Iowa Supreme Court Attorney Disciplinary Board v. Matthew Warren Cunningham ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 11–1570
Filed January 13, 2012
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
MATTHEW WARREN CUNNINGHAM,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance Commission reports respondent committed ethical
misconduct and recommends that attorney be suspended from the
practice of law for three years. LICENSE SUSPENDED.
Charles L. Harrington and Teresa A. Vens, Des Moines, for
complainant.
Matthew Warren Cunningham, pro se.
2
ZAGER, Justice.
This matter comes before us on the report of a division of the
Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R.
35.10(1). The Iowa Supreme Court Attorney Disciplinary Board filed a
complaint against Matthew W. Cunningham. The complaint alleged
misconduct arising out of Cunningham’s representation of two different
clients involving divorce and bankruptcy matters. The Board alleged
multiple violations related to neglect, misrepresentation, conduct
prejudicial to the administration of justice, and failure to properly
withdraw from representation. Cunningham failed to respond to these
allegations and resulting proceedings in any way. The commission found
Cunningham violated several Iowa Rules of Professional Responsibility
and recommended we suspend his license with no possibility of
reinstatement for three years. The commission also recommended
Cunningham be required to undergo a mental health evaluation and
present evidence of his fitness to practice law prior to reinstatement.
Upon our de novo review, we find Cunningham violated numerous
provisions of the Iowa Rules of Professional Responsibility and suspend
his license to practice law for eighteen months. We also order that prior
to reinstatement, Cunningham must complete a mental health
evaluation and present evidence of his fitness to practice law.
I. Background Facts and Prior Proceedings.
Cunningham was admitted to the Iowa bar in 2001. He leased
office space in downtown Des Moines from another attorney, Pamela
Vandel. At some point, Cunningham and Andrew Hope, another attorney
who leased office space from Vandel, formed a partnership. In early
3
2008, Cunningham began to have problems. 1 According to Vandel’s
testimony, Hope called her to assist him in taking over some of
Cunningham’s cases because Cunningham had “just left” his practice,
and “[Hope] didn’t think [Cunningham] could practice law.”
After Cunningham left, Vandel, Hope, and another attorney took
over Cunningham’s cases, with Vandel taking over eight or nine
bankruptcy cases and three personal injury cases. Hope met with the
rest of Cunningham’s clients in an effort to salvage their cases. In at
least one case, Hope filed a motion to withdraw on Cunningham’s behalf.
Shortly before the complaints that form the basis of this action were
brought by the Board, Cunningham received a private reprimand for
failing to inform a client of a withdrawal from representation and failing
to deliver the client’s file to him. In late 2008 and early 2009,
Cunningham twice failed to respond to the Board’s notices, and his
license was temporarily suspended by this court on January 7, 2009,
and May 14, 2009. These temporary suspensions remain in effect.
II. Standard of Review.
Attorney disciplinary proceedings are reviewed de novo. Iowa Ct.
R. 35.10(1); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson,
792 N.W.2d 674, 677 (Iowa 2010). We give the grievance commission’s
factual findings respectful consideration, but they are not binding on us.
Johnson, 792 N.W.2d at 677. The Board must prove misconduct by a
convincing preponderance of the evidence. Id. This burden is more than
the standard required in a usual civil case, but less than proof beyond a
reasonable doubt. Id. If we find misconduct has been proven by a
1In their testimony before the commission, Vandel and a former client, Mary
Walker, speculated that Cunningham’s sudden departure was due to a mental problem,
but there is no additional evidence in the record of Cunningham’s mental state.
4
convincing preponderance of the evidence, “we may impose a lesser or
greater sanction than the discipline recommended by the grievance
commission.” Id. (citation and internal quotation marks omitted).
III. Findings of Fact.
The Board filed a complaint against Cunningham on June 8, 2011.
Cunningham did not file an answer, and the Board’s motion to invoke
Iowa Court Rule 36.7 was granted on August 9, 2011. Under that rule,
the Board’s allegations are deemed admitted. Iowa Ct. R. 36.7; see also
Johnson, 792 N.W.2d at 677. Based on the admitted allegations, and
upon our de novo review of the record, we find the following facts.
A. Count I: Mary K. Walker Matter. In late 2007, Mary Walker
retained Cunningham to assist her with her divorce from her husband,
Brett Walker. Cunningham filed Walker’s petition for dissolution of
marriage on November 1, 2007. On November 21, Brett’s attorney, R.J.
