Iowa Supreme Court Attorney Disciplinary Board v. James C. Van Ginkel ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 11–0886
Filed January 13, 2012
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
JAMES C. VAN GINKEL,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission recommends a public reprimand. LICENSE
SUSPENDED.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
complainant.
Carlton G. Salmons, West Des Moines, for respondent.
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APPEL, Justice.
This case shows once again how a respected member of the bar
can become entangled in a web of ethical violations arising from the
neglect of an estate in probate proceedings.
The Iowa Supreme Court Attorney Disciplinary Board charged
attorney James Van Ginkel with multiple violations of our disciplinary
rules in connection with the probate and closing of the estate of John
Oxley. The Board charged that Van Ginkel engaged in neglect in
connection with the estate; engaged in conduct that was prejudicial to
the administration of justice; knowingly made false statements to the
tribunal; and engaged in conduct involving dishonesty, fraud, deceit, or
misrepresentation.
The grievance commission found Van Ginkel had engaged in
neglect and had made at least one misrepresentation to the court. It also
found that Van Ginkel had received both the first half and second half of
the attorneys’ fees prematurely in connection with the estate. Upon our
review of the facts and law, we conclude Van Ginkel engaged in neglect
and conduct prejudicial to the administration of justice, made a false
representation to the court in connection with his neglect, and
prematurely obtained attorneys’ fees in the probate proceeding. Based
on these violations, we conclude that a suspension for sixty days is the
appropriate sanction.
I. Background Facts and Proceedings.
On December 23, 2010, the Board filed its complaint against
Van Ginkel alleging various ethical violations in connection with the
estate of John Oxley. The Board amended its complaint once. After
discovery, the commission held a one-day evidentiary hearing on
March 21, 2011. At the hearing, the commission heard testimony and
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received exhibits from the parties. The record of this proceeding and the
evidence offered at the hearing demonstrate how the procrastination of
an attorney in completing uncomplicated probate matters can ripen into
serious disciplinary problems.
Van Ginkel has been a member of the Iowa bar since January
1980. He maintains a solo private practice in Atlantic, Iowa. He is
involved in the general practice of law, including estate planning and
probate. He has served as Cass County Magistrate from November 1984
to June 1985 and from August 2001 to the present.
Van Ginkel has been active in a variety of community activities. To
his credit, he has been active in Boy Scouts, Girl Scouts, the local YMCA,
Rotary, and economic development activities in a variety of capacities.
He has served as president of the Southwest Iowa Bar Association and as
president of the Cass County Bar Association.
Although Van Ginkel has generally been successful in the practice
of law, he received two private admonitions relating to a lack of diligence
in closing estates. He received a private admonition relating to probate
delinquencies in 1987, and in 1994, he was admonished for failure to
timely file a probate inventory.
Van Ginkel became friends with John Oxley through mutual
service on the board of the Exchange State Bank in Collins, Iowa. John
Oxley asked Van Ginkel to draft wills for himself and his wife, Ruth. The
wills drafted by Van Ginkel provided that the assets of the first decedent
would pour over into the John and Ruth Oxley Trust established for the
benefit of the survivor. When the survivor passed away, the trust assets
were to be divided and given to four beneficiary nieces.
John Oxley died on October 28, 2005. Upon John’s death,
Van Ginkel opened a probate estate. The Exchange State Bank of Collins
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was appointed executor for the estate. Gary Hested, a trust officer at
that bank, served as executor of the estate and as trustee for the John
and Ruth Oxley Trust. Ruth Oxley died on October 4, 2006, and her
estate was opened shortly thereafter.
Upon John’s death, the assets in his estate poured over into the
John and Ruth Oxley Trust for the benefit of the survivor as
contemplated, and upon Ruth’s death, the assets of the trust were timely
distributed to the beneficiaries. While the estate of Ruth Oxley was
timely closed, the estate of John Oxley remained open for almost five
years, well in excess of the three-year statutory limitation. See Iowa
Code § 633.473 (2005) (requiring final settlement to be made within three
years).
The Board charged Van Ginkel with a violation of rule 32:1.3
(diligence and promptness) and rule 32:8.4(d) (conduct prejudicial to the
administration of justice) based on seven notices of delinquencies in the
relatively uncomplicated estate. Van Ginkel’s dilatory conduct caused
one of Ruth’s beneficiaries, Marcia Moore, to contact Judge Ruth Klotz
directly to try to determine why John’s estate had not been closed.
Judge Klotz responded thoughtfully to her and ultimately wrote directly
to the estate’s executor in the hope of receiving necessary waiver and tax
clearances to close the estate.
