Iowa Supreme Court Attorney Disciplinary Board v. Dennis R. Mathahs , 918 N.W.2d 487 ( 2018 )

IN THE SUPREME COURT OF IOWA
No. 18–0535
Filed September 21, 2018
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
DENNIS R. MATHAHS,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
The grievance commission recommends we suspend an attorney’s
license to practice law in this state based on the attorney’s charging and
collecting of excessive fees and his failure to supervise his nonlawyer
employee. LICENSE SUSPENDED.
Tara van Brederode and Wendell J. Harms, for complainant.
Leon F. Spies of Spies, Pavelich & Foley, Iowa City, for respondent.
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WIGGINS, Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against an attorney, alleging numerous violations of the Iowa
Rules of Professional Conduct while the attorney performed legal services
for the Iowa State Public Defender (SPD). A panel of the Iowa Supreme
Court Grievance Commission found that the attorney’s conduct violated
our rules.
Based on the attorney’s violation of our rules, the commission
recommended we suspend his license to practice law in this state for
forty-five days. On our de novo review, we find the attorney violated the
provisions of our rules. We disagree, however, with the length of the
recommended suspension. We suspend the attorney’s license to practice
law in Iowa for sixty days from the date of the filing of this opinion.
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Laing, 832 N.W.2d 366, 367 (Iowa
2013). The Board must prove ethical violations by a convincing
preponderance of the evidence. Id. at 368. A convincing preponderance
of the evidence lies between the typical preponderance standard in a civil
case and proof beyond a reasonable doubt in a criminal case. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519, 522 (Iowa
2017). We may impose a greater or lesser sanction than what the
commission has recommended upon proof of an ethical violation. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Vandel, 889 N.W.2d 659, 662 (Iowa
2017). The commission’s findings and recommendations do not bind us,
although we respectfully consider them. Id.
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II. Background Facts and Proceedings.
On June 23, 2017, the Board filed a complaint against Dennis
Mathahs alleging a number of violations of the Iowa Rules of Professional
Conduct. On August 28, the Board filed a recasted complaint alleging
the same rule violations. On September 13, Mathahs filed a motion to
dismiss, claiming the doctrine of laches. Specifically, Mathahs argued
the Board delayed for more than four years in bringing its complaint
after he had self-reported his misconduct in April 2013 and such delay
unduly prejudiced his ability to defend himself. The Board resisted
Mathahs’s motion to dismiss, arguing the delay was reasonable. The
commission overruled Mathahs’s motion to dismiss. The Board then
filed an amended recasted complaint alleging the same rule violations
that the Board had alleged in its original complaint.
On December 29, the Board and Mathahs entered into a joint
stipulation pursuant to Iowa Court Rule 36.16. In the stipulation, the
parties agreed to the relevant facts and the rule violations. The parties
also agreed to waive a formal hearing. On January 5, 2018, the
commission approved and accepted the stipulation with the condition of
commencing a hearing as scheduled on January 10, for the purpose of
admitting evidence regarding the appropriate sanction for the agreed
upon violations of rule 32:1.5(a) and 32:5.3(b).
Stipulations of facts bind the parties. Iowa Ct. R. 36.16(2); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa
2013). We construe such 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.” Nelson,
838 N.W.2d at 532 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Knopf, 793 N.W.2d 525, 528 (Iowa 2011)). With stipulations conceding
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rule violations, however, “we will only enforce the stipulation[s] if there is
sufficient legal consideration.” Id. Based on the stipulations of the
parties and our de novo review of the record, we make the following
findings of fact.
Mathahs has practiced law in Iowa since 2001. Upon obtaining his
law license, Mathahs has practiced mostly from an office in Marengo.
Although he practiced with a firm for a brief period after becoming an
attorney, Mathahs has been in a solo practice for most of his career.
In October 2001, the SPD and Mathahs entered into a contract
whereby Mathahs would provide legal services to indigent adults and
juveniles in certain Iowa counties. The contract initially specified that
Mathahs would provide services in seven counties. Through a series of
renewals, the geographic scope increased to as many as nineteen
counties. Mathahs testified his SPD work eventually constituted more
than ninety-nine percent of his practice. The parties agree Mathahs was
very busy and performed his representation of indigents and juveniles
satisfactorily. Mathahs continued in this line of work until the expiration
of his most recent contract with the SPD on May 1, 2013. Since that
time, Mathahs has not been under contract with the SPD.
