Iowa Supreme Court Attorney Disciplinary Board v. David L. Leitner ( 2023 )

IN THE SUPREME COURT OF IOWA
No. 23–0099
Submitted September 13, 2023—Filed December 8, 2023
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
DAVID L. LEITNER,
Appellant.
On appeal from the report of the Iowa Supreme Court Grievance
Commission.
In an attorney disciplinary action, the grievance commission recommends
revocation of an attorney’s license for violations of ethical rules. LICENSE
SUSPENDED.
May, J., delivered the opinion of the court, in which all justices joined.
David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellant.
Tara van Brederode and Alexis W. Grove, Des Moines, for appellee.
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MAY, Justice.
David Leitner has held a license to practice law in Iowa since 1979. In
2022, the Iowa Supreme Court Attorney Disciplinary Board (Board) filed a five-
count complaint against Leitner. The complaint charged Leitner with numerous
violations of the Iowa Rules of Professional Conduct. Leitner did not file an
answer. Because Leitner did not answer, the Iowa Supreme Court Grievance
Commission (commission) deemed the allegations of the complaint to be
admitted. Based on those admissions and some additional evidence presented
at a hearing, the commission concluded that Leitner had violated several rules.
As a sanction for those violations, the commission recommends that we should
revoke Leitner’s license.
We have carefully reviewed the commission’s recommendation and the
record as a whole. Following our review, we conclude that the Board proved that
Leitner violated numerous rules. In light of those violations, as well as the
aggravating and mitigating factors shown in the record, we conclude that the
proper sanction is a suspension of Leitner’s license for two years. This
suspension will commence ten days from the date of this opinion. Iowa Ct. R.
34.23(1).
I. Our Review.
We review de novo the record made before the commission. Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Johnson, 988 N.W.2d 399, 406 (Iowa 2023). Through
that review, we must determine whether the Board has proven each “alleged
violation[] . . . by a convincing preponderance of the evidence.” Id. (quoting Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Aeilts, 974 N.W.2d 119, 125 (Iowa 2022)). We
make this determination even where—as here—the responding attorney has
essentially admitted the Board’s allegations through the attorney’s failure to
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answer. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. O’Brien, 971 N.W.2d 584, 589
(Iowa 2022).
With that said, because Leitner did not answer the complaint, “we deem
the factual allegations . . . in . . . the complaint admitted” for purposes of our
review. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 396 (Iowa
2005) (emphasis added). In light of those admissions, we find the facts alleged in
the complaint are established by a convincing preponderance of the evidence.
But we do not necessarily adopt legal conclusions stated in the complaint.
II. Merits.
A. Mitchell and Foodprairie (Count I).
1. Background. In count I of the complaint, the Board alleges that Leitner
violated two of our rules through his involvement with a client named Marvin
Mitchell and an entity known as Foodprairie, L.L.C. Specifically, the Board
claims that Leitner violated rules 32:1.2(d), which prohibits lawyers from
“counsel[ing] a client to engage, or assist[ing] a client, in conduct that the lawyer
knows is criminal or fraudulent,” and 32:8.4(c), which prohibits lawyers from
“engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
Iowa Rs. of Prof’l Conduct 32:1.2(d), 32:8.4(c). As support for these charges, the
Board alleges in its complaint the following facts, which we deem to be admitted:
3. Leitner has long served as the attorney for an individual
named Marvin Mitchell, representing him in various matters since
at least 2004.
4. Mitchell has been involved in the farming industry for
several decades. Mitchell’s business has involved the sale and
distribution of seed.
5. In or around 2007, Mitchell was indicted for bankruptcy
fraud in federal court and was subsequently sentenced to 18 months
in prison. Mitchell pled guilty to concealing assets by creating
various business entities and then transferring funds, land,
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equipment, and other assets to those entities prior to declaring
bankruptcy.
6. Mitchell owes substantial sums of money to the federal
government and, as a consequence, any income he receives is
potentially subject to garnishment by federal authorities. Mitchell
owes approximately $71,000.00 to the United States Department of
Agriculture and also has several federal tax liens against his home.
7. On or about March 27, 2013, Leitner filed a certificate of
organization with the Iowa Secretary of State creating a limited
liability company known as Foodprairie, L.L.C. (“Foodpra[i]rie”).
8. In subsequent biennial reports filed by Leitner, he describes
himself as the “managing member” of Foodprairie.
9. Foodprairie was created by Leitner as part of a deliberate
scheme to hide Mitchell’s funds from creditors, including the federal
government.
10. On or about November 28, 2016, Leitner opened a bank
account for Foodprairie at Central Bank in Iowa. In the account
agreement Leitner signed when opening the account, he described
Foodprairie as a “single-member LLC.” Leitner further certified that
he was the “manager or designated member” of Foodprairie.
11. Upon information and belief, Mitchell has continued to
work in the farming industry since his criminal conviction and has
received income from that work. At least part of that income has
been concealed using the Foodprairie business entity and bank
account established by Leitner.
12. Mitchell’s work in the farming industry since his
conviction has included the sale of seed. In or around March of
2017, Mitchell entered into a contract to become a dealer of Pfister
Seed[s] (“Pfister”) products. Eric Schweinefus, a Pfister employee at
that time, knew Mitchell from previous business dealings and
approached Mitchell about becoming a Pfister dealer.
13. Mitchell told Schweinefus that he wanted to become a
Pfister dealer but said that he did not want his own name associated
with the Pfister dealership. Mitchell told Schweinefus that his
lawyer, Leitner, could help establish the Pfister dealership without
using Mitchell’s name.
14. Schweinefus provided Mitchell with a copy of Pfister’s
standard dealership agreement.
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15. The dealership agreement was later signed by Leitner. The
completed dealership form listed Foodprairie as the dealer and
Leitner as Foodprairie’s “sole member.” Mitchell’s name does not
appear on the form. The completed dealership agreement form was
subsequently sent to Jim Riefenrath, an Assistant General Manager
for Pfister.
16. Upon receiving the dealership agreement, Riefenrath was
initially confused, as he had previously been told by Schwein[e]fus
that the dealership agreement would be between Pfister and
Mitchell.
17. Riefenrath subsequently participated in a telephone
conference call with both Mitchell and Leitner. During the call[,]
Leitner indicated that Foodprairie was his company. Leitner and
Mitchell both agreed that Mitchell’s dealership agreement with
Pfister should be in Foodprairie’s name.
18. After executing the dealership agreement, Mitchell began
selling Pfister products and earning commissions and fees for his
sales.
19. Some or all of the funds owed to Mitchell under the terms
of the dealership agreement were wired to the Foodprairie account
at Central Bank.
20. While working as a dealer of Pfister products, Mitchell
earned substantial sums of money from Pfister, but the funds were
always cloaked in the Foodprairie name.