While the estate was not timely closed, Van Ginkel did succeed in
obtaining his fees in a timely fashion. In an application for first-half fees
filed in February 2007, Van Ginkel, in order to comply with Iowa Probate
Rule 7.2(4), stated that the inheritance tax return had been “prepared.”
See Iowa Ct. R. 7.2(4) (“One half of the fees for ordinary services may be
paid when the . . . Iowa inheritance tax return . . . [is] prepared.”). The
evidence showed, however, that at the time he made the representation,
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Van Ginkel did not have the funeral expense information necessary to
complete schedule J on the inheritance tax return. Given these facts,
the Board charged Van Ginkel with prematurely withdrawing his first-
half fees in violation of rule 32:8.4(d).
Van Ginkel also obtained second-half fees in December 2007. In
his application in support of the fees, Van Ginkel stated that a final
report had been filed with the court. All costs of the estate, however, had
not been paid. Instead, Van Ginkel placed $2000 in trust in order to
cover the anticipated costs. The Board charged that his withdrawal of
second-half fees violated rule 7.2(4), which requires that the costs of the
estate “have been paid” prior to receiving second-half attorneys’ fees and,
as a result, violated rule 32:8.4(d).
The Board also charged Van Ginkel with making a number of false
statements and/or misrepresentations in documents he filed in the
estate in violation of rule 32:3.3(a)(1) (knowing false statement to a
tribunal) and rule 32:8.4(c) (misrepresentation). The Board charged that
Van Ginkel in the November 20, 2007 final report misrepresented the
status of obligations related to taxes, claims, and attorneys’ fees. The
Board further claimed that Van Ginkel’s representation in a July 31,
2008 interlocutory report that the Iowa estate income tax return had
been filed was false. The Board also asserted Van Ginkel made a false
representation in the July 30, 2009 interlocutory report when he stated
that revised tax returns for the estate had been prepared and submitted
to the executor for review. Finally, the Board maintained that statements
in a draft order regarding an affidavit for publication and relating to costs
were false.
Based on the evidence presented, the commission entered its
findings of fact and conclusions of law on June 13, 2011. The
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commission found that Van Ginkel had neglected to close the estate in a
timely fashion and that his conduct caused the district court to send
numerous delinquency notices and ultimately required the intervention
of Judge Klotz to close the estate. While the commission found that
Van Ginkel had not, in fact, filed the affidavit of publication as
represented to the court, it found this error to be a result of a mistake
and not a knowing misrepresentation. The commission, however, found
that Van Ginkel in the July 31, 2008 interim report knowingly
misrepresented that the tax return had been filed. In connection with
this finding, the commission specifically found the testimony of
Van Ginkel’s staffer credible and that of Van Ginkel not credible. The
commission also found that Van Ginkel received his first- and second-
half fees prematurely.
As a result of its findings, the commission concluded that
Van Ginkel violated rule 32:1.3, rule 32:8.4(d), rule 32:3.3(a)(1), and rule
7.2(4). In light of the violations, the commission recommended a public
reprimand for Van Ginkel.
The Board urges us in this proceeding to impose a suspension of at
least thirty days. The Board suggests that the seriousness of the
violations justifies a harsher sanction than a public reprimand.
Van Ginkel recognizes that if he had, in fact, engaged in the
misrepresentations claimed by the Board, a sanction more substantial
than public reprimand would be warranted. But Van Ginkel asserts that
he did not engage in any knowing misrepresentations or additional
misconduct. As a result, he urges us to reject suspension and to follow
the recommendation of the commission to impose a public reprimand.
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II. Standard of Review.
In disciplinary proceedings, our review of the factual findings of the
grievance commission is de novo. Iowa Ct. R. 35.10(1). While the court
gives respectful consideration to the commission’s findings, it is not
bound by them. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett,
674 N.W.2d 139, 142 (Iowa 2004). The burden of proof is on the Board
to prove charges by a convincing preponderance of the evidence. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Kress, 747 N.W.2d 530, 537 (Iowa
2008). This burden is higher than the burden in most civil cases, but
lower than in a criminal prosecution. Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). Upon
proof of misconduct, the court may impose a lesser or greater sanction
than recommended by the commission. Lett, 674 N.W.2d at 142.
III. Discussion of Alleged Violations.
A. Neglect. Rule 32:1.3 states: “A lawyer shall act with
reasonable diligence and promptness in representing a client.” Iowa R.
