Iowa Supreme Court Attorney Disciplinary Board v. Brian Loren Stowe , 2013 Iowa Sup. LEXIS 54 ( 2013 )

IN THE SUPREME COURT OF IOWA
No. 13–0103
Filed May 10, 2013
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
BRIAN LOREN STOWE,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission reports respondent committed ethical
infractions and recommends his license be revoked. LICENSE
REVOKED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
Brian Loren Stowe, Waverly, pro se.
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WIGGINS, Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against the respondent, Brian L. Stowe, alleging violations of
the Iowa Rules of Professional Conduct and Iowa Court Rules. A division
of the Grievance Commission of the Supreme Court of Iowa found
Stowe’s conduct violated numerous provisions of the rules and
recommended we revoke his license to practice law. We are required to
review the commission’s report. See Iowa Ct. R. 35.11. On our de novo
review, we find the Board established by a convincing preponderance of
the evidence that Stowe committed violations of our rules when he
converted a client’s funds. Accordingly, we adopt the commission’s
recommendation and revoke Stowe’s license.
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 601
(Iowa 2012). These proceedings are special, civil in nature, not criminal,
and are akin to an investigation by the court into the conduct of its
officers. Comm. on Prof’l Ethics & Conduct v. Wright, 178 N.W.2d 749,
750 (Iowa 1970).
The Board must prove the disciplinary violations by a convincing
preponderance of the evidence. McCarthy, 814 N.W.2d at 601. “A
convincing preponderance of the evidence is more than a preponderance
of the evidence, but less than proof beyond a reasonable doubt.” Id.
Accordingly, the burden on the Board is higher than the burden in civil
cases, but less than in criminal cases. Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995).
We deem factual matters admitted by an attorney in an answer as
established, regardless of the evidence in the record. See Iowa Supreme
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Ct. Comm’n on Unauthorized Practice of Law v. Sturgeon, 635 N.W.2d 679,
686 n.1 (Iowa 2001) (rejecting the attorney’s argument that the record
did not support license revocation because the attorney admitted the
misconduct in his answer); Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Torgerson, 585 N.W.2d 213, 213–14 (Iowa 1998) (finding rule
violations when the attorney admitted collection of a clearly excessive
fee). But see Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790
N.W.2d 801, 804 (Iowa 2010) (“[W]e will not be bound by a stipulation of
a violation or of a sanction in reaching our final decision in a disciplinary
case.”).
We give respectful consideration to the commission’s
recommendations, but they are not binding upon us. McCarthy, 814
N.W.2d at 601. We may impose a greater or lesser sanction than the
commission recommends upon proof of misconduct. Id.; see also Iowa
Ct. R. 35.11. Our determination of the appropriate sanction “is guided
by the nature of the alleged violations, the need for deterrence, protection
of the public, maintenance of the reputation of the bar as a whole, and
[the attorney’s] fitness to continue in the practice of law.” Comm. on
Prof’l Ethics & Conduct v. Kaufman, 515 N.W.2d 28, 30 (Iowa 1994). The
primary purpose of lawyer disciplinary proceedings is to protect the
public, not punish the lawyer. Comm. on Prof’l Ethics & Conduct v.
Tullar, 466 N.W.2d 912, 913 (Iowa 1991).
II. Prior Disciplinary Proceedings and the Board’s Present
Complaint.
This is not the first time the court has evaluated Stowe’s fitness to
practice law. On April 25, 2011, we granted the Board’s request for a
disability suspension of Stowe’s license and the appointment of a trustee,
due to his mental impairment and drug addiction. We temporarily
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suspended his license once again on February 15, 2012, because Stowe
failed to timely respond to an inquiry by the Board.