To receive payment from the SPD for his services, Mathahs was
required to submit General Accounting Expenditure (GAX) forms to the
SPD detailing the dates, specific services performed, and the amount of
time for each service. Mathahs was also required to submit itemization
of expenses, including mileage. The GAX form requires the submitter to
certify the following:
I, the undersigned attorney, certify that I have
completed my services under the appointment; that I have
not received nor have I entered into any agreement to receive
compensation for these services, direct or indirect, from any
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source other than the State Public Defender; and that the
above information summarizes the services and expenses for
which I am entitled to payment. I further state that an
itemized statement of services and expenses is attached
hereto and a copy has been provided to my client.
At least two SPD employees review each GAX form before approving it.
On March 1, 2013, Samuel Langholz from the SPD wrote to
Mathahs about his concerns over the accuracy of the hours and mileage
expenses recorded on Mathahs’s GAX forms. Langholz wrote that
Mathahs had claimed more than 3000 hours and had received more than
$180,000 in fiscal year 2010 (July 1, 2009, to June 30, 2010).
Langholz and Mathahs met on March 7 to discuss the matter. On
March 24, Mathahs wrote to Langholz to explain the inaccuracies and
discrepancies in his GAX forms. After acknowledging he had signed the
GAX forms and accepting responsibility for the incorrect information,
Mathahs explained how the errors had occurred.
With regard to the excessive hours, Mathahs explained it was the
result of inattentiveness on the part of his legal secretary. Mathahs
attributed his secretary’s inattentiveness to the brutal murder of her ex-
husband. He stated he could not fire her because her ex-husband’s
death had ended child support and left her with no income.
Mathahs further explained he had instructed his secretary as to
her duties by dictation on cassette tapes and had told her to work from
the dictation sequentially. Each tape contained information regarding
not only billings but also all correspondence, motions, reports to the
court, and other matters. She would listen to the tapes and transcribe
the correspondence, motions, and reports but would put the billing off
until later. She would then go back and listen to the same tapes, fast-
forwarding through the correspondence, motions, and reports she had
already completed to get to the parts about billing. Because she skipped
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around when transcribing the dictation, she would bunch together time
from many different dates into one date instead of recording the time as
hours spent over the course of many days. According to Mathahs, after
becoming aware of her mistakes, he told her to stop skipping around, but
she failed to comply. The secretary also haphazardly entered the dates of
service, and thus the dates of service on the GAX forms often did not
correspond to the dates Mathahs had done the actual work.
With regard to the excessive mileage expenses, Mathahs explained
that beginning in 2009, he made single trips for several clients and
erroneously billed each client for the total mileage.
On April 23, Langholz rejected Mathahs’s explanation of his fee
reimbursement claims based on the number of hours Mathahs had
allegedly worked and Mathahs’s explanation of his mileage
reimbursement claims. On April 26, Mathahs self-reported his
misconduct in a letter to the Board. The Board received the letter on
April 29.
On September 23, 2015, after investigating the overpayments by
the SPD to Mathahs, the attorney general’s office informed the SPD that
the Iowa Department of Justice and Division of Criminal Investigation
found no provable evidence of intent to steal or defraud, and Mathahs’s
explanations were contrite and did not contradict any documentary
evidence.
Based on Mathahs’s misconduct, the Board filed a complaint,
alleging a number of violations of the Iowa Rules of Professional Conduct.
Relevant to this appeal are rules 32:1.5(a) (unreasonable fees or
expenses) and 32:5.3(b) (lack of supervision over a nonlawyer employed
by a lawyer). On January 5, 2018, the commission approved and
accepted the stipulation with the condition of commencing a hearing as
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scheduled. The commission held the hearing on January 10. On
March 27, the commission entered its findings of fact, conclusions of
law, and recommendations. The commission found Mathahs violated
rules 32:1.5(a) and 32:5.3(b).
Mathahs did not appeal but submitted a statement regarding
sanctions, asserting that a suspension greater than fifteen days was
unwarranted. See Iowa Ct. R. 36.21. We discuss additional facts as
necessary.
III. Laches.
Laches constitutes “an ‘equitable doctrine premised on
unreasonable delay in asserting a right, which causes disadvantage or
prejudice to another.’ ” See Comm. on Prof’l Ethics & Conduct v.
