Iowa Supreme Court Attorney Disciplinary Board v. James Stephen Conroy , 2014 Iowa Sup. LEXIS 38 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 13–1871
Filed April 4, 2014
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
JAMES STEPHEN CONROY,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission reports respondent committed numerous
violations of the rules of professional conduct and recommends
suspension. LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
James S. Conroy, Mount Vernon, pro se.
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ZAGER, Justice.
The Iowa Supreme Court Attorney Disciplinary Board filed a
complaint against the respondent, James S. Conroy, alleging he violated
the Iowa Rules of Professional Conduct. After a hearing, a division of the
Grievance Commission of the Supreme Court of Iowa found Conroy
violated numerous provisions of our rules of professional conduct. The
commission recommended we suspend Conroy’s license for six months
and require that he complete a basic skills course before being
reinstated. Upon our de novo review, we concur in most of the findings
of rule violations and agree a six-month suspension is appropriate.
I. Background Facts and Proceedings.
James Conroy is an Iowa attorney admitted to practice in 2003.
After his admission, Conroy worked for about six months for a private
firm with offices in Grinnell and Newton. He then spent the next two
years as an assistant county attorney in Black Hawk County. In 2006,
Conroy established a solo practice in Cedar Rapids. Conroy’s practice
consisted mostly of representing criminal defendants on a court-
appointed basis in Black Hawk, Johnson, Linn, and Scott Counties.
On August 1, 2013, the Iowa Supreme Court Attorney Disciplinary
Board (Board) filed a one-count complaint alleging Conroy violated the
Iowa Rules of Professional Conduct. The alleged violations stemmed
from Conroy’s court-appointed representation of Christopher Brown,
Richard Brown, James Gill Jr., Ravin Miller, Joshua Strother, and Todd
Wiese in their appeals. The alleged facts were generally the same in each
of the six cases. After being appointed appellate counsel, Conroy
neglected the appeals. Default notices were issued to Conroy by the Iowa
Supreme Court, and he failed to cure the defaults. His failure to cure the
defaults subjected each appeal to dismissal. Rather than dismiss each
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appeal, however, in each case the Iowa Supreme Court removed Conroy
as appellate counsel and new counsel was appointed.
Based on these facts, the Board alleged Conroy violated Iowa Rules
of Professional Conduct 32:1.1 (requiring competence), 32:1.3 (requiring
diligence), 32:1.4 (requiring communication with clients), 32:1.16(a)
(prohibiting representation of a client under certain circumstances),
32:3.2 (requiring reasonable efforts to expedite litigation), and 32:8.4(d)
(prohibiting conduct prejudicial to the administration of justice). Conroy
answered the complaint on August 29, admitting the Board’s allegations.
On September 23, the Board amended its complaint to include a
second count against Conroy. The Board alleged Conroy was appointed
to represent Darnell Demery in his postconviction relief proceeding. The
Board alleged Conroy did not communicate with Demery and neglected
the case, failing to make a single filing in the year he represented
Demery. After Demery moved to have a new attorney appointed, Conroy
was removed from the case in June 2013.
On these facts, the Board alleged violations of Iowa Rules of
Professional Conduct 32:1.1, 32:1.3, 32:1.4, 32:3.2, and 32:8.4(d).
Conroy never responded to the allegations in count two of the Board’s
amended complaint. Consequently, the Board moved to have the
allegations of count two deemed admitted under Iowa Court Rule 36.7.
The commission granted the motion and limited the scope of the
disciplinary hearing to the issue of the appropriate sanction.
At the disciplinary hearing conducted in October, the Board
presented evidence of Conroy’s violations. Conroy appeared at the
hearing and admitted to the violations contained in the complaints.
However, he asked for leniency from the commission. He explained that
he was unfamiliar with appeal procedures, and rather than educate
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himself to these procedures, he simply set them aside to concentrate on
more familiar work. He did not understand that appeals were time
sensitive. Conroy acknowledged that he made no attempts to determine
any procedural deadlines by consulting the appellate rules, seeking the
assistance of an experienced attorney, or consulting with the appellate
defenders. Conroy had never filed an appeal before signing up to be
court-appointed on these appeal cases. Conroy denied any substance
abuse or mental health problems.
