Iowa Supreme Court Attorney Disciplinary Board v. Matthew M. Boles , 808 N.W.2d 431 ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 11–0435
Filed January 6, 2012
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
MATTHEW M. BOLES,
Appellant.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Attorney appeals from the report of the Grievance Commission of
the Supreme Court of Iowa proceeding which recommended a sixty-day
suspension from the practice of law. LICENSE SUSPENDED.
Alfredo G. Parrish of Parrish Kruidenier Dunn Boles Gribble
Parrish Gentry & Fisher, L.L.P., Des Moines, for appellant.
Charles L. Harrington and Wendell J. Harms, Des Moines, for
appellee.
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WATERMAN, Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against Matthew M. Boles alleging he violated the Iowa Rules
of Professional Conduct and the Iowa Code of Professional Responsibility
for Lawyers while working on five criminal felony defense matters. A
division of the Grievance Commission of the Supreme Court of Iowa
determined Boles violated certain rules, primarily related to fee charges,
trust fund withdrawals, and client refunds. Boles stipulates to violating
rules governing fee withdrawals and accounting procedures, but appeals
the commission’s determination he neglected an incarcerated client’s
postconviction relief case, charged several other clients unreasonable
fees, failed to promptly return unearned fees, and failed to separate
disputed client property. The commission recommended we suspend
Boles’ license for sixty days. On our de novo review, we find Boles
violated seven rules and suspend him from the practice of law for thirty
days.
I. Scope of Review.
“We review attorney disciplinary proceedings de novo.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo, 799 N.W.2d 524, 528
(Iowa 2011) (citation and internal quotation marks omitted). We give the
commission’s findings respectful consideration, but we are not bound by
them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Schmidt, 796 N.W.2d
33, 36 (Iowa 2011). “The board must establish attorney misconduct by a
convincing preponderance of the evidence.” Dunahoo, 799 N.W.2d at
528. If we find the Board established attorney misconduct, we can
impose a more or less severe sanction than the commission’s
recommended sanction. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Wagner, 768 N.W.2d 279, 282 (Iowa 2009).
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II. Findings of Fact.
The commission conducted an evidentiary hearing on January 10,
2011. Each party admitted exhibits without objection. Boles and his
wife testified. The parties stipulated to the facts for each of the Board’s
five counts. A stipulation of facts is binding on the parties. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 803 (Iowa
2010). Based upon our de novo review of this record, we find the
following facts.
Boles has been a licensed attorney in Iowa since 1993. His
practice consists of criminal defense, personal injury, and family law.
From 2001 to 2008, the period relevant to this matter, Boles had an
extensive, statewide criminal defense practice and regularly handled
major felony cases. He drove over 120,000 miles throughout the state
while pursuing a challenging and complex trial practice. In the last ten
years alone, Boles represented 1105 clients of whom 225 were indigent.
Boles has performed extensive court-appointed and pro bono work. He
also has compiled an admirable record of public service volunteering to
coach more than twenty youth sports teams while serving on nonprofit
community boards, mentoring underprivileged children with Waukee
schools, and raising his own family. With that background in mind, we
will review the facts for each count in turn.
A. Thomas Smith (Count I). On February 1, 2001, Boles was
appointed to represent Thomas Smith in his postconviction relief action
after Smith’s previous attorney withdrew from the case because he
believed it lacked merit. Smith was serving a twenty-five-year sentence
for attempted murder after shooting at a police officer. The district
court’s appointment order directed Boles to “undertake a review of this
file to determine whether or not a postconviction relief action is viable,”
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consult with Smith’s former attorney and obtain relevant files, and “on at
least one occasion have a personal consultation with Mr. Smith.”
Shortly after accepting the appointment, Boles contacted the prior
attorney for information and documentation. On March 6, Boles wrote
Smith about the case. In the letter, Boles said he would “be reviewing
[Smith’s] file,” trying “to set up a phone conference in the very near
future” and asked Smith to write him “a letter with [his] thoughts” about
the case. Several days later, Boles received a letter stating that Smith is
illiterate, that others have to read and write his letters, that Smith would
“really like to see [Boles] if [he could],” and that Smith looked forward to
hearing from Boles. Boles responded in an April 19 letter, again asking
Smith to write his thoughts on the case, and telling Smith, “I would like
to come meet with you in the last week of April.” Boles, however, did not
meet with Smith that spring. In a July 10 letter, Boles again wrote
Smith to inform him someone from his office would be meeting with him
in the next ten days. That did not happen. Frustrated, Smith sent
another letter to Boles on September 15 stating, “I have waited patiently,
but no one has come.” Several days later, Boles assured Smith by letter
he was trying to arrange a phone conference and a visit. On November 6,
Boles sent Smith a letter asking him to call his office collect. Smith sent
a letter back stating prison rules did not permit him to make collect
phone calls.