Wunschel, 461 N.W.2d 840, 846 (Iowa 1990) (quoting First Fed. Sav. &
Loan Ass’n v. Blass, 316 N.W.2d 411, 414 (Iowa 1982)). “Prejudice
‘cannot be inferred merely from the passage of time.’ ” Id. (quoting
Cullinan v. Cullinan, 226 N.W.2d 33, 36 (Iowa 1975)). The party so
contending carries the burden of proving prejudice by clear and
convincing evidence. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Mulford, 625 N.W.2d 672, 680 (Iowa 2001).
We have stated, “Some, but not all, jurisdictions that have
considered the question [of laches] allow a lawyer to assert such a
defense in a disciplinary proceeding.” See Wunschel, 461 N.W.2d at 846.
Iowa is one of the jurisdictions that so allow. See id. (applying the rules
applicable to the laches defense to the facts of the case and finding the
attorney could not prevail on this theory because his presented evidence
failed to establish the requisite prejudice).
Our review of the parties’ stipulation reveals no evidence to
support allegations of prejudice. See Iowa Supreme Ct. Att’y Disciplinary
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Bd. v. Wintroub, 745 N.W.2d 469, 476 (Iowa 2008) (finding the attorney
made only generalized arguments that he had been prejudiced); Mulford,
625 N.W.2d at 680 (finding the attorney failed to prove prejudice by clear
and convincing evidence).
Additionally, Iowa Court Rule 36.21 provides,
If no appeal is taken . . . the supreme court will set a date for
submission of the grievance commission report. The
supreme court will notify the parties that they may file
written statements with the supreme court in support of or
in opposition to the discipline the grievance commission
recommends. . . . Upon submission, the supreme court will
proceed to review de novo the record made before the
grievance commission and determine the matter without oral
argument or further notice to the parties.
Iowa Ct. R. 36.21. According to this rule, we only review the commission
report and the record made before the commission. Id. There is nothing
in the report regarding laches. Furthermore, Mathahs did not appeal
under rule 36.22 the laches ruling overturning his motion to dismiss.
Accordingly, we will not consider the laches issue any further.
IV. Ethical Violations.
A. Prohibition Against Unreasonable Fees—Rule 32:1.5(a).
This rule provides, “A lawyer shall not make an agreement for, charge, or
collect an unreasonable fee or an unreasonable amount for expenses, or
violate any restrictions imposed by law.” Iowa R. Prof’l Conduct
32:1.5(a). The rule lists specific factors in determining whether a fee is
unreasonable; however, the factors “are not exclusive[,]” and the fees
charged must be “reasonable under the circumstances.” Id. cmt. 1.
The Board used three frames of reference to show that Mathahs
improperly billed the SPD. First, from November 18, 2008, to March 2,
2011, Mathahs double-billed 25.4 hours for his representation of five
clients. These hours do not include travel. At a contract rate of $60 per
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hour, these hours amount to an overpayment of $1524. Second, from
July 1, 2009, through June 30, 2011, Mathahs claimed duplicate
mileages totaling 20,206 miles, which at thirty-five cents per mile would
amount to $7072.10. Third, during fiscal year 2010, Mathahs claimed
$186,219 in fees (3103.65 hours multiplied by $60) and $15,788.85 for
mileage expenses (45,111 miles multiplied by thirty-five cents). The
Board argued billing more than 3000 hours in a twelve-month period
was not believable.
The stipulation shows Mathahs agreed that he double-billed the
five clients. Furthermore, Mathahs’s mileage expense claims from
July 1, 2009, through June 30, 2011, far exceed what Mathahs could
reasonably claim. In his April 23, 2013 letter, Langholz wrote,
You regularly billed multiple clients for the full mileage
to the same location on the same day. And on some of these
days[,] you also billed mileage to multiple other locations as
well, often billing for the full trip to each location even when
you took only a single trip. On two days[,] you billed more
than [1000] miles . . . . On twenty-six days, you claimed
mileage expenses for three or more trips to the same county
courthouse in the same day. And on four occasions, you
billed the same client twice for the same trip to the same
courthouse in different cases.
Mathahs had a reasonable claim to receive compensation for the
expenses incurred to make a work-related trip; however, he did not have
a reasonable claim to receive compensation multiple times for the
expenses incurred for the same trip.
Additionally, we agree with the commission that although the
Board presented no evidence by which the commission could determine
the validity of the hours claimed, the total number of hours that Mathahs
claimed to have worked on SPD work alone during FY 2010 is unusually
high. At the commission hearing, Mathahs explained the inordinate
number of hours for which he was paid resulted from receiving
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compensation for time that he had logged in previous years when the
cases lasted more than one year but had not been billed until the case
was finished.
