Iowa Supreme Court Attorney Disciplinary Board Vs. Hugh Michael Neary

IN THE SUPREME COURT OF IOWA
No. 139 / 06-1297
Filed March 5, 2007
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
HUGH MICHAEL NEARY,
Respondent.
On review of the findings and recommendations of the Grievance
Commission.
Appeal from report of Grievance Commission. LICENSE
SUSPENDED.
Charles L. Harrington and Wendell Harms, Des Moines, for
complainant.
H. Michael Neary, Ottumwa, pro se.
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PER CURIAM.
The Iowa Supreme Court Attorney Disciplinary Board filed a
complaint against the respondent, Hugh Michael Neary, charging numerous
instances of misconduct arising out of his handling of probate cases.
Following a hearing, our Grievance Commission found that the respondent
failed to complete probate matters in a timely fashion, accepted fees prior to
obtaining court authorization, failed to cooperate with the chief judge and
another attorney in resolving the problems, and failed to respond to the
board’s inquiries. The commission recommended a minimum suspension of
twelve months with conditions precedent to his readmission. We agree with
the commission’s recommendations.
I. The Facts.
These disciplinary charges arose out of the respondent’s serious
neglect of thirteen probate cases—neglect that caused the clerk of the
district court to send him forty-six notices of delinquency. The commission
concluded that the respondent violated DR 1—102(A)(5) (lawyer shall not
engage in conduct that is prejudicial to the administration of justice),
DR 1—102(A)(6) (lawyer shall not engage in any conduct adversely reflecting
on fitness to practice law), DR 6—101(A)(3) (lawyer shall not neglect client
matters), and DR 7—101(A)(2) (lawyer to complete contract of employment).
In addition, the commission found that, as to five estates, the respondent
collected his fees in violation of DR 2—106(A) because he received them
prematurely in violation of Iowa Court Rule 7.2(4).
Our disciplinary board, after receiving complaints regarding the
probate matters, sent thirty notices to the respondent requesting his
response. He received four notices each in six of the estates. The
respondent failed to respond to any of the board’s requests.
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In addition, the commission found that the respondent had ignored
requests from another attorney and the chief judge of the district to act with
respect to the estates and that substantial expenses, including attorney
fees, had been incurred due to his failure to promptly resolve the probate
matters.
II. The Disposition.
It is difficult to draw on other disciplinary cases to determine a
sanction to be imposed because there are seldom identical circumstances.
In this case, the respondent’s substantial neglect in thirteen probate
matters was exacerbated by (1) his taking of fees prematurely in five cases,
(2) his failure to cooperate with the judge and another attorney, (3) his
failure to respond to thirty requests from the board, (4) the fact that others
incurred additional expenses because of his neglect, and (5) the fact he had
three times previously been publicly reprimanded.
In Iowa Supreme Court Attorney Disciplinary Board v. Schumacher, 723
N.W.2d 802 (Iowa 2006), three of the respondent’s cases were involved, all
of which concerned neglect and procrastination. In addition, the lawyer had
failed to respond to numerous inquiries by the board. We suspended her
license indefinitely, with no possibility of reinstatement for six months. In
Iowa Supreme Court Board of Professional Ethics & Conduct v. Jay, 606
N.W.2d 1 (Iowa 2000), the attorney had neglected client matters in several
estates, accepted fees prior to obtaining court authorization, and
misrepresented the status of the estate to the court. We suspended this
attorney’s license for a minimum of one year. In Iowa Supreme Court Board
of Professional Ethics & Conduct v. Hovda, 578 N.W.2d 673 (Iowa 1998), the
attorney had neglected seventeen probate cases and failed to respond to
notices of delinquency by the clerk’s office and offers of assistance from
experienced probate lawyers. We suspended the attorney’s license for a
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minimum of two months and ordered that, on any reinstatement, he be
required to associate in all probate cases with a recognized probate lawyer.
In Iowa Supreme Court Board of Professional Ethics & Conduct v. Winkel, 542
N.W.2d 252 (Iowa 1996), the attorney neglected fifteen probate matters and
failed to respond to delinquency notices by the clerk and inquiries from the
board. We suspended his license for a minimum of six months and ordered
that, on any application for reinstatement, the attorney show proof of a plan
to handle all future probate matters expeditiously or to show that he had
associated with qualified probate counsel. In Committee on Professional
Ethics & Conduct v. Batschelet, 402 N.W.2d 429 (Iowa 1987), the attorney
neglected twenty-one probate matters and failed to respond to the board’s
notices of investigation. We suspended his license for a minimum of six
months.
We believe in view of all of the circumstances of this case, including
the extent of the respondent’s neglect in the probate matters, the
respondent’s receipt of fees in five estates prior to court authorization, his
failure to cooperate with the judge and another attorney in concluding the
estate matters, the fact he had caused parties to incur expenses in dealing
with his neglect, and the fact that he had previously been publicly
reprimanded all support the commission’s recommendation—suspension for
a minimum of one year with conditions for reinstatement.
Accordingly, we suspend this respondent’s license indefinitely with no
possibility of reinstatement for a period of twelve months from the filing of
this opinion. 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 35.21. Upon application for reinstatement,
the respondent shall have the burden to establish that he has not practiced
law during the period of suspension, that he meets all requirements of Iowa
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Court Rule 35.13, and that he has paid the costs of this proceeding. Any
costs incurred in connection with the resolution of the underlying probate
matters in the district court shall be paid. Several expenses were incurred
in completing the probate matters that had been neglected by the
respondent. Those expenses included fees and advanced costs by Randy
DeGeest for his work as successor executor of one of the estates, expenses
incurred by attorney John N. Wehr for his work on the same estate, and
expenses incurred by attorney Greg Life for his work as guardian ad litem in
a number of the cases. It is not possible under the existing record to tell
whether any of these expenses have been paid, nor is it certain that this is
even a complete list of the expenses incurred. Therefore, prior to any order
reinstating the respondent, he shall certify to this court that he has paid all
costs incident to the completion of the work, as set out above, and any
other expenses that we have not specifically identified.
In addition, if he is reinstated, the respondent shall not engage in
probate matters pending further order of this court unless he associates
with an experienced lawyer approved by the chief judge of the Eighth
Judicial District.
LICENSE SUSPENDED.
All justices concur except Streit, J., who takes no part.
This opinion shall be published.