Hudson, II, sent interrogatories and a request for production of
documents to Cunningham. Cunningham did not forward these
documents to Walker. On January 2, 2008, as part of a good-faith effort
to resolve the discovery dispute, Hudson wrote a letter to Cunningham
demanding responses to the requested discovery by January 13, 2008.
Hudson did not receive any response from Cunningham and, on
February 4, filed a motion to compel. A hearing on the motion was
scheduled for February 26.
On February 5, Cunningham sent Walker a letter and forwarded a
notice of scheduling conference, along with the interrogatories and
request for production of documents. 2 Walker called Cunningham with
questions regarding the discovery documents, and he told her to fill them
2The scheduling conference was also set for February 26. In the February 5
letter, Cunningham told Walker she did not need to attend the conference.
5
out briefly and then she could come into his office later and “we would fill
it out in detail at some point in time.” Walker also stated Cunningham
told her “that [she] just needed to return it to him with some sort of
answer on it.”
On February 26, the court granted Hudson’s motion to compel and
ordered Walker to “serve all outstanding discovery by 3-11-08 or appear
on 3-18-08 at 9:30 A.M. for imposition of sanctions.” On March 5,
Cunningham wrote Walker, informing her of the order and the March 11
deadline, as well as the possible imposition of sanctions. Walker briefly
hand wrote her answers to the interrogatories and provided Cunningham
a handwritten, numbered list in response to the request for production of
documents. The discovery documents were notarized in Cunningham’s
office on March 7 and forwarded to Hudson on March 11. Walker never
heard from Cunningham again.
The court held a hearing on the motion for sanctions on March 18.
Cunningham failed to appear and did not inform Walker that she needed
to appear. The court imposed sanctions on Walker by awarding $500 in
attorney fees payable to her husband. Cunningham never told Walker he
was not going to represent her at the sanctions hearing and did not tell
her that she needed to attend the hearing. Walker did not learn that
sanctions had been imposed until she was served by the sheriff. Walker
did not learn of Cunningham’s intent to withdraw until May 6, when
Andrew Hope, Cunningham’s partner, filed a motion to withdraw, stating
Cunningham had “become incapacitated due to health reasons and [was]
unable to proceed in this matter as counsel.” Ultimately, Walker was
forced to sell some furniture and other personal property in order to
retain another attorney to complete her divorce action. Walker also had
temporary custody of her minor child, but due to the delay in her divorce
6
proceedings, she did not receive an award of temporary child support for
six months. She eventually received an award of temporary child
support of $725 per month.
B. Count II: Sheila K. McDowell Matter. In 2006, Sheila
McDowell (known then as Sheila Sammons) and her husband Bruce
Sammons decided to file for divorce. Due to Bruce’s medical issues, the
couple had built up a large amount of credit card debt and wanted to file
for bankruptcy prior to getting divorced. Sheila’s divorce attorney
referred them to Cunningham. On July 11, Cunningham sent Sheila a
letter stating that he would begin reviewing the couple’s financial
information to see if they would qualify for a Chapter 7 liquidation
bankruptcy. At that time, he also suggested the couple take a credit
counseling course that would be required before they could file
bankruptcy. Sheila wanted to remarry after the divorce, but wanted to
be sure that the debts from her first marriage were discharged before
getting remarried. Sheila made this known to Cunningham. On August
23, 2006, Sheila’s divorce attorney copied Cunningham on a letter to
Bruce Sammons, which stated, “I will do nothing with regard to pursuing
this [divorce] case until such time as the bankruptcy is processed. I
understand that Matt Cunningham is representing you, and I am
sending him a copy of this letter as well as one to Sheila.”
On September 26, Cunningham sent Sheila a fee agreement for a
joint bankruptcy, as well as the forms the couple would be required to fill
out before filing. Bruce and Sheila paid Cunningham $299 for the filing
fee and a $1200 up-front fee to file a joint bankruptcy for them and
returned the completed bankruptcy schedules to him. The couple
qualified for a Chapter 7 liquidation bankruptcy, and over the next few
months, Cunningham told Sheila that he had filed her petition and that
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a first meeting of creditors had been scheduled. Sheila scheduled time
off work to attend the first meeting of creditors three different times, but
each time Cunningham informed her the day before the meeting that it
had been cancelled.