For the very reason that attorneys could bill longer cases upon
completion, Langholz also looked at the claims data. Specifically, in his
April 23 letter, Langholz detailed the number of hours Mathahs had
billed on certain days. On at least sixty-nine days, Mathahs had billed
more than sixteen hours in the day. These days included six days in
which Mathahs had billed more than twenty-four hours and twenty days
in which he had billed twenty hours or more. Langholz wrote, “Your time
records do not reflect that the surrounding days were unusually low as
would be expected if these high billing days were merely the result of
data entry errors.” Langholz further wrote, “And the aggregate billing of
[3000] hours in one calendar year further casts doubt on [your]
explanation [of careless data entry by the secretary].” Based on his
investigation, Langholz concluded it was not appropriate to renew
Mathahs’s contract with the SPD. We think the time records in tandem
with the excessive hours claimed in FY 2010 show that Mathahs
unreasonably billed the SPD.
Finally, Mathahs conceded he billed the SPD for excessive hours
and mileage and reimbursed the state for some of the excessive fees and
mileage expenses he billed. Based on the record, we conclude the Board
proved by a convincing preponderance of the evidence that Mathahs
violated rule 32:1.5(a).
B. Responsibilities Regarding Nonlawyer Assistance—Rule
32:5.3(b). This rule provides,
With respect to a nonlawyer employed or retained by
or associated with a lawyer:
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....
(b) a lawyer having direct supervisory authority over
the nonlawyer shall make reasonable efforts to ensure that
the person’s conduct is compatible with the professional
obligations of the lawyer[.]
Id. r. 32:5.3(b). Rule 32:1.0 defines “reasonable” or “reasonably” as “the
conduct of a reasonably prudent and competent lawyer.” Id. r. 32:1.0(h).
Comment 2 to rule 32:5.3 states in part,
[2] Lawyers generally employ assistants in their
practice . . . . Such assistants, whether employees or
independent contractors, act for the lawyer in rendition of
the lawyer’s professional services. A lawyer must give such
assistants appropriate instruction and supervision
concerning the ethical aspects of their employment,
particularly regarding the obligation not to disclose
information relating to representation of the client, and
should be responsible for their work product. The measures
employed in supervising nonlawyers should take account of
the fact that they do not have legal training and are not
subject to professional discipline.
Id. r. 32:5.3 cmt. 2. When a nonlawyer makes a mistake that is not a
direct consequence of the attorney’s inattentive supervision, the attorney
does not violate rule 32:5.3. See Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Dunahoo, 799 N.W.2d 524, 534 (Iowa 2011).
In Iowa Supreme Court Attorney Disciplinary Board v. Barnhill,
847 N.W.2d 466 (Iowa 2014), we suspended an attorney’s license for
sixty days for violating rule 32:5.3, among other ethics rules. Id. at 481–
82, 488. We reasoned the attorney knew the office manager had
previously embezzled from the law firm, yet the attorney allowed the
office manager to handle the client’s trust account without reasonable
supervision. Id. at 481. In fact, the attorney authorized and directed the
office manager to pay the client’s bills and sign the attorney’s name on
trust account checks. Id. The office manager completed these actions
without supervision from the attorney. Id.
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Like the attorney in Barnhill, Mathahs failed to make reasonable
efforts to ensure his secretary’s conduct conformed to the professional
obligations of a lawyer. He had no other billing system and relied on his
secretary to properly interpret and transcribe his dictation. Mathahs
knew of her diminished mental state and lack of attentiveness at work
because of her ex-husband’s murder. Yet upon finding billing errors, he
simply instructed her to listen to the dictations sequentially and
continued to allow her to prepare his GAX forms. A reasonably prudent
lawyer in Mathahs’s shoes would have taken more care to ascertain that
his secretary did not repeat her mistakes, especially when she began
working remotely and Mathahs found it difficult to monitor her
compliance with office procedures. Mathahs ultimately failed to ensure
the accuracy of the GAX forms his secretary completed. We conclude the
Board proved by a convincing preponderance of the evidence that
Mathahs violated rule 32:5.3(b).
V. Sanction.
In imposing the appropriate sanction, we consider “the nature of
the alleged violations, the need for deterrence, protection of the public,
maintenance of the reputation of the bar as a whole, and [the attorney’s]
fitness to continue in the practice of law.” Laing, 832 N.W.2d at 367–68
(alteration in original) (quoting Comm. on Prof’l Ethics & Conduct v.
