Iowa Supreme Court Attorney Disciplinary Board Vs. Stephen J. Lickiss

IN THE SUPREME COURT OF IOWA
No. 10–0363
Filed August 6, 2010
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
STEPHEN J. LICKISS,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission recommends attorney receive a three-month
suspension. LICENSE SUSPENDED.
Charles L. Harrington and Wendell J. Harms, Des Moines, for
complainant.
Stephen J. Lickiss, Altoona, pro se.
2
TERNUS, Chief Justice.
This matter comes before us on the report of a division of the
Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R.
35.10. The Iowa Supreme Court Attorney Disciplinary Board alleged the
respondent, Stephen J. Lickiss, violated ethical rules in four probate
matters by neglecting these matters, failing to respond to clients’
inquiries for information, taking probate fees without prior court
approval, failing to notify his clients that he had ceased to represent
them, and failing to respond to the board’s inquiries. The grievance
commission found Lickiss violated the Iowa Rules of Professional
Conduct and recommended a three-month suspension. Upon our
respectful consideration of the findings of fact, conclusions of law, and
recommendation of the commission, we find Lickiss committed several
ethical violations and suspend his license to practice law indefinitely with
no possibility of reinstatement for three months.
I. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 281 (Iowa
2009). 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. Casey, 761 N.W.2d 53, 55 (Iowa 2009). The
board has the burden of proving attorney misconduct by a convincing
preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Conrad, 723 N.W.2d 791, 792 (Iowa 2006). As frequently stated, “ ‘[t]his
burden is less than proof beyond a reasonable doubt, but more than the
preponderance standard required in the usual civil case.’ ” Id. (quoting
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674 N.W.2d 139,
142 (Iowa 2004)). Upon proof of misconduct, the court may impose a
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lesser or greater sanction than that recommended by the commission.
Id.
II. Prior Proceedings and Factual Background.
Lickiss was admitted to the Iowa bar in 1995. At the times
relevant to this disciplinary proceeding, he practiced as a sole
practitioner. Prior to undertaking the probate matters that are the
subject of this disciplinary action, Lickiss had no experience handling
adult conservatorships, adult guardianships, or estates.
On January 15, 2009, the board filed its amended complaint
against Lickiss, alleging misconduct and ethical violations in four
probate matters. Lickiss failed to answer and failed to respond to other
inquiries by the board. As a result, the commission ruled the allegations
in the amended complaint were deemed admitted pursuant to Iowa Court
Rule 36.7. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rickabaugh,
728 N.W.2d 375, 378 (Iowa 2007). Based on Lickiss’s implied
admissions, the hearing on the board’s complaint addressed only the
issue of the proper discipline. A related matter that arose at the hearing
was whether and to what extent Lickiss’s prior discipline should affect
the current proceeding and the appropriate sanction. We now set forth
the circumstances regarding the four probate matters, Lickiss’s prior
discipline, and Lickiss’s evidence of mitigating circumstances.
A. Mina Shelton Guardianship and Conservatorship. In
October 2005, Lickiss opened a guardianship and conservatorship for
Mina Shelton (“Mina”). Mina’s daughter, Irene Henderson, and son,
Danny Shelton, were named co-guardians and co-conservators. Lickiss
did not secure the surety bond ordered by the court, even though he
assured Henderson he would. In addition, Lickiss was paid $1176.48 for
his services without prior approval from the probate court as required by
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statute. 1 When the reports required in guardianships and
conservatorships were not filed, Lickiss received notice of and failed to
cure numerous delinquencies. He also failed to respond to the board’s
inquiries and his clients’ inquiries about these delinquencies. As a result
of Lickiss’s failure to act, Henderson hired a new attorney in December
2007. She also filed a request for an extension of time to deal with the
delinquencies, in which she stated: “I have tried numerous times to
reach [Lickiss] by telephone and have not received any calls from him. It
is my understanding that he is still listed as the attorney of record in this
matter.” Although Lickiss eventually closed his practice, he neither
withdrew from the case nor informed his clients that he was no longer
acting as their attorney.
