Iowa Supreme Court Att'y Disciplinary Bd. v. Curtis W. Den Beste ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 19–0360
Filed September 13, 2019
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
CURTIS W. DEN BESTE,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
In attorney disciplinary action, grievance commission recommends
suspension for multiple violations of ethical rules, including theft from
employer. LICENSE SUSPENDED.
Tara van Brederode and Amanda K. Robinson, Des Moines, for
complainant.
Curtis W. Den Beste, Cedar Rapids, pro se.
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CADY, Chief Justice.
This case is before us on review from a report and recommendation
of a division of the Iowa Supreme Court Grievance Commission concerning
attorney Curtis W. Den Beste. The report found Den Beste committed
ethical violations and recommended a four-month suspension of his
license to practice law. We find Den Beste violated the Iowa Rules of
Professional Conduct by engaging in criminal conduct involving theft from
his employer. We suspend his license to practice law in Iowa indefinitely
with no possibility of reinstatement for four months.
I. Background Facts and Proceedings.
Curtis Den Beste is an Iowa attorney. He received his license to
practice law in 2000. In 2007, Den Beste received an offer from Steve
Howes to practice at the Howes Law Firm, P.C. (Howes) in Linn County,
Iowa. The misconduct giving rise to this proceeding occurred while
Den Beste worked at Howes.
Den Beste entered into a fee agreement with Howes requiring him to
deposit all earned client fees into a trust account or the general law firm
account. Pursuant to the agreement Den Beste was then paid fifty percent
of the fees he earned, and Howes retained the remainder to cover overhead
and other expenses. Beginning in 2015, Den Beste accepted cash
payments from some clients and kept the proceeds for himself rather than
deposit them as required by the fee agreement.
Den Beste’s pattern of misconduct was discovered in March 2017.
He had instructed the firm’s accounting manager to “write off” a number
of accounts he dishonestly deemed “uncollectable.” When the manager
called the clients in an attempt to collect payment, some informed her that
they had already paid Den Beste directly. Steve Howes confronted him at
a meeting shortly after the discovery. Den Beste admitted to the theft and
3
was terminated. He agreed to self-report his misconduct to the
disciplinary board and to provide an accounting of the diverted funds as
well as a repayment plan. The accounting revealed he retained a total of
$18,200. Accounting for the fifty-percent split, and other tax and
reimbursement considerations, respondent wrongfully deprived Howes of
$9200. A Client Security Commission auditor investigated the issue and
found no evidence to conclude Den Beste’s accounting was inaccurate. He
also noted respondent was cooperative and provided him with all
requested information. However, he also explained Howes’s record
keeping did not provide a “way to verify that the amount reported by
Den Beste as stolen is accurate.”
II. Board Complaint and Commission Recommendations.
After Den Beste reported his conduct to the Iowa Supreme Court
Attorney Disciplinary Board, the Board filed a complaint alleging
Den Beste violated Iowa Rules of Professional Conduct 32:8.4(b) and (c).
Den Beste and the Board filed a joint stipulation of facts containing a
recitation of events, a discussion of the rule violations and sanctions,
accompanying exhibits, and a waiver of hearing. Following a hearing, the
commission found Den Beste violated rules 32:8.4(b) and (c), identifying
his pattern of misconduct involving “extensive or serious
misrepresentations” as an aggravating factor. It also noted Den Beste’s
conduct constitutes theft in violation of Iowa Code section 714.2(2),
although he was not charged criminally.
The commission recognized a number of mitigating circumstances
in its report. These factors include Den Beste’s self-reporting of
wrongdoing, his cooperation with the Board, his voluntary plan to
reimburse Howes, and the absence of a prior disciplinary record. There is
no indication his indiscretions caused any financial harm to his clients.
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Importantly, Steve Howes submitted a letter stating he was the only person
financially harmed by the theft. He gave positive remarks regarding
Den Beste’s professional abilities and character and asked for sanctions
short of revocation. The letter also mentioned Den Beste’s mentorship of
young lawyers, his competency in legal matters, and his personal
contributions to the firm.