Kaufman, 515 N.W.2d 28, 30 (Iowa 1994)). We also consider mitigating
and aggravating factors. Id. at 374. “[W]e look to prior similar cases
while remaining cognizant of their limited usefulness due to the
variations in their facts.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Casey, 761 N.W.2d 53, 62 (Iowa 2009). We ultimately determine an
appropriate sanction based on the particular facts of each case because
there is no standard sanction for a particular type of misconduct. Iowa
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Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 588 (Iowa
2011).
We take Mathahs’s violations seriously. His lack of adequate
supervision over his secretary resulted in the submission of erroneous
GAX forms. We sanctioned an attorney for sixty days when the attorney
failed to reasonably supervise her employee in violation of rule 32:5.3(b)
among other ethical violations. Barnhill, 847 N.W.2d at 481–82, 488.
Sanctions for charging and collecting unreasonable fees generally
range from sixty days to two years. See Laing, 832 N.W.2d at 373, 375
(suspending the attorneys’ licenses for eighteen months for charging and
submitting claims for excessive fees in managing their client’s assets,
drafting annual conservator’s reports, and preparing tax returns); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Carty, 738 N.W.2d 622, 624–25
(Iowa 2007) (imposing sixty-day license suspension for accepting the full
probate fee before filing the final report, collecting an illegal and
excessive fee by failing to amend his ordinary fee claim when the gross
value of the estate was reduced, and collecting duplicate fees for
extraordinary services that included ordinary services for which he had
been compensated); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Lane, 642 N.W.2d 296, 297–98, 300–02 (Iowa 2002) (imposing six-month
license suspension when attorney requested excessive attorney fees for
allegedly spending eighty hours to write a brief that he had plagiarized);
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Hoffman, 572 N.W.2d
904, 909–10 (Iowa 1997) (imposing six-month suspension when attorney
tried to mislead the commission and the supreme court with untenable
excuses for requesting over $37,000 in attorney fees after spending only
twenty hours on a claim); Comm. on Prof’l Ethics & Conduct v.
Zimmerman, 465 N.W.2d 288, 291–93 (Iowa 1991) (suspending an
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attorney’s license for six months for submitting an application requesting
legal fees that duplicated nonlegal administrative fees and requesting
fees for 89.75 hours of legal service when in actuality the attorney had
spent only 19.5 hours on preparing legal matters while his legal assistant
spent 39.85 hours on bookkeeping and report preparation); Comm. on
Prof’l Ethics & Conduct v. Coddington, 360 N.W.2d 823, 824–26 (Iowa
1985) (suspending a license for two years when the attorney paid himself
a total of $33,600 from conservatorship funds before district court
approval of the fees and the court only approved $18,600 of those fees).
We recognized the responsibility of lawyers to avoid billing errors in
connection with SPD contract work in Iowa Supreme Court Board of
Professional Ethics & Conduct v. Tofflemire, 689 N.W.2d 83 (Iowa 2004).
In Tofflemire, an attorney worked fulltime for the Iowa Workforce
Development (IWD) and engaged as a contract attorney with the SPD. Id.
at 86. Upon learning that the attorney earned $97,438 in 2000 for SPD
work, the commissioner of labor initiated an investigation covering the
period from January 1, 2000, through September 15, 2000. Id. at 87.
The commissioner found on twenty-six occasions the attorney took sick
leave from the IWD while claiming to perform SPD work, billed
substantial hours of work to the SPD on days she allegedly worked eight-
or ten-hour days for the IWD, and on some days billed in excess of
twenty-four hours for a given date. Id. The commissioner terminated the
attorney for abusing the IWD sick-leave policy, deliberately falsifying
timesheets, and lying when confronted about the discrepancies. Id. at
88.
At the commission hearing, the attorney testified she used block-
and-summary billing. Id. at 89. In other words, she would reconstruct
time and billing records for a given case after she completed the work.
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Id. We agreed with the commission that it was impossible to reconstruct
accurate billing records when a substantial amount of time had passed
since the attorney’s completion of the work. Id. at 90. We gave little
faith to her block-and-summary billing explanation because the claims
she had submitted to the SPD did not reflect that system. Id. at 92–93.
Rather, the submitted claims made it appear that she had
contemporaneously made the detailed billings. Id.