Based on this series of events, the board alleged and Lickiss
admitted violations of the following provisions of the Iowa Rules of
Professional Conduct: 32:1.1 (“A lawyer shall provide competent
representation to a client.”), 32:1.3 (“A lawyer shall act with reasonable
diligence and promptness in representing a client.”), 32:1.4(a)(3) (“A
lawyer shall . . . keep the client reasonably informed about the status of
the matter[.]”), 32:1.4(a)(4) (“A lawyer shall . . . promptly comply with
reasonable requests for information[.]”), 32:1.5(a) (“A lawyer shall not . . .
charge . . . or collect [a fee in violation of] any restrictions imposed by
law.”), 32:3.2 (“A lawyer shall make reasonable efforts to expedite
litigation consistent with the interests of the client.”), 32:3.4(c) (“A lawyer
shall not . . . knowingly disobey . . . the rules of a tribunal[.]”), 32:8.1(b)
1Henderson testified that $1053.98 was charged for work that Lickiss did when
he first took the case and the remaining $122.50 was charged in connection with work
that Lickiss performed or partly performed in connection with a June 2006 delinquency
notice. At the hearing, the board did not contend Lickiss had not earned these fees or
that these fees were unreasonable. The board only claimed the fees were collected
without court authorization.
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(“[A] lawyer . . . shall not . . . knowingly fail to respond to a lawful
demand for information from an admissions or disciplinary authority[.]”),
and 32:8.4(d) (“It is professional misconduct for a lawyer to . . . engage in
conduct that is prejudicial to the administration of justice[.]”). 2
B. Howard Shelton Guardianship and Conservatorship. Lickiss
established a guardianship and conservatorship for Howard Shelton
(“Howard”) contemporaneously with doing so for Howard’s wife, Mina.
Henderson and Danny Shelton were named co-guardians and co-
conservators. Lickiss’s conduct with respect to Howard’s guardianship
and conservatorship mirrored his conduct with respect to Mina’s
guardianship and conservatorship. As a result, the board alleged and
Lickiss admitted he violated the same ethical rules enumerated in
relation to the Mina Shelton matter.
C. Maxine Baird Guardianship and Conservatorship. On
February 9, 2006, Lickiss filed a petition establishing a guardianship and
conservatorship for Maxine Baird. Lark Eckerman and Sandra Stotts,
Baird’s daughters, were named co-guardians and co-conservators.
Despite telling his clients he would secure the surety bond required by
the court, Lickiss failed to do so. As of June 2008, Lickiss had also
received three delinquency notices and had failed to cure the
delinquencies. In addition, he did not respond to the board’s inquiries
regarding these notices. Although Eckerman attempted to reach Lickiss
by calling the telephone numbers Lickiss and the clerk of court had given
her for him, she received recordings saying the numbers were not in
2The board alleged and Lickiss admitted a violation of rule 32:8.4(a) (“It is
professional misconduct for a lawyer to . . . violate . . . the Iowa Rules of Professional
Conduct[.]”). We do not consider a violation of this rule as a separate ethical infraction,
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010),
and so give it no further consideration.
6
service. With assistance from the clerk of court, Eckerman was
eventually able to address the delinquencies and file the necessary
reports on her own.
Baird died in March 2009. At the time of the hearing in this
disciplinary action, Eckerman had been unable to reach Lickiss to obtain
a copy of Baird’s will. At the hearing, Lickiss promised to get the will to
Eckerman. Based on these uncontroverted facts, the board alleged and
Lickiss admitted he violated the same ethical rules enumerated in
relation to the Mina Shelton matter.
D. Richard McGrean Estate. On April 7, 2006, Lickiss filed a
petition for administration of Richard McGrean’s estate. Lickiss failed to
publish and mail notices regarding the estate, failed to file an inventory,
and failed to file interlocutory reports. Several delinquency notices were
sent to Lickiss from 2006 through 2008, but he did not cure the
delinquencies. Consequently, the board alleged and Lickiss admitted he
violated the same ethical rules enumerated in relation to the Mina
Shelton matter.
E. Lickiss’s Prior Discipline. After Lickiss was notified of the
delinquencies in the Shelton matters on June 1, 2006, these
delinquencies were reported to the disciplinary authorities. See Iowa
Code § 633.32 (2005) (requiring clerk of court to report delinquent
inventories and reports to the presiding judge); Iowa Ct. R. 7.6(2), (3)
(requiring clerk of court to submit section 633.32 reports to the state
court administrator, who must then transmit a list of attorneys who have
ignored a notice of delinquency to the disciplinary board). The board
wrote to Lickiss regarding these delinquencies on October 11, 2006, and
again on November 14, 2006, but received no response.
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In January 2007, the board initiated the disciplinary process to
address the probate delinquencies in the Shelton proceedings.