On January 2, 2002, approximately eleven months after Boles was
appointed to the case, Boles and the county attorney agreed to dismiss
Smith’s case without prejudice to consolidate Smith’s multiple
postconviction relief actions. On May 7, Boles again wrote Smith to
inform him he was trying to schedule a prison visit in the next week. No
such meeting occurred. Smith wrote more letters to Boles. On
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January 15, 2003, the district court ordered Boles and the prosecutor to
meet to discuss the status of Smith’s case. Smith wrote Boles on
February 8 to inquire about his case, to inform Boles he is Caucasian,
not African-American as the previous attorney’s postconviction
application stated, and to request a visit.
On March 12, Boles filed an application for postconviction relief,
verified by Smith. Boles filed this application twenty-five months after
being appointed and fourteen months after agreeing to dismiss Smith’s
prior application. The application contended Smith’s conviction and
sentence violated constitutional provisions. He first contended that
Smith, as an African-American, was denied due process because his jury
venire did not contain sufficient African-Americans. Boles also
contended Smith’s trial counsel erred in failing to have jury selection
reported. Smith later testified his illiteracy prevented him from catching
the application’s erroneous identification that he is African-American.
Smith wrote Boles three times in the spring of 2003 asking Boles
to update him on the status of his case; Smith also expressed a desire to
give input on the case. Smith’s postconviction case did not require
expert testimony, nor did Boles believe he needed evidence showing
prosecuting attorneys excluded African-Americans from the jury venire.
The trial was set for November 25. In October 2003, Boles visited
Smith and discussed the case. Boles requested and received a
continuance for the trial on November 21. In 2004, Boles requested and
received two more continuances with the consent of the State. The trial
date was set for November 23, 2004, nearly forty-six months after Boles
was appointed to the case. On the day of trial, Boles again asked for a
continuance, but then agreed with the district court the case presented
“no factual or evidentiary issues” and decided to submit the case on a
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stipulated record consisting of a transcript of Smith’s underlying criminal
trial and briefs. Boles submitted his trial brief on December 20, 2004.
The brief’s argument section correctly noted Smith was Caucasian and
argued the law accordingly. Boles’ efforts were unsuccessful, but the
delays caused no harm to Smith who continued serving his sentence.
Boles handled the case pro bono.
B. Robert and Joanne Eide (Count II). Robert and Joanne Eide
are husband and wife. Boles represented Robert in three different legal
matters. On September 30, 2003, Robert was charged with second-
degree sexual abuse for sexually abusing his granddaughter. In 2004,
Boles agreed to represent Robert in the case. Boles received $7750 in
advance fee payments. Robert pleaded guilty to third-degree sexual
abuse and was sentenced to prison for ten years. While Robert was
incarcerated awaiting trial, an inmate assaulted him. Robert discussed
with Boles whether to file a civil lawsuit against the State for damages.
He also asked Boles to ensure prosecuting authorities brought charges
against the assailant. Joanne paid Boles a $5000 retainer for this
matter. After an investigation, Boles concluded Robert’s prison assault
did not create a viable tort claim against the State, and he provided
Robert with instructions and paperwork to file a pro se administrative
claim. Robert filed his claim pro se, which was ultimately denied in
October 2006. In October 2005, relatives filed a civil action against
Robert based upon his sexual abuse of his granddaughter. Joanne paid
Boles an $18,000 retainer to defend the civil suit. Boles filed a
preanswer motion to change venue, which went to a hearing. He also
filed an answer and raised affirmative defenses. The case was set for
trial, but plaintiffs voluntarily dismissed the case without prejudice in
July 2006. Boles did not communicate the results of the civil claim to
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Joanne and Robert until October, 4, 2007—a full year after those matters
had been resolved.
