentence, reasoning if additional violations had been brought to the
court‟s attention at the time of the previous sanction, the court “seriously
12
doubt[s] that respondent‟s prior suspension . . . would have been
enlarged”).
This current case involves more than a single instance of neglect.
At the same time Fields was neglecting the Townsend civil rights action,
he was also neglecting the Ferguson estate. Moreover, in an attempt to
cover his neglect, Fields engaged in misrepresentations to his clients and
the court, which constituted companion ethical violations. He also failed
to respond to the board‟s inquiries. When these circumstances are
considered together, we conclude that Fields‟ additional misconduct in
the civil rights and estate cases would have warranted a more severe
sanction than the public reprimand given for the concurrent neglect in
the postconviction relief appeal. See, e.g., Wagner, 768 N.W.2d at 282–
86, 289 (imposing six-month suspension for misconduct involving
neglect, misrepresentations, premature taking of fees, trust account
violations, failure to respond to the board, and prior public reprimands
for neglect and misrepresentation); Casey, 761 N.W.2d at 63 (imposing
three-month suspension in a disciplinary case involving a probate matter
and a personal injury case for neglect, misrepresentation, premature
taking of probate fees, and failure to respond to the board‟s inquiries).
We must next determine, then, what sanction is warranted when
consideration of Fields‟ failure to file and pay his income taxes is
included.
We have repeatedly held that “ „[i]t is as wrong for a lawyer to cheat
the government as it is for him to cheat a client.‟ ” Iverson, 723 N.W.2d
at 810 (quoting Comm. on Prof’l Ethics & Conduct v. Strack, 225 N.W.2d
905, 906 (Iowa 1975)). Depending on the circumstances, we have
imposed license suspension from sixty days to three years for an
attorney‟s failure to file income tax returns. See id. at 810, 812
13
(imposing one year suspension for failure to file tax returns for ten
years); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Engelhardt, 630
N.W.2d 810, 811–12, 815 (Iowa 2001) (imposing six-month suspension
for failure to timely file tax returns for six years); Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Wickey, 619 N.W.2d 319, 319–21 (Iowa 2000)
(imposing six-month suspension for failure to file income taxes for four
years); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Neuwoehner,
595 N.W.2d 797, 797–98 (Iowa 1999) (imposing three-month suspension
for failure to file income tax returns for three years); Runge, 588 N.W.2d
at 118–19 (holding attorney‟s failure to file income tax returns for four
years warranted six-month suspension); Comm. on Prof’l Ethics &
Conduct v. Baudino, 452 N.W.2d 455, 460 (Iowa 1990) (imposing six-
month suspension for failing to timely file income tax returns for three
years and making false statement on client security questionnaire);
Comm. on Prof’l Ethics & Conduct v. Jay, 430 N.W.2d 115, 116, 118 (Iowa
1988) (failure to timely file two years of tax returns warranted sixty-day
suspension); Comm. on Prof’l Ethics & Conduct v. McKey, 343 N.W.2d
489, 490 (Iowa 1984) (imposing two year suspension for failure to file
Iowa and federal income tax returns for three years and for falsifying
client security questionnaire); Strack, 225 N.W.2d at 906 (imposing three
year suspension for fraudulently reporting taxable income for two years
and failing to file tax return for two years).
In determining the appropriate sanction, we have considered it an
aggravating factor for an attorney to have failed to file tax returns for an
extended period of time. Iverson, 723 N.W.2d at 810 (noting attorney
failed to file federal or state income tax returns for almost ten years and
viewing such routine failure as a pattern of conduct justifying an
increased sanction). We have, however, considered an attorney‟s
14
voluntary disclosure of the misconduct to be a mitigating factor of some
significance. See Comm. on Prof’l Ethics & Conduct v. Cook, 409 N.W.2d
469, 471 (Iowa 1987) (concluding voluntary disclosure indicates both an
acknowledgment of failures and a willingness to face up to them). Fields‟
case is aggravated by the fact that he failed to file his tax returns for ten
years. Moreover, his misconduct cannot be mitigated by a finding of
voluntary disclosure. His failure to respond to the board‟s inquiries also
constitutes an aggravating circumstance.
On the other hand, it is important to note Fields has acknowledged
his misconduct and has not attempted to shift blame for his actions
elsewhere. Iverson, 723 N.W.2d at 811 (finding acknowledgement of
misconduct to be a mitigating factor). We are also cognizant of the
respondent‟s recent medical diagnoses. We have frequently stated that
while “[p]ersonal illnesses, such as depression or attention deficit
disorder, do not excuse a lawyer‟s misconduct,” they “can be mitigating
factors and influence our approach to discipline.” Curtis, 749 N.W.2d at
703. Although it is uncertain at this time the extent to which medical
treatment will assist Fields in successfully returning to the practice of
law, his efforts to get healthy must be considered in fashioning an
appropriate sanction. See Hauser, 782 N.W.2d at 154.