21. Creating Foodprairie, opening a bank account in its name,
and entering into the contract with Pfister under the name of
Foodprairie were all an artifice developed with Leitner’s assistance
to provide Mitchell with a means of receiving funds without detection
by creditors, including the federal government.
22. Leitner allowed Mitchell to use an LLC that Leitner
created—Foodprairie—to help Mitchell conceal income from his
creditors, including the federal government.
23. Leitner opened a bank account in Foodprairie’s name and
allowed Mitchell to use the account to receive money surreptitiously.
24. Leitner facilitated the contract between Mitchell and
Pfister and executed the dealership agreement with Pfister in the
name of Foodprairie so that Mitchell could do business without
detection or garnishment of funds earned.
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(Footnote omitted.) 1
2. Analysis.
a. Rule 32:8.4(c): conduct involving dishonesty. With these facts in mind,
we now consider the Board’s allegation that Leitner’s involvement with Mitchell
and Foodprairie violated rule 32:8.4(c). Rule 32:8.4(c) states: “It is professional
misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation . . . .” Iowa R. of Prof’l Conduct 32:8.4(c). “To find a
violation of rule 32:8.4(c), we must find that the attorney acted with ‘some level
of scienter’ rather than mere negligence.” Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Green, 888 N.W.2d 398, 403 (Iowa 2016) (quoting Iowa Sup. Ct. Att’y Disciplinary
Bd. v. Haskovec, 869 N.W.2d 554, 560 (Iowa 2015)). We have found violations
when an attorney has acted with a purpose to deceive. Iowa Sup. Ct. Att’y
Disciplinary Bd. v. McCuskey, 814 N.W.2d 250, 255 (Iowa 2012); Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Dunahoo, 799 N.W.2d 524, 531 (Iowa 2011). But even
“[a]n attorney’s ‘casual, reckless disregard for the truth’ ” can be sufficient to
show a violation. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Heggen, 981 N.W.2d 701,
708 (Iowa 2022) (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Muhammad, 935
N.W.2d 24, 38 (Iowa 2019)).
Viewing the record as a whole and considering the admitted allegations in
the complaint, we conclude that Mitchell and Leitner used Foodprairie in an
attempt to deceive Mitchell’s creditors. Although Mitchell was dealing seed for
Pfister and receiving money for that work, Mitchell and Leitner tried to create a
false impression that only Leitner—and not Mitchell—was involved with Pfister.
This conduct violated rule 32:8.4(c).
1Footnote 1 to the complaint adds: “Pfister Seed[s] subsequently merged with NuTech
Seed, which is a subsidiary of Corteva, Inc.”
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b. Rule 32:1.2(d): involvement with client in fraud. We next consider the
Board’s allegation that Leitner’s involvement with Mitchell and Foodprairie
violated rule 32:1.2(d). Rule 32:1.2(d) states in pertinent part that “[a] lawyer
shall not . . . assist a client, in conduct that the lawyer knows is . . . fraudulent.”
Iowa R. of Prof’l Conduct 32:1.2(d). As explained, though, we have already found
that Leitner’s conduct with Mitchell violated rule 32:8.4(c), our general rule
against “conduct involving dishonesty, fraud, deceit, or misrepresentation.” Id.r. 32:8.4(c). So we need not determine whether the same conduct also violated
rule 32:1.2(d), which deals with similar concepts.
3. Conclusions as to count I. As to count I, we conclude Leitner violated
rule 32:8.4(c) by assisting Mitchell’s efforts to mislead his creditors.
B. Fries and Barney (Count II).
1. Background. We now turn to count II of the complaint. There, the Board
charges Leitner with violating three of our rules through his representation of
Brooks Barney in a dissolution case. Specifically, the Board claims Leitner
violated rule 32:3.3(a)(1), which prohibits false statements to tribunals; rule
32:8.4(c), which prohibits “conduct involving dishonesty, fraud, deceit, or
misrepresentation”; and rule 32:8.4(d), which prohibits “conduct . . . prejudicial
to the administration of justice.” Id. rs. 32:3.3(a)(1), 32:8.4(c)–(d). As support for
these charges, the Board alleges in its complaint the following facts, which we
deem to be admitted:
26. On April 14, 2020, Leitner filed an appearance on behalf
of Brooks Barney in Polk County District Court Case No.
DRCV060024—a dissolution-of-marriage . . . action filed by Barney’s
then-spouse, Deena Fries.
27. Leitner had previously represented Barney in a criminal
case in which Barney was charged with assaulting Fries (State v.
Barney, Polk County District Court Case No. FECR336891).
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28. The parties participated in a successful mediation
regarding the dissolution of marriage action and signed a mediated
agreement on July 21, 2020.
29. Based upon the mediation agreement, Fries’s counsel,
Elizabeth Kellner-Nelson, prepared a stipulation comprised of the
agreed-upon terms and emailed it, in a PDF format, to Leitner on
August 3, 2020.
30. Leitner returned what appeared to be the same PDF,
signed by himself and Barney, to Kellner-Nelson by email on or
about August 21, 2020.
31. Unbeknownst to Kellner-Nelson, Leitner had modified the
PDF document containing the stipulation, adding a significant
provision regarding custody of the parties’ minor child.
32. Paragraph 3 of the original PDF Kellner-Nelson sent to
Leitner states:
Visitation. Unless otherwise agreed, Brooks will
be entitled to time with B.S.B. every other weekend from
Saturday at 4:00 p.m. until Sunday at 7:00 p.m. and
every Tuesday from 6:00 p.m. until Wednesday at 7:00
a.m.
33. Leitner modified the PDF to state:
Visitation. Unless otherwise agreed, Brooks will
be entitled to time with B.S.B. every other weekend from
Saturday at 4:00 p.m. until Sunday at 7:00 p.m. and
every Tuesday from 6:00 p.m. until Wednesday at 7:00
a.m. Respondent sha [sic] first right of refusal to have
B.S.B. whenever Petitioner is otherwise unable to care for
him.
(Emphasis added).
34. At no point did Leitner notify Kellner-Nelson that he had
modified the PDF document to add the “right-of-first-refusal
provision.”
35. The right-of-first-refusal provision was also not part of the
parties’ mediation agreement. Moreover, neither the parties nor their
respective counsel had ever previously discussed a right-of-first-
refusal provision. Rather, Leitner unilaterally inserted the provision
without notifying or consulting with Kellner-Nelson.
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36. Because the stipulation had been sent and returned as a
PDF document, and because Leitner did not notify her of the
modification to paragraph 3, Kellner-Nelson reasonably believed the
PDF document Leitner returned to her was the same as the one she
had sent to him, changed only to add the signature of his client.
37. Kellner-Nelson had reviewed the stipulation with Fries
before sending it to Leitner. After Leitner returned the stipulation
that he surreptitiously modified, Fries signed it, reasonably believing
it to be the stipulation she had previously reviewed with her
attorney.
