Iowa Supreme Court Attorney Disciplinary Board v. Kim Marlow West ( 2017 )

IN THE SUPREME COURT OF IOWA
No. 17–0420
Filed September 15, 2017
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
KIM MARLOW WEST,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
Grievance commission recommends a suspension of an attorney’s
license to practice law for violations of ethical rules. LICENSE
SUSPENDED.
Tara van Brederode and Susan A. Wendel, Des Moines, for
complainant.
Kim Marlow West, Des Moines, pro se.
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WIGGINS, Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against an attorney alleging multiple violations of the Iowa
Rules of Professional Conduct in connection with the probate and closing
of an estate. A division of the Iowa Supreme Court Grievance
Commission found the respondent’s conduct violated the rules. The
commission recommended we order the attorney to refund half of the
attorney fee he received, personally pay the attorney’s fee and court costs
to close the estate, and suspend his license to practice law with no
possibility of reinstatement for a period of six months. The Board urges
us to adopt the recommendation. On our de novo review, we find the
attorney violated provisions of our rules, which requires us to impose
sanctions. Accordingly, we suspend the attorney’s license to practice law
for a period of sixty days from the date of filing this decision.
I. Scope of Review.
Our review of attorney disciplinary proceedings is de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Vandel, 889 N.W.2d 659, 662 (Iowa
2017). The Board has the burden to prove ethical violations by a
convincing preponderance of the evidence. Id. A convincing
preponderance of the evidence is more than the typical preponderance
standard in a civil case but less than proof beyond a reasonable doubt.
Id. “While we respectfully consider the commission’s findings and
recommendations, they are not binding on us.” Id.II. Findings of Fact.
On September 14, 2016, the Board filed a complaint against
Kim Marlow West alleging various ethical violations in connection with
the estate of Betty Maxine Rumme. The Board amended its complaint
twice. West responded to the Board’s complaints by admitting all of the
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Board’s allegations. On December 1, the Board and West filed a
stipulation pursuant to Iowa Court Rule 36.16, wherein the parties
agreed to the facts, rule violations, and mitigating and aggravating
circumstances.
Facts admitted in an answer are “deemed established,” and a
stipulation of facts is binding on the parties. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa 2013). We
construe a factual stipulation “with reference to its subject matter and in
light of the surrounding circumstances and the whole record, including
the state of the pleadings and issues involved.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 803–04 (Iowa 2010) (quoting
Graen’s Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d 295, 300
(Iowa 1983)). However, we are not “bound by a stipulation of a violation
or of a sanction in reaching our final decision in a disciplinary case.” Id.
at 804; accord Iowa Ct. R. 36.16(3). The Iowa Constitution and our court
rules solely vest the function of determining violations and sanctions for
such violations with our court. See Gailey, 790 N.W.2d at 804.
Using the stipulation of the parties, together with our de novo
review of the record, we make the following findings of fact. West has
practiced law in Iowa since 1983. He worked in the Cerro Gordo, Story,
and Polk County public defender offices until approximately 2002. In
2004, West began a solo private practice in criminal law, which he
continues today at a substantially reduced volume.
On October 16, 2007, William Rumme hired West to handle a
probate matter for the estate of his mother Betty Maxine Rumme.
William Rumme paid West an attorney fee of $1000, which he
subsequently deposited without court authorization as required by
statute. West filed a petition for probate of the will and obtained an
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order admitting the will of Betty Maxine Rumme to probate. West then
failed to file the estate inventory, and on June 1, 2008, he received a
notice of delinquency from the district court clerk’s office. On August 22,
West filed an application for extension of time to file the estate inventory,
which the district court granted. On August 29, West filed the estate
inventory. On June 2, 2009, West received a notice of delinquency after
he failed to file an interlocutory report for the estate. West prepared and
filed the interlocutory report on August 13. West subsequently failed to
file the second notice of publication and failed to file the final report. The
clerk sent several additional delinquency notices to West from 2014
through 2016, but he did nothing to cure the delinquencies. Further,
the Board sent numerous notices and requests regarding the probate
delinquencies from 2014 through 2015, to which the Board received
minimal or no response from West.