The delays in the bankruptcy proceeding also delayed Bruce and
Sheila’s divorce. The pretrial conference for the divorce had to be
postponed to March 19, 2007, so that the bankruptcy could be
completed. Cunningham reviewed and approved the proposed premarital
agreement between Sheila and her new husband. 3 On April 2, 2007,
Sheila and Bruce’s divorce was finalized. The divorce decree noted:
The Court is informed that the parties have filed a petition in
bankruptcy with the Federal Bankruptcy Court for the
Southern District of Iowa. No resolution of such Bankruptcy
has occurred but such filing does materially affect the
property division of the parties.
Sheila remarried after Cunningham again assured her that the
bankruptcy would take care of everything and that her new husband
would not be liable for the debts from her previous marriage.
Months later, Sheila was contacted by Pamela Vandel. Vandel had
agreed to take over several bankruptcy cases that Cunningham
abandoned. Prior to contacting Sheila, Vandel noticed that all the money
in the trust accounts was gone. She assumed that because the filing fee
was gone, the bankruptcy petition had been filed. However, Vandel and
Hope were unable to locate a bankruptcy petition, and a search of the
bankruptcy court’s database did not turn up any petition filed on behalf
of Sheila or Bruce. At this point, Vandel contacted Sheila, informed her
3In March of 2008, Cunningham again told Sheila that he had filed the
bankruptcy petition. Sheila’s daughter was having difficulty with the Social Security
Administration, and in order to verify that he had filed Sheila and Bruce’s bankruptcy,
Cunningham faxed a copy of their petition to Sheila as proof that he had filed the
bankruptcy petition.
8
that Cunningham never filed the bankruptcy petition, and agreed to take
over her case.
Sheila, however, was now remarried and was no longer eligible to
file a Chapter 7 liquidation bankruptcy because of her and her new
husband’s combined income. 4 Sheila was therefore forced to file a
Chapter 13 reorganization bankruptcy. Sheila’s new husband’s income
had to be used to determine an appropriate level of monthly repayment.
Under Chapter 13, Sheila had to make monthly payments, which had to
be overseen by a bankruptcy trustee. The bankruptcy process took
several years, instead of a few months. Vandel also testified that
because she was forced to file for a Chapter 13 bankruptcy, Sheila was
required to assume and repay more than $4000 of debt that would have
been discharged under the Chapter 7 bankruptcy if it had been timely
filed. The filing fee Sheila and Bruce paid Cunningham has still not been
returned, nor has the $1200 up-front fee.
IV. Ethical Violations.
A. The Board’s Complaint and the Findings of the Grievance
Commission. In the complaint, the Board alleged Cunningham’s
conduct violated rules 32:1.3 (“A lawyer shall act with reasonable
diligence and promptness in representing a client”), 32:1.4(a)(3) (“A
lawyer shall . .. keep the client reasonably informed about the status of
the matter”), 32:1.16(a)(2) (a lawyer “shall withdraw from the
representation of a client if . . . the lawyer’s physical or mental condition
materially impairs the lawyer’s ability to represent the client”), 32:1.16(d)
(upon withdrawal, “a lawyer shall take steps to the extent reasonably
practicable to protect a client’s interests”), 32:3.2 (“A lawyer shall make
4Vandel also testified that she completed a Chapter 7 bankruptcy for Bruce,
who, based on his income, was still eligible for Chapter 7 bankruptcy.
9
reasonable efforts to expedite litigation consistent with the interests of
the client”), 32:3.4(c) (“A lawyer shall not . . . knowingly disobey an
obligation under the rules of a tribunal”), 32:8.4(c) (“It is professional
misconduct for a lawyer to . . . engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation”), and 32:8.4(d) (“It is professional
misconduct for a lawyer to . . . engage in conduct that is prejudicial to
the administration of justice”). The commission found Cunningham
violated rules 32:1.3, 32:1.4(a)(3), 32:1.16(a)(2), 32:1.16(d), 32:3.2, and
32:3.4(c) in his representation of Walker and rules 32:1.3, 32:1.16(d),
32:3.2, 32:8.4(c), and 32:8.4(d) in his representation of Sheila McDowell.
Even though Cunningham has not responded to these
proceedings, we must still conduct a de novo review of the Board’s
allegations to ensure that the Board has proven each allegation of
misconduct by a convincing preponderance of the evidence. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 281–82
(Iowa 2009). We now address the alleged violations contained in each
count of the complaint.