38. The stipulation was filed with the district court on
August 25, 2020.
39. In January of 2021, Barney—who at the time was subject
to both a criminal and a civil no-contact order in which Fries was
the protected party—notified Fries of his right of first refusal based
upon the modified stipulation.
40. On January 25, 2021, Kellner-Nelson filed a motion to
vacate the order approving the parties’ stipulation.
41. On March 29, 2021, Leitner filed an application to initiate
contempt proceedings based in part on the allegation that Fries had
failed to honor the right-of-first-refusal provision Leitner had
furtively added to the stipulation.
42. On June 29, 2021, a hearing was held on Fries’s motion
to vacate the stipulation agreement and Barney’s application to
initiate contempt proceedings.
43. Following the hearing, the district court entered an order
granting Fries’s motion to vacate the order approving the stipulation.
The court found Leitner and his client engaged in fraud when
modifying the stipulation to include the right-of-first-refusal
provision.
44. The court found that Leitner and his client intentionally
deceived Fries and Kellner-Nelson. The court found “an intent to
deceive based on the manner in which the provision was inserted
and returned without any suggestion that a revision had been
made.”
45. The court further noted that Fries was damaged by the
fraudulent insertion of the right-of-first-refusal provision. The court
explained:
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Fries is currently protected by a five-year criminal
No Contact Order after Barney plead[ed] guilty to
domestic abuse assault by impeding breathing without
injury. Barney’s interpretation of the right of first
refusal would require Fries to alert him anytime she
decided to leave the minor child in someone else’s care
(such as at home with her older children), even if it was
only for an hour to go to the gym or the grocery store.
Essentially Fries would have to disclose far greater
information about her daily life to someone against
whom she is protected by a No Contact Order.
The testimony in this case demonstrates the
problematic nature of Barney’s claims. Barney called
two different witnesses to report that Fries had been
seen at a bar on a weekend night and a Prairie Meadows
on New Year’s Eve. He messaged Fries while she was at
the grocery store to ask where the child was if he wasn’t
with her. Clearly, Barney is keeping tabs on Fries’[s]
whereabouts, despite the existence of a No Contact
Order.
(Footnote omitted).
46. The court also denied Barney’s application to initiate
contempt proceedings.
47. Leitner’s covert modification of the stipulation was not
Leitner’s only dishonest act while representing Barney.
48. On December 2, 2020, Kellner-Nelson filed an application
to initiate contempt proceedings based on Barney’s failure to pay
either child support or his required $200 monthly car payment to
Fries.
49. In response, [Leitner] filed a motion to dismiss the
contempt application in which he falsely stated that Barney had
“brought his child support current,” Barney had paid the $200
monthly car payment, and the contempt application was “frivolous.”
50. On January 14, 2021, the district court entered an order
holding Barney in contempt. The court found that Barney had
willfully failed to pay child support and the car payment.
51. On February 25, 2021, Kellner-Nelson filed a motion to
waive a mediation that had been ordered in response to her
application to vacate the parties’ stipulation. On March 3, 2021,
Leitner filed a resistance to the motion in which he falsely claimed
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that he had “tried, without success, to get opposing counsel to set
up the mediation or at least provide alternative dates.” Leitner had
made no effort to contact Kellner-Nelson about mediation.
52. A hearing was scheduled for July 8, 2021, to determine if
Barney had complied with the contempt order. Neither Leitner nor
Barney appeared for the hearing. The presiding judge contacted
Leitner by phone to inquire why he and his client had not appeared
for the hearing. Leitner stated that he believed the hearing was by
phone and that he had told his client he did not need to participate
in the hearing. The hearing was rescheduled for July 19, 2021.
53. At the July 19 hearing, Barney testified that Leitner had
not notified him of the July 8 compliance hearing, and he was not
told of any hearing until July 16.
(First alteration in original.)
2. Analysis.
a. Rule 32:3.3(a)(1): false statements to tribunals. We now consider whether
Leitner violated rule 32:3.3(a)(1) through his misrepresentations to the district
court in the Fries and Barney dissolution case. Rule 32:3.3(a)(1) states, “A lawyer
shall not knowingly . . . make a false statement of fact or law to a tribunal or fail
to correct a false statement of material fact or law previously made to the tribunal
by the lawyer . . . .” Iowa R. of Prof’l Conduct 32:3.3(a)(1). The requirement of a
“statement” can be met through oral or written statements. Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Rhinehart, 953 N.W.2d 156, 163 (Iowa 2021). The “knowingly”
requirement means actual knowledge. Id. at 163–64. Actual knowledge can be
inferred from circumstances. Id. But we don’t infer that “an attorney made a
misrepresentation knowingly simply because the misrepresentation occurred.”
Id. at 164 (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Barnhill, 847 N.W.2d
466, 486 (Iowa 2014)).
Applying these principles here, we conclude that Leitner violated rule
32:3.3(a)(1) on two occasions during the Fries and Barney dissolution case. First,
Leitner violated 32:3.3(a)(1) through a written filing in which Leitner falsely
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represented that he had tried to set up mediation. Leitner would have known
that this representation was false because it involved Leitner’s own behavior,
namely, his own failure to try to set up mediation. So we infer that this
misrepresentation was made knowingly and, therefore, in violation of rule
32:3.3(a)(1).
Second, and likewise, Leitner violated rule 32:3.3(a)(1) by falsely
representing to the court that Leitner had notified his client of a hearing. Again,
this misrepresentation was about a matter within Leitner’s personal knowledge.
This conduct violated rule 32:3.3(a)(1).
b. Rule 32:8.4(c): conduct involving dishonesty. We now consider whether
Leitner violated rule 32:8.4(c). As previously discussed, rule 32:8.4(c) prohibits
“conduct involving dishonesty, fraud, deceit, or misrepresentation.” Iowa R. of
Prof’l Conduct 32:8.4(c). From a strictly factual perspective, Leitner ran afoul of
rule 32:8.4(c) through the misconduct just discussed, that is, his false
representations to the court. But “[w]hen we find conduct violates a specific
provision” of our rules that “involv[es] dishonesty, fraud, deceit, or
misrepresentation, we will not find the same conduct violates rule 32:8.4(c).”
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Barnhill, 885 N.W.2d 408, 422 (Iowa 2016)
(quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 591, 605 (Iowa
2011)). That is the case here: we have already found that Leitner’s
misrepresentations to the court violated rule 32:3.3(a)(1). So we do not find that
these misrepresentations also violate rule 32:8.4(c).
