Iowa Supreme Court Attorney Disciplinary Board Vs. Jeffrey M. Ireland ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 43 / 07–1814
Filed May 9, 2008
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
JEFFREY M. IRELAND,
Respondent.
On review of the report of the Grievance Commission.
Grievance Commission report in disciplinary proceeding
recommends suspension of respondent’s license to practice law.
LICENSE SUSPENDED.
Charles L. Harrington and Teresa A. Vens, Des Moines, for
complainant.
Jeffrey M. Ireland, Ozark, Missouri, pro se.
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PER CURIAM.
This case comes before the court on the report of a division of the
Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R.
35.10. The Commission found the respondent, Jeffrey M. Ireland,
violated the Iowa Code of Professional Responsibility by neglecting a
client’s legal matter, by not providing an accounting or return of retainer
funds to the client, by failing to return personal papers, by failing to
notify the client he had closed his office, and by failing to cooperate with
the Iowa Supreme Court Attorney Disciplinary Board in its investigation.
The Commission recommends suspension of the respondent’s license
with no possibility of reinstatement for two years. Upon our respectful
consideration of the findings of fact, conclusions of law, and
recommendation of the Commission, we find the respondent committed
the charged ethical violations and suspend his license to practice law for
six months.
I. Standard of Review.
Our review of attorney disciplinary proceedings is well established.
The Commission’s findings are reviewed de novo. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 815 (Iowa 2007).
Although we give the Commission’s findings and recommendations
respectful consideration, we are not bound by them. Id. The Board has
the burden of proving attorney misconduct by a convincing
preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Conrad, 723 N.W.2d 791, 791–92 (Iowa 2006).
This burden is less than proof beyond a reasonable doubt,
but more than the preponderance standard required in the
usual civil case. Once misconduct is proven, we “may
impose a lesser or greater sanction than the discipline
recommended by the grievance commission.”
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Id. (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674
N.W.2d 139, 142 (Iowa 2004)).
II. Factual Findings.
At the time of the conduct at issue here, Jeffrey Ireland was an
Iowa lawyer who had practiced in several communities in the state. In
January 2002 Ireland was maintaining a law office in Panora, Iowa. The
matter giving rise to the Board’s complaint involved the estate of Leland
Barker.
In early 2002 Ireland agreed to act as the attorney for the estate of
Leland Barker. The decedent’s son, Dale Barker, met with the
respondent on three separate occasions to discuss the estate. At the first
meeting, Barker provided Ireland with his father’s will and other
paperwork. At the second meeting, the respondent agreed to handle the
estate for a $2000 fee. Barker’s mother and widow of the decedent,
Pauline Barker, also met briefly with the respondent on one occasion. In
February 2002 Barker provided Ireland with a $1000 check written on
Pauline’s account. The memo portion of the check read “retainer for L.G.
Barker estate.” Ireland deposited the check in his trust account.
Ireland failed to take any action on behalf of the estate. In May
2002 he closed his law office in Panora without notifying the Barkers.
The Barkers never received an accounting or refund of their retainer.
Ireland did not return their personal papers, including the decedent’s
will. The Barkers eventually sought new counsel to handle the estate,
which was subsequently successfully closed.
In March 2003 Pauline Barker filed a complaint with the Board. In
August 2005 the Board wrote to the respondent requesting a response to
the complaint and all records and documents showing the respondent’s
handling of the $1000 retainer. In his response, Ireland asserted he was
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retained to prepare living trust documents for Dale and Pauline, not to
probate Leland’s estate. He claimed he had tried to locate the Barkers
prior to closing his office, but was unable to do so due to the fact that he
had no mailing address for them. Ireland stated he would return the
clients’ materials if given a current address. The respondent also asked
for more time to retrieve the documents requested by the Board.
Subsequent requests by the Board produced a final billing
statement that was never received by Dale or Pauline Barker, but the
respondent did not produce the trust account statements sought by the
Board. The respondent did, however, provide copies of the drafts of the
living trusts he claimed to have prepared for the Barkers.