B. Count I: Ethical Violations in the Walker Matter. “Neglect
subjecting an attorney to discipline 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. Earley, 774 N.W.2d 301, 307
(Iowa 2009) (citation and internal quotation marks omitted). “Under
ethical rules prohibiting neglect, attorneys must advance and protect
their clients’ interests and attend to matters entrusted to their care in a
reasonably timely manner.” See Johnson, 792 N.W.2d at 678. For over
two months, Cunningham failed to provide Walker with the discovery
requests. This delay resulted in the court granting opposing counsel’s
10
motion to compel. Though Cunningham notified Walker of the motion to
compel and of the possibility of a motion for sanctions, he failed to take
any steps to ensure she properly completed the discovery requests in
order to avoid sanctions. Instead, he simply mailed her handwritten
responses to the interrogatories to opposing counsel, along with the
handwritten list of documents Walker had prepared in response to the
request for production of documents. Cunningham also failed to attend
a hearing on the motion for sanctions but did not tell Walker that she
needed to attend. He also failed to inform Walker that a $500 sanction
had been ordered. This conduct falls below the standard required by
rule 32:1.3, which demands reasonable promptness and diligence in
representing a client.
Walker also testified that she attempted to contact Cunningham
regarding the status of her divorce but was unable to reach him. While
someone at his office told her that she would be contacted, she never
was. Cunningham failed to keep Walker informed about the status of
her divorce case and thereby violated rule 32:1.4(a)(3). See Earley, 774
N.W.2d at 307. Cunningham neglected Walker’s legal matter and failed
to advance or protect her legal interests in violation of our ethical rules.
Walker was not informed that Cunningham was withdrawing from
her case until his law partner filed a motion to withdraw on
Cunningham’s behalf on May 6, 2008, nearly two months after the order
for sanctions. Upon withdrawal, Cunningham failed to take any steps to
safeguard Walker’s interests or to return her files to her. This conduct
clearly violates rule 32:1.16(d). See Johnson, 792 N.W.2d at 681; see
also Earley, 774 N.W.2d at 307–08. Cunningham failed to appear at
hearings and failed to participate in discovery in a timely manner.
Failing to appear at hearings and participate in discovery does not
11
constitute a reasonable effort to expedite litigation and therefore violates
rule 32:3.2. See Johnson, 792 N.W.2d at 679–80.
Rule 32:3.4(c) prohibits an attorney from “knowingly disobey[ing]
an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists.” On February 26,
2008, Cunningham was ordered to serve all outstanding discovery by
March 11 or else appear at a hearing on the motion for sanctions on
March 18. Cunningham failed to adequately respond to the discovery
requests and failed to appear at the hearing, thereby violating an order of
a tribunal. In order to violate rule 32:3.4(c), the attorney must have
actual knowledge of the court order. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Joy, 728 N.W.2d 806, 813 (Iowa 2007). On March 5,
Cunningham wrote Walker a letter informing her of the need to complete
discovery by March 11 and of the possible motion for sanctions on March
18. Cunningham clearly had knowledge of the court’s order. Therefore,
when he disobeyed it, he violated rule 32:3.4(c).
The alleged violation of rule 32:1.16(a)(2) poses a closer question.
The rule requires an attorney to withdraw from representation when “the
lawyer’s physical or mental condition materially impairs the lawyer’s
ability to represent the client.” Iowa R. Prof’l Conduct 32:1.16(a)(2).
There is very little case law interpreting this rule or its predecessor, DR
2–110(B)(3). In Hoglan, we found a violation of this rule occurred when
an attorney allowed several appeals to be dismissed for want of
prosecution. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hoglan, 781
N.W.2d 279, 282, 284 (Iowa 2010). Prior to his cases being dismissed,
Hoglan requested several extensions, citing a “serious back problem.” Id.
at 282. We found a violation of rule 32:1.16(a)(2). Id. at 284.
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The case at issue today is different. In finding Cunningham had
violated rule 32:1.16(a)(2), the commission simply stated,
Andrew Hope’s motion stated Cunningham had “become
incapacitated due to health reasons and is unable to proceed
in this matter as counsel” on May 6, 2008. Cunningham did
not terminate his representation of Ms. Walker prior to the
Motion for Sanctions in March of 2008. Ms. Walker was
prejudiced by Cunningham’s failure to withdraw from
representing her prior to that hearing.
A violation of rule 32:1.16(a)(2) requires more. The plain language of rule
32:1.16(a)(2) requires an attorney to withdraw if “the lawyer’s physical or
mental condition materially impairs the lawyer’s ability to represent the
client.” To prove a violation of this rule, the Board would have to show
that the attorney was suffering from a mental or physical condition and
that the condition materially impaired the lawyer’s ability to represent
the client. The Board has not proven by a convincing preponderance of
the evidence that Cunningham was suffering from such a condition prior
to the motion to withdraw.