This does not, however, end our discussion of rule 32:8.4(c). Count II also
describes additional dishonest conduct by Leitner, namely, Leitner’s fraudulent
insertion of the right-of-first-refusal provision in a dissolution decree. See Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Kallsen, 814 N.W.2d 233, 238 (Iowa 2012)
(finding “dishonesty” which separately “goes beyond [a] specific rule violation”
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can still violate rule 32:8.4(c)). We have no doubt that this behavior was designed
to mislead—and did mislead—both Fries and Fries’s counsel. This conduct
violated rule 32:8.4(c).
c. Rule 32:8.4(d): conduct prejudicial to the administration of justice. We now
consider whether Leitner violated rule 32:8.4(d), which states, “It is professional
misconduct for a lawyer to . . . engage in conduct that is prejudicial to the
administration of justice . . . .” Iowa R. of Prof’l Conduct 32:8.4(d). “An attorney’s
conduct is prejudicial to the administration of justice when it violates the ‘well-
understood norms and conventions of the practice of law’ ” and thus “hampers
‘the efficient and proper operation of the courts or of ancillary systems upon
which the courts rely.’ ” Aeilts, 974 N.W.2d at 128 (quoting Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 180 (Iowa 2013)). “We have
consistently held an attorney violates rule 32:8.4(d) when the ‘misconduct
results in additional court proceedings or causes court proceedings to be delayed
or dismissed.’ ” Johnson, 988 N.W.2d at 413 (quoting Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Noel, 933 N.W.2d 190, 204 (Iowa 2019)).
Here we conclude that Leitner’s behavior violated rule 32:8.4(d) in two
ways. First, Leitner’s fraudulent insertion of the right-of-first-refusal provision
was a radical violation of the “well-understood norms and conventions of the
practice of law.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Mbanza, 996 N.W.2d 711,
721 (Iowa 2023) (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Palmer, 825
N.W.2d 322, 325 (Iowa 2013)). This fraudulent conduct required additional court
proceedings to vacate the tainted stipulation. This conduct violated rule
32:8.4(d).
Second, Leitner doubled down on his initial fraud by bringing a contempt
action to enforce the fraudulently added right-of-first-refusal provision. Through
this contempt action, Leitner again disregarded the “well-understood norms and
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conventions of the practice of law.” Id. at 721 (quoting Palmer, 825 N.W.2d at
325). And, again, Leitner’s actions required additional court proceedings to
dispose of the contempt action. This conduct violated rule 32:8.4(d).
3. Conclusions as to count II. As to count II, we find Leitner violated rule
32:3.3(a)(1) twice by lying to the court about two different topics. We also find
Leitner violated rule 32:8.4(c) through his fraudulent insertion of the right-of-
first-refusal provision. And we find that Leitner violated rule 32:8.4(d) twice by
fraudulently inserting the right-of-first-refusal provision and then filing a
contempt action to enforce the fraudulent provision.
C. Jamison and Lu-Jen (Count III).
1. Background. We now turn to count III of the complaint, in which the
Board charges Leitner with violating three of our conflict-of-interest rules
through his representation of clients with adverse interests. Specifically, count
III charges violations of rules 32:1.7(a)(2), 32:1.9(a), and 32:1.9(c). As support for
these charges, the Board alleges in its complaint the following facts, which we
deem to be admitted:
55. On April 16, 2020, Leitner filed an answer on behalf of Lu-
Jen Farms, Inc. and Cliff Bowie (“Lu-Jen”) in Cedar County District
Court Case No. LACV036444.
56. The suit was initiated by the James D. Jamison
Irrevocable Trust (“Jamison”) against Lu-Jen and alleged breach of
contract, among other claims. The petition alleged the parties
entered into a contract in which Lu-Jen agreed to purchase all of its
corn and soybean crop from Jamison, but Lu-Jen had failed to make
payment to Jamison as required by the contract.
57. Leitner previously represented Jamison; Leitner drafted
the contract in question on behalf of Jamison.
58. Although he himself drafted the contract, in the answer
he filed on behalf of Lu-Jen, [Leitner] stated, “the alleged contract is
unconscionable and void as against public policy.”
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59. [Leitner] also stated in the answer that Jamison, his
former client, “is not and was not at the time claimed a licensed
dealer of agricultural seed.”
60. On April 23, 2020, Jamison’s counsel, Daniel Rockhold,
sent Leitner a letter asking Leitner to withdraw from representing
Lu-Jen because of the conflict of interest. Rockhold also notified
Leitner that he would likely be a witness in the case, as Leitner had
firsthand knowledge regarding the formation and execution of the
contract.
61. Leitner replied to Rockhold by letter dated April 30, 2020.
In the letter, Leitner acknowledged the conflict of interest, stating,
“[U]pon further reflection, I do agree that I may have a conflict of
interest.” Leitner indicated that he would be withdrawing because of
the conflict of interest.
62. Leitner did not withdraw his representation of Lu-Jen.
63. On July 15, 2020, Rockhold filed a motion to disqualify
Leitner, as Leitner had not voluntarily withdrawn. On August 3,
2020, the district court entered an order disqualifying Leitner.
64. Following Leitner’s disqualification, Jamison filed an
amended petition on September 28, 2020. On October 20, 2020,
Jamison served Lu-Jen with notice of intent to file an application for
default judgment, as Lu-Jen had not filed an answer to the amended
petition.
65. On October 29, 2020, Leitner filed an answer to the
amended petition on behalf of Lu-Jen. The answer was signed by
Cliff Bowie, a representative of and co-defendant with Lu-Jen.
However, the answer was filed by Leitner through his electronic
document management system account.
(Alteration in original) (footnote omitted.) 2
2. Analysis.
a. Rule 32:1.9(a): conflict with former client. We now consider the Board’s
allegation that Leitner violated rule 32:1.9(a) through his representation of Lu-
Jen and Jamison. Rule 32:1.9(a) states, “A lawyer who has formerly represented
2Footnote 2 to the complaint adds: “Leitner drafted the contract for Jamison and Sons, a
predecessor entity to the Jamison Irrevocable Trust.”
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a client in a matter shall not thereafter represent another person in the same or
a substantially related matter in which that person’s interests are materially
adverse to the interests of the former client unless the former client gives
informed consent, confirmed in writing.” Iowa R. of Prof’l Conduct 32:1.9(a). So
where (as here) there is no client consent, this rule is violated when three
conditions are met: (1) there are consecutive representations of two or more
different clients, (2) the representations involve “the same or a substantially
related matter,” and (3) the new client’s interests are “materially adverse” to those
of the former client. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Marks, 814 N.W.2d
532, 539 (Iowa 2012) (quoting Iowa R. of Prof’l Conduct 32:1.9(a)).
We believe all three conditions are met through Leitner’s involvement with
Jamison and Lu-Jen. First, the consecutive-representation condition is met
because Leitner represented Jamison and then represented Lu-Jen. Second,
these consecutive representations both involved “the same or a substantially
related matter” because (1) Leitner’s representation of Jamison involved drafting
a contract between Jamison and Lu-Jen, and (2) Leitner’s representation of Lu-
Jen involved litigation against Jamison over the very contract that Leitner had
drafted for Jamison. Iowa R. of Prof’l Conduct 32:1.9(a). Third, and finally, Lu-
Jen’s interests were “materially adverse” to Jamison’s interests because Jamison
was suing Lu-Jen. Id. And so Leitner’s representation of Lu-Jen violated rule
32:1.9(a).