On January 24, 2007, the Board filed a complaint against the
respondent with the Grievance Commission, claiming various violations
of the Iowa Rules of Professional Responsibility. The Board asserted
Ireland’s failure to take action on the Barker estate violated DR 6–
101(A)(3) (neglect), DR 7–101(A)(1) (failing to meet lawful objectives of
client), and DR 1–102(A)(5) and (6) (prohibiting conduct prejudicial to the
administration of justice and conduct that adversely reflects on the
fitness to practice law). The Board alleged Ireland’s failure to return the
Barkers’ documents violated DR 2–110(A)(2) (lawyer shall not withdraw
until reasonable steps have been taken, including delivery of client’s
papers and property to the client) and DR 9–102(B)(4) (lawyer shall
promptly deliver to client property that client is entitled to receive). It
also asserted the respondent’s failure to fully cooperate with the Board
violated DR 1–102(A)(5) and (6). Finally, the Board alleged Ireland’s
failure to provide his clients with an accounting of the advance fee
payments and failure to promptly return funds they were entitled to
receive was a violation of DR 9–102(B)(3) and (4) (lawyer shall maintain
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records of all funds of the client coming into lawyer’s possession and
render appropriate accounting and promptly pay or deliver to the client
funds the client is entitled to receive).
A hearing before a panel of the Grievance Commission was held on
October 12, 2007. Dale Barker testified to the circumstances
surrounding the respondent’s retention to handle his father’s estate.1 He
testified that after a couple of meetings with the respondent, a retainer of
$1000 was written on his mother’s account. The check contained the
address of the residence that both Barkers had resided at for years and
where Pauline Barker had resided for over sixty years. When Barker
discovered Ireland had closed his office, Barker left numerous messages
on the respondent’s answering machine, all of which were unreturned.
He also sent a certified letter asking the respondent to return his papers
and the retainer. Barker received a signed return receipt for the letter
but nothing else. The respondent, Barker testified, kept his mother’s
$1000 retainer without conferring any benefit on them and without
providing any accounting for the funds received.
Ireland did not attend the hearing. Now living in Missouri, the
respondent advised the Commission by letter that he did not have the
funds to travel to Des Moines and had no intention of returning to Iowa
to practice law. He maintained, however, that he did not misuse the
retainer and completed the matter that he was hired to do—prepare
living trusts.
The Commission found the Board had met its burden of proving
the violations alleged in the complaint. Specifically, the Commission
found Ireland had accepted employment to probate Leland Barker’s
1Pauline Barker died prior to the Commission’s hearing.
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estate and then did nothing to achieve this end. He accepted a $1000
retainer, but never made any accounting to his clients. Moreover, the
Commission concluded, there was no credible evidence in the record that
showed Ireland did anything that would allow him to keep any fee. In
addition, he failed to return the clients’ papers upon request as he was
required to do. Finally, Ireland abandoned his clients after getting their
money and then failed to cooperate with the Board’s requests for
information.
In considering the appropriate sanction, the Board found several
aggravating circumstances, including prior disciplinary actions and a
current suspension. In addition, the Commission found Ireland evasive
and untruthful with the Board in its investigation of the matter. Based
upon these findings, the Commission recommended Ireland’s law license
be suspended for two years. Prior to reinstatement, the Commission
recommended the respondent be required to provide proof that all client
property and the $1000 retainer had been returned to Barker.
III. Ethical Violations.
The evidence established that Ireland completely failed to perform
the legal work he had contracted to do, a violation of Iowa Code of
Professional Responsibility DR 6–101(A)(3) (“a lawyer shall not neglect a
client’s legal matter”). See Gottschalk, 729 N.W.2d at 817 (stating neglect
often involves a lawyer doing little or nothing to advance the interests of
his client); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman,
683 N.W.2d 549, 551 (Iowa 2004) (stating professional neglect involves
failure to perform those obligations that a lawyer has assumed). Such
action constitutes not only a disservice to the client, but is also conduct
prejudicial to the administration of justice and conduct that reflects
adversely on the fitness to practice law. See Iowa Supreme Ct. Att’y
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Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 817 (Iowa 2007); Iowa Code
Prof’l Responsibility DR 1–102(A)(5), (6).