In November, the commission issued its findings, conclusions, and
recommendation. In addition to the facts noted above, the commission
recounted Conroy’s disciplinary history. Conroy has been temporarily
suspended on three occasions, in September and December 2010, and in
August 2013.1 In September 2011, the Board admonished Conroy for
ceasing work on a client’s case without informing the client he had done
so. In April 2013, the Board admonished Conroy for failing to share
documents filed by the State with his client in a postconviction relief
proceeding. In addition, in February 2011, this Court suspended
Conroy’s license for sixty days for numerous violations of the rules of
professional conduct. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Conroy, 795 N.W.2d 502, 507 (Iowa 2011).
The commission found Conroy committed the violations alleged by
the Board. It recommended Conroy’s license be suspended for 180 days.
The commission also recommended Conroy complete a basic skills
course as a condition of reinstatement.
_____________________________________
1The August 2013 suspension arose from Conroy’s failure to cooperate with the
Board in these proceedings. Conroy has since been reinstated.
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II. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Strand, 841 N.W.2d 600, 603 (Iowa
2014). The Board must prove misconduct by a convincing
preponderance of the evidence, a burden less than proof beyond a
reasonable doubt but greater than the burden in the typical civil case.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Khowassah, 837 N.W.2d 649,
652 (Iowa 2013). If the Board meets its burden and proves misconduct,
we are not bound to impose the sanction recommended by the
commission. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 812
N.W.2d 4, 9 (Iowa 2012).
III. Discussion.
A. Violations. In count one of the Board’s complaint, it alleged
Conroy violated six professional conduct rules. Conroy admitted these
allegations in his answer. In count two of its complaint, the Board
alleged five violations. Conroy never filed an answer to this count, and
these allegations were deemed admitted. Iowa Ct. R. 36.7; Strand, 841
N.W.2d at 603. The commission found Conroy committed the violations
alleged in both counts. Upon our review, we agree with all but one of the
commission’s findings.
The Iowa Rules of Professional Conduct no longer expressly refer to
neglect. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809
N.W.2d 96, 102 (Iowa 2012) (comparing the previous version of
disciplinary rule that prohibited neglect to a current rule that requires
diligence and giving them the same interpretation). Nevertheless, we
have continued to identify and sanction attorney neglect. See, e.g., Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Humphrey, 812 N.W.2d 659, 666,
669 (Iowa 2012) (stating an attorney’s “core violation” was neglect and
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imposing a three-month suspension); Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Dunahoo, 799 N.W.2d 524, 531, 535 (Iowa 2011) (finding an
attorney competent but neglectful and, after considering other violations,
imposing a one-year suspension). Neglect involves an attorney’s
consistent failure to perform his or her obligations and indifference about
failing to advance the interests of his or her client. Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Ireland, 723 N.W.2d 439, 441 (Iowa 2006); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549,
551 (Iowa 2004). In addition, neglect may involve a conscious disregard
for a lawyer’s responsibility to his or her client. Moorman, 683 N.W.2d at
551. Neglect can embrace violations of various professional conduct
rules. See Humphrey, 812 N.W.2d at 665 (finding neglect where attorney
violated Iowa Rules of Professional Conduct 32:1.3 (diligence),
32:1.4(a)(3) (keeping client informed), and 32:1.4(a)(4) (complying with
requests for information)); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Lickiss, 786 N.W.2d 860, 867 (Iowa 2010) (finding neglect where an
attorney violated rules 32:1.1 (competence), 32:1.3 (diligence), and 32:3.2
(expediting litigation)). We must evaluate Conroy’s conduct under the
specific rules he is alleged to have violated.
Iowa Rule of Professional Conduct 32:1.1 requires competence
from attorneys. See Iowa R. Prof’l Conduct 32:1.1. To prove an attorney
violated this rule, it must be proved “the attorney did not possess the
requisite legal knowledge and skill to handle the case.” Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Thomas, 794 N.W.2d 290, 293 n.2 (Iowa 2011).
