Iowa Supreme Court Attorney Disciplinary Board Vs. Anthony Ray Johnson , 2010 Iowa Sup. LEXIS 147 ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 10–0651
Filed December 30, 2010
IOWA SUPREME COURT
ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
ANTHONY RAY JOHNSON,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission recommends a three-year suspension of
attorney’s license to practice law. LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
Anthony Ray Johnson, Ankeny, pro se.
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STREIT, Justice.
The Iowa Supreme Court Attorney Disciplinary Board filed charges
against the respondent, Anthony R. Johnson, alleging violations of the
Iowa Rules of Professional Conduct relating to Johnson’s representation
of four separate clients. The alleged misconduct primarily concerns
Johnson’s failure to communicate with his clients and his neglect of their
legal matters. Johnson failed to communicate with the board throughout
the duration of the disciplinary process. Johnson did not file an answer
to the board’s complaint, and therefore, the complaint’s allegations were
deemed admitted at the misconduct hearing. Iowa Ct. R. 36.7. The
commission found Johnson neglected client matters, failed to keep his
clients informed or respond to their requests for information, failed to
make necessary court filings or appear at court hearings, improperly
presented an ex parte order to a court for signature, did not provide an
accounting of fees or refund unearned attorney’s fees, and failed to
respond to the board’s demand for information. The commission
recommended Johnson be suspended for three years with no possibility
of reinstatement and that, prior to reinstatement, Johnson be required to
pay restitution, associate himself with a lawyer in good standing,
maintain his continuing legal education (CLE) requirements, undergo a
psychiatric and psychological evaluation, and complete a bar
examination review class. Upon our review of the record, we suspend
Johnson’s license to practice law for three years and order that prior to
reinstatement, Johnson must pay restitution, maintain CLE credits, and
undergo a mental health evaluation.
I. Background Facts and Prior Proceedings.
Johnson was admitted to practice in Iowa in 2007. Prior to his
admission in Iowa, Johnson was suspended from practice in Illinois for
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three months and ordered to pay $9,794.50 in restitution for receiving an
excessive fee in a routine probate matter. In 2008, the Iowa Supreme
Court Attorney Disciplinary Board privately admonished Johnson for
charging an unreasonable fee, lack of diligence, and failure to keep a
client informed in violation of rules 32:1.5, 32:1.3, and 32:1.4. The
board explained that Johnson had procrastinated five months before
filing a client’s dissolution of marriage petition, filed an “embarrassingly
sloppy” petition that referred to the parties’ children in a childless
marriage, and charged an excessive fee in light of the limited and poor
quality work Johnson performed.
The board filed the instant three-count complaint against Johnson
in September 2009. The complaint alleged Johnson, during the course of
four separate representations, violated ethical rules by failing to take
action on client matters, neglecting to attend court hearings, failing to
communicate with his clients, ceasing representation without
notification, failing to take proper steps to protect his clients’ interests
after ceasing representation, presenting an improper ex parte order to a
court, and failing to cooperate with the board’s investigation.
Johnson did not file an answer to the board’s complaint. He did
not answer the board’s interrogatories, request for production of
documents, or request for admissions. The hearing was scheduled for
December 21, 2009. On December 15, 2009, Johnson’s wife sent a letter
informing the commission that Johnson would not be able to attend the
scheduled hearing because he was currently incarcerated in the Polk
County jail for failure to pay child support. Neither Johnson nor an
attorney representing him requested a continuance.
Johnson did not attend the hearing, nor did he mount a defense or
response to the complaint. The board’s evidence is uncontested. The
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board’s complaint is deemed admitted pursuant to Iowa Court Rule 36.7
because Johnson failed to file an answer. The board also deemed the
request for admissions, received into evidence as exhibit 1, admitted
because Johnson failed to respond. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 395 (Iowa 2005) (accepting
board’s exhibits as uncontested when attorney failed to respond to
complaint or request for admissions). Although the complaint was
deemed admitted, the commission conducted a hearing, admitted
exhibits one through eight, and heard the testimony of Robert Peters, a
client of Johnson. After the hearing, the commission filed its findings of
fact, conclusions of law, and recommendations, concluding the board
had proven its allegations and recommending a three-year suspension
along with other conditions for reinstatement.
II. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa Ct. R.
35.10(1). “The commission’s findings and recommendations are given
respectful consideration, but we are not bound by them.” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 304 (2009). “The
board has the burden of proving attorney misconduct by a convincing
preponderance of the evidence.” Id. “This burden is less than proof
beyond a reasonable doubt, but more than the preponderance standard
required in the usual civil case.” Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). Once we find the
misconduct has been proven, “we ‘may impose a lesser or greater
sanction than the discipline recommended by the grievance
commission.’ ” Id. (quoting Iowa Ct. R. 35.10(1)).
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III. Ethical Violations.
A. Neef Matter (Count I). In May 2008, Jacqualine Neef
contacted Johnson to discuss how to get her son’s driver’s license
reinstated despite a $200,000 lien filed against her son. Johnson
advised that bankruptcy would void the lien. Johnson agreed to file the
son’s bankruptcy petition in return for $800 plus $299 in court filing
fees. Johnson informed Neef the process would take three to six months.
After six weeks, Neef called Johnson to inquire about the proceeding;
Johnson assured her things were progressing. On September 13, 2008,
Neef observed that Johnson no longer appeared to work in his Newton,
Iowa law office. Neef attempted to contact Johnson on numerous
occasions, including visiting his former law office, calling repeatedly, and
visiting Johnson’s home. When Neef left a message on Johnson’s cell
phone informing him she was starting fraud charges and contacting the
Iowa bar, Johnson called back and admitted he still had not filed the
bankruptcy petition. Johnson never filed the petition and never returned
any of Neef’s fees.
The commission found violations of ethical rules 32:1.11, 32:1.3,
32:1.4, 32:1.16(d), and 32:8.4(a)2, (c), and (d). Under ethical rules
prohibiting neglect, attorneys must advance and protect their clients’
1We decline to address the commission’s findings that Johnson violated rule
32:1.1, which requires an attorney to provide competent representation. To establish
incompetence, the board is required to show the attorney: (1) did not possess the
requisite legal knowledge and skill, or (2) did not make a competent analysis of the
factual and legal elements of the matter. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Hauser, 782 N.W.2d 147, 153 (Iowa 2010). Although the board demonstrated serious
neglect by Johnson, as discussed throughout this opinion, it did not address whether
Johnson lacked the necessary legal knowledge and skill or failed to properly analyze the
factual and legal elements of the matter.
2Because the board has proven other rule violations, we do not consider
violation of rule 32:8.4(a), which provides that a lawyer shall not violate a disciplinary
rule, as a separate violation. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ackerman,
786 N.W.2d 495–496 n.3 (Iowa 2010).
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interests and attend to matters entrusted to their care in a reasonably
timely manner. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ackerman,
786 N.W.2d 491, 495 (Iowa 2010). Johnson’s neglect and failure to take
any action, including failing to file a bankruptcy petition as agreed,
violated rule 32:1.3 (failing to act with reasonable diligence). See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 150–53
(Iowa 2010) (holding attorney violated rule 32:1.3 when he neglected
client’s dissolution of marriage proceeding by failing to make filings and
by failing to appear at the scheduled trial); Ackerman, 786 N.W.2d at 495
(finding violation of rule 32:1.3 for dilatory handling of estates despite
notices and inquiries from beneficiaries).