Moreover, the commission showed particular concern regarding
two incidents involving sick leave. Id. at 91. In the first incident, the
attorney claimed nine hours of sick leave with IWD because of an
infected fingernail and billed six hours of work to the SPD. Id. In the
second incident, the attorney claimed sick leave allegedly to attend a
relative’s funeral. Id. In both incidents, the attorney made court
appearances on behalf of her SPD clients. Id. The commission found
and we agreed that the timing of the court appearances and the timing of
the sick leaves reflected planning rather than mere coincidence because
the dates of the court appearances had been on the attorney’s calendar
before she claimed sick leave. Id.
The attorney in Tofflemire not only billed excessive fees but also
altered checks and abused her employer’s sick-leave policy. Id. at 91–92.
Additionally, she gave evasive and untruthful testimony at the
commission hearing. Id. at 92. We found her block-and-summary billing
explanation “bogus.” Id. at 93. The attorney also failed to appreciate the
wrongfulness of her actions and in fact maintained she did nothing
wrong. Id. She attempted to shift blame from herself to other persons,
maintaining that her refusal to sign the ethics complaint against the
former deputy commissioner elicited her coworkers at the IWD to
conspire against her. Id.
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Furthermore, we took particular issue with the attorney’s “repeated
deception.” Id. at 94. Specifically, the attorney made the claim forms
appear as if she had prepared them contemporaneously, attached false
carbon copies of checks to her claim forms on eight occasions, and
claimed sick leave when in fact she was well enough to perform SPD
work. Id. She continued her deception into the hearing. Id. After
considering the aggravating and mitigating factors, we suspended the
attorney’s license for two years. Id. at 95.
The case before us is distinguishable from Tofflemire. Unlike the
attorney in Tofflemire who showed no actual appreciation for her
wrongdoing and blamed her coworkers as having a vendetta against her,
Mathahs recognizes the full extent of his inaccurate billing practices and
takes responsibility for his misconduct. Additionally, in concluding that
a two-year suspension was appropriate in Tofflemire, we highlighted the
attorney’s “repeated deception.” Id. at 94. Notably, in contrast to the
attorney in Tofflemire who gave evasive and untruthful answers, Mathahs
cooperated with the Board’s investigation and was truthful in his
answers. Accordingly, imposing a two-year suspension would be clearly
excessive in light of the facts of this case.
Carty provides some guidance on the length of the suspension we
ought to impose in this case. We recognize Carty is a probate case;
however, it involves illegal and excessive fees. 738 N.W.2d at 628. In
Carty, we suspended an attorney’s license for sixty days and ordered him
to repay to the trust the $6165 that he had improperly received. Id. at
625. We observed the attorney had a prior public reprimand and never
took any remedial action to return the excessive ordinary fees and the
duplicate extraordinary fees he had charged and collected. Id. at 622–23,
625. We noted the violations resulted in part from miscommunication
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between the attorney and his new secretary but concluded this
circumstance did not excuse him from his ethical violations. Id. at 624.
Deception would undoubtedly compound the nature and extent of
the alleged ethical violations. See Hoffman, 572 N.W.2d at 909 (“[The
attorney’s] ethical violation in attempting to collect an excessive fee is
compounded by his attempt to mislead the grievance commission and
this court with untenable excuses for seeking such a fee.”); see also
Lane, 642 N.W.2d at 302 (stating “[h]onesty is fundamental to the
functioning of the legal profession” and finding the attorney intended to
deceive when he requested excessive attorney fees for a plagiarized brief);
Zimmerman, 465 N.W.2d at 292–93 (stating the attorney knowingly
misled the court in order to obtain excessive fees and incorporating this
fact as an aggravating factor).
Unlike in Tofflemire and as in Carty, misrepresentation and
deception are absent from this case. The attorney general’s (AG) office
closed the criminal investigation of Mathahs without filing any charges.
The AG could not find proof beyond a reasonable doubt that Mathahs
intended to steal from or defraud the SPD. First, the AG found that
Mathahs’s billable hours on an annual average basis were high but
believable. Moreover, it could not locate any billings for events or work
that did not actually occur. Second, the AG stated the circumstances
showed an alternative explanation to intentional theft: Mathahs’s
secretary was responsible for billing based on Mathahs’s dictation. The
AG noted the secretary’s personal life and professional attention had
plummeted during her employment under Mathahs since the murder of
her ex-husband. Third, there appeared to be some relationship between
the murder and the beginning of the duplicate mileage billings. Fourth,
the former secretary had told the new secretary to bill mileage for each
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client while Mathahs instructed the new secretary to only bill for each
trip. Fifth, when Mathahs hired the new secretary, excessive mileage
billing declined. The AG therefore found the new secretary’s story about
correcting the billing practice more credible. Thus, the AG concluded the
billing errors appeared much more like accidental and less like
intentional theft.