The current disciplinary action commenced on April 17, 2012,
when the Board brought a complaint against Stowe, alleging five counts
of misconduct. The Board alleged Stowe’s plea to possession of
methamphetamine constituted misconduct reflecting adversely on his
honesty, trustworthiness, or fitness as a lawyer, in violation of Iowa Rule
of Professional Conduct 32:8.4(b). Next, in counts two and three the
Board alleged Stowe breached our rules by mishandling client trust
funds, after he endorsed and cashed checks on two different clients’ trust
accounts without authority to do so. The Board specifically cited
violations of Iowa Rules of Professional Conduct 32:1.3, 32:1.4, 32:1.15,
and 32:8.4(b), (c), and (d), in addition to Iowa Court Rules 45.1, 45.2(1)–
(2), and 45.7. In the fourth count, the Board alleged that Stowe tendered
bad checks, violating Iowa Code sections 714.1(6) and 714.2(5), as well
as Iowa Rule of Professional Conduct 32:8.4(b) and (c). Finally, the
Board alleged that Stowe participated in the unauthorized practice of law
after we suspended his license, violating Iowa Rules of Professional
Conduct 32:5.5(a) and 32:8.4(c) and (d).
The Board later added three additional counts to the complaint.
Count six alleged that Stowe violated our rules by being convicted of
felony forgery for writing two checks on a client’s private account without
permission, offending Iowa Rule of Professional Conduct 32:8.4(b) and
(c). Count seven accused Stowe of committing another act of
unauthorized practice, in violation of Iowa Rules of Professional Conduct
32:5.5(a) and 32:8.4(c) and (d). The Board’s final allegation accused
Stowe of engaging in illegal drug use and fraudulent billing activity with
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a client, in violation of Iowa Rules of Professional Conduct 32:1.5(a),
32:1.8(a), 32:5.4(a), and 32:8.4(b), (c), and (d).
In total, the Board alleges Stowe violated multiple rules of
professional conduct and court rules. In his subsequent answers, Stowe
admitted four of the counts are true. The commission held a hearing on
October 31, where Stowe appeared pro se.
III. Findings of Fact.
On our de novo review, we make the following findings of fact. The
life story of forty-one-year-old Brian Stowe mirrors that of Dr. Jekyll and
Mr. Hyde. In the early phase of Stowe’s legal career, he was a model
citizen. During the day, he studied at Drake Law School. By night, he
worked as a police officer and drug enforcement agent in various
counties. In his spare time, Stowe coached youth basketball and little
league, in addition to authoring and publishing novels.
In 2000, Stowe graduated from law school with honors. After his
admission to the bar, he joined the Finley Law Firm in Des Moines. He
made partner in only five years. To celebrate this accomplishment, in
March 2007, Stowe took his family on a cruise, which included a stop in
Belize.
Stowe alleges that while in Belize, he was abducted, beaten,
sexually abused, and ransomed. However, other accounts indicate local
authorities arrested him for possessing cocaine. The commission did not
make a finding as to what really transpired in Belize. Neither do we.
Whatever happened is not relevant to our decision.
Stowe later returned to the United States, where he received
medical care. The Board launched an ethics investigation but ultimately
did not file a complaint.
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After the alleged Belize incident, Stowe’s Hyde-like opposite
emerged. Stowe claims he developed posttraumatic stress disorder, but
did not seek counseling or treatment. He alleges he became severely
depressed and began suffering from violent nightmares. Based on his
training as a drug agent, he knew that taking methamphetamine would
prevent him from falling asleep and consequently, experiencing
nightmares. Stowe was acquainted with a drug dealer through his
position as an attorney, purchased methamphetamine, and began to self-
medicate. Stowe found it glamorous to talk about himself as a lawyer to
individuals in the drug business, because he was not the typical drug
user.
Stowe was unable to work because of these circumstances. His
marriage eventually ended. He left his position as partner with the
Finley Law Firm and moved to northern Iowa, where he found
employment as an associate at the Thul Law Firm in Whittemore. Thul
Law Firm ultimately terminated Stowe’s employment on May 10, 2010.
Shortly thereafter, Stowe was convicted in Emmet County for
possession of methamphetamine, in violation of Iowa Code section
124.401(5). Stowe submitted an Alford plea and received a deferred
judgment contingent upon substance abuse treatment, which lasted
eighteen months. Stowe was then convicted in Palo Alto County on two
counts of felony forgery, in violation of Iowa Code section 715A.2. The
felony convictions arose from Stowe forging the signature of his client,
Ryan Yager, on two checks Stowe had stolen and used to transfer funds
into his personal bank account.