We also note that Fields‟ license was temporarily suspended on
April 25, 2008, under Iowa Court Rule 34.7(3)(c), for failing to respond to
the board‟s inquiries. The board did not seek to withdraw the temporary
suspension after the May 1, 2009 hearing, and the respondent‟s license
remains under a temporary suspension. But see Iowa Ct. R. 34.7(3)(d)
(providing for withdrawal of a temporary suspension upon attorney‟s
response to board).
15
We recently noted in Lickiss that “the purpose of the temporary
suspension is more than disciplinary; it is also intended to prompt a
response to the board‟s inquires so the disciplinary action may proceed
in a timely and informed fashion.” 786 N.W.2d at 870. Here, the
temporary suspension was initially unsuccessful in prompting a
response to the board‟s inquiries. Fields did not respond until he
appeared before the commission on May 1, 2009. In explaining his
failure to respond, Fields indicated the same inability to act that resulted
in his neglect of his clients and his failure to file his tax returns, also
prohibited him from appropriately dealing with the board‟s inquiries.
Based upon these circumstances, we conclude his suspension in excess
of one year prior to the hearing was adequate discipline for failing to
respond to the board‟s inquiries, and we will not consider his failure to
respond to the board in fashioning any additional discipline. Id.
(concluding four month temporary suspension for failure to respond to
board‟s inquiry was adequate discipline for that misconduct).
We must, then, consider whether Fields should receive any credit
for his continuing temporary suspension since his hearing before the
grievance commission, against his other misconduct including neglect of
two client matters, misrepresentation, and failure to file his income tax
returns.
Fields‟ temporary suspension was based upon his failure to
respond to the board‟s inquiry. See Iowa Ct. R. 34.7(3). As previously
noted, Iowa Court Rule 34.7(3)(d) provides that once an attorney has
responded to the complaint,
the board shall, within five days . . . either withdraw the
certificate or file with the supreme court a report indicating
that the attorney has responded, but stating cause why the
attorney‟s license should not be reinstated and the
16
suspension should be continued under the provisions of
Iowa Ct. R. 35.4 [threat of harm], 35.14 [conviction of a
crime], or 35.16 [disability].
(Emphasis added.) See also Lickiss, 786 N.W.2d at 870 n.3 (noting once
an attorney responds, the board is required to withdraw its certificate or
provide an alternative basis for continuing the suspension). There is no
evidence the board sought to continue the suspension under one of the
enumerated court rules after Fields appeared and responded at the
hearing on May 1, 2009. Therefore, when the temporary suspension is
based solely on an attorney‟s failure to respond to the board‟s inquiry,
the attorney has responded, and the board did not seek to continue the
suspension, we hold it is appropriate for us, in fashioning an appropriate
sanction, to consider the continuing temporary suspension from the date
of the hearing before the grievance commission. Compare Comm. on
Prof’l Ethics & Conduct v. Halleck, 325 N.W.2d 117, 118 (Iowa 1982)
(where attorney‟s license was currently under a temporary suspension for
more than fourteen months pursuant to court order under Court Rule
118.14 (now rule 35.14), based on attorney‟s conviction in criminal case,
court held the period of temporary suspension constituted a sufficient
minimum period of suspension for attorney‟s misconduct), with Lickiss,
786 N.W.2d at 870 (declining to give attorney any credit for his
temporary suspension against the imposed suspension because the
suspensions were not duplicative).
The commission, having considered the evidence and testimony
given at the hearing, recommended Fields‟ license to practice law be
revoked. Upon our respectful consideration of the goals of our ethical
rules, mitigating and aggravating circumstances, and our survey of other
disciplinary cases, we conclude Fields‟ conduct warrants a serious
sanction, but not revocation. Accordingly, we suspend Fields‟ license to
17
practice law indefinitely with no possibility of reinstatement for eighteen
months.
V. Disposition.
In light of the above facts and circumstances surrounding Fields‟
conduct, we suspend Fields‟ license to practice law in this state
indefinitely with no possibility of reinstatement for eighteen months from
the date of the hearing before the commission, May 1, 2009. This
suspension shall apply to all facets of the practice of law as provided in
Iowa Court Rule 35.12(3). Prior to any reinstatement, Fields must
provide this court with an evaluation by a licensed health care
professional verifying his fitness to practice law. He must also establish
that he has filed his overdue income tax returns. Upon any application
for reinstatement, Fields must establish he has not practiced law during
the suspension period and has complied in all ways with the
requirements of rule 35.13 and the notification requirements of rule
35.22. Costs of this action are taxed to Fields pursuant to rule 35.26.
LICENSE SUSPENDED.