Boles’ trust fund withdrawal and billing records were incomplete in
each matter. Over the course of the representation, Boles withdrew all
funds paid to him. He did not provide contemporaneous notice,
accounting, or billing to the Eides. He withdrew fees before his billing
statement indicated the fees were earned. By July 20, 2006, according
to his records, he had withdrawn $13,268.60 more than he had earned.
On October 4, 2007, Joanne, who had been left in the dark on the status
of the cases, contacted Boles’ associate to ask about the retainer fees.
She learned for the first time the lawsuit had been dismissed. She asked
for an itemization of the services and a refund of the remaining balance
at that time. Joanne followed up with e-mails and phone calls in late
2007 before Boles wrote her stating he “should have a formal response to
[her inquiry] by January 4, 2008.” On March 11, 2008, after these
proceedings were filed, Boles met with Joanne to discuss the retainer
refund. She received a copy of the billings for the first time at this
meeting. The bills showed a $445.56 balance for the criminal defense
matter, a $12,141.71 credit for the sexual abuse civil matter, and
$1590.45 credit for the civil tort suit matter. Boles issued a refund for
$13,286.60—seventeen months after the matters were fully concluded
and over five months after Joanne had requested a refund and
itemization.
After the Board inquiry, Boles and his wife took extensive effort to
recreate the billings for these matters. He maintains the Eides in fact
were only entitled to a $3602.50 refund.
C. Joseph Long (Count III). In 2006, Boles defended Long
against charges of eluding while operating intoxicated, vehicular
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homicide by operating while intoxicated, leaving the scene of a fatal
accident, and third-degree burglary. Boles and Long agreed to a $20,000
flat fee, and Boles received $20,000 paid in advance. According to Boles,
his total billings in the case were $27,222.64. Boles asked for, but never
received additional payments. In early 2007, Long pled guilty to a series
of charges, and the district court sentenced him to a thirty-five-year term
of incarceration with no mandatory minimum.
Boles withdrew $20,000 from his trust account over the course of
four months. He did not provide Long contemporaneous notice of the
withdrawals, billing, or accounting, nor did he provide Long a bill. Boles
provided the Board with a bill dated February 2009. According to that
bill, Boles withdrew fees from his trust account before they were earned.
Boles’ recalculated billing still shows he withdrew fees before he earned
them.
D. Donald Bruce Allen (Count IV). Allen was arrested and
charged with first-degree kidnapping, third-degree kidnapping, neglect or
abandonment, stalking, and child endangerment on June 21, 2007.
Boles began representing him in early July. Allen and his mother paid
Boles a $10,000 advance fee on July 10. Boles withdrew the entire fee
from the trust account between July 10 and September 21. He did not
provide notice, billing, or accounting to Allen for any of the withdrawals.
In October 2007, Allen hired a new attorney after rejecting the plea deal
Boles presented him. Allen ultimately accepted a nearly identical plea
with new counsel.
In late 2007 and early 2008, Allen’s mother made three requests
for an itemized bill and refund. Boles refunded $1955.14 on
February 18, 2008, but never provided the Allens an itemized bill. After
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recalculating his bill for this matter, Boles believes he refunded Allen
$1677.25 more than Allen was owed.
E. Manfred Little (Count V). From August 2006 to January
2008, Boles defended Little against first-degree kidnapping and willful
injury assault charges. On August 16, 2006, Little’s wife, Jane, the
alleged kidnapping victim, filed for dissolution of marriage, and the
district court issued an order requiring Little to preserve his marital
assets. On August 25, Little paid Boles a $10,000 advance fee, and
Boles withdrew $2500 from his trust account on the same day. Tom
Schlapkohl, Jane’s divorce attorney, contacted Boles to advise him of the
order to preserve assets. Accordingly, Boles knew Jane claimed an
interest in the $10,000 advance fee. Days later, Boles withdrew $204.42
from his trust account. Schlapkohl sought to hold Little in contempt for
paying Boles with marital assets. The district court set a hearing for
October 19. Six days before the hearing, Boles withdrew $3000 from the
trust account. At the hearing, the district court ordered “any monies
paid and not yet expended as of October 19, 2009 . . . to Matthew Boles
. . . by Mr. Little are to be held in the trust account of [his law firm]
pending further notice of the Court.” The trust account contained
$4295.58.