In Iowa Supreme Court Attorney Disciplinary Board v. Kennedy, we were
careful to point out that mere neglect of client matters does not establish
a lack of competence. 837 N.W.2d 659, 668 (Iowa 2013). Regarding the
Demery matter, Conroy testified he had handled postconviction relief
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proceedings before he was appointed to Demery’s case. Although Conroy
neglected Demery’s proceeding, nothing in the record establishes Conroy
lacked the skill and knowledge to handle it. See id. (finding attorney that
neglected client matters did not violate competency rule). Accordingly,
we conclude Conroy did not violate rule 32:1.1 with respect to Demery’s
postconviction relief proceeding.
Conroy’s failings in the six appeals are a different matter. Conroy
admitted he had no experience with appeals, but he did not try to gain
competence. He did not reach out to an experienced attorney for
assistance. Nor did he read the rules of appellate procedure to educate
himself as to necessary filings or deadlines. He admitted that he did not
understand appeals were time sensitive and that he was unsure on how
to proceed with the appeals. Regarding the six appeals to which he was
appointed and removed, we conclude Conroy violated rule 32:1.1.
The Board alleged that Conroy violated Iowa Rule of Professional
Conduct 32.1.16(a) in connection with the six appeals to which he was
appointed. This rule provides that “a lawyer shall not represent a client
or, where representation has commenced, shall withdraw from the
representation of a client if . . . the representation will result in violation
of the Iowa Rules of Professional Conduct.” Iowa R. Prof’l Conduct
32:1.16(a)(1). As discussed, Conroy knew he lacked an understanding of
the appeals process, yet he signed up for those cases. Instead of
withdrawing from the cases he received, he set them aside for another
day, got busy, and missed filing deadlines which necessitated his
removal from the cases. We conclude Conroy violated rule 32:1.16(a)(1).
Iowa Rule of Professional Conduct 32:1.3 requires a lawyer to “act
with reasonable diligence and promptness in representing a client.” A
violation of this rule arises not from inadvertent acts or omissions or
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from missing a single deadline, but from consistently failing to perform
functions required of an attorney or from repeatedly missing deadlines.
See Van Ginkel, 809 N.W.2d at 102 (explaining the application of the rule
in the context of probate cases). Because he failed to timely file
documents to pursue the appeals to which he was appointed, Conroy
defaulted on all six of them, and he did not cure the defaults after being
notified of his opportunity to do so. See Moorman, 683 N.W.2d at 552(finding neglect when an attorney failed to cure defaults in five appeals).
Conroy’s clients were not more significantly prejudiced only because this
court intervened and ordered him removed. Cf. id. (noting reinstatement
of a dismissed appeal did not “cure the prior neglect”). With respect to
the violations arising from Demery’s postconviction relief proceeding,
Conroy spoke with Demery only once in the year that he represented
him, and he filed nothing with the court. Conroy thus failed to act
diligently. See Kennedy, 837 N.W.2d at 668–69 (holding an attorney’s
failure to file any documents in one postconviction relief proceeding and
failure to communicate with her client in another case violated
professional conduct rule 32:1.3). We conclude Conroy violated rule
32:1.3 in each case.
Iowa Rule of Professional Conduct 32:1.4 requires that, among
other things, an attorney “keep the client reasonably informed about the
status of the matter” and “promptly comply with reasonable requests for
information.” In connection with the Demery matter, Conroy spoke with
his client just once in a year and failed to respond to his requests for
information. The record indicates Conroy failed to communicate with his
six appeal clients as well. We conclude Conroy violated rule 32:1.4.
Related to Conroy’s lack of communication is his failure to move
litigation along. Iowa Rule of Professional Conduct 32:3.2 requires a
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lawyer to “make reasonable efforts to expedite litigation consistent with
the interests of the client.” We have held conduct like Conroy’s in failing
to file documents, pursue appeals, and meet deadlines violates this rule.
See, e.g., Kennedy, 837 N.W.2d at 669 (finding a violation of rule 32:3.2
where an attorney “did not file anything in two postconviction relief
proceedings”); Lickiss, 786 N.W.2d at 867 (finding a violation of rule
32:3.2 where an attorney failed to “publish the required notices, file the
required reports, and cure the numerous delinquencies” in four probate
cases); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hoglan, 781 N.W.2d
279, 284 (Iowa 2010) (finding an attorney violated rule 32:3.2 by failing
to prosecute four appeals). We conclude Conroy violated rule 32:3.2.