Johnson’s failure to respond to Neef’s phone calls and requests for
information, failure to notify Neef of what progress had or had not been
made on the case, and failure to provide notice of termination, contact
information, return of paperwork, or a return of unearned fees violated
rules 32:1.4 (duty to keep client informed) and 32:1.16(d) (duty to protect
client’s interests upon termination of representation). See Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Carpenter, 781 N.W.2d 263, 268 (Iowa 2010)
(finding attorney’s neglect of client’s legal matters and failure to keep
clients informed about their cases violated rules 32:1.3, 32:1.4, and
32:1.16(d)); Earley, 774 N.W.2d at 307–08 (holding attorney violated
rules 32:1.4 and 32:1.16(d) when he “failed to keep his clients informed
about the status of their cases,” “failed to communicate with his clients
after their repeated requests for information,” and “failed to . . . account
for or return client money from retainer fees”). Johnson also violated
rule 32:8.4(c) (duty not to engage in dishonesty, fraud, deceit, or
misrepresentation) because he told Neef things were progressing when he
had not even filed the bankruptcy petition, assured Neef he would file
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right away when reached by her, and once again failed to file. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 286–87
(Iowa 2009) (holding repeated claims by attorney to client that
documents were forthcoming constituted misrepresentations in violation
of rule 32:8.4(c) when the documents were not actually ready).
We reject the commission’s recommendation to find Johnson
violated rule 32:8.4(d) (duty not to engage in conduct prejudicial to the
administration of justice). Because Johnson never filed for bankruptcy,
the board has not demonstrated how his conduct was prejudicial to the
administration of justice. Acts are prejudicial to the administration of
justice only when they “ ‘have hampered the “efficient and proper
operation of the courts or of ancillary systems upon which the courts
rely.” ’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784
N.W.2d 761, 768 (Iowa 2010) (quoting Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa 2005)).
B. Peters Matter (Count II). Robert Peters retained Johnson to
represent him in a divorce and child custody proceeding brought by his
wife. Peters testified at Johnson’s disciplinary hearing. Peters paid
Johnson a $2000 retainer fee, and in total, Peters paid Johnson $10,900,
nearly one-third of his yearly salary. Peters emptied his 401(k) account
so that he would be able to afford to hire Johnson. Johnson stopped by
Peters’ work bi-weekly and collected $500 payments from Peters. Despite
Peters’ requests, Johnson failed to provide Peters with an itemized billing
and complete receipts for payments.
One of the matters at issue in Peters’ representation was custody
of his three children. Peters explained in his complaint to the board that
he hired Johnson because he wanted to ensure he had at least partial
custody of his children.
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During the representation, Johnson handwrote into a temporary
order that “[t]he parties shall share physical custody approximately
equally until said hearing” and then presented the order ex parte to the
court, which the court entered. Prior to the order, Peters’ wife had
custody of the children. Two days later, opposing counsel filed a motion
seeking to set aside the handwritten portion of the order and asserting
Johnson had added the sentence without opposing counsel’s or Peters’
wife’s knowledge or consent.
Johnson failed to attend a status conference to set Peters’ child
support payments scheduled for April 27, 2009, and then failed to attend
the subsequently rescheduled status conference on May 4, 2009.
Johnson instructed Peters the status conferences were only for
attorneys, but Peters went to the courthouse during the rescheduled
status conference. When Johnson failed to appear, the court made
numerous attempts to contact Johnson; however, the court deemed it
was “not appropriate to continue this matter any longer,” and set child
support payments. Peters testified that at this hearing, the judge set
child support at forty-nine percent of Peters’ income before taxes and
insurance. Peters was left with only $250 per month to pay his bills.
Peters also stated that almost everything in the divorce decree was in
favor of his ex-wife.
After Johnson failed to attend the status conferences, Peters
attempted to locate Johnson by calling him; going to Johnson’s law
office, which was empty; and going to his personal residence, where
Peters was informed by neighbors that Johnson had moved. Peters
testified he had not heard from Johnson at the time of the hearing.
Peters hired another attorney, whom he paid $2000, to try and fix
the damage done by Johnson. This attorney was unable to contact
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Johnson and could not obtain Peters’ client files. Johnson did not
reimburse any portion of the fee Peters paid. Peters spent an additional
$200 on copies of checks and files to present to the board.