Boles withdrew from the case on January 16, 2008. Schlapkohl
wrote Boles in April and September about the fee payment. Boles did not
respond in writing. On September 19, Boles was subpoenaed for a
deposition. Boles did not attend the deposition and, instead, sent his
associate. The district court ordered Boles to pay the money in his trust
account to Schlapkohl on November 4, 2008. Boles issued a check from
his trust account the following day for $4295.58. Boles’ recalculated
billing shows he was entitled to an additional $3369.10. Boles failed to
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provide Little contemporaneous notice, billing, and accounting for the
three trust account withdrawals.
III. Ethical Violations.
A. Stipulated Violations. Boles stipulates to violating several
ethical rules. When an attorney stipulates to legal violations, we enforce
the stipulation if it is supported by sufficient legal consideration and is
not unreasonable, against good morals, or contrary to sound public
policy. Gailey, 790 N.W.2d at 804; see also Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 528 (Iowa 2011). The
commission found sufficient legal consideration to establish Boles’
stipulated violations. We agree.
Boles stipulates to violating rules 32:1.15(c) (“fees and expenses
. . . to be withdrawn by the lawyer only as fees are earned or expenses
incurred”) and 45.7(4) (requiring lawyer to notify client of withdrawal and
provide complete accounting when removing advance fee from trust
account) while representing the Eides, Long, and Allen. Boles concedes
he violated rule 45.7(4) while representing Little. He also stipulates to
violating rules 32:1.4(a)(3) (“A lawyer shall . . . keep the client reasonably
informed about the status of the matter”) and 32:1.4(a)(4) (“A lawyer shall
. . . promptly comply with reasonable requests for information”) in
representing the Eides. On our de novo review, we find the stipulated
factual concessions and exhibits provide sufficient legal consideration to
support these ethical violations.
B. Contested Commission Legal Conclusions. Boles appeals
several of the commission’s determinations. The commission found
Boles violated DR 6–101(A)(3) 1 by neglecting Smith’s postconviction relief
1The Iowa Rules of Professional Conduct became effective July 1, 2005,
replacing the Iowa Code of Professional Responsibility for Lawyers. The Iowa Code of
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application. In representing the Eides and Allen, the commission
concluded Boles violated rules 32:1.5(a) (“A lawyer shall not make an
agreement for, charge, or collect an unreasonable fee”) and 32:1.15(d)
(“[A] lawyer shall promptly deliver to the client . . . any funds or other
property that the client is entitled to receive”). In representing Little, the
commission concluded Boles violated rules 32:1.5(a) (unreasonable fee),
32:1.15(c) (withdraw fees “only as fees are earned”), and 32:1.15(e)
(“When . . . a lawyer is in possession of property in which two or more
persons . . . claim interest[], the property shall be kept separate”). Boles
appeals these determinations.
1. Neglect. DR 6–101(A)(3) states a “lawyer shall not . . . [n]eglect
a client’s legal matter.” This rule is construed similarly to Iowa Rule of
Professional Conduct 32:1.3 (diligence). Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Dolezal, 796 N.W.2d 910, 915 (Iowa 2011).
“[P]rofessional neglect involves ‘indifference and 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. Gottschalk, 729 N.W.2d 812, 817
(Iowa 2007) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Moorman, 683 N.W.2d 549, 551 (Iowa 2004)). Neglect often arises from
procrastination. Id.
The commission observed, “Boles made an error of judgment in
pursuing this post conviction as it appeared to have little chance of
success. However, once Boles chose to undertake this matter he was
required to do so diligently.” We agree. Smith’s postconviction hearing
took place almost forty-six months after Boles was appointed to the
________________________
Professional Responsibility for Lawyers applies to allegations occurring when it was in
effect.
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matter. During that time, Boles agreed to dismiss the case without
prejudice for administrative reasons, waited fourteen months to refile the
application, elected not to meet with Smith before refiling the application,
incorrectly asserted Smith was an African-American while arguing the
jury venire’s racial demographics deprived Smith due process, failed to
promptly respond to numerous client inquiries, and sought three
continuances of the trial date. Smith’s application contained purely legal
issues, avoiding any need to delay the proceedings for evidentiary
investigation. Boles, in fact, agreed to submit Smith’s case without
evidence. We found an attorney neglected her client’s postconviction
relief matter by failing “to recast the petition,” by failing to “respond to
numerous [client] letters,” and by submitting the case without evidence
after obtaining several continuances. Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Kennedy, 684 N.W.2d 256, 258, 260 (Iowa 2004).
