Iowa Supreme Court Attorney Disciplinary Board v. Donald H. Capotosto

IN THE SUPREME COURT OF IOWA
No. 19–0249
Filed May 3, 2019
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
DONALD H. CAPOTOSTO,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
In this attorney disciplinary action, the grievance commission
recommends a sixty-day suspension. LICENSE SUSPENDED.
Tara van Brederode and Amanda K. Robinson, Des Moines, for
complainant.
John D. Brown, Emmetsburg, and Donald H. Capotosto,
West Bend, pro se, for respondent.
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CADY, Chief Justice.
This case is before us on review from a report and recommendation
of a division of the Iowa Supreme Court Grievance Commission
concerning attorney Donald Capotosto. The report found Capotosto
committed ethical violations and recommended he be suspended from
the practice of law for sixty days. We find Capotosto violated the Iowa
Rules of Professional Conduct by neglecting several probate cases. We
suspend his license to practice law in Iowa for sixty days.
I. Background Facts and Proceedings.
Donald Capotosto is an Iowa attorney admitted to practice law in
1973. He resides and maintains a private practice in West Bend, Iowa.
In addition to his private practice, he regularly accepts court-appointed
criminal and juvenile cases. This disciplinary proceeding involves
Capotosto’s conduct in handling several probate cases and his failure to
cure numerous delinquencies.
On December 21, 2018, Capotosto and the Iowa Supreme Court
Attorney Disciplinary Board jointly filed a stipulation of facts and rule
violations. Capotosto stipulated that he allowed six probate estates to
become delinquent and violated Iowa Rules of Professional Conduct
32:1.3; 32:1.4(a)(3), (4); and 32:8.4(d). The parties also stipulated that
Capotosto entered into a deferral agreement (the Agreement) on March
14, 2018.
Pursuant to the Agreement, Capotosto was required to remedy all
delinquencies by June 1, 2018, or, alternatively, withdraw from the
cases. The terms of the Agreement also required Capotosto to complete
six hours of continuing legal education in the area of probate law and
submit quarterly reports to the Board documenting his compliance with
the conditions. The Agreement prohibited Capotosto from commencing
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probate work on estates for which he was not already the attorney of
record. Capotosto acknowledged that failure to meet the conditions of
the Agreement would result in disciplinary actions against him.
Capotosto failed to comply with the requirements of the Agreement.
He did not cure or withdraw from the already delinquent probate estates.
Moreover, Capotosto opened additional probate estates, causing the
number of delinquent cases to increase from five to twelve by the time of
the grievance commission hearing. He also failed to file quarterly reports
as required under the Agreement.
Capotosto has been previously subjected to disciplinary action. In
January 2015, he was publicly reprimanded for allowing several probate
estates to become delinquent. In January 2016, he was temporarily
suspended for failing to respond to a complaint from the Board.
II. Board Complaint and Commission Grievance Report.
Following Capotosto’s failure to comply with the Agreement’s
terms, the Board recommended a minimum sanction of a six-month
license suspension. It further recommended that Capotosto be barred
from handling probate cases in the future.
The commission found Capotosto violated the rules set forth in the
stipulation. It also identified numerous aggravating factors, including
failing to cure delinquencies, failing to withdraw from the cases, opening
of new estates, and receiving new notices of delinquency; a public
reprimand in 2015; a temporary suspension in 2016; and the absence of
a succession plan. It also recognized several mitigating circumstances,
including letters of support and his willingness to accept court-appointed
cases. It also observed that he completed substantial work on all of the
cases. Ultimately, the commission concluded Capotosto should receive a
sixty-day suspension.
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III. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 796 N.W.2d 910, 913 (Iowa
2011). While we are not bound by the commission’s findings and
recommendations, we do give them respectful consideration. Id. The
Board must prove the misconduct by a convincing preponderance of the
evidence. Id.IV. Violation.
A. Rule 32:1.3. Rule 32:1.3 states, “A lawyer shall act with
reasonable diligence and promptness in representing a client.” Iowa R.
Prof’l Conduct 32:1.3. Typically, an attorney does not violate the rule by
missing one deadline. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012). Instead, an ethical
violation “arises when a lawyer ‘repeatedly fail[s] to perform required
functions as attorney for the executor, repeatedly fail[s] to meet
deadlines, and fail[s] to close the estate within a reasonable period of
time.’ ” Id. (alterations in original) (quoting Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002)). We
have previously found that attorneys violate this rule when they fail to
close a probate estate and receiving multiple delinquencies. See
Van Ginkel, 809 N.W.2d at 102 (finding an “obvious” violation based on
attorney’s “consistent failure” to perform duties resulting in multiple
delinquencies in one estate case); see also Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 867 (Iowa 2010) (holding the
attorney’s failure to cure multiple delinquencies in multiple cases
resulted in a rule 32:1.3 violation).
In this case, the commission found Capotosto was negligent, and
his conduct resulted in multiple delinquencies across multiple estate
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cases. Throughout this action, the number of delinquent cases rose from
five to nine and finally to twelve by the time of the commission’s hearing.
At least one estate from the reprimand in 2015 remains open and
delinquent. Clearly, Capotosto’s actions demonstrate a consistent and
continuous pattern of neglect. Even though many of the estates were
close to completion, Capotosto still failed to act with reasonable diligence
and promptness by not completing his tasks. For these reasons, we find
Capotosto violated rule 32:1.3.
B. Rule 32:1.4. Rule 32:1.4 sets forth the expectations of lawyers
in their communications with clients. Subsection (a)(3) provides that “[a]
lawyer shall . . . keep the client reasonably informed about the status of
the matter.” Iowa R. Prof’l Conduct 32:1.4(a)(3). Further, subsection
(a)(4) states that “[a] lawyer shall . . . promptly comply with reasonable
requests for information.” Id. r. 32:1.4(a)(4).