Moreover, the parties stipulated that Mathahs did not violate rules
32:8.4(b) and 32:8.4(c) and provided no facts to support a violation of
these rules. Iowa R. Prof’l Conduct 32:8.4(b) (prohibiting a lawyer from
“commit[ting] a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness, or fitness as a lawyer in other respects”); id. r.
32:8.4(c) (prohibiting a lawyer from “engag[ing] in conduct involving
dishonesty, fraud, deceit, or misrepresentation”).
Based on the caselaw and the facts of this case, we think a
sanction of sixty days or less may be appropriate. Before deciding on the
exact sanction, we now turn to the mitigating and aggravating factors
present in this case.
A. Mitigating Factors. Mathahs fully cooperated with
investigations by the Board, the SPD, and the Iowa state auditor. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Qualley, 828 N.W.2d 282, 294
(Iowa 2013) (stating cooperation mitigates the sanction). For example,
upon Langholz’s request, Mathahs withdrew from his cases.
The cooperation, however, followed the commencement of the
SPD’s investigation, which made the filing of the Board’s complaint
inevitable. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Barry,
908 N.W.2d 217, 231 (Iowa 2018) (stating the attorney’s “remorse and
cooperation came on the coattails of the clerk of court’s discovery of his
[wrongdoing]” and “[t]he chronology tends to deflate consideration of
19
remorse and cooperation as mitigating factors.” (quoting Iowa Supreme
Ct. Att’y Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 467 (Iowa 2014)
(second quote))). Mathahs self-reported after Langholz expressed his
suspicions over the billing practices and rejected Mathahs’s
explanations. Although we could give deflated credit to Mathahs’s self-
reporting and cooperation, because of his sincere acceptance of
responsibility, we opt to give him full credit. Compare id. (finding the
attorney’s ambivalent letter reflected “an oxymoronic, but all too familiar,
combination of self-serving justifications and sincere explanations for his
actions” and giving deflated credit to the attorney for his cooperation),
with Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kingery, 871 N.W.2d 109,
122 (Iowa 2015) (considering the attorney’s “sincere acceptance of
responsibility as a mitigating factor” (emphasis added)).
Mathahs also acknowledged his personal and professional
responsibility for the billing errors. See Nelson, 838 N.W.2d at 542 (“An
attorney’s acknowledgment of ethical violations is a mitigating factor.”);
Tofflemire, 689 N.W.2d at 93 (“A mitigating factor is the attorney’s
recognition of some wrongdoing.”); cf. Lane, 642 N.W.2d at 302 (finding
the attorney recognized some wrongdoing yet failed to comprehend the
full extent of his wrongdoing where he intended to deceive by requesting
excessive and unreasonable attorney fees for a plagiarized brief).
In his March 24 letter to Langholz, Mathahs stated, “I acknowledge
that erroneous claims were filed by my law office. I further acknowledge
that I signed the claims and that I am responsible for any wrong
information contained in the claims.” Specifically, with regard to the
erroneous dates of service and times, Mathahs stated, “[I]t has always
been my responsibility to ensure the accuracy, prior to the submission of
all fee claims.” With regard to the erroneous recording of mileage
20
expenses, Mathahs stated, “The problem with the mileage was also my
mistake.” Mathahs’s April 26 letter self-reporting his misconduct to the
Board repeats the aforementioned statements.
In his personal statement attached to the stipulation, Mathahs
stated, “I acknowledge that I made errors in inadequately supervising my
secretary and signing inaccurate claims.” He expressed sincere remorse,
stating, “I am deeply sorry for failing to adhere to my ethical obligations,
and I have learned profound life lessons as a result.”
Additionally, the parties stipulated that the allegations in the
complaint do not accurately reflect the high quality of legal services
Mathahs provided to his indigent clients. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Box, 715 N.W.2d 758, 766 (Iowa 2006) (stating the
attorney had a reputation as a competent attorney). Moreover, the
allegations are inconsistent with Mathahs’s normal pattern of care and
concern for the legal profession. See id. (stating the attorney’s ethical
misconduct was an isolated incident).
In addition, Mathahs has engaged in community service and pro
bono work for Iowa Legal Aid and the Meskwaki Tribal Court. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Hamer, 915 N.W.2d 302, 326 (Iowa
2018) (considering the attorney’s record of community service as a
mitigating factor); Barnhill, 847 N.W.2d at 486 (same). After the
termination of his contract with the SPD, Mathahs continued to
represent some of his clients on a pro bono basis.