Peters testified to the precise work Johnson did before neglecting
Peters’ case: Johnson defended Peters in a domestic abuse petition in
which Peters’ ex-wife falsely claimed there was not an ongoing divorce
proceeding, Johnson filed Peters’ response to his ex-wife’s petition for
dissolution of marriage, and Johnson submitted the improper ex parte
order. Peters testified Johnson had told him the fees to that point were
$4000. Peters’ ex-wife told Peters her fees at that point were only $500.
After the point at which Johnson stopped performing work, Peters paid
Johnson an additional $6900 upon request.
The commission found Johnson violated rules 32:1.1, 32:1.3,
32:1.4, 32:1.16(d), 32:3.2, 32:3.3(d), 32:3.5(b), 32:8.1(b), and 32:8.4(a),
(c), and (d). Johnson’s neglect of Peters’ case, including his failure to
appear for status conferences and respond to court inquiries, which
resulted in what Peters perceived as unfavorable court decisions, violated
rules 32:1.3 (failing to act with reasonable diligence) and 32:3.2 (duty to
expedite litigation). See Iowa Supreme Ct. Att’y Discplinary Bd. v. Hoglan,
781 N.W.2d 279, 284 (finding attorney’s neglect and failure to prosecute
cases violated rules 32:1.3 and 32:3.2); Ackerman, 786 N.W.2d at 495.
Johnson’s failure to respond to Peters’ phone calls, keep Peters informed,
provide notice of termination, provide updated contact information,
return paperwork and files, provide an accounting of fees, and return
unearned fees violated rules 32:1.4 (duty to keep client informed) and
32:1.16(d) (duty to protect client’s interests upon termination of
representation). See Carpenter, 781 N.W.2d at 268; Earley, 774 N.W.2d
at 307–08.
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Johnson also committed a serious ethical violation when he
handwrote a sentence that had not been agreed to by opposing counsel
or the opposing party into an order and presented it ex parte to the
court. This behavior violated rules 32:3.3(d) (duty of candor with
tribunal and duty, in an ex parte proceeding, to notify tribunal of all
material facts) and 32:3.5(b) (lawyer shall not communicate ex parte with
judge during proceeding unless authorized). Johnson’s behavior violated
rule 32:8.4(c) (duty not to engage in dishonesty, fraud, deceit, or
misrepresentation) because Johnson allowed the court to believe the
opposing party had agreed to the handwritten sentence. Johnson also
violated rule 32:8.4(d) (duty not to engage in conduct prejudicial to the
administration of justice). Johnson’s behavior hampered the “ ‘ “efficient
and proper operation of the courts” ’ ” because he induced the court to
enter an order under false pretenses and the court then had to entertain
opposing counsel’s motion to strike the order. Templeton, 784 N.W.2d at
768 (quoting Howe, 706 N.W.2d at 373).
Lastly, Johnson violated rule 32:8.1(b) (duty to respond in
disciplinary actions) by failing to respond when Peters filed a complaint.
Carpenter, 781 N.W.2d at 269.
C. Miller and Steibel Matters (Count III). Johnson represented
Craig Miller and Nadine Steibel in their respective bankruptcy
proceedings. Because Johnson failed to file all of Miller’s necessary
bankruptcy documents, the bankruptcy trustee moved to dismiss Miller’s
petition. Johnson did not file the missing information or respond to the
motion to dismiss. Miller was unable to contact Johnson despite
repeated phone calls and trips to Johnson’s office. Miller personally
brought the missing information to the trustee and the trustee withdrew
his motion to dismiss.
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Johnson similarly neglected his client Steibel in her bankruptcy
proceeding. Steibel paid Johnson $1500. Johnson filed Steibel’s
bankruptcy petition and then stopped filing the necessary paperwork.
Steibel had difficulty contacting Johnson despite repeated calls and visits
to his residence and office. On one occasion, she was able to catch him
at his office. She demanded her bankruptcy files be returned to her, but
Johnson stated the files were at his home and that he had to go home to
get them. He never returned the files. Steibel took an active role in her
case to ensure her proceeding continued and she was discharged from
bankruptcy.