Hope’s motion on Cunningham’s behalf is evidence that
Cunningham was suffering from a physical or mental condition that was
impairing his ability to represent Walker on May 6, 2008. The
commission relied on this motion to show Cunningham violated rule
32:1.16(a)(2) by not withdrawing as Walker’s attorney prior to the
hearing on the motion for sanctions in March of 2008. We disagree with
this conclusion. The motion to withdraw indicates that Cunningham’s
ability to represent Walker was materially impaired by his mental or
physical condition on May 6, but it does not indicate when
Cunningham’s ability to represent Walker first became materially
impaired. While we agree that Cunningham provided inadequate
representation to Walker in March of 2008, the statement found in the
13
motion to withdraw is insufficient to convince us that Cunningham’s
inadequacies at that time were due to a mental or physical impairment.
The other evidence presented is also insufficient to lead to the conclusion
that Cunningham was suffering from a mental condition that materially
impaired his ability to represent clients. Vandel’s testimony does not
include the dates when she and Hope began to deal with the problems
created by Cunningham’s sudden departure. The private reprimand
Cunningham received mentioned that Cunningham signed for the initial
notice of complaint of May 10, 2008. That reprimand arose out of
Cunningham’s failure to properly withdraw from representation of
another client. Though the reprimand cited “health reasons” as the
justification for Cunningham’s withdrawal in that case, there was again
no indication as to when his health issues arose or how severe his health
problems were. The reprimand is insufficient to show Cunningham
represented Walker when he was suffering from a mental or physical
condition that materially impaired his ability to represent her.
In order to find a violation of rule 32:1.16(a)(2), we must find, by a
convincing preponderance of the evidence, that Cunningham was
suffering from a mental or physical condition that materially impaired his
ability to represent Walker and that he failed to withdraw at that time.
On our de novo review, there is insufficient evidence to find a violation of
rule 32:1.16(a)(2). Other than the motion to withdraw, the only evidence
of Cunningham’s mental or physical condition came from Walker and
Vandel who testified at the grievance hearing.
The testimony offered is insufficient evidence to indicate a mental
or physical condition materially impaired Cunningham’s ability to
represent clients prior to his withdrawal on May 6. While it is clear that
something was impairing Cunningham’s ability to adequately represent
14
Walker, it is not clear that the impairment was a mental or physical
issue. The Board has not proven Cunningham violated rule
32:1.16(a)(2). However, we find Cunningham violated rules 32:1.3,
32:1.4(a)(3), 32:1.16(d), 32:3.2 and 32:3.4(c) in his representation of
Walker.
C. Count II: Ethical Violations in the McDowell Matter.
Cunningham told Sheila McDowell he was going to file a bankruptcy
petition for her and her husband and never did. This conduct does not
meet the standard of reasonable diligence and promptness, nor is it a
reasonable effort to expedite litigation consistent with the interests of the
client, and therefore, it violates rules 32:1.3 and 32:3.2. Johnson, 792
N.W.2d at 681. Cunningham stopped representing Sheila, but did not
take any steps to safeguard her interests and never returned her filing
fee or her up-front fee for the bankruptcy. This conduct violates rule
32:1.16(d). Id.; see also Earley, 774 N.W.2d at 307–08.
Cunningham told Sheila and her divorce attorney that he had filed
the bankruptcy petition. He went so far as to provide Sheila with a copy
of the petition to prove to her that he had filed the bankruptcy. Vandel
testified that she could not find any record of a petition being filed in the
bankruptcy court or in Cunningham’s files. We find her testimony
credible and conclude that Cunningham did not in fact file Sheila’s
petition as he claimed he did. In Johnson, we found an attorney engaged
in dishonesty, fraud, deceit or misrepresentation when “he told [the
client] things were progressing when he had not even filed the
bankruptcy petition.” 792 N.W.2d at 678. Cunningham’s conduct here
is misrepresentation and violates rule 32:8.4(c). Id.