West also failed to communicate with the executor of the estate,
causing such frustration that the executor attempted to file a final report
and communicate directly with the probate judge. West never contacted
the executor of the estate to explain what was going on with the estate or
to inform him of how the probate matter was progressing. The executor
of the estate attempted to contact West about the delinquency notices.
Nevertheless, West failed to keep the executor of the estate informed with
respect to the status of the probate matter and failed to respond to the
executor’s attempt to reach him.
Prior to undertaking the probate matter that is the subject of this
disciplinary action, West had no experience handling estates and did not
take any steps to understand that area of the law or follow through in
pursuing outside expertise. Because of the lack of proper
administration, the estate remains open. Based on West’s handling of
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the estate, the Board alleged and West admitted violations of the Iowa
Rules of Professional Conduct related to providing competent
representation, acting diligently, failing to respond to a disciplinary
authority, engaging in conduct prejudicial to the administration of
justice, violating a fee restriction imposed by law, and keeping a client
reasonably informed. We discuss additional facts as needed in the
violations and sanction sections of this opinion.
III. Ethical Violations.
A. Competence—Rule 32:1.1. This rule states, “A lawyer shall
provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.” Iowa R. Prof’l Conduct
32:1.1. “Competent handling of a particular matter includes inquiry into
and analysis of the factual and legal elements of the problem, and use of
methods and procedures meeting the standards of competent
practitioners.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797
N.W.2d 591, 598 (Iowa 2011) (quoting Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Tompkins, 733 N.W.2d 661, 668 (Iowa 2007)).
West’s experience as an attorney was primarily in the area of
criminal law, and he had no experience in probate matters. West
admitted that he did not possess the requisite knowledge to handle this
probate matter competently. He neither took steps to understand the
probate requirements nor followed through in seeking outside expertise.
Accordingly, West’s failure to administer the estate constituted
incompetent representation, violating rule 32:1.1.
B. Diligence—Rule 32:1.3. This rule provides, “A lawyer shall
act with reasonable diligence and promptness in representing a client.”
Iowa R. Prof’l Conduct 32:1.3. Rule 32:1.3 “requires an attorney to
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handle a client matter in a ‘reasonably timely manner.’ ” Vandel, 889
N.W.2d at 667 (quoting Netti, 797 N.W.2d at 598). Violations of this rule
occur “when an attorney fails to appear at scheduled court proceedings,
does not make the proper filings, or is slow to act on matters.” Id.
(quoting Nelson, 838 N.W.2d at 537); see also Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Ackerman, 786 N.W.2d 491, 495 (Iowa 2010) (holding
attorney violated rule 32:1.3 for the dilatory handling of estates, despite
receiving delinquency notices and inquiries from the beneficiaries).
Generally, a violation does not “occur from one missed deadline,
but arises when a lawyer ‘repeatedly fail[s] to perform required functions
as attorney for the executor, repeatedly fail[s] to meet deadlines, and
fail[s] to close the estate within a reasonable period of time.’ ” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102
(Iowa 2012) (alteration in original) (quoting Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002)).
“[N]eglect involves ‘a consistent failure to perform those obligations that a
lawyer has assumed[] or a conscious disregard for the responsibilities a
lawyer owes to a client.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Lickiss, 786 N.W.2d 860, 867 (Iowa 2010) (quoting Iowa Supreme Ct. Bd.
of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551 (Iowa 2004)).
It often involves “a lawyer doing little or nothing to advance the interests
of a client after agreeing to represent the client.” Moorman, 683 N.W.2d
at 552.
West repeatedly failed to perform the legal obligations he assumed
in probating the Rumme estate. He failed to perform the required
functions as an attorney for the executor, meet deadlines, publish
required notice, file the final report, and timely close the estate prior to
the three-year statutory deadline in Iowa Code section 633.473 (2017).
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West’s consistent failures to perform his obligations as an attorney in the
Rumme estate violate rule 32:1.3.