Steibel personally filed a motion to withdraw Johnson as counsel.
The trustee filed a motion to examine fees alleging that Miller did not
receive a quid pro quo exchange for the amount of fees paid to Johnson.
The bankruptcy court set a hearing about Johnson’s representation and
issued an order requiring Johnson to appear. The notice stated:
“SPECIFIC NOTICE TO ATTORNEY OF RECORD FOR DEBTOR: Attorney
Tony R. Johnson shall appear at the hearing . . . .” Johnson failed to
appear. During the hearing, the trustee testified:
[O]ur office has had tremendous issues with [Johnson]. He
doesn’t return phone calls or any written correspondence in
this case, information requested regarding Mrs. Steibel’s
case, and in a previous case . . . .
....
Basically this comes before the Court because the
United States Trustee’s concerned.
The trustee detailed the issue of unearned fees in Miller’s and Steibel’s
cases. The bankruptcy court ordered Johnson to refund $300 in
attorney fees to Miller and $750 in fees to Steibel.
The commission found Johnson violated ethical rules 32:1.1,
32:1.3, 32:1.4, 32:1.16(d), 32:3.2, and 32:8.4(a), (c), and (d). Johnson’s
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neglect of Miller’s and Steibel’s bankruptcy matters, including his failure
to make necessary filings, violated rules 32:1.3 (failing to act with
reasonable diligence) and 32:3.2 (duty to expedite litigation). See Hoglan,
781 N.W.2d at 284; Ackerman, 786 N.W.2d at 495. Johnson’s failure to
keep Miller and Steibel informed, return their phone calls, provide
information upon request, provide updated contact information, provide
notice of termination of representation, return files, and refund unearned
fees violated rules 32:1.4 (duty to keep client informed) and 32:1.16(d)
(duty to protect client’s interest upon termination). See Carpenter, 781
N.W.2d at 268; Earley, 774 N.W.2d at 307–08.
Johnson also violated rule 32:8.4(d) (duty not to engage in conduct
prejudicial to the administration of justice). Johnson’s behavior
hampered the “ ‘ “efficient and proper operation of the courts” ’ ” because
he failed to file necessary paperwork in the bankruptcy cases. Johnson’s
neglect caused the trustee to file a motion to dismiss Miller’s case and
led to a bankruptcy court hearing about Johnson’s general failure to
provide representation, a hearing which Johnson failed to attend despite
being specifically ordered to do so. Templeton, 784 N.W.2d at 768
(quoting Howe, 706 N.W.2d at 373); see also Ackerman, 786 N.W.2d at
496 (finding conduct prejudicial to the administration of justice, in
violation of rule 32:8.4(d), where lawyer’s dilatory conduct resulted in
delinquency notices and intervention by specially appointed judge).
We do not find there is enough evidence to determine whether
Johnson violated rule 32:8.4(c) (duty not to engage in dishonesty, fraud,
deceit, or misrepresentation). The commission did not point to any
specific misrepresentations or dishonesty engaged in by Johnson in his
representation of Miller and Steibel.
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IV. Sanction.
The commission recommended Johnson be suspended with no
possibility of reinstatement for three years. It also recommended that
prior to reinstatement, Johnson be required to: (1) provide proof that he
made restitution to Neef, Peters, Steibel, and Miller; (2) provide proof that
he will be supervised by an Iowa lawyer in good standing for two years;
(3) provide proof he has maintained his continuing legal education (CLE)
requirements; (4) complete and produce a comprehensive psychiatric and
psychological examination providing proof of his mental and physical
ability to practice law; and (5) complete a bar examination review class.