This conclusion draws added support from the comments to rule 32:1.9.
Comment [1] states, in part, “Under this rule, for example, a lawyer could not
properly seek to rescind on behalf of a new client a contract drafted on behalf of
the former client.” Id. r. 32:1.9 cmt. [1]. This is exactly what Leitner did. First,
Leitner drafted the contract for Jamison. And then, when Leitner represented
Lu-Jen, Leitner filed a pleading in which Leitner claimed that the very contract
17
Leitner had drafted was both “unconscionable” and “void as against public
policy.” This conduct violated rule 32:1.9(a).
b. Rule 32:1.7(a): concurrent conflict. Next we consider the Board’s
allegation that Leitner violated rule 32:1.7(a)(2) through his representation of a
new client, Lu-Jen, against a former client, Jamison. Rule 32:1.7(a)(2) prohibits
lawyers from “represent[ing] a client if the representation involves a concurrent
conflict of interest.” Id. r. 32:1.7(a). For purposes of 32:1.7(a)(2), “[a] concurrent
conflict of interest exists if: . . . there is a significant risk that the representation
of one or more clients will be materially limited by the lawyer’s responsibilities to
another client, a former client, or a third person or by a personal interest of the
lawyer.” Id. r. 32:1.7(a)(2). An attorney’s representation is materially limited
when the attorney’s “ ‘ability to consider, recommend, or carry out an
appropriate course of action’ is restricted due to the attorney’s ‘other
responsibilities or interests.’ ” State v. Mulatillo, 907 N.W.2d 511, 519 (Iowa
2018) (quoting Iowa R. of Prof’l Conduct 32:1.7 cmt. [8]).
We conclude that Leitner violated rule 32:1.7(a)(2) by representing Lu-Jen.
As just explained, because Leitner drafted the contract on behalf of Jamison,
Leitner was ethically prohibited from trying to rescind the same contract on
behalf of Lu-Jen. In other words, Leitner’s preexisting duties to Jamison
prohibited Leitner from pursuing an appropriate defense strategy on behalf of
Lu-Jen. In the words of rule 32:1.7(a)(2), Leitner’s duties to his “former client,”
Jamison, “materially limited” Leitner’s representation of Lu-Jen. Iowa R. of Prof’l
Conduct 32:1.7(a)(2). This conduct violated rule 32:1.7(a)(2).
c. Rule 32:1.9(c): using information related to former representation. Next
we consider whether Leitner violated rule 32:1.9(c) by improperly using
information about his former client Jamison during Leitner’s representation of
Lu-Jen. Rule 32:1.9(c) places limits on when attorneys can “use” or “reveal”
18
information “relating to the representation” of former clients. Id. r. 32:1.9(c). Rule
32:1.9(c)(1) generally prohibits attorneys from using that “information . . . to the
disadvantage of the former client.” Id. r. 32:1.9(c)(1). But there are exceptions.
See id. The prohibition does not apply “when the information has become
generally known” or when the rules otherwise “would permit or require [use of
the information] with respect to a client.” Id.Applying rule 32:1.9(c) here, we do not conclude that the Board has shown
a violation. The complaint does not specify what representation-related
information Leitner used to Jamison’s disadvantage. Nor does the complaint
explain whether that (unspecified) information was fair game because it was
“generally known” or because other rules “permit[ted] or require[d]” Leitner to
use it. Id. Nor do we find these details elsewhere in the record. So we are unable
to conclude that the Board established a violation of rule 32:1.9(c) “by a
convincing preponderance of the evidence.” Johnson, 988 N.W.2d at 406 (quoting
Aeilts, 974 N.W.2d at 125).
3. Conclusions as to count III. As to count III, we conclude Leitner violated
rules 32:1.7(a) and 32:1.9(a).
D. Elizabeth and Timothy John (Count IV).
1. Background. We now turn to count IV of the complaint, in which the
Board charges Leitner with violating three rules in connection with his
representation of Elizabeth John and her son, Timothy. Specifically, count IV
charges Leitner with violating rule 32:1.7(a), which prohibits certain conflicts of
interest; rule 32:3.1, which prohibits certain frivolous filings; and rule 32:8.4(d),
which prohibits conduct “prejudicial to the administration of justice.” Iowa Rs.
of Prof’l Conduct 32:1.7, 32:3.1, 32:8.4. As support for these charges, the Board
alleges in its complaint the following facts, which we deem admitted:
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67. On April 2, 2019, Leitner filed an appearance on behalf of
Elizabeth John (“Elizabeth”) in Polk County District Court Case Nos.
TRPR074630 and TRPR074636. The cases were initiated by
Elizabeth’s daughter, Kimberly Milliken, and related to two trusts
for which Elizabeth was the designated trustee.
68. The petitions filed by Milliken alleged Elizabeth had been
deemed by a medical professional incapable of making financial
decisions and sought to have Elizabeth replaced as trustee.
69. After the cases were initiated, Elizabeth met with her
longtime attorney, Richard Howes, and informed him she wanted
him to represent her in the trust cases. Howes contacted Leitner and
informed him that he would be taking over representation of
Elizabeth. On July 11, 2019, Howes filed an appearance in the trust
cases on behalf of Elizabeth.
70. On July 12, 2019, Leitner filed a withdrawal of his
appearance on behalf of Elizabeth.
71. On August 1, 2019, Milliken and Elizabeth filed a joint
stipulation. In the stipulation, Milliken and Elizabeth agreed that an
amendment to the two trusts at issue should be revoked. The
amendment had been prepared by Leitner on or around March 28,
2019. The stipulation was signed by Elizabeth, Howes, and
Milliken’s counsel.
72. The March 28 amendment made several changes to the
trusts, including eliminating or significantly reducing Milliken’s
interests in two properties, and granted those properties to
Elizabeth’s son, Timothy John (“Timothy”).
73. Although he had withdrawn from the trust cases, Leitner
filed an objection on behalf of Timothy to the stipulation on August
2, 2019.
74. In the objection, Leitner stated:
The undersigned [Leitner] can attest to the fact
that that amendment was executed by Betsey John at a
time when she was fully competent and had total
testamentary capacity as defined in Iowa law. She
insisted that that amendment be drafted, and it was.
She signed of her own free will fully understanding its
terms and its import.
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75. On August 8, 2019, the court entered an order approving
Milliken and Elizabeth’s stipulation and revoking the March 28
amendment to the trusts.
76. On October 15, 2019, Milliken filed a petition to appoint a
guardian and conservator in which Elizabeth was the proposed
protected person. The petition was based on the same grounds as
the trust cases and alleged that Elizabeth’s decision-making
capacity was significantly impaired.