In recommending a sanction, the commission observed instances in
prior disciplinary cases in which an attorney’s theft from a law firm
involved additional serious wrongdoing. These cases typically resulted in
license revocation. By contrast, cases absent of these egregious
aggravating factors resulted in more lenient sanctions. Finding no
aggravating factors warranting revocation in this case, the commission
recommended a four-month license suspension as the appropriate
sanction.
III. Scope of Review.
Our review of attorney disciplinary proceedings is de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 796 N.W.2d 910, 913 (Iowa
2011). Although we give respectful consideration to the findings and
recommendations by the commission, we are not bound by them. Id. The
Board must prove the misconduct by a convincing preponderance of the
evidence. Id.
IV. Violations.
A. Rule 32:8.4(b). Rule 32:8.4(b) states that “[i]t is professional
misconduct for a lawyer to . . . commit a criminal act that reflects adversely
on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects.” Iowa R. Prof’l Conduct 32:8.4(b). The parties stipulated that
the factual basis for this rule violation is Den Beste’s own admission that
“he took approximately $9,200.00 in fees that rightly belonged to his
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employer law firm for his personal use, which is conduct that constitutes
theft.” We have stated that “[a] lawyer who commits a theft of funds
engages in conduct involving moral turpitude, dishonesty, and conduct
that adversely reflects on the lawyer’s fitness to practice law.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Stowe, 830 N.W.2d 737, 741 (Iowa
2013). Iowa Code section 714.1(2) defines theft as the misappropriation
of another’s property in a manner inconsistent with the owner’s right in
the property or appropriation of such property for personal use. Iowa Code
§ 714.1(2) (2017).
Den Beste committed theft by retaining funds in a manner
inconsistent with Howes’s right to payment for his own benefit. See In re
Disciplinary Proceeding Against Placide, 414 P.3d 1124, 1126, 1136 (Wash.
2018) (concluding attorney committed theft based on conduct similar to
the conduct in this case under a statute similar to Iowa’s theft statute).
Despite his acquiescence to the fee agreement, he failed to deposit client
fees into the firm’s general account. His failure to do so prevented Howes
from receiving its share of the funds. We find Den Beste’s theft is conduct
that reflects adversely on his fitness to practice law in violation of Iowa
Rule of Professional Conduct 32:8.4(b).
B. Rule 32:8.4(c) Violation. Rule 32:8.4(c) states 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). The stipulation frames the bases for this rule violation as
respondent’s inherently dishonest act of stealing funds belonging to
Howes. Additionally, it identified Den Beste’s untruthful statements to the
firm’s accounting manager regarding the status of client payments as
dishonest behavior.
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Our analysis of attorney conduct violating rule 32:8.4(c) is not
limited to criminal acts. We may consider any conduct “involving
dishonesty, fraud, deceit, or misrepresentation.” Id. In Iowa Supreme
Court Attorney Disciplinary Board v. Henrichsen, this court discussed rule
32:8.4(c) in light of a similar factual scenario. 825 N.W.2d 525, 527 (Iowa
2013). Henrichsen involved an attorney who retained $10,000 in client
fees over an extended period of time in violation of his firm’s fee agreement.
Id. Henrichsen’s conduct was discovered after the firm’s bookkeeper
noticed an absence of payment from a particular client. Id. In our
discussion of rule 32:8.4(c), we explained the rule “is virtually identical to
its predecessor, DR 1–102(A)(4). We held on numerous occasions that a
lawyer violated DR 1–102(A)(4) by depositing receivables intended for the
firm into a personal bank account.” Id. at 527–28 (citation omitted). We
found no reason to interpret the current rule differently from its
predecessor and concluded Henrichsen violated Iowa Rule of Professional
Conduct 32:8.4(c). Id. at 528. We imposed a suspension for a period of
three months. Id. at 530.
Den Beste’s conduct is nearly identical to Henrichsen’s. Like
Henrichsen, he violated the firm’s fee agreement for an extended period of
time, approximately two years. In the process, he deprived the firm of a
substantial amount of revenue. Den Beste also knowingly misrepresented
the status of the accounts to the accounting manager in order to conceal
his wrongdoing. We find respondent’s theft and misleading statements
constitute conduct in violation of rule 32:8.4(c).