“ ‘There is no standard sanction for a particular type of
misconduct, and though prior cases can be instructive, we ultimately
determine an appropriate sanction based on the particular
circumstances of each case.’ ” Ackerman, 786 N.W.2d at 497 (quoting
Earley, 774 N.W.2d at 308). “Where neglect is compounded by other
serious offenses, . . . this court has suspended the license of the
offending attorney for substantial periods of time.” Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Joy, 728 N.W.2d 806, 815 (Iowa 2007).
In tailoring an appropriate sanction, we look to “ ‘the nature of the
violations, the need for deterrence, protection of the public, maintenance
of the reputation of the Bar as a whole, and the violator’s fitness to
continue to practice law.’ ” Ackerman, 786 N.W.2d at 497 (quoting Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ramey, 639 N.W.2d 243,
245 (Iowa 2002)). We examine particular mitigating or aggravating
factors, including “ ‘the existence of multiple instances of neglect, past
disciplinary problems, and other companion violations.’ ” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009)
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(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lesyshen, 712 N.W.2d
101, 106 (Iowa 2006)).
Johnson neglected his clients’ matters and failed to communicate
with his clients. “When multiple instances of neglect are involved and
combine with other violations or cause significant harm to the clients, we
have imposed a longer period of suspension.” Carpenter, 781 N.W.2d at
270. In Iowa Supreme Court Attorney Disciplinary Board v. Van Beek, we
imposed a two-year suspension for neglect, forgery, misrepresentation,
and failure to deposit unearned clients fees into a trust account. 757
N.W.2d 639, 643–44 (Iowa 2008). In Iowa Supreme Court Attorney
Disciplinary Board v. Sotak, we imposed a two-year suspension for
neglect leading to dismissal, misrepresentations made to clients, failure
to meet court deadlines, and failure to promptly relay settlement funds to
a client. 706 N.W.2d 385, 389–91 (Iowa 2005). And in Iowa Supreme
Court Board of Professional Ethics & Conduct v. D’Angelo, we imposed a
three-year suspension for neglect, acceptance of fees without court
authorization, misrepresentation to clients, disregard of court orders,
and failure to respond to ethics complaints. 619 N.W.2d 333, 337–39
(Iowa 2000).
Johnson’s neglect of cases and clients are aggravated by his prior
discipline. See Wagner, 768 N.W.2d at 288. Johnson was previously
suspended in 2003 in Illinois for charging an excessive fee. Johnson was
privately admonished in 2008 in Iowa for charging an unreasonable fee,
acting with a lack of diligence, and failing to keep the client informed of
the status of her case. Clearly, Johnson has a pattern of charging clients
excessive fees or neglecting cases and failing to return unearned portions
of fees. Johnson has not presented any mitigating factors.
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Johnson was admitted to practice in Iowa in 2007, and has
demonstrated in a short period of time a pattern of repeated callousness
and indifference to his client’s matters. He continually failed to
communicate with his clients, in each case left them without counsel
during the course of their legal proceedings, and routinely failed to
return unearned fees. He committed ethical violations in his dealings
with the tribunal during Peters’ divorce proceeding and has refused to
cooperate with this ethics investigation.
The commission recommends that we suspend Johnson for three
years with no possibility of reinstatement. We agree the severe sanction
of a three-year suspension is warranted. When neglect of clients also
involved numerous other violations, the court has entered severe
sanctions. In D’Angelo, this court imposed a three-year suspension for
an attorney’s neglect, acceptance of fees without court authorization,
misrepresentation to clients, disregard of court orders, and failure to
respond to ethics complaints. D’Angelo, 619 N.W.2d at 337–39. In
Carpenter, this court barred an attorney licensed in another state from
practicing in Iowa for two years, after taking into account the mitigating
factor of depression, for neglecting and failing to communicate with
clients, committing trust account violations, failing to respond to board
inquiries (although unlike Johnson, he eventually did respond and
entered into stipulated facts), and being convicted of traffic offenses.
Carpenter, 781 N.W.2d at 268–72.
Here, Johnson repeatedly failed to keep his clients informed,
neglected their court proceedings, failed to make necessary court filings,
and failed to return client files or unearned fees. He also submitted an
ex parte order to the court, to which opposing counsel had not agreed.