Prof’l Conduct 32:1.3. The language of the rule is somewhat different
from its predecessor, DR 6–101(A)(3), which provided that “[a] lawyer
shall not . . . [n]eglect a client’s legal matter.” Iowa Code of Prof’l
Responsibility DR 6–101(A)(3). Notwithstanding the linguistic
differences, we have typically cited neglect cases under DR 6–101(A)(3) as
precedent for the interpretation and application of rule 32:1.3 in cases
involving probate matters. See, e.g., Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Lickiss, 786 N.W.2d 860, 867 (Iowa 2010); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Ackerman, 786 N.W.2d 491, 495 (Iowa 2010). In this
case, neither party has suggested that the current rule should be
interpreted or applied in a fashion different from its predecessor.
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In our cases involving rule 32:1.3 and its predecessor, we have
recognized that a violation cannot be found where the acts or omissions
complained of are inadvertent or the result of an error of judgment made
in good faith. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Joy, 728
N.W.2d 806, 812 (Iowa 2007). Thus, an ethical violation does not
typically 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. Bd. of Prof’l
Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002).
Neglect 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.” Lickiss, 786 N.W.2d at 867 (citation and
internal quotation marks omitted).
It is obvious from the record here with seven probate delinquencies
in one estate that the Board has established by a convincing
preponderance of the evidence that Van Ginkel’s acts and omissions
amount to a “consistent failure” to perform the duties and
responsibilities of an attorney in the estate of John Oxley in violation of
rule 32:1.3. Van Ginkel admits that he was “pokey” and “dilatory” in
connection with the estate. We agree. There is simply no excuse for the
repeated failure of Van Ginkel to perform the necessary work on the
John Oxley estate and to close this relatively uncomplicated estate well
after the three-year statutory deadline in Iowa Code section 633.473.
B. Conduct Prejudicial to the Administration of Justice.
1. Introduction. Rule 32:8.4(d) provides, in relevant part, that “[i]t
is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.” Iowa R. Prof’l Conduct
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32:8.4(d). The predecessor rule, DR 1–102(A)(5), is virtually identical to
the current rule. See Iowa Code of Prof’l Responsibility DR 1–102(A)(5).
We have held that rule 32:8.4(d) and its predecessor provide a
basis for a violation when an attorney’s conduct hampers “ ‘the efficient
and proper operation of the courts or of ancillary systems upon which
the courts rely’ by violating the well-understood norms and conventions
of the practice of law.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti,
797 N.W.2d 591, 605 (Iowa 2011) (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 768 (Iowa 2010)).
The Board alleges Van Ginkel violated rule 32:8.4(d) in three
respects. First, the Board contends that the delays in the estate, the
repeated delinquency notices, and the necessity of Judge Klotz’s
intervention demonstrate a violation of the rule. Second, the Board
contends that Van Ginkel violated the rule by obtaining signatures from
other judges in the state rather than from Judge Klotz, thereby impeding
the ability of Judge Klotz to close the estate. Third, the Board contends
that Van Ginkel violated the rule by prematurely withdrawing fees from
the estate.
2. Probate delinquencies. 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. Netti, 797
N.W.2d at 598, 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).
Independent of neglect, the Board established by a convincing
preponderance of the evidence that Van Ginkel’s multiyear
procrastination in the closing of the estate amounted to conduct
prejudicial to the administration of justice. Van Ginkel’s conduct caused
the district courts to issue seven delinquency notices. See Iowa Supreme
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Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 699 (Iowa 2008)
(stating use of clerk’s office as a “private tickler system” is conduct
prejudicial to the administration of justice). Concerns expressed by
Marcia Moore arising out of the delays caused Judge Klotz to correspond
thoughtfully with Marcia Moore about the file status and to contact
executor Gary Hested directly to encourage closure of the estate. The
Board has established that valuable judicial and staff resources were
expended on issuing orders, extending deadlines, and cleaning up the
probate proceedings. The expenditure of judicial branch resources
reflected in this file was unnecessary and arises to a violation of rule
32:8.4(d). See Netti, 797 N.W.2d at 605; Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 681 (Iowa 2010); Lickiss,
786 N.W.2d at 867.
3. Judge shopping. We next address the Board’s claim that
Van Ginkel engaged in impermissible judge shopping in violation of the
rule. It was undisputed that Van Ginkel obtained orders relating to fees
and to extending the time to close the estate from several district court
judges outside of Polk County. The Board cites the testimony of Judge
Klotz, who understandably observed that Van Ginkel’s obtaining court
orders from other district court judges “made things more difficult” in her
oversight of the file.