We agree with the commission’s determination that Boles neglected
Smith’s postconviction relief matter.
2. Unreasonable fee. Rule 32:1.5(a) prohibits attorneys from
collecting an unreasonable fee and lists eight factors to determine
“reasonableness.” The record contains insufficient evidence Boles
charged or collected objectively unreasonable fees for the services he
agreed to render. The Board presented no expert testimony showing
Boles’ fees were excessive or unreasonable. Boles represented clients
charged with serious felonies seeking an attorney with suitable expertise.
From all accounts, Boles is experienced and skilled in defending major
felony cases. The Board has not established by a convincing
preponderance of evidence that Boles charged the Eides, Allen, or Little
unreasonable fees. See Dunahoo, 799 N.W.2d at 532–33 (finding trust
account violations alone did not provide sufficient evidence attorney
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charged objectively unreasonable fee). For the same reasons, we agree
with the commission’s determination Boles did not violate rule 32:1.5(a)
in representing Long.
3. Failure to promptly refund unearned fees. Rule 32:1.15(d)
requires “a lawyer [to] promptly deliver to the client . . . any funds . . . the
client . . . is entitled to receive.” At issue is whether Boles promptly
refunded unearned advanced fees to his clients. A delay of “several
months” violates this rule. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Plumb, 766 N.W.2d 626, 632 (Iowa 2009) (construing former rule DR 9–
102(B)(4)). Boles took seventeen months and ignored numerous refund
requests before refunding $13,268.60 to the Eides. Boles refunded Allen
his unearned fees four months after ceasing representation and after
Allen’s mother made three written refund requests. Boles’ recalculated
billing concedes he owed refunds to the Eides and Allen. We agree with
the commission that Boles failed to promptly return fees to the Eides and
Allen in violation of rule 32:1.15(d).
4. Withdrawal of unearned fees. Boles contests that he withdrew
unearned fees in violation of rule 32:1.15(c) while representing Little.
Boles stipulates to withdrawing fees before earned based upon his May
2008 billing records. Even Boles’ recalculated billing shows he withdrew
$526.50 in unearned fees on August 25, 2006. Accordingly, we agree
with the commission’s finding that Boles withdrew unearned fees from
his client trust account while representing Little in violation of rule
32:1.15(c).
5. Disputed property. Rule 32:1.15(e) requires a lawyer to keep
disputed property separate until the dispute is resolved. This rule
is perhaps even more critical . . . when the dispute . . . is
between the lawyer and either a client or a third party . . . .
In these situations, the lawyer must not take advantage of
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physical control of the funds, but must scrupulously abide
by . . . protocol.
2 Geoffrey C. Hazard, Jr., et al., The Law of Lawyering § 19.7, at 19–14
(3d ed. 2005 Supp.). The Board contends Boles violated the rule by
withdrawing fees from his trust account despite knowing Little’s wife
claimed an interest in the retainer fee through the couple’s divorce
proceeding. Boles withdrew $204.42 on August 28, 2006—days before
he filed an application to release funds in the Littles’ marriage
dissolution case. Boles then withdrew $3000 on October 13, 2006—six
days before a hearing on this dispute. Boles was aware of her competing
claim on the funds. Rule 32:1.15(e) expressly commands the lawyer to
keep the property separate “until the dispute is resolved.” Boles
withdrew fees and expenses twice, however, while the dispute was
pending. We agree with the commission’s finding that Boles violated rule
32:1.15(e).
C. The Board Failed to Establish Misconduct Violating Other
Rules. The Board alleged Boles’ conduct violated rule 32:8.4(c) and (d). 2
The commission found Boles did not violate these rules. Rule 32:8.4(c)
states it is professional misconduct to “engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.” The Board contends
Boles violated this rule by withdrawing fees before earned and failing to
provide clients contemporaneous notice of fee withdrawals. “When an
attorney’s conduct violates a specific rule involving dishonesty, fraud,
deceit, or misrepresentation, we will not find the same conduct to also
violate a general rule prohibiting that conduct, such as rule 32:8.4(c).”