Thereafter, the board became aware of four additional delinquency
notices sent by the clerk in the Shelton matters and a notice of
delinquency issued in the McGrean estate. Following the board’s second
notice to Lickiss of the January 2007 disciplinary proceeding, Lickiss
finally responded on February 23, 2007, but took no steps to rectify the
delinquencies.
On June 14, 2007, the board issued a public reprimand of Lickiss,
which this court published on September 21, 2007. The board’s
reprimand was based on Lickiss’s failure to act with reasonable diligence
and promptness in the Shelton and McGrean matters in violation of rule
32:1.3. Specifically, the board was acting in response to four
delinquency notices in the Mina Shelton matter, four delinquency notices
in the Howard Shelton matter, and one delinquency notice in the
McGrean matter. The 2007 reprimand did not address Lickiss’s failure
to secure surety bonds or his collection of fees without prior court
approval in the Shelton matters, as that conduct was not yet known by
the disciplinary office.
After the 2007 reprimand, the ethical infractions that are the
subject of the present disciplinary action came to the board’s attention,
and notice of these complaints was sent to Lickiss on two separate
occasions. When Lickiss failed to respond, the board filed a certificate
under Iowa Court Rule 34.7(3) on October 28, 2008, advising this court
that Lickiss had failed to respond to the board’s second notice of
complaints. On the same day, the Iowa Supreme Court Clerk of Court
notified Lickiss his license would be suspended unless he acted within
twenty days to cause the board to withdraw its certificate. Lickiss did
8
not respond. On November 24, 2008, pursuant to rule 34.7(3), this court
issued an order of temporary suspension of Lickiss’s license to practice
law. Lickiss’s license remained suspended until April 2009, when the
board withdrew its certificate based on Lickiss’s participation in the
hearing in this disciplinary proceeding, which the board considered a
response, albeit a tardy one, to its complaint. We reinstated Lickiss’s
license on April 14, 2009, and his license has remained in active status
since that time.
F. Lickiss’s Evidence of Mitigating Circumstances. At the
hearing, Lickiss candidly admitted his misconduct and recognized that
he was not suited to handle probate matters as a sole practitioner. He
acknowledged that his foray into private practice as a sole practitioner
was a mistake. He also detailed personal circumstances that impacted
his ability to handle his law practice. Lickiss was struggling with the
breakup of his marriage; loss of the opportunity to adopt foster children
who had been living with him; serious financial difficulties, including the
imminent foreclosure of the mortgage on his home; and depression.
Lickiss was taking medication for his depression at the time of the
hearing.
Lickiss testified that, in the spring of 2008, he voluntarily ceased
his private practice, but did not formally withdraw from these probate
matters and did not notify his clients that he had discontinued his
practice. Lickiss testified that he did not withdraw from these
proceedings because he was unaware that he was required to do so. He
asserts he does not intend to return to private practice, but hopes to find
a position as a prosecutor, a role he had handled successfully for over
nine years prior to starting his own practice.
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III. Ethical Violations.
A. Neglect. As we have frequently stated, neglect involves “a
consistent failure to perform those obligations that a lawyer has
assumed, or a conscious disregard for the responsibilities a lawyer owes
to a client.” See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Moorman, 683 N.W.2d 549, 551 (Iowa 2004). In each of the four matters
at issue here, Lickiss consistently failed to perform the obligations he
assumed as an attorney, including failing to secure the necessary surety
bonds, publish the required notices, file the required reports, and cure
the numerous delinquencies. We conclude he violated rule 32:1.1
(requiring competent representation), rule 32:1.3 (requiring reasonable
diligence and promptness), and rule 32:3.2 (requiring lawyer to make
reasonable efforts to expedite litigation consistent with his client’s
interests). Wagner, 768 N.W.2d at 283–87. These same actions delayed
the administration of the conservatorship, guardianship, and estate
proceedings and required otherwise unnecessary administrative
oversight by the clerk of court and judicial officers. As a result, Lickiss’s
conduct was prejudicial to the administration of justice in violation of
rule 32:8.4(d). Rickabaugh, 728 N.W.2d at 380–81 (holding failure to file
interlocutory reports in estates and receiving delinquency notices as a
result prejudiced the administration of justice); see also Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa
1999) (holding acts that “hampered the efficient and proper operation of
the courts” constituted conduct prejudicial to the administration of
justice).
B. Probate Fees. Iowa law prohibits an attorney from collecting
fees in probate cases without a prior court order approving the fees.