Lastly, Mathahs took corrective action to address the billing
irregularities by making voluntary restitution for excessive hours and
mileage expenses and offering to reimburse additional funds to the SPD.
See Barnhill, 847 N.W.2d at 486 (stating “corrective measures to address
previous misconduct are a mitigating factor” and finding the attorney’s
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institution of practices to help manage her trust account was a
mitigating factor). The record shows that on March 15, 2013, Mathahs
reimbursed the SPD $8664.60 for excessive mileage expenses. The
record further shows that on May 29, Mathahs reimbursed the SPD
$210.56 for excessive hours. The record also shows that on
September 15, 2014, Mathahs made an additional payment of $3299.10
to the Iowa Department of Revenue to reimburse the SPD for duplicate
hours and mileage expenses. Based on the record before us, Mathahs
repaid the SPD a total of $12,174.26 for excessive hours and mileage
expenses.
B. Aggravating Factors. We now turn to the aggravating factors.
In September 2005, Mathahs received a public reprimand for possessing
a small amount of marijuana. Prior disciplinary action affects the
sanction we ought to impose in a subsequent case involving the same
lawyer. See Hoffman, 572 N.W.2d at 909. We give little weight, however,
to Mathahs’s prior disciplinary action because it is unrelated to the
current misconduct and some time has passed since its imposition. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Stoller, 879 N.W.2d 199, 221
(Iowa 2016).
We also consider the nature and extent of the amount of funds
that Mathahs improperly collected from the SPD. See Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 164 (Iowa
2003) (stating the nature and extent of the ethical infractions is a factor
in imposing a suitable sanction). The amount of overcompensation
Mathahs received from the SPD is not a small amount.
Additionally, Mathahs’s pattern of misconduct occurred from 2009
to 2011. See Hamer, 915 N.W.2d at 326 (finding the attorney’s
numerous violations over a period of years reflected a pattern of
22
misconduct); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Gallner,
621 N.W.2d 183, 187 (Iowa 2001) (“Normally, a pattern of misconduct
gives rise to enhanced sanctions.”). Notably, during this period of
submitting erroneous claims, Mathahs knew of his secretary’s method of
creating the billings, yet he failed to take reasonable remedial action
other than simply instruct her to follow his dictations sequentially and
nothing more.
Lastly, the SPD and the Board spent numerous hours attempting
to analyze and account for the discrepancies in Mathahs’s GAX forms.
See Barry, 908 N.W.2d at 234 (stating the attorney’s actions caused the
client and the staff of the clerk’s office to expend time and resources to
investigate the attorney’s misconduct and considering this an
aggravating factor in imposing an appropriate sanction). Even after such
expenditure of time by the SPD and the Board, the commission was
unable to determine from the evidence presented whether Mathahs had
repaid the SPD in full or even overpaid. The commission found fault with
both Mathahs and the SPD for the lack of supporting information and
the lack of adequate tracking of hours and mileage expenses. In his July
24, 2013 letter to the state auditor, Mathahs stated he missed the same
information the SPD missed for the very reason that neither he nor the
SPD had a claims review software. 1 The SPD’s limited accounting
system, however, does not excuse Mathahs from his ethical duties.
C. Appropriate Sanction. After reviewing the record and
considering the mitigating and aggravating factors affecting our
1Our review of the July 24, 2013 letter shows that Mathahs pointed out the
SPD’s limited accounting system to show that his failure to detect the errors on his GAX
forms did not mean he intended to defraud the SPD of its funds. Mathahs was not
trying to shift the blame to the SPD, and we decline to interpret the contents of his
letter as a situation of the pot calling the kettle black in order to shift blame.
23
determination of the appropriate sanction, we suspend Mathahs’s license
for sixty days.
VI. Disposition.
We suspend Mathahs’s license to practice law in Iowa for sixty
days from the date of filing this opinion. Reinstatement of Mathahs’s
license to practice law is automatic on the day after the sixty-day
suspension period expires, unless the Board objects to his automatic
reinstatement. Iowa Ct. R. 34.23(2). The suspension applies to all facets
of the practice of law. Id. r. 34.23(3). Mathahs shall comply with the
notification requirements of Iowa Court Rule 34.24. We tax the costs of
this action to Mathahs in accordance with Iowa Court Rule 36.24(1).
LICENSE SUSPENDED.
All justices concur except Hecht and Christensen, JJ., who take no
part.