Ireland’s abandonment of his client, prior to performing the
contracted legal services, also resulted in his failure to meet the lawful
objectives of his client, a violation of DR 7–101(A)(1). This neglect and
abandonment were compounded by the fact Ireland made no attempt to
notify his clients of his withdrawal or to return their paperwork or
retainer to them. Contrary to his assertions, the evidence established
Ireland made no effort to contact the Barkers, whose address had been
unchanged for years. Despite the Board’s repeated requests, the
respondent failed to provide his clients with a final billing or the Board
with an accounting of the trust fund disbursement. Thus, the Board has
established by a convincing preponderance of the evidence violations of
DR 2–110(A)(2) (lawyer shall not withdraw until reasonable steps have
been taken, including delivery of client’s papers and property to the
client) and DR 9–102(B)(3) and (4) (requiring lawyer to maintain records
and render appropriate accounting and promptly deliver funds and
property the client is entitled to receive). Finally, Ireland’s failure to fully
cooperate with the Board also constituted conduct prejudicial to the
administration of justice and reflected adversely on his fitness to practice
law in violation of DR 1–102(A)(5) and (6). See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. McCarthy, 722 N.W.2d 199, 205 (Iowa 2006).
IV. Sanction.
In fashioning an appropriate 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
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circumstances. Id. The specific facts and circumstances of each
individual case determine the form and extent of a disciplinary sanction.
Id. “Often, the distinction between the punishment imposed depends
upon the existence of multiple instances of neglect, past disciplinary
problems, and other companion violations.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 104 (Iowa 2006).
The sanction for neglect of client legal matters generally ranges
from a public reprimand to a six-month suspension. Gottschalk, 729
N.W.2d at 821. Harm resulting to the client and multiple incidents of
neglect are considered aggravating circumstances warranting a more
serious sanction. Id. Misrepresentations and past disciplinary history
are also factors that warrant a more serious discipline than simple
neglect. Id.
In this case, the Barkers were harmed by the respondent’s failure
to return the unearned retainer. Moreover, the respondent’s continued
assertions that he was not hired to probate the estate have been shown
to be false by the testimony presented in this case, and these
misrepresentations to the Board and the Commission constitute further
aggravating circumstances.
In addition, the evidence establishes the respondent has had prior
disciplinary sanctions including a private admonition in July 2002 and a
public reprimand in December 2002 relating to incidents of neglect.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 723 N.W.2d 439, 440
(Iowa 2006). More recently, in 2006, Ireland’s license to practice law was
suspended for not less than three months for two complaints based upon
neglect. Id. at 441–42. The neglect of the Barker matter occurred in
2002, prior to this court’s suspension of the respondent’s license in
2006. The underlying neglect, by itself, demonstrates the same pattern
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of conduct found in the prior disciplinary case, thereby arguably
warranting only an additional public reprimand. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Moorman, 729 N.W.2d 801, 806 (Iowa 2007)
(similar violations occurred during same time frame as prior acts
resulting in suspension; reprimand warranted). However, additional
violations, including the respondent’s failure to cooperate with the Board,
misrepresentations to the Board, and failure to return clients’ papers and
funds, constitute additional aggravating factors. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. D’Angelo, 710 N.W.2d 226, 233–36 (Iowa 2006).
Ireland has indicated he has no plans to resume the practice of
law, thereby making suspension perhaps unnecessary for the protection
of the public or for deterrence. However, given the aforementioned
aggravating circumstances, an additional suspension is consistent with
promoting public confidence in the justice system and maintenance of
the reputation of the bar as a whole. The commission recommends we
suspend Ireland’s license to practice law for two years. While we agree
that Ireland’s misconduct is serious, we conclude that a less severe
sanction is warranted under the specific facts of this case. Accordingly,
we conclude a six-month suspension of Ireland’s license to practice law
is an appropriate sanction.
V. Conclusion.
We suspend Ireland’s license to practice law with no possibility of
reinstatement for at least six months from the date of the filing of this
opinion. This suspension shall apply to all facets of the practice of law.
Iowa Ct. R. 35.12(3).
Upon any application for reinstatement, the respondent shall have
the burden to show he has not practiced law during the period of
suspension and that he meets the requirements of Iowa Court Rule
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35.13. In addition, as a condition to any reinstatement, the respondent
shall satisfy this court that all client property has been returned to Dale
Barker and that the respondent has repaid the $1000 retainer that was
paid to him by the Barkers. Costs are taxed to the respondent pursuant
to Iowa Court Rule 35.25(1).
LICENSE SUSPENDED.
This opinion shall be published.