Iowa Code §§ 633.197, .198. Taking probate fees without prior approval
10
by the court violates rule 32:1.5(a) (prohibiting fees imposed or collected
in violation of law). Wagner, 768 N.W.2d at 283. Thus, Lickiss violated
rule 32:1.5(a) in collecting fees in the Shelton matters without court
approval.
C. Failing to Respond to Inquiries. Lickiss did not keep his
clients informed with respect to the status of their legal matters, did not
respond to their attempts to reach him, and did not tell them he had
closed his office and would no longer represent them. This conduct
violated rule 32:1.4(a)(3) (requiring lawyer to keep client reasonably
informed) and rule 32:1.4(a)(4) (requiring lawyer to promptly comply with
reasonable requests for information). In addition, when Lickiss failed to
respond to the board’s inquiries in this disciplinary proceeding, he
violated rule 32:8.1(b) (requiring response to demand for information by
disciplinary authority). Casey, 761 N.W.2d at 60 (failure to respond to
board’s inquiries in probate matter violates rule 32:8.1(b)).
IV. Sanction.
A. Board Recommendation. The commission recommends that
we suspend Lickiss’s license for three months. The commission also
suggests that, prior to reinstatement, Lickiss provide an evaluation from
a licensed health care professional verifying his fitness to practice law.
The commission further recommends that, prior to reinstatement, Lickiss
provide proof that he (1) has returned all wills and client materials to
clients for whom he provided estate planning and probate services prior
to the date of his suspension, (2) has attended continuing legal education
in estate planning and probate law, (3) has developed a system to track
and meet all reporting deadlines, and (4) has associated with an attorney
experienced in probate practice to mentor him as necessary.
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B. Relevant Factors and Considerations. “ ‘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.’ ” Wagner,
768 N.W.2d at 287 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Earley, 729 N.W.2d 437, 443 (Iowa 2007)); accord Casey, 761 N.W.2d at
61. In tailoring the sanction to the particular circumstances of each
case,
“we consider the nature of the violations, the attorney’s
fitness to continue in the practice of law, the protection of
society from those unfit to practice law, the need to uphold
public confidence in the justice system, deterrence,
maintenance of the reputation of the bar as a whole, and any
aggravating or mitigating circumstances.”
Casey, 761 N.W.2d at 61 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Ireland, 748 N.W.2d 498, 502 (Iowa 2008)); accord Wagner, 768
N.W.2d at 287.
C. Appropriate Discipline. When attorney misconduct involves
neglect, sanctions have typically ranged from a public reprimand to a six-
month suspension. Casey, 761 N.W.2d at 61. “ ‘Often, the distinction
between the punishment imposed depends upon the existence of
multiple instances of neglect, past disciplinary problems, and other
companion violations.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Marks, 759 N.W.2d 328, 332 (Iowa 2009) (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006)). This
case does not involve an isolated case of neglect. Lickiss engaged in
multiple instances of neglect in four probate matters such that he failed
to properly advance his clients’ interests. In addition, he took probate
fees before obtaining the required court orders, and he failed to respond
to his clients’ and the board’s inquiries.
12
A review of two prior disciplinary cases involving like
circumstances is instructive. In Wagner, 768 N.W.2d at 282–83, 288,
289, a disciplinary proceeding involving one probate case, among other
matters, we imposed a six-month suspension for misconduct consisting
of neglect, misrepresentations to the court, premature taking of probate
fees, failure to deposit fees in a trust account, failure to promptly return
unearned fees, failure to respond to the board, and having a prior public
reprimand for neglect and another public reprimand for
misrepresentation. In Casey, 761 N.W.2d at 63, a disciplinary
proceeding involving a probate matter and a personal injury case, we
imposed a three-month suspension for neglect, misrepresentation to the
court, premature taking of probate fees, and failure to respond to the
board’s inquiries.
D. Prior Discipline. In choosing the appropriate sanction in this
case, we consider an aggravating factor: Lickiss’s 2007 public reprimand
for identical occurrences of neglect. Lickiss’s prior discipline poses the
rather unique circumstance of having occurred in three of the same
cases that are the subject of this disciplinary proceeding: the Shelton
matters and the McGrean estate. This court has held that, when a
lawyer has already been sanctioned for similar, relatively
contemporaneous misconduct, we may refrain from imposing additional
discipline for newly discovered ethical violations if we conclude that a
more severe sanction would not have been imposed had the newly
discovered ethical violations been known when the initial discipline was
ordered. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d
301, 309 (Iowa 2009). We conclude this principle does not apply here.