The same conduct described above also violates Iowa Rule of
Professional Conduct 32:8.4(d). This rule prohibits “conduct that is
prejudicial to the administration of justice.” Iowa R. Prof’l Conduct
32:8.4(d). An attorney violates rule 32:8.4(d) when his or her
“misconduct results in additional court proceedings or causes court
proceedings to be delayed or dismissed.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 180 (Iowa 2013). Failing
to comply with appellate deadlines is prejudicial to the administration of
justice. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Daggett, 653
N.W.2d 377, 380 (Iowa 2002). With respect to all seven matters at issue
here, Conroy’s neglect resulted in substantial delays and extraordinary
expenditure of court time and resources. This includes substantial time
and resources of the clerk of the appellate courts, clerk of court, district
court, and this court as well. Accordingly, we conclude Conroy violated
rule 32:8.4(d).
In sum, we conclude Conroy violated all the rules alleged by the
Board except the alleged violation of rule 32:1.1 in connection with
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Demery’s postconviction relief proceeding. We now must determine the
appropriate sanction for Conroy’s misconduct.
B. Sanction. In fashioning the sanction in an attorney
disciplinary case, we consider the nature of the violations, the need for
deterrence, the need to protect the public, the need to preserve the legal
profession’s reputation, and the lawyer’s fitness to practice law. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Marks, 831 N.W.2d 194, 201 (Iowa
2013). We also consider mitigating and aggravating circumstances,
including companion violations, repeated neglect, and the attorney’s
disciplinary history. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cannon,
821 N.W.2d 873, 880 (Iowa 2012). Although previous cases may assist
in crafting a sanction, the sanction imposed in a case must be fixed
according to its circumstances. Id.Conroy’s principal violation was neglect in six appeals and one
postconviction relief proceeding. “Our past sanctions in cases where
neglect was the principal violation have generally ranged from a public
reprimand to a six-month suspension.” Humphrey, 812 N.W.2d at 666;
accord Ireland, 723 N.W.2d at 442 (“When neglect of client matters is the
principle violation, we have observed that the discipline generally falls
within the range of a public reprimand to a six-month suspension.”).
Even so, we have imposed lengthy suspensions when appropriate. See,
e.g., Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Pracht, 656
N.W.2d 123, 124, 126 (Iowa 2003) (suspending for one year the license of
an attorney who neglected his client’s probate matter after being ordered
by the court to refrain from representing clients in probate matters); see
also Dunahoo, 799 N.W.2d at 535 (imposing a one-year suspension on an
attorney after considering attorney’s neglect, other violations, and
aggravating and mitigating circumstances). These longer suspensions
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typically involve neglect compounded by “much more serious violations
or aggravating circumstances.” Humphrey, 812 N.W.2d at 668. Conroy’s
conduct does not warrant such a long suspension.
In Moorman, for example, we imposed a two-year suspension on an
attorney “described as the worst violator of the time requirements of the
rules of appellate practice in the state.” 683 N.W.2d at 551, 554.
Moorman neglected one personal injury claim and five criminal and
juvenile appeals. 683 N.W.2d at 550–51. Moorman’s serial neglect alone
was not the basis for the severe sanction. See id. at 553 (describing
conduct that reflected adversely on Moorman’s fitness to practice).
Moorman also offered to commit fraud and tried to settle an attorney
malpractice claim with his client “in a desperate effort to diminish the
impact of his neglect.” Id.In Kennedy, we imposed a one-year suspension on an attorney
whose neglect of multiple clients resulted in financial harm and cases
being delayed or dismissed. 837 N.W.2d at 677. Kennedy, like Conroy,
had a previous sixty-day suspension. Id. Kennedy, unlike Conroy
however, compounded her neglect by “recklessly leveling groundless
charges against public officers.” Id. The serious aggravating
circumstances and rule violations that factored into the lengthy
suspensions for Moorman and Kennedy are not at play here, so imposing
a similar suspension on Conroy would be inappropriate.