V. Sanction.
In Henrichsen, we reviewed the line of cases involving the conversion
of law firm fees that resulted in revocation and those that resulted in
sanctions less than revocation. Id. at 528–30. This review revealed that
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the cases resulting in revocation largely involved substantial fee
conversion often accompanied by other serious conduct such as
conversion of client funds, felony convictions, or involvement in other
crimes. Id. at 528–29; see also Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Irwin, 679 N.W.2d 641, 642–44 (Iowa 2004) (revoking license of
attorney who converted nearly $99,000 in fees owed to his firm); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Schatz, 595 N.W.2d 794, 795–
96 (Iowa 1999) (revoking license of attorney who converted over $140,000
in legal fees resulting in convictions of felony offenses involving theft and
deceit); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Carr, 588 N.W.2d
127, 129–30 (Iowa 1999) (revoking license for conduct that involved fraud
to both client and firm). On the other hand, a sanction less than
revocation has been imposed when the amounts involved were relatively
small and there was no prior record of discipline. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Isaacson, 750 N.W.2d 104, 110 (Iowa 2008)
(imposing a six-month suspension for attorney who converted fees and
failed to respond to partnership’s request for missing funds, failed to
deposit client funds in a trust account, failed to deliver funds to a client,
and failed to maintain proper records); Iowa Supreme Ct. Bd. of Prof’l Ethics
& Conduct v. Huisinga, 642 N.W.2d 283, 285, 288 (Iowa 2002) (imposing
public reprimand involving fees of $3180); Comm. on Prof’l Ethics &
Conduct v. McClintock, 442 N.W.2d 607, 608 (Iowa 1989) (imposing a
public reprimand of attorney who retained nearly $7000 in fees).
When we match the conduct of Den Beste in this case with our prior
cases, it clearly most resembles the actions of the attorney in Henrichsen,
in which we imposed a three-month suspension. While Den Beste
originally tried to hide his conduct by instructing the accounting manager
to designate the affected client accounts as uncollectible, this aggravated
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conduct was not as severe as that in Issacson. In Isaacson, the attorney
stone-walled the partners’ requests for missing funds and also engaged in
a variety of other unethical conduct, resulting in a six-month suspension.
750 N.W.2d at 108, 110. As a result, we conclude the sanctions in this
case should be less than six months but more than three months.
Yet, the Board asks us to step back and reconsider the trajectory of
our precedents. In particular, the Board directs our attention to Florida
Bar v. Arcia, 848 So. 2d 296 (Fla. 2003) (per curiam). In Arcia, the Florida
Supreme Court considered the distinction in its disciplinary caselaw
between theft of funds of clients and theft of funds from someone other
than a client. Id. at 299–300. In two prior cases, the Florida Supreme
Court imposed a one-year suspension in cases involving theft of law firm
funds by a lawyer. Id. at 299 (first citing Fla. Bar v. Ward, 599 So. 2d 650
(Fla. 1992); then citing Fla. Bar v. Farver, 506 So. 2d 1031 (Fla. 1987)).
The Arcia court noted that “[w]hile theft of client funds rends the
fundamental bond between a lawyer and the client, theft of firm funds
breaches the trust that law firms must place in their attorneys as
professionals to act as representatives of the firm.” Id. at 300.
The Arcia court observed, however, that Florida disciplinary
authorities board did not cross-appeal the sanction of a referee and that,
as a result, it would defer to the referee’s finding of a three-year
suspension. Id. The Arcia court made clear, however, that “future cases
involving theft of firm funds will carry a presumption of disbarment.” Id.
It is certainly true that, in many cases, fee disputes between a lawyer
and his or her current or former law firm might simply be contract disputes
and nothing more. For example, a lawyer with a good-faith claim to fees
should not be sanctioned merely for exercising or asserting such a claim.
But not all fee disputes between a lawyer and a law firm are garden variety
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contract disputes. Some involve outright and undisputed theft. In such
cases, the imposition of discipline is clearly appropriate.
The question then arises whether theft from a client is more serious
than theft from a law firm or other third party. In our prior cases, the
difference has often been dramatic. Theft of any amount by a lawyer from
a client ordinarily results in revocation. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Parrish, 925 N.W.2d 163, 170–71 (Iowa 2019); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 500–01
(Iowa 2017). But theft of funds from a law firm can result in much lesser
sanctions. Henrichsen, 825 N.W.2d at 529–30.