15
Finally, we find Cunningham’s conduct was prejudicial to the
administration of justice in violation of rule 32:8.4(d). In interpreting
rule 32:8.4(d), we have stated,
[T]here is no typical form of conduct that prejudices the
administration of justice, [but] actions that have commonly
been held to violate this disciplinary rule have hampered 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) (citation and internal quotation marks omitted); see also
Johnson, 792 N.W.2d at 681. Simply failing to file a bankruptcy petition
does not, in and of itself, hamper the operation of the courts. Johnson,
792 N.W.2d at 678. However, an attorney’s dilatory conduct violates rule
32:8.4(d) when that conduct places additional burdens on the
bankruptcy court and causes the trustee to expend greater amounts of
time and energy than would otherwise have been required. Id. at 681.
Cunningham’s failure to file Sheila and Bruce’s bankruptcy meant that,
instead of filing a single, joint Chapter 7 bankruptcy, Bruce had to go
through a separate Chapter 7 bankruptcy, and Sheila had to go through
a separate Chapter 13 bankruptcy. This required a longer and more
intensive period of judicial oversight than would have been necessary if
Cunningham had timely filed Sheila and Bruce’s petition. Moreover,
Cunningham’s failure to initiate the bankruptcy action caused significant
delays in the state district court. In August of 2006, Sheila’s divorce
attorney wrote Cunningham a letter informing him that Bruce and
Sheila’s divorce would be delayed until the bankruptcy petition was filed.
Due to Cunningham’s dilatory conduct in connection with the filing of
the petition, Bruce and Sheila were forced to reschedule proceedings
connected to their divorce, which delayed their divorce for several
16
months. Cunningham’s misrepresentation interfered with the effective
and efficient administration of the bankruptcy court and the district
court. This conduct hampered the efficient operation of the courts and
the ancillary systems they rely on and therefore violated rule 32:8.4(d).
V. Sanctions.
The commission recommended that we suspend Cunningham’s
license with no possibility of reinstatement for three years. The
commission also recommended that Cunningham be required to have a
mental health evaluation and present evidence of his fitness to practice
law prior to reinstatement. There is no standard sanction for a
particular type of misconduct. Id. Though prior cases are instructive,
the appropriate sanction must be based on the particular circumstances
of each individual case. Id. at 681–82. In determining the appropriate
sanction, we consider “the nature of the violations, the need for
deterrence, protection of the public, maintenance of the reputation of the
Bar as a whole, and the violator’s fitness to continue to practice law.” Id.
at 682 (citation and internal quotation marks omitted).
In addition to the nature of the violations, we will also consider
mitigating and aggravating factors. Id. Cunningham has not responded
to these proceedings and therefore has not provided any mitigating
factors. Aggravating factors include the existence of multiple instances
of neglect, other companion violations, and past disciplinary problems.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carpenter, 781 N.W.2d 263,
270 (Iowa 2010); see also Johnson, 792 N.W.2d at 682. Failure to
respond to and cooperate with the Board’s investigation is also an
aggravating factor. Wagner, 768 N.W.2d at 288.
Cunningham’s violations stem from neglecting his clients, in effect
abandoning them, without warning, in the middle of their cases. Client
17
neglect is a serious matter. See, e.g., Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006) (comparing an
attorney who neglects his clients to “a surgeon who, without transferring
responsibility, drops his scalpel and abandons his patient in the course
of an operation” (citation and internal quotation marks omitted)).
The sanction for attorney misconduct involving neglect
typically ranges from a public reprimand to a six-month
suspension. The sanction imposed in a particular instance
often depends upon whether there are multiple instances of
neglect, other additional violations, or a history of past
disciplinary problems.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790 N.W.2d 791, 798
(Iowa 2010) (citation omitted); see also Joy, 728 N.W.2d at 815–16
(“Where neglect is compounded by other serious offenses, however, this
court has suspended the license of the offending attorney for substantial
periods of time.”).
Neglect can lead to more severe sanctions when coupled with
irregularities in handling client funds. In Johnson, for example, we
suspended the attorney’s license for three years for
severely neglecting four client matters, failing to respond to
clients’ inquiries for information, presenting an ex parte
order to a court under false pretenses, failing to account for
and return unearned fees, and failing to respond to the
board and commission.
792 N.W.2d at 684. While Vandel testified that all of Cunningham’s
clients’ trust accounts were empty, the Board has not alleged any trust
account violations, and therefore, we will not consider misappropriation
of client funds as an aggravating factor in this case.