Under currently applicable law, however, district court judges have
statewide jurisdiction regarding probate matters. See Iowa Code
§ 633.10. Thus, each of the district court judges from whom Van Ginkel
obtained orders had the authority to enter them. There has been no
allegation that Van Ginkel made any misrepresentations to any of the
judges in connection with the orders. While the judges who signed the
orders did not have a court file, Van Ginkel testified that he ordinarily
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brought his copy of the file with him when he sought probate orders. In
addition, a district court judge presented with a request for a probate
order may defer action until there is an opportunity to review the file. We
decline the invitation of the Board to find an ethical violation when an
attorney approaches a judge seeking an order that the judge has
authority to enter.
4. Premature withdrawal of fees. Finally, we address the Board’s
claim that Van Ginkel prematurely withdrew fees in violation of the rule.1
We have held that the premature withdrawal of probate fees amounts to
conduct prejudicial to the administration of justice in violation of rule
32:8.4(d). See, e.g., Ackerman, 786 N.W.2d at 496–97.
The substantive rule regarding payment of probate fees provides:
7.2(4) One half of the fees for ordinary services may
be paid when the federal estate tax return, if required, and
Iowa inheritance tax return, if required, are prepared. When
a federal estate tax return is not required, the one-half fee
may be paid when the Iowa inheritance tax return is
prepared or, when it is not required, when the probate
inventory required by the Iowa Probate Code is filed. The
remainder of the fees may be paid when the final report is
filed and the costs have been paid. The schedule for paying
fees may be different when so provided by order of the court
for good cause.
Iowa Ct. R. 7.2(4).
The Board first asserts that Van Ginkel prematurely withdrew the
first-half fees in February 2007. The Board asserts that Van Ginkel had
not “prepared” the inheritance tax return as required by rule 7.2(4).
Van Ginkel asserts that he had, in fact, prepared the inheritance tax
return, but had not filed it.
1The Board does not allege a violation of rule 32:1.5(a), which prohibits
collection of fees in violation of law. See Lickiss, 786 N.W.2d at 867–68. As a result, we
do not address any potential violation of this rule.
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On this issue, we agree with the commission that the Board proved
premature withdrawal of fees. Van Ginkel is correct that rule 7.2(4) does
not require the inheritance tax return to be filed—it only requires that it
be “prepared.” As Judge Klotz observed, a prepared return might not be
filed contemporaneously with a request for fees when it is necessary to
liquidate assets advantageously to meet tax obligations or to obtain a
necessary signature on the paperwork. But the term “prepared” in rule
7.2(4) means completed. We do not believe an incomplete tax return is
sufficient under the rule to withdraw first-half fees. While it is true that
the funeral expenses and schedule J did not affect tax liability in this
case, Van Ginkel nonetheless plainly desired to have this information
and include it in the inheritance tax return before filing.
While it may seem like we are slicing and dicing here, we see no
alternative if rule 7.2(4) is to have any practical meaning. We are not
prepared to allow partially prepared returns, somewhat incomplete
returns, or nearly complete returns—even if the absent information does
affect tax liability—to meet what we view as a bright-line test established
by rule 7.2(4). Otherwise, whether a fee could be obtained would be a
fact-driven and unpredictable process, a result which would seriously
undermine the purpose of the rule, namely, “to promote the efficient
administration of estates to ensure that the work [is] done prior to an
attorney being paid.” Ackerman, 786 N.W.2d at 496.
The Board next asserts that Van Ginkel prematurely obtained his
second-half fees in December 2007. While the Board concedes that a
final report had been filed as required by rule 7.2(4), it asserts that the
costs of the estate had not been paid. Specifically, the Board notes that
more than $1000 in court costs was not paid until August 18, 2010, and
October 29, 2010. Van Ginkel counters that it was impossible to state at
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the time of the final report that all costs had been paid because the costs
of transcribing the final order in Jasper and Story Counties were
unknown and that the best approach was simply to file the final report
and reserve sufficient funds to meet the costs once they were
ascertained. Yet, Van Ginkel testified that he called the clerk’s office and
obtained an estimate of $1000 in costs to close the estate.
While we are again asked to make a technical call, we agree with
the commission that the Board has made its case on this issue.
Van Ginkel offers an explanation for why costs were not paid, but his
explanation does not satisfy the requirement of the rule. We have
previously found a disciplinary violation when an attorney obtained a fee
payment when costs were not paid. Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Wagner, 768 N.W.2d 279, 282–83 (Iowa 2009); Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Carty, 738 N.W.2d 622, 624 (Iowa 2007);
Rickabaugh, 728 N.W.2d at 381. While Van Ginkel did reserve funds in
his trust account to cover the costs, setting funds aside in a trust
account is not the same as paying the costs. Although the transgression,
like the violation with respect to first-half fees, is less substantial than in
many of our cases, see, e.g., Rickabaugh, 728 N.W.2d at 381, we
conclude that Van Ginkel violated rule 32:8.4(d) by prematurely receiving
his second-half fee without payment of court costs.