There are, perhaps, some reasons for the distinction between client
theft and law firm theft. For instance, many clients have little power
against a lawyer in whom the client places trust. A lawyer who steals from
a client is preying on those often in an extremely vulnerable position who
have placed trust in the lawyer and advanced funds to the lawyer to protect
their interests. The relationship between a law firm and a lawyer ordinarily
will have less of a power imbalance. The firm is in a better position,
perhaps, than a client to monitor the proper handling of fees.
Yet, a lawyer who acts dishonestly toward an employer raises
serious questions of whether the lawyer has the necessary integrity to
practice law. ABA Standard 5.11(a) states that disbarment is appropriate
when a lawyer engaged in “serious criminal conduct, a necessary element
of which includes . . . theft.” ABA Standards for Imposing Lawyer
Sanctions § 5.11 (1992).
Likewise, we have recognized “an obligation to protect the public and
the courts from theft and deceit.” See Comm. on Prof’l Ethics & Conduct v.
Shifley, 390 N.W.2d 133, 135 (Iowa 1986); see also Schatz, 595 N.W.2d at
796.
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This obligation is no less important when the theft and deceit
does not directly involve client funds. The same lack of trust
is implicated, whether the funds are those of a client or
another lawyer. Likewise, the need to maintain the reputation
of the bar as a whole is the same, as is the need to deter other
lawyers from engaging in similar conduct. Trust is not
reserved for clients, but lies at the very heart of the profession.
Schatz, 595 N.W.2d at 796.
In this light, we think the time has come to ratchet up the
disciplinary sanctions for nonclient theft. That said, this case may not be
the appropriate case to do so. In particular, given our caselaw, Den Beste
was not on notice that he faced a possible revocation when he entered into
the stipulation in this case. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Cepican, 861 N.W.2d 841, 845 (Iowa 2015) (finding the attorney did not
waive his right to contest a complaint of theft-based misconduct by failing
to respond because he did not receive adequate notice of the allegation of
theft). Thus, we rely on our precedent and impose a sanction in this case
consistent with our prior cases. At the same time, we use this case as a
vehicle to put the bar on notice that an attorney who steals from a law firm
without a colorable claim may well incur stiffer disciplinary sanctions than
have been imposed in our past cases.
VI. Disposition.
Upon full consideration of this matter, we order that the license of
Curtis W. Den Beste to practice law in Iowa be suspended indefinitely with
no possibility of reinstatement for a period not less than four months,
effective with the filing of this opinion. This suspension applies to all facets
of the practice of law. Iowa Ct. R. 34.23(3). Den Beste must comply with
Iowa Court Rule 34.24, including timely notifying his clients of his
suspension. Upon application for reinstatement, Den Beste must
establish conformity with the requirements of Iowa Court Rule 34.25.
Costs are assessed to respondent pursuant to Iowa Court Rule 36.24.
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LICENSE SUSPENDED.
All justices concur except Wiggins, J., who concurs in part and
dissents in part.
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#19–0630, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Den Beste
WIGGINS, Justice (concurring in part and dissenting in part).
I agree with the majority that Curtis Den Beste’s conduct violated
the Iowa Rules of Professional Conduct. However, I disagree on the
appropriate sanction.
On multiple occasions, Den Beste knowingly embezzled money from
his law firm and then attempted to conceal what he had done. He had no
colorable claim to nor was there any fee dispute regarding that money.
“[I]t is almost axiomatic that the licenses of lawyers who convert funds
entrusted to them should be revoked.” Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Irwin, 679 N.W.2d 641, 644 (Iowa 2004). Accordingly,
I would revoke Den Beste’s license to practice law.
In its complaint filed against Den Beste, the Board gave him the
following notices under Iowa Court Rule 36.8:
1. If the Supreme Court finds that Respondent’s
violation of any of the aforementioned disciplinary rules cited
in this Petition amounts to conversion, the Court could revoke
Respondent’s law license.
2. If the evidence establishes that funds are missing
from Respondent’s client trust account, the burden shifts to
Respondent to come forward with evidence to establish a
colorable future claim to those funds to avoid revocation of his
law license.