Suffice it to say the record is replete with examples of Stowe’s
ethical failings, stemming from his unauthorized practice, excessive fees,
improper fee splitting, neglect of client matters, trust account violations,
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and misconduct arising from multiple criminal convictions.1 However, it
is unnecessary for us to address these other infractions because there is
sufficient evidence in the record to prove Stowe engaged in conversion of
client funds. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Adams, 809
N.W.2d 543, 546 (Iowa 2012).
IV. Ethical Violation.
Stowe misappropriated client funds when he stole two checks from
his client and housemate, Ryan Yager. Stowe made out each check for
$200, forged Yager’s signature on both checks, and deposited the funds
in his Iowa Trust & Savings Bank account in Emmetsburg. Stowe did so
without Yager’s knowledge or permission. Moreover, Yager did not owe
Stowe legal fees based on their mutual agreement that Stowe could live
with Yager in exchange for free legal services.
Based on his conduct, the State convicted Stowe on two counts of
felony forgery, pursuant to Iowa Code section 715A.2. At his plea
hearing, Stowe admitted he defrauded Yager and the bank. Moreover,
Stowe stated it was his decision to forge Yager’s name to the checks.
In connection with the conversion of client funds, the Board
charged Stowe with violating rule 32:8.4(b). The rule provides: “It is
professional misconduct for a lawyer to: . . . commit a criminal act that
reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as
a lawyer in other respects.” Iowa R. of Prof’l Conduct 32:8.4(b). A lawyer
who commits a theft of funds engages in conduct involving moral
turpitude, dishonesty, and conduct that adversely reflects on the lawyer’s
1Stowe admits violations of our ethical rules due to his possession of
methamphetamine conviction, mishandling of trust accounts, felony forgery
convictions, and unauthorized practice during the previous suspension of his license to
practice law.
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fitness to practice law. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carroll,
721 N.W.2d 788, 791 (Iowa 2006).
Thus, we find on our de novo review that Stowe violated rule
32:8.4(b).
V. Sanction.
It is almost axiomatic that we revoke the licenses of attorneys who
convert funds when the attorney did not have a colorable future claim to
the funds. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelsen,
807 N.W.2d 259, 267 (Iowa 2011) (recognizing “it is almost certain that
we will revoke the license of any attorney involved in the conversion of
funds”); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Anderson, 687
N.W.2d 587, 590 (Iowa 2004) (revoking attorney’s license for withdrawing
funds from an escrow account for his personal use, even though the
attorney later replaced the funds); Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Williams, 675 N.W.2d 530, 533 (Iowa 2004) (revoking
attorney’s license for billing employer for fictitious insurance claims and
then transferring the funds to her personal account); Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Lett, 674 N.W.2d 139, 145 (Iowa 2004)
(revoking attorney’s license for stealing client funds, failing to cooperate
in the attorney disciplinary investigation, and lying to clients); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bell, 650 N.W.2d 648, 655
(Iowa 2002) (revoking attorney’s license for misappropriating a not-for-
profit organization’s funds); Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Leon, 602 N.W.2d 336, 339 (Iowa 1999) (revoking the license
of an attorney who misappropriated client funds, misrepresented case
status to clients, neglected matters, and made dishonest statements to
law partners and to a judge); Comm. on Prof’l Ethics & Conduct v. Ottesen,
525 N.W.2d 865, 866 (Iowa 1994) (revoking attorney’s license for
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withdrawing funds from the client’s trust account and converting them to
his own use); Tullar, 466 N.W.2d at 913 (quoting numerous cases stating
revocation is appropriate when attorneys convert client funds).