It is true that some of the ethical infractions that are the subject of
this disciplinary proceeding occurred concurrently with the probate
13
delinquencies that were the basis for the 2007 reprimand. Significantly,
however, these infractions, which were unknown at the time of that
reprimand, are of a different character than simple neglect. In addition
to neglecting his clients’ legal matters by ignoring probate delinquency
notices, Lickiss failed to secure the necessary security bonds in the three
conservatorships and prematurely took probate fees in the Shelton
matters. We cannot conclude that this additional misconduct would not
have warranted a more severe sanction than the public reprimand given
by the board for Lickiss’s failure to respond to delinquency notices had
the board been aware of these other ethical infractions in 2007.
In addition, much of the misconduct that is the subject of the
current complaint, including numerous instances of neglect, occurred
after the prior reprimand. The prior reprimand was imposed in response
to one delinquency notice issued in the McGrean estate in 2006 (there
were four subsequent delinquency notices) and to four delinquency
notices issued in 2006 in each of the Shelton matters (there were four
additional delinquency notices in each of those cases). In addition, the
2007 reprimand did not address any of the 2008 Baird delinquencies.
Because the 2007 reprimand did not address Lickiss’s behavior
subsequent to 2006, an additional sanction is appropriate for his later
misconduct.
We think the prior reprimand constitutes a particularly
aggravating circumstance because one would expect that the initial
discipline for failing to address the probate delinquencies would have
prompted the respondent to attend to his clients’ legal matters or obtain
the assistance of an attorney who would attend to these matters.
Therefore, in determining the proper sanction here, we do not consider
Lickiss’s failure in 2006 to cure the delinquencies that were the focus of
14
the prior reprimand, but we do consider that prior reprimand as an
aggravating circumstance. See Wagner, 768 N.W.2d at 288 (aggravating
circumstances included having a prior disciplinary record consisting of a
public reprimand for neglect and another public reprimand for
misrepresentation); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Jones, 606 N.W.2d 5, 9 (Iowa 2000) (prior public reprimand considered
aggravating circumstance).
E. Voluntary Cessation of Practice and Temporary
Suspension. At the hearing, Lickiss argued the period during which he
voluntarily refrained from practicing law beginning in the spring of 2008
should be credited toward any suspension we impose here. Under our
cases, however, a period of voluntary cessation of practice will not be
allowed as a credit toward a suspension ordered by this court. Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 89
(Iowa 2001). As we have stated,
in some cases we have given credit for the time an attorney
has been actually suspended under a temporary order by
this court. For purposes of retroactive commencement of a
suspension, we do not equate a voluntary cessation of
practice with a temporary suspension.
Under our present rules, an attorney formally
suspended by this court is required to take certain steps to
assure his complete disengagement from all pending
matters, . . . and to file proof of his compliance with those
requirements . . . . In the case of a voluntary cessation of
practice, there is no such procedure for verification and
therefore no means of determining that the discontinuation
of practice was complete and continuous. Treating a
voluntary cessation in the same way as a suspension could
lead to future problems regarding whether the attorney has
in fact ceased to practice.
Comm. on Prof’l Ethics & Conduct v. McDermott, 405 N.W.2d 824, 825
(Iowa 1987) (citations omitted). Thus, we will not credit the period of
15
Lickiss’s voluntary cessation of practice toward any suspension we order
here.
We next consider the impact of this court’s temporary suspension
of Lickiss. Lickiss’s temporary suspension under rule 34.7(3) was a
consequence of his failure to respond to the board’s inquiries. Based on
the length of that suspension (over four months), we conclude he has
been adequately disciplined for that misconduct, and therefore, we will
not consider his violation of rule 32:8.1(b) (requiring response to demand
for information by disciplinary authorities) in fashioning a sanction here.
We decline to give Lickiss a credit for his period of temporary suspension
against any suspension imposed here because the suspensions are not
duplicative. First, because we have decided to impose no additional
discipline for Lickiss’s violation of rule 32:8.1(b), the sanction we impose
here is not for the same misconduct that warranted the temporary
suspension. Secondly, the purpose of the temporary suspension is more
than disciplinary; it is also intended to prompt a response to the board’s
inquiries so the disciplinary action may proceed in a timely and informed
fashion. 3
F. Depression and Voluntary Practice Limitations. In
fashioning an appropriate sanction, we take into account Lickiss’s
depression as a mitigating circumstance. While illnesses do not excuse
misconduct, they can moderate the discipline we impose. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 703 (Iowa
2008) (holding depression a mitigating circumstance in a disciplinary
3The coercive nature of the suspension is demonstrated by the fact that the
length of a temporary suspension under rule 34.7 is essentially up to the respondent.