C. Knowingly Making False Statement to a Tribunal and
Engaging in Conduct Involving Misrepresentation.
1. Introduction. Rule 32:3.3(a)(1) provides, in relevant part, “A
lawyer shall not knowingly . . . make a false statement of fact or law to a
tribunal.” Iowa R. Prof’l Conduct 32:3.3(a)(1). Its predecessor, DR 7–
102(A)(5), is similar. See Iowa Code of Prof’l Responsibility DR 7–
102(A)(5) (prohibiting a lawyer from “[k]nowingly mak[ing] a false
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statement of law or fact”). The term “knowingly” as used in rule
32:3.3(a)(1) denotes “actual knowledge of the fact in question.” Iowa R.
Prof’l Conduct 32:1.0(f). Actual knowledge “may be inferred from
circumstances.” Id.
Rule 32:8.4(c) provides that it is professional misconduct for a
lawyer to “engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.” Id. r. 32:8.4(c). We have stated in a number of
cases involving misrepresentations to the court in probate proceedings
that reckless disregard for the truth is sufficient to establish
misrepresentation for purposes of this rule. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 818 (Iowa 2007);
Grotewold, 642 N.W.2d at 293.
2. November 20, 2007 final report. We first consider the alleged
false statement in connection with the November 20, 2007 final report.
The Board asserts that Van Ginkel knowingly made a false statement by
declaring in the final report that (1) all statutory obligations had been
met related to taxes, (2) all statutory obligations related to claims had
been met, and (3) all executor and attorneys’ fees had been paid.
We first address the Board’s allegation that Van Ginkel made a
false statement in the November 20, 2007 final report regarding statutory
obligations and taxes. Paragraph ten of the final report declared, “All
statutory requirements relating to taxes have been fully complied with.”
The contents of a final report are governed by Iowa Code section
633.477. Among other things, section 633.477 requires the personal
representative to include in the final report “[a] statement as to whether
or not all statutory requirements pertaining to taxes have been complied
with.” Iowa Code § 633.477(10). Further, Iowa Code section 422.27
provides that a final report shall not be allowed unless the court finds
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that “all taxes imposed by this division upon the personal representative,
which have become payable, have been paid, and that all taxes which
may become due are secured by bond or deposit, or are otherwise
secured.” Id. § 422.27(1).
We have previously found ethical violations in connection with
false statements made to a tribunal in connection with final reports. For
instance, in Iowa Supreme Court Attorney Disciplinary Board v.
Humphrey, 738 N.W.2d 617 (Iowa 2007), and Grotewold, we found
professional misconduct where an attorney falsely stated that a tax
return had been filed and/or a tax clearance had been obtained.
Humphrey, 738 N.W.2d at 620; Grotewold, 642 N.W.2d at 293.
Van Ginkel stated in his final report that “all statutory
requirements related to taxes have been fully complied with and there
are no income, estate, or inheritance taxes due from decedent’s estate or
from the Executor.” He further testified that no estate taxes were due or
would become due because the assets of the estate poured over into the
John and Ruth Oxley Trust. It is undisputed that at the time this
statement was made the Iowa estate income tax return had not been
filed. The Board seems to believe that there was a false representation
because the estate income tax return was not filed.
Van Ginkel testified that at the time he filed the final report, he
had complied with all statutory obligations relating to taxes. The Iowa
estate income tax return was not yet due under applicable statutes.
The Board cites no specific statute of which Van Ginkel failed to
comply with at the time of the filing of the November 20, 2007 final
report. Instead, the Board fast-forwards to 2010, noting that at that
time—after several delinquency notices—Van Ginkel finally filed the final
estate income tax return and obtained the certificate of acquittances
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from tax authorities. The question, however, is not what happened later,
but whether Van Ginkel knowingly made a false statement at the time he
filed the final report. Based upon our review of the record, we conclude
that the answer to this question is no and, as a result, no ethical
violation occurred.2
We next consider whether Van Ginkel made a misrepresentation in
the November 20, 2007 final report related to claims. Paragraph eleven
of the final report stated that “the Executor has complied with all
statutory requirements pertaining to claims.” The thrust of the Board’s
charge is that the affidavit of publication was not on file with the court
and that, as a result, the claims process was flawed. Van Ginkel,
however, plausibly testified that publishers in Cass County routinely
filed the affidavit of publication without a specific request to do so. He
therefore assumed that the Altoona Herald would do the same. The
Board did not rebut this testimony. Based on the limited record
developed in this case, we conclude that the Board has failed to show by
a convincing preponderance of the evidence that Van Ginkel knowingly
made a false statement to a tribunal under rule 32:3.3(a)(1) or that he
acted in reckless disregard of the truth under rule 32:8.4(c) in
connection with the statement regarding claims.