2The Board alleged Boles violated rules DR 1–102(A)(4) and (5) in the Smith
matter. We will construe these code of professional responsibility for lawyers rules in
the same fashion as the professional conduct rules alleged by the Board. See Dolezal,
796 N.W.2d at 915.
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 587
(Iowa 2011); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797
N.W.2d 591, 605 (Iowa 2011). We have already found Boles’ accounting
and refund missteps violated rules 32:1.15(c) and 45.7(4). Further, rule
32:8.4(c) requires a finding of dishonesty, fraud, deceit, or
misrepresentation. We have held an attorney only violates this rule if he
has “some level of scienter . . . greater than negligence.” Netti, 797
N.W.2d at 605. From the record presented, we cannot conclude Boles
possessed the requisite scienter. Accordingly, we find the Board has
failed to prove Boles violated rule 32:8.4(c).
Rule 32:8.4(d) states it is professional misconduct to “engage in
conduct that is prejudicial to the administration of justice.” Conduct is
prejudicial to the administration of justice when it impedes “ ‘the efficient
and proper operation of the courts or of ancillary systems upon which
the courts rely.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton,
784 N.W.2d 761, 768 (Iowa 2010) (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa 2005)). While Boles
took nearly four years to bring Smith’s postconviction relief action to
trial, the delays were obtained through court-approved continuances that
did not impede the proper operation of the court. Boles’ failure to attend
a September 19, 2008 deposition about his retainer fee in the Little
matter also did not impede the administration of justice. Boles sent his
associate who was knowledgeable in the matter. The district court
resolved the issue by ordering Boles to pay the remaining retainer to
Schlapkohl, which Boles did within a day of the order. We find
insufficient evidence that Boles’ nonattendance at the deposition violated
rule 32:8.4(d).
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Finally, the Board alleged Boles, in representing Smith, violated
numerous additional provisions of the Iowa Code of Professional
Responsibility for Lawyers, including: DR 1–102(A)(1) (conduct that
violates a disciplinary rule); DR 1–102(A)(6) (conduct that adversely
reflects on the fitness to practice law); DR 6–101(A)(2) (handling a legal
matter without adequate preparation); DR 7–101(A)(3) (intentionally
prejudicing or damaging a client); DR 7–102(A)(5) (knowingly making a
false statement of fact in representing a client); DR 7–102(A)(8)
(knowingly engaging in other conduct contrary to a disciplinary rule);
and DR 7–106(A) (disregarding or advising a client to disregard a
standing rule or ruling of a tribunal). The commission concluded Boles
did not violate these rules. We agree. The Board has failed to prove by a
convincing preponderance of evidence the scienter required to violate
these rules.
IV. Sanction.
There is no standard sanction for particular types of misconduct.
Dunahoo, 799 N.W.2d at 534. While prior cases are instructive, we craft
an appropriate sanction in light of each case’s unique circumstances. Id.
In fashioning a sanction
“we consider the nature of the violations, the attorney’s
fitness to continue in the practice of law, the protection of
society from those unfit to practice law, the need to uphold
public confidence in the justice system, deterrence,
maintenance of the reputation of the bar as a whole, and any
aggravating or mitigating circumstances.”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 61
(Iowa 2009) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland,
748 N.W.2d 498, 502 (Iowa 2008)).
Boles’ violations primarily result from his flagrant, multiyear
disregard for the billing and accounting requirements of our profession.
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He withdrew unearned fees, delayed responding to client requests for
accurate billings, and failed to promptly refund unearned fees.
Contemporaneous billing requirements provide transparency to help
ensure lawyers treat clients honestly and deal fairly with clients
purchasing legal services. These record-keeping rules are essential to
upholding public confidence in the justice system. See Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Apland, 577 N.W.2d 50, 59 (Iowa 1998)
(noting these rules safeguard lawyers from acting unethically and protect
the client’s interest). Boles’ neglect of Smith’s postconviction relief action
is noted, as is his private admonishment in 2000 for neglecting a
postconviction relief case. The focus of our concern is Boles’ trust
account violations and failure to promptly refund unearned fees. Sloppy
billing practices and a stressful trial and travel schedule might explain
delays in preparing and sending clients accurate billing statements, but
do not justify a lawyer paying himself fees before earning them or failing
to properly bill for them. The most egregious example is Boles’ handling
of the Eides matters. He paid himself $13,260.68 more than he had
earned by July 20, 2006, according to his own records at that time,
without providing any contemporaneous notice or billing. He failed to
issue the refund in that amount until March of 2008, seventeen months
after the matters were fully concluded and over five months after the
client requested a refund and itemization. Even his subsequent revised
accounting showed he had owed the Eides $3602.50.