C. Failure to Respond to the Board—Rule 32:8.1(b). This rule
provides a lawyer shall not “knowingly fail to respond to a lawful demand
for information from . . . [a] disciplinary authority.” Iowa R. Prof’l
Conduct 32:8.1(b). “ ‘Knowingly’ means ‘actual knowledge of the fact in
question’ and ‘may be inferred from circumstances.’ ” Nelson, 838
N.W.2d at 539–40 (quoting Iowa R. Prof’l Conduct 32:1.0(f)). We infer a
lawyer knowingly failed to respond when the lawyer received the Board’s
inquiries, yet failed to provide a timely response. Id.; Netti, 797 N.W.2d
at 604–05; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d
53, 60 (Iowa 2009) (per curiam). A lawyer “has an obligation to cooperate
with disciplinary authorities and ... failure to respond to an
investigation committee’s request constitutes a separate act of
misconduct subjecting the attorney to discipline.” Casey, 761 N.W.2d at
60.
West received at least seven letters from the Board regarding the
delinquencies in closing the Rumme estate. West responded to the
Board on only two occasions, after the clerk of the supreme court issued
a notice of possible temporary suspension pursuant to Iowa Court Rule
35.7(3)(a) to him. West admitted he received inquiries from the Board
regarding the delinquencies in the probate matter and failed to respond;
thus he violated rule 32:8.1(b).
D. Conduct Prejudicial to the Administration of Justice—Rule
32:8.4(d). This rule prohibits a lawyer from engaging “in conduct
prejudicial to the administration of justice.” Iowa R. Prof’l Conduct
32:8.4(d). “[A]ctions that have commonly been held to violate this
disciplinary rule have hampered ‘the efficient and proper operation of the
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courts or of ancillary systems upon which the courts rely.’ ” Vandel, 889
N.W.2d at 666 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Templeton, 784 N.W.2d 761, 768 (Iowa 2010)). We have found a violation
of rule 32:8.4(d) when a lawyer’s “misconduct results in additional court
proceedings or causes court proceedings to be delayed or dismissed.” Id.(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 841 N.W.2d
114, 124 (Iowa 2013)). “In a number of cases involving probate neglect,
we have held that a finding of neglect and conduct prejudicial to the
administration of justice can exist alongside each other.” Van Ginkel,
809 N.W.2d at 103; accord Netti, 797 N.W.2d at 605; Lickiss, 786 N.W.2d
at 867; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rickabaugh, 728
N.W.2d 375, 380–81 (Iowa 2007).
West’s conduct caused the district court to issue numerous
delinquency notices. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Curtis, 749 N.W.2d 694, 699 (Iowa 2008) (holding use of clerk’s office as
a “private tickler system” is conduct prejudicial to the administration of
justice). Accordingly, his multiyear procrastination in the closing of the
Rumme estate amounted to conduct prejudicial to the administration of
justice in violation of rule 32:8.4(d).
West also violated rule 32:8.4(d) when he failed to respond to
communications from the Board. See Nelson, 838 N.W.2d at 540–41
(holding attorney violated rule 32:8.4(d) when he did not timely respond
to Board inquiries); Casey, 761 N.W.2d at 60 (holding attorney’s failure
to respond to Board in a timely fashion violated rule 32:8.4(d)). Finally,
West violated rule 32:8.4(d) by prematurely receiving the entire attorney
fee to handle the probate of the estate contrary to Iowa Court Rule 7.2(4).
See Van Ginkel, 809 N.W.2d at 105 (concluding attorney violated rule
32:8.4(d) when he prematurely received second-half fee without payment
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of court costs); Ackerman, 786 N.W.2d at 497 (concluding attorney’s
premature taking of probate fees contrary to our court rules was
prejudicial to the administration of justice).
E. Probate Fees—Rule 32:1.5(a). “Iowa law prohibits an attorney
from collecting fees in probate cases without a prior court order
approving the fees.” Lickiss, 786 N.W.2d at 867 (citing Iowa Code
§§ 633.197, .198); see Iowa Ct. R. 7.2. Accepting an attorney fee for the
administration of an estate “without prior approval by the court violates
rule 32:1.5(a),” which prohibits fees charged or collected in violation of
the law. Lickiss, 786 N.W.2d at 867–68. In addition, an attorney is
entitled to only half of the fee for ordinary services in a probate
proceeding until filing the final report and paying costs. Iowa Ct.
R. 7.2(4).
West did not file a written application for or receive court approval
prior to taking the full amount of legal fees for his services in this
probate matter. West also received full payment for his services in this
probate matter prior to filing the final report and paying the estate costs.