See Iowa Ct. R. 36.8(1)–(2). In spite of these notices, Den Beste entered
into a joint factual stipulation, which the commission accepted. That
stipulation of facts is binding on us and the parties. Id. r. 36.16(2); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 803 (Iowa
2010).
The stipulation provides that Den Beste and his firm had an
agreement that required Den Beste to deposit all fees he collected into
either a trust account or the law firm’s general account. Then he would
13
be paid 50% of the fees earned as a result of his work, and the other 50%
would be retained by the law firm.
On several occasions throughout his ten-year tenure with the firm,
clients delivered cash fee payments to Den Beste personally. Den Beste
kept those cash fee payments for himself and did not deposit the funds as
required by his agreement with the firm.
Den Beste instructed the firm’s account manager to “write off”
several client accounts that he deemed “uncollectable” even though the
clients had paid Den Beste in cash. In an effort to collect some of the
money owed by those uncollectable accounts, the account manager
contacted some of those clients to ask about their nonpayment. Several
of those clients responded that they had paid Den Beste directly.
The parties stipulated that Den Beste failed to deposit over $18,000
worth of cash payments, which resulted in a loss of approximately $9200
to Den Beste’s firm. At no point did Den Beste assert—nor could he
assert—a colorable claim to that $9200. At no point did Den Beste
assert—nor could he assert—that the $9200 was part of a fee dispute
either between a client and the firm or between Den Beste and the firm.
Indeed, when confronted by his employer, Den Beste admitted “that he
had wrongly kept the entirety of various clients’ fee payments for himself,
rather than depositing them with [the] firm and being compensated for
50% of said fee according to his employment agreement.” This admission
by Den Beste clearly establishes this was not a fee dispute between him
and his firm, but rather, that he knowingly took money that clients owed
the firm and converted it for his own use.
Although he was not criminally charged, Den Beste stipulated that
his embezzlement violated Iowa Code section 714.1(2). See State v.
Sylvester, 516 N.W.2d 845, 848–49 (Iowa 1994) (en banc) (per curiam)
14
(noting embezzlement violates section 714.1(2)). Likely, his conduct could
also be a violation of section 714.1(1). Section 714.1 provides in pertinent
part,
A person commits theft when the person does any of the
following:
1. Takes possession or control of the property of
another, or property in the possession of another, with the
intent to deprive the other thereof.
2. Misappropriates property which the person has in
trust, or property of another which the person has in the
person’s possession or control, whether such possession or
control is lawful or unlawful, by using or disposing of it in a
manner which is inconsistent with or a denial of the trust or
of the owner’s rights in such property, or conceals found
property, or appropriates such property to the person’s own
use, when the owner of such property is known to the person.
Iowa Code § 714.1(1)–(2) (2019). 1 At a minimum, Den Beste’s conduct
qualifies as second-degree theft, a class “D” felony. See id. § 714.2(2)
(providing theft of property exceeding $1000 but not exceeding $10,000 in
value is second-degree theft).
When an attorney steals funds entrusted to them, we have
repeatedly revoked the attorney’s license to practice law. E.g., Irwin, 679
N.W.2d at 644; Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Schatz,
595 N.W.2d 794, 796 (Iowa 1999); Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Sylvester, 548 N.W.2d 144, 147 (Iowa 1996); Comm. on Prof’l
Ethics & Conduct v. Piazza, 405 N.W.2d 820, 824 (Iowa 1987). This case
should be no different.
Theft of funds involves dishonesty, and dishonest attorneys have no
place in our profession. See Irwin, 679 N.W.2d at 644; see also Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Henrichsen, 825 N.W.2d 525, 528
1Section 714.1(1)–(2) has not changed since Den Beste began working at the firm
in 2007.
15
(Iowa 2013) (“We have [revoked the licenses of attorneys who stole from
their law firms] on the belief that honesty is paramount in the legal
profession.”); Comm. on Prof’l Ethics & Conduct v. Hanson, 244 N.W.2d
822, 824 (Iowa 1976) (en banc) (“We do not think a lawyer who[, among
other things,] . . . converted partnership funds possesses the qualities of
good character essential in a member of the Iowa bar.”). We have an
obligation to protect the public from theft and deceit. Schatz, 595 N.W.2d
at 796. “This obligation is no less important when the theft and deceit
does not directly involve client funds. The same lack of trust is implicated,
whether the funds are those of a client or another lawyer” or a third party.
