Iowa Supreme Court Attorney Disciplinary Board v. Rolland Eugene Knopf , 2011 Iowa Sup. LEXIS 2 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 10–0650
Filed February 4, 2011
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
ROLLAND EUGENE KNOPF,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission recommends a one-year suspension of
attorney’s license to practice law. LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
R. Eugene Knopf, Newton, pro se.
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CADY, Chief Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against the respondent, Rolland E. Knopf, alleging violations of
our ethical rules. A division of the Grievance Commission of the
Supreme Court of Iowa entered into a stipulation with the respondent,
wherein the parties agreed Knopf’s conduct violated several of the rules
of the Iowa Code of Professional Responsibility for Lawyers and the Iowa
Rules of Professional Conduct and recommended we suspend Knopf’s
license to practice law with no possibility of reinstatement for a period of
one year. Upon our de novo review, we find Knopf’s conduct violated our
ethical rules and suspend his license to practice law indefinitely with no
possibility of reinstatement for a period of three months.
I. Scope of Review.
Our review of attorney disciplinary proceedings is de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 764
(Iowa 2010). The board must prove ethical misconduct by a convincing
preponderance of the evidence. Id. “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 greater or lesser sanction than the
sanction recommended by the commission.” Templeton, 784 N.W.2d at
764.
II. Findings of Fact.
Instead of holding a formal hearing, the commission decided the
case on a joint stipulation filed by the board and Knopf on April 20,
2010. The stipulation contained a stipulation of the facts, the violations,
and a recommendation of a one-year suspension. The parties also
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stipulated to mitigating circumstances. Finally, the board and Knopf
stipulated that, for context, the commission could consider exhibits
submitted by the board. These exhibits comprised parts of the district
court record in Knopf’s criminal case.
As we have recently noted, we find stipulations of facts by the
parties to be binding on them. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Gailey, 790 N.W.2d 801, 803 (Iowa 2010). We interpret factual
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. at 803–04 (quoting Graen’s
Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d 295, 300 (Iowa
1983)). With regard to stipulations that concede violations, we have held
that only “[i]f sufficient legal consideration supports this type of
stipulation [is it] entitled to [enforcement]. [W]e are not bound to enforce
these stipulations if they are unreasonable, against good morals, or
contrary to sound public policy.” Id. at 804. Nor are we bound by a
stipulation to a sanction. We have long held that
[o]ur rules require us to determine whether an attorney’s
conduct violates our ethical rules, and if it does, we must
determine the proper sanction for the violation. Nowhere in
our rules have we given the parties the authority to
determine what conduct constitutes a violation of our ethical
rules or what sanction an attorney should receive for such
violation.
Id. (citation omitted).
With these principles in mind, we proceed to find the facts from the
stipulation of facts, in light of the surrounding circumstances and the
whole record. After doing so, we determine whether these facts establish
a violation of our ethical rules. If we find a violation, we must determine
the appropriate sanction. Id.
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Rolland E. Knopf has practiced law in Newton, Iowa, since 1968.
In January 2004, the Iowa Department of Revenue began an
investigation into allegations Knopf failed to file state income tax returns
for the years 1993 through 2002 and the year 2004. Knopf did not
initially cooperate with the investigation, requiring the department to
issue two administrative subpoenas. As a result of its investigation, in
2008, the State charged Knopf with four counts of fraudulent practice in
the second degree for failing to file his income tax returns. In 2009,
Knopf pleaded guilty to two counts of fraudulent practice in the second
degree in violation of Iowa Code sections 422.25(5), 714.8(10), and
714.10 (2001) for his failure to file his 2001 and 2002 Iowa income tax
returns. The district court sentenced Knopf to two five-year
indeterminate terms, suspended the sentences, and placed Knopf on
supervised probation for five years.
On October 19, 2009, the Iowa Supreme Court Attorney
Disciplinary Board filed a complaint against Knopf, alleging the
respondent failed to file state income tax returns for the years 1993
through 2002 and the year 2004, and filed his 2003 return late without
paying the taxes due. The complaint further noted that, in relation to his
failure to file his 2001 and 2002 state income tax returns, the
respondent pleaded guilty to two counts of fraudulent practice in the
second degree. The board alleged this conduct violated DR 1–102(A)(3),
(4), (5), and (6) of the Iowa Code of Professional Responsibility for
Lawyers. 1
1The board also alleges the respondent’s failure to file state income tax returns
violated Iowa Rule of Professional Conduct 32:8.4(a)–(d). Those rules did not become
effective until July 1, 2005. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790
N.W.2d 791, 793 n.1 (Iowa 2010). Therefore, because the conduct constituting the
alleged violations occurred prior to July 1, 2005, we do not consider the application of
the new rules.
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Knopf subsequently appealed his convictions for fraudulent
practice. His appeal, however, was ultimately dismissed for want of
prosecution. On April 2, 2010, the board petitioned to amend its
complaint against Knopf to include a charge that his failure to cure the
default and the resultant dismissal of his appeal violated Iowa Rules of
Professional Conduct 32:3.2 and 32:8.4(d). 2 The commission granted the
board’s petition.