Finally, we consider the Board’s charge that Van Ginkel committed
an ethical violation by representing that the executor and attorneys’ fees
had been paid. In paragraph twelve, Van Ginkel asserted that “[a]ll
Executor and attorneys fees previously allowed by the court have been
2This does not mean, of course, that the district court is obligated to accept a
final report that does not include a final estate income tax return and/or tax
acquittance or that an estate should be closed without it. The question of what is
required to close an estate is not before us. The sole question is whether Van Ginkel
knowingly made a false statement in his final report.
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paid.” The Board’s theory is that the fees were paid prematurely and
that therefore a misstatement had been made in paragraph twelve. We
do not find the Board’s position convincing. The statement is literally
true, namely, the fees previously approved by the court were paid. There
is no ethical violation inherent in this statement.
3. July 30, 2008 interlocutory report. We now consider whether
Van Ginkel knowingly made a false statement in connection with an
interlocutory report filed with the court on July 31, 2008. In the
interlocutory report, Van Ginkel stated that “the tax return for the estate
was filed. We are currently waiting on receiving the income tax
acquittance.” It is undisputed, however, that the Iowa estate income tax
return had not been filed as of July 31, 2008.
Van Ginkel’s defense is that his staff made an error based on a
telephone conversation made while Van Ginkel was on vacation. The
staffer, however, testified that she drafted the report based on an audio
tape. The language Van Ginkel claims he dictated is not very close to
that which actually appeared in the July 31, 2008 interlocutory report.
The substantial discrepancy between what Van Ginkel claims he
dictated and what appears in the July 31, 2008 report gives us pause.
There are at least two errors in the report as filed. The first sentence
states that the tax return for the estate has been filed. This was not
true. The second sentence then states that the estate is “currently”
awaiting receipt of the tax acquittance. This is not true, either, as the
estate could not be “currently waiting” on an income tax acquittance
when the tax return had not yet been filed. To the extent there is a he
said/she said flavor to the dispute, the commission determined that
Van Ginkel’s staffer was credible and that the explanation of the
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misrepresentation was not. Thus, based on the testimony of the two key
witnesses, the balance tips towards the Board’s position.
The Board’s position finds further support in communications
between Van Ginkel and Marcia Moore that were roughly
contemporaneous with the challenged filing. In a July 18, 2008
communication with Marcia Moore, Van Ginkel stated that all that was
needed to close the estate was “a clearance from the [department of
revenue] and . . . the final court order.” This statement falsely implied
that the Iowa estate tax return had been filed and falsely implied that an
acquittance is in the offing. A similar implication is present in a
statement made to Ms. Moore on November 20, 2008, when he stated
that he had met with the revenue officials and that “[t]hings went fine, we
should have the needed paper in ‘[four] to six weeks.’ ” These
misrepresentations are parallel to those that appear in the July 28, 2008
interlocutory report.
Further, when correspondence from Judge Klotz on February 3,
2010, indicated that the only remaining matter in the estate was the
receipt of an income tax acquittance, Van Ginkel did not correct her,
even though he admitted receiving and reading the letter.
Based on the above, we conclude that the Board has proved by a
convincing preponderance of the evidence that Van Ginkel knowingly
made a false statement to a tribunal in the July 31, 2008 interlocutory
report in violation of rule 32:3.3(a)(1).
4. July 30, 2009 interlocutory report. Next, we consider alleged
misrepresentations made in connection with an interlocutory report filed
by Van Ginkel on July 30, 2009. The Board charges that the statement
in the July 30, 2009 interlocutory report that “revised tax returns for the
estate have been prepared and submitted to the executor for review and
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signature” amounted to a false misrepresentation. Van Ginkel testified
that he had presented the tax return to Hested but found an error and
retrieved it from his desk to correct it. The record is silent regarding
when the return was retrieved and when it was resubmitted to the
executor. Without this chronology, it is not possible to determine the
veracity of the statement. We therefore conclude that the Board has
failed to meet its burden on this issue under any theory by a convincing
preponderance of the evidence.