Id.; see Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bell, 650 N.W.2d
648, 650, 655 (Iowa 2002) (revoking license when attorney, who was the
treasurer of the Iowa Intellectual Property Law Association, withdrew
money from the association’s account for his own use); Piazza, 405 N.W.2d
at 824 (“Respondent Piazza has violated the trust we reposed in him by[,
inter alia,] misappropriating funds of his clients and his law
partners . . . .”).
Moreover, attorneys who misappropriate funds from their law firms
breach their fiduciary duties either as employees of the firms, see
Restatement (Third) of Agency § 8.05(1), at 314 (Am. Law Inst. 2006) (“An
agent has a duty . . . not to use property of the principal for the agent’s
own purposes or those of a third party . . . .”); Restatement of Employment
Law § 8.01(b)(3), at 395 (Am. Law Inst. 2015) (“Employees breach their
duty of loyalty to the employer by . . . misappropriating the employer’s
property, whether tangible or intangible, or otherwise engaging in self-
dealing through the use of the employee’s position with the employer.”), as
partners or members if the firm is a partnership or limited liability
company, see Iowa Code § 486A.404(1)–(4) (defining partners’ duties of
16
loyalty and care and obligation of good faith and fair dealing to the
partnership and other partners); id. § 489.409(1)–(4) (providing members’
duties of care, loyalty, good faith, and fair dealing in a member-managed
company); 5 Matthew G. Doré, Iowa Practice Series™: Business
Organizations §§ 6:9, 6:10, 6:11, 13:31, at 121, 122, 123, 125–26, 396–
403 (2018–2019 ed.) [hereinafter Doré]; see also Comm. on Prof’l Ethics &
Conduct v. McClintock, 442 N.W.2d 607, 607–08 (Iowa 1989) (“Most law
partnerships are founded upon a total trust and confidence among the
partners. A breach of this exceedingly close relationship merits
disciplinary action.”), or as directors or majority shareholders if the firm is
incorporated, see Iowa Code § 490.830(1) (imposing duties of good faith
and reasonable actions on each director of a corporation); id.
§ 490.831(1)(b)(5) (indicating a director cannot receive a financial benefit
from the corporation that the director was not entitled to); 6 Doré § 28:10,
at 125–27 (collecting cases holding a corporation director’s
misappropriation of corporate property breaches the director’s duty of
loyalty); see also id. § 31:10, at 263–67, 269 (suggesting majority
shareholders in closely held corporations have duties of loyalty and care
that are analogous to those of corporate directors).
Plain and simple, Den Beste admitted to stealing someone else’s
money several times. The state would almost surely charge a nonlawyer
who embezzled over $9000 from his or her employer with theft, but this
attorney, who stipulated that he embezzled over $9000 from his employer,
avoids criminal punishment and this court gives him merely an
insignificant disciplinary sanction. See, e.g., Iowa Falls Woman Pleads
Guilty to Embezzlement, Des Moines Reg. (Apr. 2, 2015),
https://www.desmoinesregister.com/story/news/crime-and-courts/
2015/04/02/iowa-falls-teresa-kobriger-bank-embezzlement/70817348/
17
[https://perma.cc/Z23B-KCL9] (reporting a woman pled guilty to federal
embezzlement charges after she took cash from the teller drawers and
vault of the bank where she worked and fraudulently altered bank records
to cover up her theft); Storm Lake Librarian, Art Teacher Charged with
Stealing $2,130 from Catholic School Fundraisers, Sioux City J. (Aug. 9,
2019), https://siouxcityjournal.com/news/local/crime-and-courts/storm-
lake-librarian-art-teacher-charged-with-stealing-from-catholic/article_
9e8c5464-2026-5e66-a449-c9d7f3c81d70.html [https://perma.cc/P3D8-
RHKW] (reporting a school librarian and teacher was charged with felony
theft after stealing over $2000 in proceeds from two school fundraising
events); see also Daniel P. Finney & Anna Spoerre, Police: Des Moines
Accountant Stole More Than $200,000 from Open Bible Churches over a
Decade, Des Moines Reg. (May 13, 2019), https://www
.desmoinesregister.com/story/news/crime-and-courts/2019/05/13/police
-des-moines-woman-stole-thousands-open-bible-churches/1195935001/
[https://perma.cc/Z59K-Y9Z7] (reporting a woman, who wrote
unauthorized checks to herself while an accountant at the Churches’
denominational headquarters, was charged with first- and second-degree
theft); Danielle Gehr, Woman Accused of Pocketing Charity Funds Raised
to Help with LeClaire Family’s Medical Expenses, Des Moines Reg.