Thus, West violated rule 32:1.5(a).
F. Communication—Rule 32:1.4(a)(3). This rule provides, “A
lawyer shall . . . keep the client reasonably informed about the status of
the matter.” Iowa Ct. R. 32:1.4(a)(3). West did not keep the executor of
the estate informed with respect to the status of the probate matter and
did not respond to the executor’s attempts to communicate with him.
West’s failure to communicate with the executor of the estate caused
such frustration that the executor attempted to file a final report and
began communicating directly with the probate judge. West’s conduct in
failing to provide the executor of the estate with any information about
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the estate’s progress, required tasks, and deadlines violated rule
32:1.4(a)(3).
IV. Sanctions.
Upon accepting the stipulation filed by the parties, the commission
held a hearing on December 16, 2016, to determine an appropriate
sanction. The commission recommends we suspend West’s license to
practice law indefinitely, with no possibility of reinstatement for six
months. In addition to the indefinite suspension, the commission
recommends West be ordered to hire a probate attorney to finish and
close the Rumme estate, pay said attorney’s fee and court costs, and
refund half of the attorney fee West received to the executor of the estate.
We note the Board, in its brief, previously recommended to the
commission that West should be publicly reprimanded at a minimum
and be required to associate with legal counsel hired by the executor of
the estate to close the estate at West’s expense.
We have discretion to impose a greater or lesser sanction than
recommended by the commission. Nelson, 838 N.W.2d at 542. In
determining an appropriate sanction, we take into account
the nature of the violations, protection of the public,
deterrence of similar misconduct by others, the lawyer’s
fitness to practice, and the court’s duty to uphold the
integrity of the profession in the eyes of the public. We also
consider aggravating and mitigating circumstances present
in the disciplinary action.
Id. (quoting Templeton, 784 N.W.2d at 769–70).
Sanctions for attorney misconduct involving neglect have typically
ranged from a public reprimand to a six-month suspension. Lickiss, 786
N.W.2d at 868. “Often, the distinction between the punishment imposed
depends upon the existence of multiple instances of neglect, past
disciplinary problems, and other companion violations.” Id. (quoting
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks (Marks I), 759 N.W.2d
328, 332 (Iowa 2009)).
We have found a public reprimand sufficient for attorney
misconduct involving neglect in a number of cases. Van Ginkel, 809
N.W.2d at 109 (collecting cases). However, in other cases, we imposed
sixty-day suspensions. See id. at 111 (imposing a sixty-day suspension
upon an attorney who neglected the closing of an estate, obtained
probate fees prematurely, and made a false statement to the court); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Thomas, 794 N.W.2d 290, 295 (Iowa
2011) (imposing a sixty-day suspension on attorney who had a history of
sanctions for failing to cooperate with the Board and not communicating
with clients, and who had again neglected client matters and failed to
communicate with clients); Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Daggett, 653 N.W.2d 377, 381–82 (Iowa 2002) (imposing a
sixty-day suspension when attorney with only one prior reprimand for
neglect again neglected his client, made misrepresentations to the court,
failed to respond to a court order, and did not cooperate with the Board).
“In cases involving neglect in one or two cases and other
misconduct such as misrepresentations associated with the neglect, the
suspensions have been in the range of three months.” Van Ginkel, 809
N.W.2d at 109; see Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks
(Marks II), 831 N.W.2d 194, 202 (2013) (imposing a three-month
suspension for attorney’s neglect of estate and failure to cooperate with
the Board); Lickiss, 786 N.W.2d at 868–69, 872 (imposing a three-month
suspension for multiple instances of neglect in four probate matters,
early collection of fee, and failure to respond to clients and the Board);
Ackerman, 786 N.W.2d at 497–98 (imposing a ninety-day suspension for
neglect in two estates, multiple misrepresentations to the court and to
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the beneficiaries of one of the estates, and early receipt of probate fees);
Casey, 761 N.W.2d at 61–62 (imposing a three-month suspension for
neglect in two cases, multiple misrepresentations to the court and the
tax department, and premature collection of a probate fee and failure to
deposit the fee into a trust account); Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Adams, 749 N.W.2d 666, 669–70 (Iowa 2008) (imposing a four-
month suspension for neglect in three cases, misrepresentation
associated with neglect, failure to account to a client, and failure to
respond to the Board). In cases where the pattern of misconduct is more
extensive or involves serious misrepresentations, we typically impose
longer suspensions. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Bartley, 860 N.W.2d 331, 333–34, 335–40 (Iowa 2015) (imposing a six-
month suspension on an attorney who failed to properly close two estates
for a number of years, made multiple misrepresentations, including
creating a false check claiming to pay off the creditors of one of the
estates, failed to deposit client payments into the client trust account,
and took fees years before court approval).