5. May 19, 2010 draft order. Finally, we turn to alleged false
statements in a May 19, 2010 order signed by Judge Klotz. The Board
maintains that the order had been prepared by Van Ginkel and falsely
states that the affidavit of publication was on file. Further, the Board
challenges the statement in the order that all costs had been paid or
otherwise disposed of.
We reject the Board’s position with respect to the March 19, 2010
draft order. We do not believe the statement regarding the affidavit may
be characterized as an ethical violation. Further, the notion that costs
were “paid or otherwise disposed of” is not precise, but is essentially
correct. Van Ginkel had set aside more than enough funds in his trust
account to satisfy outstanding expenses.3
IV. Determination of Appropriate Sanction.
Before we determine the appropriate sanction, we consider:
[T]he 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
3The Board below asserted that Van Ginkel violated rule 32:8.4(c) in his
communications with Marcia Moore. The Board further suggests that Van Ginkel failed
to respond to a lawful demand from the Board in violation of rule 32:8.1. Neither of
these charges, however, was raised in the first amended complaint. We decline to
address them. See Rickabaugh, 728 N.W.2d at 380 n.3; Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 410 n.1 (Iowa 2005).
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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. Ireland, 748 N.W.2d 498, 502
(Iowa 2008). The form and extent of the sanction “must be tailored to the
specific facts and circumstances of each individual case.” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009)
(citation and internal quotation marks omitted).
With these principles in mind, we now turn to the question of
appropriate sanction. We begin by considering the conduct. In cases
involving neglect, the parties recognize that sanctions typically range
from a public reprimand to a suspension of up to six months. See
Lickiss, 786 N.W.2d at 868. As Van Ginkel correctly points out, there
have been a number of cases where public reprimands have been found
sufficient. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo, 730
N.W.2d 202, 207 (Iowa 2007) (imposing public reprimand for failure to
close an estate for four years and failure to account to client); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Parker, 558 N.W.2d 183,
186 (Iowa 1997) (concluding public reprimand was appropriate sanction
for failure to close two estates, one for eleven years, one for seven years);
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Sather, 534 N.W.2d
428, 431 (Iowa 1995) (holding failure to close father’s estate which was
open for nearly eighteen years and failure to respond to the Board
warranted a public reprimand).
In cases involving multiple instances of neglect, other additional
violations, or a history of past disciplinary problems, however, the
sanction has typically involved a suspension for some length of time. In
cases involving neglect in one or two cases and other misconduct such as
misrepresentations associated with the neglect, the suspensions have
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been in the range of three months. See Ackerman, 786 N.W.2d at 497–
98 (holding neglect in two estates, accompanying multiple
misrepresentations, and early receipt of fee required a ninety-day
suspension); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761
N.W.2d 53, 61–62 (Iowa 2009) (holding neglect in two cases, multiple
misrepresentations, and the early collection of fee required a three-
month suspension); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Adams,
749 N.W.2d 666, 669–70 (Iowa 2008) (holding neglect in three cases,
misrepresentation associated with neglect, failure to account to a client,
and failure to respond to Board required a four-month suspension). In
other cases where the pattern of misconduct has been more extensive,
suspensions have typically been for a longer period of time. See Wagner,
768 N.W.2d at 288–89 (concluding neglect in multiple cases, improper
withdrawal of fees in probate, failure to return unearned fees,
misrepresentations to court and clients required a six-month
suspension); Humphrey, 738 N.W.2d at 620–21 (holding neglect in six
estates, with accompanying misrepresentations to court, and three
instances of depositing unearned fees in business accounts required a
six-month suspension).
In this case, we have found neglect, premature collection of fees,
and a false statement to a tribunal. The neglect is inexcusable but
unfortunately is not uncommon in our disciplinary cases. The
premature withdrawal of fees here is rather technical. However, the
knowing misrepresentation is very troublesome and is a factor
supporting suspension. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct
v. Rauch, 650 N.W.2d 574, 578–79 (Iowa 2002).
In considering an appropriate sanction, we also consider the need
to uphold public confidence in the judicial system and the reputation of
22
the bar as a whole. This case illustrates the importance of these
concepts. The persistent delays in the closing of the estate gave rise to
concerns on the part of Marcia Moore that Van Ginkel might be stealing
money from the estate. This, of course, was not true. Nonetheless, in an
age where citizens may regard courts and lawyers with cynicism, the
need for lawyers to perform their functions consistent with our ethical
rules is of great importance to the bar and the judicial system generally.