In Carpenter, we noted the typical range for neglect was a public
reprimand to six months’ suspension, but added, “When multiple
instances of neglect are involved and combine with other violations or
18
cause significant harm to the clients, we have imposed a longer period of
suspension.” 781 N.W.2d at 270. We imposed a two-year suspension for
“misconduct in seventeen client matters, including neglect, failure to
communicate, and failure to safeguard his clients’ interests upon
termination of representation, in addition to his trust account violations
and conviction for two traffic offenses.” Id. at 271. While Cunningham
has only been accused of misconduct in connection with two clients, as
opposed to seventeen, his violations have resulted in significant harm.
Cunningham’s neglect caused Walker to pay a $500 sanction, to sell her
furniture and other personal property to hire a different attorney, and to
miss out on nearly $5000 in temporary child support. The harm to
Sheila is equally great. Instead of a Chapter 7 bankruptcy, she was
forced to go through a Chapter 13 bankruptcy, which required her to
repay more than $4000 of debt and required substantial and lengthy
supervision by the bankruptcy court.
In addition to causing harm to his clients, Cunningham has
combined his neglect with misrepresentations to his clients and officers
of the court, knowing that those misrepresentations would be relied on.
He neglected to file Sheila’s bankruptcy petition and then proceeded to
tell her and her attorney that he had filed the petition. He also faxed a
copy of the bankruptcy petition to Sheila’s daughter in an effort to prove
he had filed the petition when he had not. As a result of this neglect
coupled with misrepresentation, Sheila and her new husband were
forced to repay nearly $4000 more in debt than they would have been
obligated to repay if Cunningham had done what he claimed to have
done. This neglect, combined with misrepresentation, caused great harm
to Cunningham’s clients and favors a harsher suspension than six-
months.
19
On the other hand, in Lickiss, we considered a three-month
suspension appropriate for an attorney who “engaged in multiple
instances of neglect in four probate matters such that he failed to
properly advance his clients’ interests[,] . . . took probate fees before
obtaining the required court orders, and failed to respond to his clients’
and the board’s inquiries.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Lickiss, 786 N.W.2d 860, 868–69, 871 (Iowa 2010). That case presented
mitigating factors, such as the attorney’s mental health issues. Id. at
871. While it is possible Cunningham was suffering from mental health
issues, he has not presented any evidence to that effect, and therefore,
we do not consider it as a mitigating factor in this case.
A two-year suspension was appropriate where the attorney’s
“conduct consisted of multiple acts of making misrepresentations to the
court, disregarding court orders, neglecting client matters,
misrepresenting the status of matters to his clients, and failing to
respond to the Board’s inquiries.” Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Honken, 688 N.W.2d 812, 820, 822 (Iowa 2004). However, in
Joy, we imposed an eighteen-month suspension for an attorney who
neglected four clients, failed to comply with court orders, made
misrepresentations, failed to turn over client papers, and failed to
cooperate with the Board’s investigation. 728 N.W.2d at 812–15. We
cited several cases in Joy which imposed suspensions ranging from one
to three years for similar violations. See id. at 815–16 (citing a collection
of cases). We again imposed an eighteen-month suspension on an
attorney who made misrepresentations to his clients and the court in an
effort to cover his neglect, committed companion violations, and failed to
respond to the Board’s inquires. See Fields, 790 N.W.2d at 798, 801.
Cunningham committed similar violations. He neglected his clients,
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failed to comply with a court order, failed to properly withdraw or turn
over clients’ files, and made misrepresentations that compounded the
damage caused by his neglect.
While prior discipline can be an aggravating factor, we have held
that if “[t]he prior admonishment occurred during the timeframe and
related to a matter we are considering in this action, [then] it does not
require us to increase the severity of the sanction.” Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Wengert, 790 N.W.2d 94, 103 (Iowa 2010).
Cunningham’s only prior discipline was a private admonishment that he
received on November 24, 2008. The complaint in that case arose out of
Cunningham’s representation of a client in an action for wrongful
termination from employment. The admonishment noted that,
In 2008 [Cunningham] took “a leave of absence” for health
reasons from [his] law practice, abandoning, among other
things, the representation of the complainant.
[Cunningham] failed to inform [the complainant] of [his]
leave of absence or of [his] effective withdrawal from [the
complainant’s] case; neither did [he] promptly deliver his file
to him.
The Board reminded Cunningham that, while health reasons were
proper grounds for withdrawal under rule 32:1.16(a)(2), he still had
certain responsibilities to his clients upon withdrawal from
representation. The Board also noted in the admonishment that
Cunningham initially failed to respond to the Board’s complaint and that
he “narrowly avoided a suspension by sending a belated response.”
Cunningham’s only prior discipline involved neglect of client matters and
occurred in the same timeframe as the violations before us in this case.