(Aug. 14, 2019), https://www.desmoinesregister.com/story/news/crime-
and-courts/2019/08/14/woman-steals-charity-fundraiser-help-leclaire-
familys-medical-expenses/2013658001/ [https://perma.cc/32QL-645C]
(reporting a woman, who organized the vendor fair portion of a fundraiser,
was charged with third-degree theft after she kept $972 in vendor funds);
Charly Haley, Former D.M. Cop Accused of Embezzlement, Des Moines Reg.
(Oct. 8, 2015), https://www.desmoinesregister.com/story/news/crime-
and-courts/2015/10/08/former-des-moines-police-officer-accused-
18
stealing-more-than-20000/73617046/ [https://perma.cc/KTQ3-VF7K]
(reporting a former Des Moines police officer was charged with theft for
embezzling over $20,000 from the police gym while serving as the gym’s
treasurer); Anna Spoerre, Des Moines Man Pleads Guilty to Stealing
Thousands from United Way, Iowa Union over Nearly a Decade, Des Moines
Reg. (Apr. 16, 2019), https://www.desmoinesregister.com
/story/news/crime-and-courts/2019/04/16/international-association-
heat-frost-insulators-allied-workers-united-way-central-iowa-embezzlement
/3482321002/ [https://perma.cc/472X-GPFV] (reporting a man, who, as
the business manager for his local union, received over $35,000 worth of
checks from the United Way that were to fund training for the union and
cashed those checks for personal use, pled guilty to federal embezzlement
charges); cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Green, 888 N.W.2d
398, 401–02, 405 (Iowa 2016) (revoking license after attorney violated rule
32:8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation) by agreeing to create a management company with two
others (wherein the company would receive $27,500 per month, he would
make $12,000 per month as CEO, and the remaining amounts would be
evenly split between the two others) but instead creating the management
company with himself and his wife as the sole members and
misappropriating all of the revenue, disbursing little or nothing to the two
others); Austin Cannon, Des Moines Man Accused of Using Money Meant
for Disabled Relative to Buy a New Car, Des Moines Reg. (July 9, 2019),
https://www.desmoinesregister.com/story/news/2019/07/09/des-moines-
man-accused-spending-money-meant-disabled-relative-new-
car/1683417001/ [https://perma.cc/JD58-ME8H] (reporting a man was
charged with first-degree theft for taking over $40,000 in Social Security
funds from a disabled relative’s account and not using it for the relative’s
19
benefit even though he had been told that he could not use the money for
himself); Ian Richardson, Police: Des Moines Woman Stole Nearly $5,600
from Woman with Dementia, Des Moines Reg. (July 22, 2019),
https://www.desmoinesregister.com/story/news/crime-and-courts/2019
/07/22/des-moines-crime-woman-stole-nearly-5000-dollars-woman-dem
entia/1794616001/ [https://perma.cc/F4U4-KCZW] (reporting a woman,
who had power of attorney for another woman with dementia, was charged
with second-degree theft after taking money from the victim’s account and
not using it for the victim); Lee Rood, Deadbeat Contractors Are Iowa’s No.