77. On October 16, the court entered an order appointing
Richard Howes as counsel for Elizabeth. The order also appointed
Kim Walker of Transitional Life Consulting, LLC as Guardian ad
Litem for Elizabeth and Milliken as temporary guardian.
78. Following the court’s October 16 order, Timothy brought
Elizabeth to meet with Leitner at Leitner’s office to discuss the
pending cases. Leitner did not notify Howes, Walker, or Milliken of
the meeting.
79. Howes later learned of the meeting and thus contacted
Leitner to inform him that he did not have permission to
communicate with Howes’s client Elizabeth.
80. On October 23, 2019, Howes sent the following email to
Leitner:
David,
You may know that Kim has been appointed as
Bets[e]y’s temporary guardian. If not, I am, as a
courtesy, attaching a copy of the order and affidavit of
mailing.
As Bets[e]y is my client at this time as stated in
the court order[,] you do not have permission to
communicate with her either alone or with anyone else.
Please respect that request.
Richard.
81. On October 24, 2019, Howes sent the following email to
Leitner:
21
David,
I understand Tim may be planning to bring
Bets[e]y to meet with you. I am requesting again you do
not meet with her or otherwise communicate with her
as she is my client[,] per court order[,] and is under a
guardianship and conservatorship and does not have
the ability to make decisions for herself at this time.
Please take notice and govern yourself
accordingly.
Richard[.]
82. Despite Howes’s emails, Leitner met with Elizabeth at his
office. Thereafter, Howes received a typewritten letter dated October
24, 2019, purportedly signed by Elizabeth, stating that she wished
to terminate Howes as her attorney and retain Leitner.
83. On October 29, 2019, Howes sent the following email to
Leitner:
David,
I am following up [on] my previous emails to you
regarding your contact with my client, Elizabeth John.
Subsequent to my last email to you, I received in the
mail a typewritten note purportedly signed by my client
advising me that she is discharging me and engaging
your services. To the extent you had contact with her
and had any part in this communication[,] you have
violated my admonition to not contact her and have
crossed an ethical line.
Elizabeth is under a court[-]ordered guardianship
and conservatorship and at this time does not have the
ability to engage or discharge attorneys on her own.
That matter would have to be done under the auspices
of the court.
Again[,] I am admonishing you not to have contact
with my client, Elizabeth John. As her court[-]appointed
attorney[,] I am obligated to so advise you and warn you
that further contact will not only again cross an ethical
line but potentially violate a court order.
Richard[.]
22
84. On October 29, 2019, Milliken, through counsel, filed a
motion to disqualify Leitner from the guardianship case. The motion
also sought an order preventing Timothy from having further contact
with Elizabeth.
85. The motion alleged Timothy, aided by Leitner, unduly
influenced Elizabeth and interfered with her well[-]being and assets.
The motion further alleged that Leitner’s attempts to represent
Elizabeth created a conflict of interest due to his previous joint
representation of Timothy and Elizabeth. The motion also noted that
Leitner had met with Elizabeth while she was represented by Howes.
86. On November 20, 2019, the district court entered an order
prohibiting Leitner from having any further contact with Elizabeth
without express permission from Howes.
87. On March 6, 2020, Leitner filed a new petition in the Polk
County District Court on behalf of Elizabeth and Timothy. The
petition purported to be signed by Elizabeth.
88. The petition named Milliken and Howes as defendants,
among others. Leitner did not have permission from the court or
Howes to communicate with Elizabeth about the petition or to file
the petition on her behalf.
89. The petition was not well-grounded in law or fact. Leitner
alleged the defendants had violated Elizabeth and Timothy’s
constitutional rights and sought damages pursuant to 42 U.S.C[.]
§§ 1983 and 1985. The petition also sought to have the guardianship
and conservatorship invalidated.
90. The defendants moved to dismiss Leitner’s petition; on
April 16, 2020, the district court dismissed the petition. The court
also sanctioned Leitner for filing the petition. In the order
sanctioning Leitner, the court noted that Leitner had been
prohibited from having any contact with Elizabeth but nevertheless
filed the petition on her behalf. The court further found that Leitner’s
petition amounted to a collateral attack on the probate and
guardianship cases.
(First and ninth alterations in original.)
2. Analysis. We now consider whether these facts establish the violations
alleged by the Board in count IV. As a preliminary matter, we note that during
the proceedings before the commission, the Board withdrew its allegation that
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Leitner’s conduct violated rule 32:1.7(a), which prohibits certain conflicts of
interest. So we do not consider that issue further. We also note that the
commission did not find a violation of rule 32:3.1, which prohibits certain
frivolous filings, and the Board has not asked us to consider that issue further.
So we turn instead to the Board’s allegation that Leitner violated rule 32:8.4(d).
As explained, rule 32:8.4(d) prohibits “conduct that is prejudicial to the
administration of justice.” Iowa R. of Prof’l Conduct 32:8.4(d). This rule is
“violate[d] . . . when the ‘misconduct results in additional court proceedings or
causes court proceedings to be delayed or dismissed.’ ” Johnson, 988 N.W.2d at
413 (quoting Noel, 933 N.W.2d at 204).
We conclude that Leitner violated rule 32:8.4(d) in at least two ways. First,
Leitner’s repeated contact with a represented party led to a motion to prohibit
further contact and, ultimately, an order granting that motion. Then Leitner
violated that order by contacting the represented party and filing a petition on
her behalf. This required additional court action to dismiss the petition and
sanction Leitner for his violation of the prior order. This conduct violated rule
32:8.4(d).
3. Conclusions as to count IV. As to count IV, we find that Leitner violated
rule 32:8.4(d) twice.
E. CSA Audit (Count V).
1. Background. In count V of the complaint, the Board charges Leitner with
violating several rules governing lawyers’ handling of client funds. The Board
also charges Leitner with violating rule 32:8.4(c), the general rule that prohibits
“conduct involving dishonesty, fraud, deceit, or misrepresentation.” Iowa R. of
Prof’l Conduct 32:8.4(c). As support for these charges, the Board alleges in its
complaint the following facts, which we deem admitted:
24
92. In July of 2020, the Iowa Supreme Court Client Security
Commission (“CSC”) initiated an audit of Leitner’s client trust
account (“CTA”). The audit revealed Leitner failed to comply with
chapter 45 of the Iowa Rules of Court when handling money
entrusted to him by clients.
93. The audit revealed Leitner had negative sub-account
balances in his CTA totaling $5,153.16.
94. Leitner did not perform timely monthly triple
reconciliations.
95. In his 2020 Combined Statements and Questionnaire
[(CSQ)], Leitner answered “yes” to the following question: “Are
reconciliations of your trust account balances with bank statement
balances and individual client ledger balances performed monthly?”