In the stipulation filed April 20, 2010, the parties stipulated to
Knopf’s failure to file his Iowa income tax returns for the years 2001 and
2002. They further stipulated to the respondent’s guilty plea and
conviction of two counts of fraudulent practice in the second degree in
violation of Iowa Code sections 422.25(5), 714.8(10), and 714.10. They
also stipulated that the respondent appealed his conviction to the Iowa
Supreme Court, but did not timely file his proof brief and designation of
contents of the appendix. When he failed to timely remedy this, his
appeal was dismissed for failure to cure the default. We now consider
the import of these factual stipulations in light of our ethical rules.
III. Violations.
Failure to file and pay state income taxes are undisputed violations
of our ethical rules. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields,
790 N.W.2d 791, 797 (Iowa 2010). We agree with the commission that
such conduct violates DR 1–102(A)(3) (prohibiting a lawyer from engaging
in “illegal conduct involving moral turpitude”), DR 1–102(A)(4)
(prohibiting a lawyer from engaging in “conduct involving dishonesty,
fraud, deceit, or misrepresentation”), and DR 1–102(A)(6) (prohibiting a
2Because this conduct occurred after July 1, 2005, we will consider this
allegation in relation to the new rules contained in the Iowa Rules of Professional
Conduct.
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lawyer from engaging in “any other conduct that adversely reflects on the
fitness to practice law”) of the Iowa Code of Professional Responsibility
for Lawyers. Id. (noting in the past we have held failure to file tax
returns constituted conduct prejudicial to the administration of justice in
violation of DR 1–102(A)(5), but “unless the facts and circumstances
establish a lawyer’s failure to file taxes adversely impacted the
functioning of the court, we would not find such conduct . . . to violate
rule 32:8.4(d)”).
The board also alleged Knopf violated Iowa Rules of Professional
Conduct 32:3.2 and 32:8.4(d) for his failure to cure the default in his
appeal. Rule 32:3.2 provides that “[a] lawyer shall make reasonable
efforts to expedite litigation consistent with the interests of the client.”
Iowa R. Prof’l Conduct 32:3.2. The purpose of this rule is to prevent the
“use of tactics that unreasonably delay litigation.” 2 Geoffrey C. Hazard,
Jr. & W. William Hodes, The Law of Lawyering § 28.2, at 28-3 (3d ed.
Supp. 2007). As noted in the comment to our rule:
Although there will be occasions when a lawyer may properly
seek a postponement for personal reasons, it is not proper
for a lawyer to routinely fail to expedite litigation solely for
the convenience of the advocates. Nor will a failure to
expedite be reasonable if done for the purpose of frustrating
an opposing party’s attempt to obtain rightful redress or
repose. . . . Realizing financial or other benefit from
otherwise improper delay in litigation is not a legitimate
interest of the client.
Iowa R. Prof’l Conduct 32:3.2, cmt. 1.
In its brief, the board contended that it was apparent Knopf’s
failure to cure the default was based upon his intention to prolong his
appeal for as long as possible. The commission’s findings of fact appear
to have adopted this view as well, stating that “the [r]espondent’s efforts
to stall the implementation of the consequences of [his] offenses . . .
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militate in favor of a sanction on the harsher end of the range” of
possible sanctions.
Upon our de novo review, however, we conclude the board has
failed to prove a violation of this rule. Nothing in the stipulation or the
exhibits supports a finding that Knopf’s dilatory handling of his appeal
was done for the purpose of frustrating the implementation of his
sentence. A review of the appellate record exhibits reveals that, while
initially Knopf had some problems with his combined certificate, he
ultimately corrected the problem and was permitted to move forward with
his appeal. In the end, however, his appeal was dismissed because he
failed to timely file his appellate proof brief and designation of the
contents of the appendix. The reason or motivation for his failure to cure
the default is not clear from the record, and it would be speculative to
make a factual finding that his actions were done solely for his
convenience or for the purpose of frustrating the implementation of his
sentence. Moreover, the parties did not stipulate to the reason for
Knopf’s neglect of his appeal.
That is not to say, however, that his actions did not violate rule
32:8.4(d). Rule 32:8.4(d) states that it is misconduct for an attorney to
“engage in conduct that is prejudicial to the administration of justice.”
Iowa R. Prof’l Conduct 32:8.4(d). Neglect of an appeal resulting in its
dismissal constitutes conduct prejudicial to the administration of justice.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wengert, 790 N.W.2d 94,
101 (Iowa 2010). Ignoring deadlines and orders, which results in default
notices from the clerk of court, hampers “ ‘the efficient and proper
operation of the courts’ ” and therefore is prejudicial to the
administration of justice. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Howe, 706 N.W.2d 360, 373 (Iowa 2005) (quoting Iowa Supreme Ct. Bd.