Johnson has not responded in any way to the board, except for a letter
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written by his wife claiming he was in jail during his hearing. Further,
Johnson has a history of overcharging clients, resulting in a suspension
in Illinois in 2003 and a private admonishment in Iowa in 2008.
Therefore, we agree a three-year suspension is warranted.
The commission also recommended Johnson meet certain
requirements before readmission to the bar. The commission
recommended Johnson be required to provide proof of restitution to four
clients. We agree with the commission’s recommendation. Johnson
must provide proof that he complied with the bankruptcy court orders to
return $750 to Steibel and $350 to Miller. The commission did not
specify an amount for Johnson to return to Neef and Peters, stating that
“[d]ue to the lack of response by Mr. Johnson, the Division was unable to
determine whether or not he should be allowed to retain any fees paid by
Ms. Neef and Mr. Peters.” We hold that a convincing preponderance of
the evidence supports the determination that Johnson must return
$1099 to Neef and $6900 to Peters. Neef explained in a letter that she
had paid $800 in attorney’s fees and $299 in court costs. Johnson never
took the initial step of even filing the bankruptcy petition. Peters
testified that Johnson told him the work he had completed prior to his
neglect of the case was worth $4000. Because Peters had paid Johnson
a total of $10,900, he is owed a return of $6900. Unlike the situation in
Carpenter, the board presented evidence of the amount of unearned fees
through client testimony. See Carpenter, 781 N.W.2d at 271–72 (holding
the commission’s recommendation that the attorney be ordered to refund
his clients’ funds could not be adopted because the stipulation failed to
detail the amount of such funds and no witness testimony or evidence
was taken on the matter).
The commission also recommended Johnson be readmitted only if
he is supervised by an Iowa lawyer in good standing for two years. The
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court does not have the ability to order this condition for readmission
because “ ‘neither the court nor the bar has effective machinery in place
for . . . supervision.’ ” Lickiss, 786 N.W.2d at 871–72 (quoting Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 819 (Iowa
2007)). Therefore, we reject this requirement.
The commission also recommended Johnson provide proof that he
has maintained his CLE credits and taken a bar examination course. We
agree and adopt the recommendation that Johnson provide proof he has
maintained CLE credits. Johnson’s wholesale abandonment of his
clients and—apparently—of his practice suggests a need to stay abreast
of legal developments prior to readmission. We find the requirement that
Johnson take a bar examination review course to be redundant and do
not adopt that recommendation.
Lastly, the commission recommended Johnson provide proof of a
psychological and psychiatric evaluation. We agree that such evaluation
is necessary given Johnson’s apparent total neglect of all of his ongoing
matters and his failure to even respond to board inquiries. See Lickiss,
786 N.W.2d at 871.
V. Conclusion.
Because Johnson has violated ethical rules by severely neglecting
four client matters, failing to respond to clients’ inquiries for information,
presenting an ex parte order to a court under false pretenses, failing to
account for and return unearned fees, and failing to respond to the board
and commission, we suspend Johnson’s license to practice law with no
possibility of reinstatement for three years. This suspension shall apply
to all facets of the practice of law as provided in Iowa Court Rule 35.12(3)
and requires notification of clients as required by Iowa Court Rule 35.22.
Prior to reinstatement, Johnson must provide proof that he has
maintained CLE credits during his suspension, an evaluation from a
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licensed health care professional verifying his fitness to practice law, and
proof that he has made restitution of unearned fees to clients in the
following amounts: (1) $750 to Steibel as ordered by the bankruptcy
court, (2) $300 to Miller as ordered by the bankruptcy court, (3) $1099 to
Neef, and (4) $6900 to Peters. We tax the costs of this action to Johnson
pursuant to Iowa Court Rule 35.26(1). Reinstatement shall not be
ordered until all costs are paid. Iowa Ct. R. 35.26(3).
LICENSE SUSPENDED.