96. Leitner knowingly provided a false answer to that
question.
97. The audit further revealed that Leitner received $1000.00
from a client on May 22, 2020, as an advanced payment of fees but
failed to deposit those funds in his CTA.
98. The audit also showed that Leitner failed to provide clients
contemporaneous written notice of withdrawals from his client trust
account, nor did he provide clients an accounting of the funds he
held from them in his trust account.
99. The audit also revealed client trust ledger activity that was
not reflected in the CTA records, meaning there were expenses paid
with respect to a client from the operating account instead of from
the CTA.
2. Analysis and conclusion. We conclude Leitner violated rule 32:8.4(c),
which prohibits “conduct involving dishonesty, fraud, deceit, or
misrepresentation,” by knowingly providing a false answer on his 2020 CSQ.
Iowa R. of Prof’l Conduct 32:8.4(c). Leitner also violated all of these trust fund
rules: rule 32.1.15(a) (requiring attorneys to keep others’ property separate from
their own property), rule 32:1.15(c) (requiring attorneys to deposit advance fees
into a CTA), rule 45.1 (mandating “identifiable interest-bearing trust accounts”
25
for third-party funds), rule 45.2(3)(a)(9) (establishing requirements for proper
record keeping for CTAs), rule 45.7(3) (forbidding attorneys from withdrawing
advance payments from a CTA before they are earned), and rule 45.7(4)
(requiring attorneys to notify clients about withdrawals and balances). Iowa Rs.
of Prof’l Conduct 32:1.15(a), 32:1.15(c); Iowa Ct. Rs. 45.1, 45.2(3)(a)(9), 45.7(3),
45.7(4).
III. Sanctions.
Because we have found that Leitner violated several of our rules, we now
address the question of sanctions. Our harshest sanction—revocation—has been
recommended by the commission. “We give the commission’s recommendation
respectful consideration, but may impose a greater or lesser sanction.” Iowa Sup.
Ct. Att’y Disciplinary Bd. v. Ranniger, 981 N.W.2d 9, 18 (Iowa 2022) (quoting Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Morse, 887 N.W.2d 131, 143 (Iowa 2016)).
Sanctions should reflect our goals of protecting “society from those unfit to
practice law, . . . uphold[ing] public confidence in the justice system,” deterring
future misconduct, and “maintain[ing] . . . the reputation of the bar as a whole.”
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502 (Iowa 2008)
(per curiam). When deciding what sanction is appropriate in a particular case,
we put special emphasis on “the nature, number, and seriousness of the
[attorney’s] violations.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Barry, 908 N.W.2d
217, 233 (Iowa 2018) (quoting Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v.
Hansel, 558 N.W.2d 186, 192 (Iowa 1997)). We also consider our history of
sanctioning similar misconduct, any special mitigating factors that apply to the
particular case, and any special aggravating factors. See, e.g., Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Noyes, 936 N.W.2d 440, 448–50 (Iowa 2019).
26
A. Leitner’s Violations. We start by reviewing Leitner’s misconduct. As
explained, Leitner has committed numerous violations, some of which are
extremely serious. In brief summary:
• Leitner violated rule 32:8.4(c) by assisting a client’s effort to mislead the
client’s creditors.
• Leitner violated rule 32:3.3(a)(1) by lying to the district court about two
different topics.
• Leitner violated rules 32:8.4(c) and 32:8.4(d) by fraudulently inserting a
right-of-first-refusal provision in a dissolution decree.
• Leitner violated rule 32:8.4(d) by filing a contempt action to enforce the
fraudulently inserted right-of-first-refusal provision.
• Leitner violated rule 32:8.4(d) by repeatedly contacting a represented
party.
• Leitner violated rule 32:8.4(d) by violating a court order that required
Leitner to refrain from contacting a represented party.
• Leitner violated rules 32:1.7(a) and 32:1.9(a) by drafting a contract for a
client and then switching sides to litigate against his prior client in a suit
about the very contract that Leitner drafted.
• Leitner violated rule 32:8.4(c) by knowingly providing a false answer on his
2020 CSQ.
• Leitner also violated several other trust fund rules.
B. Historical Sanctions. Now we consider the kinds of sanctions we have
given to attorneys whose misconduct is comparable to Leitner’s. Attorneys who
engage in dishonesty in violation of rule 32:8.4(c) have received “sanctions
ranging from reprimand to license revocation.” Aeilts, 974 N.W.2d at 129
(quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 338
(Iowa 2015)). Attorneys who actively disregard their obligation of candor toward
27
the tribunal have received “substantial sanctions ranging from permanent
disbarment to six-month license suspensions.” Iowa Sup. Ct. Att’y Disciplinary
Bd. v. Kieffer-Garrison, 951 N.W.2d 29, 38 (Iowa 2020) (quoting Kallsen, 814
N.W.2d at 239). Attorneys who engage in conduct prejudicial to the
administration of justice have received suspensions ranging from sixty days to
eighteen months when, as here, the conduct is “compounded by additional
violations.” Aeilts, 974 N.W.2d at 129 (quoting Iowa Sup. Ct. Att’y Disciplinary
Bd. v. Turner, 918 N.W.2d 130, 153 (Iowa 2018)). Attorneys who violate our
conflict-of-interest rules have received sanctions ranging from a public
reprimand to revocation. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Willey, 889
N.W.2d 647, 657 (Iowa 2017); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Powell, 901
N.W.2d 513, 516 (Iowa 2017). “Sanctions for trust account and accounting
violations span from ‘a public reprimand when the attorney, in an isolated
instance, failed to deposit funds into his trust account because he believed the
fees to be earned’ to ‘suspensions of several months where the violations were
compounded by severe neglect, misrepresentation, or failure to cooperate.’ ” Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Cross, 861 N.W.2d 211, 225 (Iowa 2015) (quoting
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431, 442 (Iowa 2012)).
C. Potential Mitigating Factors. We next consider whether the record
shows any mitigating factors. Specifically, we consider whether mitigation
should be found because of (1) Leitner’s pro bono work, (2) Leitner’s service to
an underserved community, (3) Leitner’s poor health, or (4) Leitner’s limited
disciplinary history.
1. Pro bono work. Mitigation has been found when an attorney performs
pro bono and reduced-fee work. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Johnson,
884 N.W.2d 772, 781 (Iowa 2016). We find that Leitner has performed some of
this work. This is mitigating.
28
2. Underserved community. Mitigation has also been found when an
attorney “provides legal services to an underserved community.” Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Said, 869 N.W.2d 185, 194 (Iowa 2015). Leitner has
accepted appointments for indigent criminal defendants, an underserved
community. This is mitigating.
3. Poor health. Mitigation is sometimes found when an attorney struggles
with physical and mental health issues. Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Cannon, 821 N.W.2d 873, 881 (Iowa 2012). Like the commission, though, we see
no causal relationship between Leitner’s poor health and his failure to comply
with the rules. So we do not consider his health issues to be mitigating.