Once the attorney responds to the board’s inquiries, the board is required to withdraw
its certificate or provide an alternate basis for continuing the suspension, see Iowa Ct.
R. 34.7(3)(d), and upon the board’s withdrawal of the certificate, the court must
“immediately reinstate the attorney’s license to practice law,” id. r. 34.7(3)(f).
 16
case that resulted in a one-year suspension for neglect, client trust
account violations, and dishonesty to client); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96 (Iowa 2006) (holding
severe depression and anxiety constituted mitigating circumstances
considered in disciplinary action resulting in two-year suspension for
multiple acts of misconduct, including neglect, misrepresentation, and
client trust account violations).
In addition, we view Lickiss’s voluntary cessation of law practice
after receiving the public reprimand to be a remedial effort to address his
personal and professional problems. Lickiss testified that he intends to
forego private practice, including probate work, in the future and return
to a career as a prosecutor. Like illness, voluntary remedial efforts to
limit a respondent’s practice of law to areas of competence do not excuse
misconduct. Nevertheless, we consider such remedial efforts as a
mitigating circumstance. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct
v. Scheetz, 549 N.W.2d 828, 833 (Iowa 1996) (imposing discipline
notwithstanding respondent’s voluntary remedial efforts to limit practice
to areas of competence, but considering such efforts in deciding to
impose discipline of public reprimand).
G. Discipline. After considering the number and nature of
Lickiss’s ethical infractions as well as the aggravating and mitigating
factors present in this case, we agree with the commission that a three-
month suspension is appropriate. See Casey, 761 N.W.2d at 63
(imposing three-month suspension for similar misconduct). To ensure
that the public is adequately protected in the event Lickiss seeks
reinstatement, we require that any application for reinstatement be
supported by an evaluation from a licensed health care professional
demonstrating Lickiss’s fitness to practice law. See McCann, 712 N.W.2d
17
at 97 (requiring evaluation of respondent who suffered from depression
and anxiety). We also concur in the commission’s recommendation that
Lickiss be required to return all client property in his possession,
including wills, prior to reinstatement.
We do not adopt the commission’s suggestion that, prior to
reinstatement of his law license, Lickiss must submit evidence of
completing appropriate continuing legal education. Although Lickiss
admitted the board’s allegation that he failed to provide competent
representation, he testified that he does not intend to engage in probate
work in the future, and he has already abandoned the private practice of
law. Therefore, it would be impractical to ascertain the appropriate
content of any continuing legal education requirement.
In addition, we do not adopt the commission’s recommendation
that Lickiss associate with an experienced probate practitioner or that he
submit evidence that he has developed a system to track and meet all
reporting deadlines. As we have noted in prior cases, “neither the court
nor the bar has effective machinery in place for . . . supervision” of such
requirements. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kirlin, 741
N.W.2d 813, 819 (Iowa 2007); see also Comm. on Prof’l Ethics & Conduct
v. Mahoney, 402 N.W.2d 434, 435 (Iowa 1987) (lawyer was reprimanded
and placed under supervision of his law partner; lawyer later withdrew
from firm following which former partner discontinued supervision and
lawyer again engaged in unethical conduct).
Although we have not ordered protective measures such as
continuing legal education or adequate clerical and professional support,
we expect Lickiss to avail himself of whatever resources are necessary to
allow him to practice in compliance with our rules of professional
conduct. We caution him that, in the event he is reinstated, he should
18
consider a career that will allow him to steer clear of any future ethical
violations.
V. Conclusion.
Because Lickiss has violated ethical rules by neglecting four
probate matters, failing to respond to clients’ inquiries for information,
taking probate fees without prior court approval, and failing to notify his
clients that he would no longer be representing them, we suspend
Lickiss’s license to practice law indefinitely with no possibility of
reinstatement for three months. 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 outlined in Iowa Court Rule 35.22.
Prior to any reinstatement, Lickiss must provide an evaluation from a
licensed health care professional verifying his fitness to practice law.
Costs are taxed to Lickiss pursuant to Iowa Court Rule 35.26.
Reinstatement shall not be ordered until all costs are paid. Iowa Ct. R.
35.12(1).
LICENSE SUSPENDED.