In Iowa Supreme Court Attorney Disciplinary Board v. Walker, an
attorney neglected four matters and made misrepresentations to conceal
his neglect. 712 N.W.2d 683, 684–85 (Iowa 2006). We considered
Walker’s depression and lack of a disciplinary record to be mitigating
factors. Id. at 686. On the other hand, we found the financial harm
done to Walker’s clients, and his failure to respond to the Board’s
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inquiries, aggravated his misconduct. Id. For this combination of factors
and misconduct, we imposed a six-month suspension. See id.In Humphrey, an attorney’s neglect affected only one client who
suffered no financial harm. 812 N.W.2d at 669. Like Conroy,
“Humphrey did not profit from his actions (or inaction) and did not
engage in deceit or misrepresentation to either his clients or the court.”
See id. Humphrey had a troubled disciplinary history, including a sixty-
day suspension like Conroy. See id. Not citing a single mitigating factor,
we imposed a three-month suspension. See id.
Based on our review of these cases and our de novo review of the
record, we conclude a six-month suspension is appropriate. If Conroy,
like Humphrey, had neglected only a single matter, his misconduct might
merit no more than a three-month suspension. But Conroy neglected
seven matters, three more than even the attorney in Walker. In the six
appeals, it was necessary for this court to intervene to prevent dismissal.
In the seventh proceeding, Demery complained of Conroy’s neglect at
least twice before he received a new attorney. Appointing new attorneys
to the cases demanded the time, attention, and energy of judges,
justices, and court staff. Conroy’s neglect hurt not only his clients, but
also interfered with the administration of justice.
Conroy, unlike Walker, made no misrepresentations to hide his
neglect. See Walker, 712 N.W.2d at 684–85 (describing Walker’s neglect
and misrepresentations). However, Conroy has a significant disciplinary
history which aggravates his misconduct. See Kennedy, 837 N.W.2d at
674 (considering an attorney’s disciplinary history as an aggravating
factor). The Board has twice admonished Conroy, and this court has
three times temporarily suspended him. Finally, just three years ago
Conroy was suspended for sixty days for violations based in part on
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neglect of two client matters. See Conroy, 795 N.W.2d at 504–05, 507.
For Conroy, it seems, neglect has become an unfortunate but recurrent
theme.
At the hearing on sanctions, Conroy asked the commission to
consider as mitigating factors the effect a lengthy suspension would have
on his ability to resume practicing law and on his family’s financial well-
being. Conroy also displayed remorse, assured the commission he would
not accept appeals after he resumed practicing law, and noted that none
of the individuals he represented were financially harmed by his
misconduct. Although we are sympathetic to Conroy’s financial
difficulty, we decline to give any significant weight to these claims of
mitigation. These are similar claims that Conroy made at the time of his
last suspension. See id. at 505. However, his same conduct has
continued and is now more prevalent. In light of the numerous
instances of neglect, Conroy’s past disciplinary record, and additional
violations, we conclude a six-month suspension is appropriate.
In concluding a six-month suspension is appropriate, we note that
Conroy has now been suspended twice with escalating sanctions for
neglect of client matters. He is on the clearest of notice regarding his
failure to meet his ethical responsibilities in this regard. The two
suspensions will be an aggravating factor should there be future
proceedings involving Conroy where neglect of client matters is
established. Cf. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Beckman, 674 N.W.2d 129, 130, 139 (Iowa 2004) (escalating disciplinary
sanction on an attorney who “failed to modify his behavior” despite prior
discipline).
Finally, we decline to adopt the commission’s recommendation that
Conroy complete a basic skills course as a condition of reinstatement.
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As noted, Conroy testified that when he resumes practicing law he does
not intend to represent clients in appeals. Conroy testified he would
focus his practice on criminal matters and other matters with which he
was more familiar. Thus, under the circumstances of this case, a basic
skills course is unnecessary. Cf. Lickiss, 786 N.W.2d at 871 (rejecting
commission’s recommendation that an attorney complete “appropriate
continuing legal education” where attorney testified he did not intend to
engage in a specific practice area in the future and had, in fact,
abandoned law practice).
IV. Disposition.
We suspend Conroy’s license to practice law for six months,
commencing on the filing date of this opinion. This suspension applies
to all facets of the practice of law. Iowa Ct. R. 35.13(3). Upon Conroy’s
application for reinstatement, he must establish he has not practiced law
during his suspension, has complied with the notification requirements
of Iowa Court Rule 35.23, and has complied with the requirements of
Iowa Court Rule 35.14. All costs are taxed to Conroy. Id. r. 35.27(1).
LICENSE SUSPENDED.