Before coming to a definitive conclusion on proper sanction,
however, we consider mitigating and aggravating factors. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Conroy, 795 N.W.2d 502, 506 (Iowa 2011).
Van Ginkel points out that there was no harm to the estate
because of his transgressions. The lack of harm is a significant
mitigating factor. Casey, 761 N.W.2d at 61. There is no dispute that the
four beneficiaries of the Ruth Oxley estate timely received their
inheritances on August 29, 2007.
Van Ginkel submitted evidence that he had a solid reputation and
respect in the legal community generally. His reputation as a lawyer
should have some bearing on our sanction. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Powell, 726 N.W.2d 397, 408 (Iowa 2007).
Further, it is apparent that at the time of the ethical violations,
Van Ginkel was experiencing personal stress related to his mother’s
death and his father’s ill health. There is no evidence, however, that
Van Ginkel suffered from clinical depression. See Marks, 759 N.W.2d at
332 (noting depression is a mitigating factor); Grotewold, 642 N.W.2d at
295–96 (same). While Van Ginkel was no doubt under considerable
stress, stress is an ordinary part of legal practice. In any event, while
personal issues may be a factor in determining the appropriate sanction,
they do not excuse ethical violations. Iowa Supreme Ct. Att’y Disciplinary
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Bd. v. Moonen, 706 N.W.2d 391, 402 (Iowa 2005); Iowa Supreme Ct. Bd.
of Prof’l Ethics & Conduct v. Freeman, 603 N.W.2d 600, 604 (Iowa 1999).
Moreover, while personal stress may relate directly to neglect, it has little
causal relationship to misrepresentations. See Grotewold, 642 N.W.2d at
295.
We now turn to aggravating factors. Van Ginkel suggests that his
two prior admonitions cannot be considered an aggravating factor. He
contends that we have developed two contradictory lines of cases on the
issue of private admonitions. According to Van Ginkel, in one line of
cases, we have indicated that a private reprimand is not discipline. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Schmidt, 796 N.W.2d 33, 43 (Iowa
2011) (stating an admonition does not amount to discipline); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Buchanan, 757 N.W.2d 251, 254
(Iowa 2008) (same); Comm. on Prof’l Ethics & Conduct v. Zimmermann,
522 N.W.2d 619, 621 (Iowa 1994) (same); Comm. on Prof’l Ethics &
Conduct v. Liles, 430 N.W.2d 111, 113 (Iowa 1988) (observing that
professional admonitions are something less than actual discipline). In
another line of cases, Van Ginkel claims we have taken an inconsistent
position, namely, that private reprimands may be a factor in determining
appropriate sanction. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish,
801 N.W.2d 580, 589 (Iowa 2011) (stating prior admonitions are
aggravating circumstances that relate directly to issue of sanctions).
We do not view our cases as inconsistent. Private reprimands are
not discipline. Yet, private reprimands do put an attorney on notice of
the ethical requirements. We find that the two prior reprimands should
have put Van Ginkel on clear notice, if any was needed, that neglect of
an estate through lack of timeliness could amount to an ethical violation.
We therefore consider his two prior admonitions for conduct similar to
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that in this case as an aggravating factor on the question of appropriate
sanction. The repeated neglect in the file is not excusable, particularly
after Van Ginkel had received two private admonitions for similar
conduct. His prior reprimands, though somewhat dated, are an
aggravating factor.
If we were dealing only with neglect in a single estate, a public
reprimand might be appropriate. See Dunahoo, 730 N.W.2d at 207;
Parker, 558 N.W.2d at 186; Sather, 534 N.W.2d at 431. But this case
involves not only neglect and early receipt of fees, but also false
statements to a tribunal. A knowing misrepresentation to the court is a
particularly disturbing factor. Rauch, 650 N.W.2d at 578–79. His effort
to shift the blame to an assistant does not reflect well on him. See Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Fleming, 602 N.W.2d 340,
342 (Iowa 1999). As a result, we conclude that a suspension of sixty
days is appropriate to provide adequate deterrence and protect the
reputation of the bar, particularly in light of the seriousness of the
offenses.
V. Conclusion.
For the above reasons, we suspend the license of Van Ginkel to
practice law in this state for an indefinite period of time with no
possibility of reinstatement for sixty days. The suspension applies to all
facets of the practice of law provided by Iowa Court Rule 35.12(3). The
suspension also applies to any service as a judicial magistrate. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 704 (Iowa
2006). The costs of this proceeding are taxed against Van Ginkel
pursuant to Iowa Court Rule 35.26(1).
LICENSE SUSPENDED.