We do not tolerate theft by Iowa lawyers. Adams, 809 N.W.2d at
545. A license to practice law is not a license to steal. Revocation is the
appropriate sanction when attorneys convert funds, because it “ ‘is the
only way to impress on [the attorney] and others the seriousness of these
offenses.’ ” Tullar, 466 N.W.2d at 913 (quoting Comm. on Prof’l Ethics &
Conduct v. Piazza, 405 N.W.2d 820, 824 (Iowa 1987)). Accordingly, the
amount of money converted does not lessen the discipline. Anderson,
687 N.W.2d at 590.
As in these prior cases, there is no persuasive proof Stowe earned
or had a colorable future claim to the funds converted. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 97 (Iowa
2006) (finding the attorney had a colorable future claim to the funds he
converted so suspension, not revocation, was appropriate). There is also
no evidence Stowe took the monies for use other than pecuniary gain.
See Tullar, 466 N.W.2d at 912–13 (revoking the license of an attorney
convicted of first-degree theft for misappropriation of funds held in trust
for his own personal use). Instead, the record demonstrates Stowe’s
compelling personal need for money to feed his severe methamphetamine
addiction, to pay off his drug dealer who was blackmailing him, and to
support himself because he was fired from his job and evicted from his
home. Accordingly, we find Stowe’s misconduct was motivated by a
desire for financial gain. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Howe, 706 N.W.2d 360, 380 (Iowa 2005) (recognizing as a mitigating
factor the lack of an attorney’s intent to obtain a personal financial
benefit from the misconduct).
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Finally, an attorney’s conviction of a felony is “sufficient cause[] for
revocation or suspension” of a license to practice law. Iowa Code
§ 602.10122(1); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Lyzenga, 619 N.W.2d 327, 332 (Iowa 2000) (revoking the license of a
lawyer who had a felony forgery conviction and recognizing “Lyzenga’s
felony forgery conviction . . . [is] alone sufficient reason to suspend or
revoke her license”); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Palmer, 563 N.W.2d 634, 634–35 (Iowa 1997) (revoking the license of an
attorney who was convicted of a felony after stealing two credit cards and
using them to obtain funds for his own use).
Forgery strikes at the very heart of an attorney’s trustworthiness
and honesty. Lyzenga, 619 N.W.2d at 332. We have previously
recognized the crime of forgery, by its very nature, reflects adversely on
an attorney’s fitness to practice law. Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Keele, 795 N.W.2d 507, 513 (Iowa 2011). Thus, there is a
sufficient link between the criminal activity and the attorney’s ability to
function as a lawyer to justify discipline for the felonious conduct. Id.
Although we have imposed lesser sanctions on certain attorneys
who have committed acts of forgery, those cases did not involve any
conversion of funds. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Newman, 748 N.W.2d 786, 788–89 (Iowa 2008) (reprimanding an
attorney who forged a judge’s signature on a court document); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Rylaarsdam, 636 N.W.2d 90,
93–94 (Iowa 2001) (suspending an attorney for six months for forging
clients’ signatures); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Clauss, 530 N.W.2d 453, 455 (Iowa 1995) (suspending an attorney’s
license for three years for forging and notarizing a signature on a return
of service).
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Even when there is no felony forgery conviction, we revoke the
license of an attorney who commits multiple acts of forgery. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 382
(Iowa 2007) (revoking attorney’s license after the lawyer first forged a
judge’s signature and then later forged an estate executor’s signature on
court documents).
Particularly egregious is the fact Stowe’s conversion activities
occurred in the context of a professional relationship. Furthermore,
Stowe has only half-heartedly accepted responsibility for his actions,
shifting blame to his Mr. Hyde counterpart by stating his ethical failings
do not reflect his true character and it “wasn’t really me making those
decisions.” See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bieber, 824
N.W.2d 514, 528 (Iowa 2012) (accepting responsibility is a mitigating
factor).
Given the facts above, we find revocation of Stowe’s license is
necessary for deterrence, protection of the public, and maintenance of
the reputation of the bar as a whole. See Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Vinyard, 656 N.W.2d 127, 132 (Iowa 2003).
VI. Disposition.
Revocation of Stowe’s license is the only discipline commensurate
with his actions. We tax the costs of this proceeding to Stowe in
accordance with Iowa Court Rule 35.27(1).
LICENSE REVOKED.