4. Disciplinary history. Mitigation is often found when an attorney has no
prior disciplinary history. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Bieber, 824
N.W.2d 514, 527–28 (Iowa 2012). Leitner’s lack of prior discipline is mitigating.
D. Potential Aggravating Factors. We next consider whether the record
shows aggravating factors. Specifically, we consider whether Leitner’s
misconduct is aggravated by (1) his substantial experience, (2) his failure to take
responsibility, or (3) his behavior in the grievance process.
1. Substantial experience. Aggravation is often found when an offending
lawyer has substantial experience. Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Jacobsma, 920 N.W.2d 813, 819 (Iowa 2018) (“Jacobsma’s twenty years of
experience are substantial[,] and we view them as an aggravating factor.”).
Leitner has been in practice since 1979. His extensive experience is an
aggravating factor.
Leitner claims his experience should be viewed as mitigating because his
career has been distinguished. We find no basis in the record to characterize
Leitner’s career in this way. For instance, this is not a case in which the record
contains supportive letters from judges or lawyers.
29
2. Failure to take responsibility. Aggravation is also found when attorneys
“minimiz[e] or fail[] to take responsibility for [their] misconduct.” Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Stowers, 823 N.W.2d 1, 17 (Iowa 2012). This applies to
Leitner. At the disciplinary hearing, “Leitner categorically denied the charges that
were alleged against him.” In his appellate brief, Leitner repeated this denial.
Although Leitner has acknowledged the trust account issues discovered in the
audit, he has steadfastly denied his most serious violations. He takes no
responsibility for his worst behavior. This is aggravating.
3. Failure to cooperate in the process. Aggravation is also found when
attorneys fail to cooperate with the disciplinary process. Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 381 (Iowa 2007) (finding failure
to cooperate “is an independent act of misconduct”). But Leitner claims his
cooperation has been so exemplary that we should view it as mitigating. We take
the opposite view. Leitner failed to cooperate in two significant ways. First,
although rule 36.7 required Leitner to answer the Board’s complaint, Leitner
never did. Iowa Ct. R. 36.7. This is aggravating. See Rickabaugh, 728 N.W.2d at380–81 (finding failure to answer board’s complaint violated rules DR 1–102(A)(5)
and DR 1–102(A)(6), predecessors to the current rules).
Second, Leitner tried to mislead the commission about an alleged
settlement with the Board. During the hearing before the commission, Leitner
submitted emails and testimony suggesting that he had reached an agreement
with the Board for a particular term of suspension. But then the Board presented
an email from Leitner. That email showed that, in fact, Leitner had not accepted
the offer. Instead, the email showed, Leitner had rejected the offer and made a
counteroffer. Even so, Leitner testified that he actually accepted the Board’s
offer. The commission did not find that testimony credible. On our de novo
30
review, we agree. We conclude Leitner tried to mislead the commission. This is
seriously aggravating.
E. The Proper Sanction Here. We now consider the proper sanction for
Leitner. We have said that “[w]hat should dictate the sanction . . . is the nature,
number, and seriousness of the [attorney’s] violations.” Barry, 908 N.W.2d at
233 (first alteration in original) (quoting Hansel, 558 N.W.2d at 192). When
considering Leitner’s violations, we bear in mind that “[f]undamental honesty is
the [baseline] and mandatory requirement to serve in the legal profession.”
Johnson, 988 N.W.2d at 418 (quoting Barry, 908 N.W.2d at 233). And Leitner
has repeatedly breached his duty of honesty by assisting his client’s efforts to
mislead creditors, making false statements to the court, defrauding opposing
counsel in a dissolution matter, knowingly providing a false answer on his CSQ,
and trying to mislead the commission. This “pattern of deceit” raises an inference
that Leitner is “unfit to practice law.” Rickabaugh, 728 N.W.2d at 382. This
inference is made much stronger by Leitner’s failure to acknowledge—much less
repent from—his pattern of deceit.
At the same time, we acknowledge that there are some mitigating factors
here. The most important mitigating factor is Leitner’s lack of prior disciplinary
history. Even so, given “the nature, number, and seriousness of” Leitner’s
violations, we think a two-year suspension is appropriate. Barry, 908 N.W.2d at
233 (quoting Hansel, 558 N.W.2d at 192). “This will serve to deter similar
conduct and preserve the integrity of the profession in the eyes of the public.”
Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Honken, 688 N.W.2d 812, 820–22
(Iowa 2004) (imposing a two-year suspension against an attorney who engaged
in serious ethical breaches—including multiple acts of misrepresentation—
across multiple matters but who did not have a prior disciplinary history).
31
We have considered the Board’s argument that Leitner’s involvement with
Mitchell and Foodprairie justifies revocation. As support, the Board relies on
Iowa Supreme Court Attorney Disciplinary Board v. Engelmann, 840 N.W.2d 156(Iowa 2013), and Iowa Supreme Court Attorney Disciplinary Board v. Nelsen, 807
N.W.2d 259 (Iowa 2011). In those cases, we found that revocation was justified
by an attorney’s involvement with a client’s fraudulent scheme. Engelmann, 840
N.W.2d at 166–67; Nelsen, 807 N.W.2d at 267–68. But we believe both cases are
distinguishable. In Engelmann, the record showed that an attorney assisted in
fraudulent transactions that resulted in “losses of $392,937.73” for certain
lenders. Engelmann, 840 N.W.2d at 157–58. In Nelsen, the record showed that
an attorney had assisted clients to convert “at least $141,335.34 . . . from . . .
[a] court-appointed receiver” who was legally entitled to the funds. Nelsen, 807
N.W.2d at 261. But the record here does not show any comparable harm. For
starters, the record does not show that the federal government or any other
creditor had any lien or other possessory interest in Mitchell’s receivables. So,
as the Board concedes, neither Leitner nor Mitchell converted any funds from
anyone. Moreover, the record does not show that the federal government or any
other creditor was actually trying to collect Mitchell’s receivables. And so the
record does not show that the federal government or any other creditor was
actually deceived or otherwise hampered in its efforts to collect. At most, the
record shows that Mitchell and Leitner hoped to deceive any creditors who might
try to collect from Mitchell. This theoretical effect is substantially different from
the actual harm documented in Nelsen and Engelmann.
IV. Conclusion.
We hereby suspend Leitner’s license to practice law in Iowa indefinitely,
with no possibility of reinstatement for two years. This suspension will
commence ten days from the date of this opinion. Iowa Ct. R. 34.23(1). This
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suspension applies to all facets of the practice of law. Id. r. 34.23(3). We further
direct Leitner to comply with the requirements set forth in Iowa Court Rule 34.24
and assess the costs of the instant disciplinary action to him, Iowa Ct. R.
36.24(1).
LICENSE SUSPENDED.