Before reaching our conclusion on the proper sanction for West’s
ethical violations, we will first consider the mitigating and aggravating
circumstances present in this case. West contends that his health
problems, including a broken leg in 2013, heart surgery in 2015, and
depression, are mitigating factors. “Personal illnesses, such as
depression, do not excuse a lawyer’s misconduct but can be mitigating
factors and influence our approach to discipline.” Marks I, 759 N.W.2d
at 332. Accordingly, West’s health issues are mitigating factors we can
take into consideration.
We view an attorney’s community service as a mitigating factor in
disciplinary cases. Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGinness,
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844 N.W.2d 456, 467 (Iowa 2014). We acknowledge West’s community
service and pro bono work are mitigating factors in this case. An
attorney’s recognition of some wrongdoing is also a mitigating factor.
Vandel, 889 N.W.2d at 669–70. In this case, West fully acknowledged
and accepted responsibility for his misconduct and expressed remorse to
everyone involved. Finally, West testified that he would never take on
another probate matter. Voluntary remedial efforts to limit an attorney’s
practice to areas of competence do not excuse misconduct; however, we
consider such efforts to be a mitigating circumstance. Lickiss, 786
N.W.2d at 871.
We now turn to the aggravating factors. In 2012, West received an
admonition for failing to keep a client reasonably informed in violation of
rule 32:1.4(a)(3). While a prior private admonition is not discipline, we
consider it an aggravating factor because it put West on notice of his
ethical requirements. See Van Ginkel, 809 N.W.2d at 110.
We also consider harm to a client an aggravating factor that affects
our determination. Vandel, 889 N.W.2d at 669. There are two
beneficiaries of the Rumme estate—William Rumme, and his brother,
Allen Rumme. According to the will, the estate was to be distributed
equally between the two brothers. The estate had one asset, which was a
bank account valued at $55,936.65. In 2010, William Rumme took all
the assets of the estate contrary to the will. West caused harm to the
estate by failing to ensure the estate funds were properly distributed to
each beneficiary of the estate. Additionally, we consider West’s many
years of experience in the practice of law an aggravating circumstance.
See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Wagner, 599
N.W.2d 721, 730 (Iowa 1999).
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West’s misconduct stems entirely from him mishandling the
probate of a single estate—his incompetent representation, neglect,
failure to respond to the Board regarding his neglect, procrastination
prejudicial to the administration of justice, premature receipt of the
attorney fee, and failure to keep his client reasonably informed. We note
that this case does not involve any false statements or
misrepresentations to the court, which typically result in more severe
disciplinary sanctions. See Van Ginkel, 809 N.W.2d at 111 (“A knowing
misrepresentation to the court is a particularly disturbing factor.”).
Taking into consideration West’s violations, the mitigating factors,
and the aggravating factors, we conclude West should be suspended for
sixty days with the possibility of automatic reinstatement. In addition,
West is required to refund the $1000 fee he accepted for the probate of
the estate. We do not adopt the commission’s suggestion that West hire
a probate attorney to finish and close the estate of Rumme and pay said
attorney’s fee and court costs.
V. Disposition.
For the above reasons, we suspend West’s license to practice law in
this state for sixty days. Reinstatement of West’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). We condition West’s reinstatement upon him providing the
Board with evidence that he informed the probate court of his
suspension, withdrew from representing the estate, informed the court
that William Rumme took all of the funds from the estate, refunded the
$1000 fee he received, complied with court rule 34.24, and paid the costs
of this action. The suspension applies to all facets of the practice of law
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provided by Iowa Court Rule 34.23(3). We tax the costs of this
proceeding against West pursuant to Iowa Court Rule 36.24(1).
LICENSE SUSPENDED.