1 Fraud Complaint. Legislators Are Being Asked to Make Them Pay,
Des Moines Reg. (Oct. 15, 2018), https://www.desmoines
register.com/story/news/investigations/readers-watchdog/2018/10/15
/iowa-legislators-fraud-complaint-bad-contractors-des-moines-
construction-remodeling-home-building/1592835002/ [https://perma.cc
/5NHR-KAQ6] (discussing a Des Moines general contractor who
repeatedly took customers’ money and then walked away from jobs before
completion and noting difficulties with holding such contractors
accountable because the Iowa appellate courts have held that customers
give construction down payments outright and the payments are not held
in trust); Lee Rood, Des Moines Contractor Accused of Ripping Off Several
Customers Across the Metro Convicted of Theft, Des Moines Reg. (July 18,
2019), https://www.desmoinesregister .com/story/news/2019/07/18/des-
moides-moines-contractor-convicted-of-theftnes-contractor-convicted-
theft/1767712001/ [https://perma.cc/E9S3-HLSH] (reporting the
contractor in the previous article was convicted of felony theft for writing
bad checks to buy materials but not reporting that the contractor is being
held accountable for taking money for jobs but then walking away from
those jobs).
20
The stipulation in this case is devoid of any mention as to why the
state did not charge Den Beste with a crime. I have to ask myself, was
Den Beste not charged with a crime because he was a lawyer? I wonder if
he were convicted of a felony, would the court revoke his license. See Iowa
Code § 602.10122(1) (“The following are sufficient causes for revocation or
suspension: 1. When the attorney has been convicted of a felony.”). It is
not our job to protect lawyers by handing down lenient sanctions. Our job
is to protect the public from lawyers who steal.
I have consistently taken the position that an attorney who steals
money should be disbarred. See, e.g., Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Parrish, 925 N.W.2d 163, 183 (Iowa 2019) (Wiggins, J., dissenting);
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Noel, 923 N.W.2d 575, 591 (Iowa
2019) (Wiggins, J., dissenting); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Springer, 904 N.W.2d 589, 598 (Iowa 2017) (Wiggins, J., dissenting); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Ryan, 863 N.W.2d 20, 33–34 (Iowa
2015) (Wiggins, J., dissenting); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Powell, 830 N.W.2d 355, 360–64 (Iowa 2013) (Wiggins, J., dissenting);
Henrichsen, 825 N.W.2d at 530–31 (Wiggins, J., dissenting); Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Bieber, 824 N.W.2d 514, 530–34 (Iowa 2012)
(Wiggins, J., dissenting); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Wheeler, 824 N.W.2d 505, 513 (Iowa 2012) (Wiggins, J., dissenting).
I have also taken the position that the court should apply the
objective criteria of the ABA’s Standards for Imposing Lawyer Sanctions
(1992). See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Pederson, 887
N.W.2d 387, 395 (Iowa 2016) (Wiggins, J., concurring in part and
dissenting in part); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Arzberger,
887 N.W.2d 353, 369 (Iowa 2016) (Wiggins, J., concurring in part and
dissenting in part); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morse, 887
21
N.W.2d 131, 150 (Iowa 2016) (Wiggins, J., concurring in part and
dissenting in part). It is nice to see that some members of the court are
finally moving in this direction.
The Board gave Den Beste notice we could revoke his license if he
converted funds. In spite of that notice, Den Beste stipulated that he
committed theft. We have an obligation to protect the public from
Den Beste’s egregiously unethical conduct. The public deserves and
demands more than apathy from us. Even the Washington Supreme Court
case cited by the majority to establish Den Beste committed a theft revoked
that attorney’s license. See In re Disciplinary Proceeding Against Placide,
414 P.3d 1124, 1126–27, 1134–36, 1143 (Wash. 2018) (concluding
revocation is the proper sanction for an attorney who committed theft
based on conduct similar to the conduct in this case under a statute
similar to Iowa’s theft statute). Compare Iowa Code § 714.1(1)–(2) (defining
theft), with Wash. Rev. Code Ann. § 9A.56.020(1) (West, Westlaw through
all currently effective legislation from the 2019 Reg. Sess.) (defining theft).
Thus, I would not hesitate to revoke Den Beste’s license to practice law.
Revocation may not be forever. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Reilly, 884 N.W.2d 761, 772 (Iowa 2016) (per curiam)
(provisionally granting an attorney’s application for reinstatement of his
license to practice law in Iowa after a revocation). A revocation would allow
him the opportunity to reapply for his license after at least five years under
our recently amended Iowa Court Rule 34.25(7)–(9). By revoking
Den Beste’s license, we would provide the proper protection to the public.