Sanctions for trust account and accounting violations span from
suspensions of several months where the violations were compounded by
severe neglect, misrepresentation, or failure to cooperate, see, e.g., Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443–44
(Iowa 2007) (four-month suspension for neglect resulting in harm to
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clients, failure to return client’s property, trust account violations, and
prior reprimand); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Frerichs, 671 N.W.2d 470, 478 (Iowa 2003) (four-month suspension for
neglect, an illegal fee accompanied by a trust account violation, failure to
provide an accounting, and failure to cooperate); Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Adams, 623 N.W.2d 815, 818–19 (Iowa 2001)
(three-month suspension for neglect, failure to deposit a fee into a trust
account, failure to account for client property, and misrepresentation to
the client in an effort to cover up the neglect), to a public reprimand
when the attorney, in an isolated instance, failed to deposit funds into
his trust account because he believed the fees to be earned, see Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Piazza, 756 N.W.2d 690, 697, 700
(Iowa 2008).
Recently, we suspended an attorney’s license for sixty days for
trust account violations. Parrish, 801 N.W.2d at 590. There, the
attorney repeatedly withdrew unearned fees without contemporaneous
notice, maintained poor billing records, and failed to refund the
unearned retainer until after his case was submitted to our court. Id. at
586–87. We found the attorney disregarded his billing and accounting
responsibilities, justifying a two-month suspension. Id. at 590. In
Kennedy, we suspended the attorney sixty days for comparable conduct.
684 N.W.2d at 260. There, the attorney failed to prepare for and advance
the interest of her client’s postconviction relief action and committed
several trust account violations. Id. at 260–61. Unlike Boles, she also
ignored the Board’s investigation. Id. at 261.
Boles’ trust account problems were not isolated. The Board has
shown extensive problems with four clients in this matter. A pattern of
misconduct is an aggravating factor. Parrish, 801 N.W.2d at 589; Howe,
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706 N.W.2d at 381. Boles admits his billing and accounting practices in
these matters were unsatisfactory. Importantly, however, Boles has
corrected his practices to avoid reoccurrence. He has invested in new
technologies, employed additional administrative help, and exercised
more self-discipline in routinely recording his time. The record contains
no evidence Boles has had any trust account problems since 2008.
These corrective measures do not absolve his past problems, but are a
mitigating factor. See Parrish, 801 N.W.2d at 589; Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 871 (Iowa 2010).
Importantly also, Boles has cooperated with the Board throughout this
process. “We have repeatedly emphasized how important it is for an
attorney to cooperate with disciplinary authorities when a complaint has
been filed against the attorney.” Kennedy, 684 N.W.2d at 260. Another
significant mitigating factor in this case is Boles’ admirable record of
volunteer community service to local youth programs and his extensive
pro bono practice. Boles’ fitness to practice law at this time is
unquestioned. We also consider the lack of harm to his clients apart
from the delayed refunds. See Casey, 761 N.W.2d at 61 (lack of harm is
a significant mitigating factor).
After careful consideration of the record, precedent, mitigating
factors, and the need to motivate attorneys to maintain proper trust
account and billing practices, we conclude a thirty-day suspension is
appropriate.
V. Conclusion.
We suspend Boles’ license to practice law in this state with no
possibility of reinstatement for thirty days. The suspension applies to all
facets of the practice of law, as provided in Iowa Court Rule 35.12(3), and
requires notification to clients, as provided by Iowa Court Rule 35.22.
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The costs of this proceeding are assessed against Boles pursuant to rule
35.26(1). Absent an objection by the Board, Boles shall be reinstated
after the thirty-day suspension period under the condition that all costs
have been paid. Iowa Ct. R. 35.12(2).
LICENSE SUSPENDED.
All justices concur except Wiggins, J., who takes no part.