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of Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa 1999));
see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hoglan, 781 N.W.2d
279, 284 (Iowa 2010) (finding neglect of four appeals resulting in
dismissal of those appeals constituted conduct prejudicial to the
administration of justice).
IV. Sanctions.
We have repeatedly held that 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.’ ” 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)). In deciding an appropriate sanction, 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.’ ” Id.
(quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. D’Angelo, 619
N.W.2d 333, 338 (Iowa 2000)). Consideration of aggravating and
mitigating circumstances present in the disciplinary action is also
important. Id.
“ ‘It is as wrong for a lawyer to cheat the government as it is for
him to cheat a client.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Iversen, 723 N.W.2d 806, 810 (Iowa 2006) (quoting Comm. on Prof’l Ethics
& Conduct v. Strack, 225 N.W.2d 905, 906 (Iowa 1975)). We have
previously imposed a sanction of license suspension from sixty days to
three years for an attorney’s failure to file income tax returns. See
Fields, 790 N.W.2d at 799 (citing cases); 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
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for three years). “[W]e have considered it an aggravating factor for an
attorney to have failed to file tax returns for an extended period of time.”
Fields, 790 N.W.2d at 799. In this case, the parties have stipulated that
Knopf failed to file his state income tax returns for two years.
In addition to his failure to file income tax returns, Knopf’s failure
to cure the default notice on his appeal constituted neglect and was
prejudicial to the administration of justice. See Hoglan, 781 N.W.2d at
286 (finding essence of failure to prosecute appeals resulting in dismissal
was neglect). “The sanction for attorney misconduct involving neglect
typically ranges from a public reprimand to a six-month suspension.”
Fields, 790 N.W.2d at 798. The particular sanction imposed depends
upon “whether there are multiple instances of neglect, other additional
violations, or a history of past disciplinary problems.” Id.
In this case, the parties have stipulated that Knopf has never had
an ethics complaint filed against him by a client. The parties further
stipulated that Knopf has cooperated with the board in resolving this
matter. Both of these factors mitigate in favor of a less severe sanction.
The parties have also stipulated that health problems surrounding
Knopf and his family, which have affected his ability to cope with the
“foregoing matters,” 3 and the winding down of Knopf’s practice of law are
mitigating circumstances to be considered in formulating an appropriate
sanction. We have previously held that, although they do not excuse
misconduct, personal illnesses “can be mitigating factors and influence
3Because the parties have stipulated that Knopf has cooperated with the board,
we conclude that by “foregoing matters” the parties were stipulating that Knopf’s ability
to file his income tax returns and to attend to his appeal were affected by the medical
problems surrounding himself and his family. This conclusion is supported by Knopf’s
response to the board’s interrogatories. When asked to “[s]tate, with respect to each of
the years 1993 through 2004, why [he] did not timely file [his] state income tax
returns,” Knopf replied that there were “[m]any reasons both personal, financial and
health.”
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our approach to discipline.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Curtis, 749 N.W.2d 694, 703 (Iowa 2008); see also Iowa Supreme Ct. Bd.
of Prof’l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 134 (Iowa 1999)
(“As for [the attorney’s] depression and alcoholic conditions, we do not
recognize such problems as an excuse of unethical conduct.”).
In considering personal illnesses in our approach to discipline, we
are concerned with the attorney’s fitness to practice law and, as a
mitigating factor, with the attorney’s efforts to overcome, when possible,
his or her personal afflictions. See Iowa Supreme Ct. Bd. of Prof’l Ethics
& Conduct v. Grotewold, 642 N.W.2d 288, 295 (Iowa 2002) (“[W]e
consider . . . personal afflictions and subsequent recovery efforts in the
imposition of sanctions, both in terms of fitness to practice law and as
mitigating circumstances.”). Here, we are unable to discern from the
stipulation or the record to what extent Knopf’s health problems and
those of his family will continue to affect his ability to cope and,
therefore, affect his fitness to practice law. We are also unable to discern
to what extent the respondent has made efforts to address these health
issues, if possible. Therefore, we do not consider Knopf’s response to his
personal illness as a mitigating factor.
In light of the above facts and circumstances, and upon our
consideration of the goals of our ethical rules, mitigating and aggravating
circumstances, and our survey of other disciplinary cases, we conclude
Knopf’s conduct warrants a three-month suspension. In addition, based
upon the parties’ stipulation, we conclude it is necessary for the
respondent to provide medical verification of his fitness to practice law
prior to any reinstatement. See, e.g., Hoglan, 781 N.W.2d at 287 (holding
attorney, who neglected several clients while suffering from debilitating
11
back problems, was required to provide medical verification of his fitness
to practice law prior to reinstatement).
V. Conclusion.
We suspend Knopf’s license to practice law in this state indefinitely
with no possibility of reinstatement for three months. 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, Knopf must provide this court
with an evaluation by a licensed health care professional verifying his
fitness to practice law. Knopf must also establish that 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 Knopf pursuant to rule
35.26.
LICENSE SUSPENDED.