Accordingly, we will not view Cunningham’s prior discipline as an
aggravating factor.
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After reviewing the nature of all of Cunningham’s violations and of
the aggravating circumstances, we feel an eighteen-month suspension is
appropriate. Cunningham neglected his clients and then compounded
the damage by making misrepresentations to them. He has failed to turn
over their files or to assist them in any way in dealing with his sudden
withdrawal. In addition, his neglect has increased the burden on the
courts and the ancillary systems on which they rely, and he has not
cooperated with the Board’s investigation. While we recognize that it is
possible Cunningham’s violations stem from mental illness, he has not
presented any evidence that this is a mitigating circumstance. Since our
considerations when imposing sanctions include the protection of the
public and the attorney’s fitness to practice law, we will also require that,
prior to reinstatement, Cunningham provide an evaluation from a
licensed health care professional verifying his fitness to practice law.
As a precondition for reinstatement, we can also require an
attorney to provide proof that he has made “restitution to all persons and
entities that have lost money as a result of his actions.” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 97 (Iowa 2006).
Such a requirement is appropriate here. Prior to reinstatement,
Cunningham must provide proof that he has repaid the $500 in
sanctions that Mary Walker was forced to pay as a result of
Cunningham’s failure to comply with the court’s motion to compel. Hope
paid the filing fee for Sheila’s Chapter 13 bankruptcy petition, and
Vandel provided her legal services free of charge. However, due to
Cunningham’s neglect and misrepresentation, Sheila McDowell was
forced to go through Chapter 13 bankruptcy where the amount of
additional debt she was required to repay totaled $4000. Therefore, prior
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to reinstatement, Cunningham must provide proof that he has repaid
$4000 to Sheila McDowell.
There is one other issue we wish to address. Due to his failure to
respond to the Board’s initial complaints, Cunningham’s license was
temporarily suspended on January 7, 2009, and again on May 14. See
Iowa Ct. R. 34.7(3). A suspension under rule 34.7(3) serves as both a
disciplinary measure and a means of “prompt[ing] a response to the
board’s inquiries so the disciplinary action may proceed in a timely and
informed fashion.” Lickiss, 786 N.W.2d at 870. Cunningham has not
responded to these proceedings, and because of this failure, the
temporary suspension remains in effect. See Iowa Ct. R. 34.7. As we
have previously noted,
The coercive nature of the suspension is demonstrated by
the fact that the length of the suspension under rule 34.7 is
essentially up to the respondent. Once the attorney
responds to the board’s inquiries, the board is required to
withdraw its certificate or provide an alternate basis for
continuing the suspension, and upon the board’s withdrawal
of the certificate, the court must immediately reinstate the
attorney’s license to practice law.
Lickiss, 786 N.W.2d at 870 n.3 (citation and internal quotation marks
omitted). Since Cunningham did not respond to the Board’s inquires,
the Board was not required to withdraw its certificate, and
Cunningham’s suspension remained in effect on this basis alone.
Because the prior suspensions were for separate violations of rule 34.7,
the period of temporary suspension cannot be considered as discipline
for the ethical violations discussed in this opinion and therefore, cannot
be considered as part of the eighteen-month suspension we now order.
See id. at 870; see also Fields, 790 N.W.2d at 800. However, since this
opinion concludes the present disciplinary action, there is no longer a
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need to “prompt a response to the board’s inquiries,” and the temporary
suspensions are accordingly dismissed. Lickiss, 786 N.W.2d at 870.
VI. Disposition.
Cunningham committed numerous ethical violations involving
neglect of client matters, misrepresentation, and conduct prejudicial to
the administration of justice. These violations caused significant harm to
his clients. He has not responded to the Board’s complaints. We
therefore suspend Cunningham’s license to practice law with no
possibility of reinstatement for eighteen months. This suspension shall
apply to all facets of the practice of law as provided in Iowa Court Rule
35.12(3). Prior to reinstatement, Cunningham must comply with rule
35.13, provide an evaluation from a licensed health care professional
verifying his fitness to practice law, and provide proof that he has made
restitution of $500 to Mary Walker and $4000 to Sheila McDowell. The
prior temporary suspensions for failure to respond to the Board are
dismissed. The costs of this action are taxed to Cunningham pursuant
to Iowa Court Rule 35.26(1), and reinstatement will not be ordered until
all costs are paid. Iowa Ct. R. 35.26(3).
LICENSE SUSPENDED.