We have concluded attorneys violate both subsections (a)(3) and
(a)(4) by failing to keep their clients informed about the status of their
case and neglecting to respond to client inquiries. Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Ryan, 863 N.W.2d 20, 26 (Iowa 2015); see also
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 537–
38 (Iowa 2013) (concluding attorney violated rule 32:1.4(a) because he
did not properly notify clients of court dates and was inaccessible and
unresponsive to inquiring clients). Thus, an attorney’s failure to
communicate may violate both his duty to provide clients with
information and his duty to respond promptly to a request.
Capotosto admitted that in some instances he did not adequately
communicate with clients about the status of their case and failed to
respond to their requests for information. Accordingly, we find
respondent violated rules 32:1.4(a)(3) and 32:1.4(a)(4).
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C. Rule 32:8.4(d). Rule 32:8.4 provides that “[i]t is professional
misconduct for a lawyer to . . . engage in conduct that is prejudicial to
the administration of justice.” Iowa R. Prof’l Conduct 32:8.4(d). Acts are
considered prejudicial when they violate “the well-understood norms and
conventions of the practice of law,” Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Stansberry, 922 N.W.2d 591, 597 (Iowa 2019) (quoting Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 768
(Iowa 2010)), hindering the efficiency and operation of our court system.
We have consistently held an attorney’s misconduct causing
prolonged or additional court proceedings violates this rule. See, e.g.,
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169,
180 (Iowa 2013). For example, in Van Ginkel, we noted the attorney’s
multiyear procrastination resulted in “issuing orders, extending
deadlines, and cleaning up the probate proceedings.” 809 N.W.2d at
103. This unnecessary expenditure of “valuable judicial and staff
resources” violated rule 32:8.4(d). Id.
Similarly, Capotosto’s continued negligence needlessly expended
judicial resources. The Board’s brief on the issue of sanctions cited
thirty-eight delinquencies between six probate estates. The issuance of
delinquency notices, particularly at this volume, is an unnecessary
expenditure of valuable judicial time.
In an attempt to encourage Capotosto to rectify the delinquencies,
the parties entered into the Agreement. He did not comply with any of its
terms. The formation of the Agreement, as well as the Board and
commission’s intervention, also constitute the use of judicial resources.
Accordingly, we find Capotosto’s sustained negligence in his numerous
probate cases hindered the efficiency of our judicial system in violation of
rule 32:8.4(d).
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V. Sanctions.
“There is no standard sanction for particular types of misconduct.”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clarity, 838 N.W.2d 648, 660
(Iowa 2013). While prior cases are instructive, “we ultimately determine
an appropriate sanction based on the particular circumstances of each
case.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d
437, 443 (Iowa 2007). The commission recommended a sixty-day
suspension for Capotosto’s transgression, a lesser sanction than the
Board’s six-month recommendation. We must now decide the
appropriate course of disciplinary action.
A. Neglect. “Prolonged inattention to probate matters
undermines the public’s confidence in the legal profession and is
contrary to the foregoing canons of professional responsibility.” Comm.
on Prof’l Ethics & Conduct v. Haney, 435 N.W.2d 742, 743 (Iowa 1989).
Generally, sanctions for attorney misconduct involving neglect have
ranged from a public reprimand to a six-month license suspension.
Lickiss, 786 N.W.2d at 868. Normally, probate neglect cases that
warrant “sanctions on the high end of the spectrum are accompanied by
various aggravating factors.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Ochs, 804 N.W.2d 720, 722 (Iowa 2011). These aggravating factors may
include “multiple instances of neglect, other past disciplinary action, and
companion violations such as dishonesty to clients and the court, failure
to cooperate with the Board’s investigation, and mishandling client
funds.” Id.In Ochs, a disciplinary case involving an attorney’s neglect, we
imposed a thirty-day suspension. Id. at 723. Our analysis centered
almost entirely on the prolonged failure by the attorney to rectify ten
delinquent cases. Id. at 722. We noted the case did “not involve
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aggravating circumstances such as misrepresentation or violations of
court orders found in many neglect cases in which we have imposed
lengthy suspensions.” Id.
Capotosto suggests that the sanction in this case should be similar
to Ochs, considering the sheer number of estates involved in the matter.
He compares his twelve delinquent estate cases to the ten cases in
Ochs. 1 Based on the number of neglect cases, it may appear that
Capotosto should receive a similar sanction to that handed down to
Ochs. However, this case is different from Ochs, in which our primary
consideration was the mere neglect of multiple cases. Although
Capotosto’s case does not involve serious aggravating factors, such as
misrepresentation or premature fee collections, there are other factors
that warrant a lengthier sanction.
B. Prior Reprimand. “Prior discipline is another aggravating
factor we consider in determining the appropriate sanction.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. McCuskey, 814 N.W.2d 250, 258
(Iowa 2012); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal,
841 N.W.2d 114, 127 (Iowa 2013). Prior misconduct is particularly
relevant when an attorney commits conduct in a client matter after
already being disciplined in that matter. See Dolezal, 841 N.W.2d at 128.
That is, “one would expect that the initial discipline . . . would have
prompted the respondent to attend to his clients’ legal matters.” Lickiss,
786 N.W.2d at 869–70.
Prior to this action, Capotosto was subject to reprimand on two
occasions. He was publicly reprimanded in 2015 for his neglect of
1Capotosto originally argued he should receive a similar sanction to Ochs
because he only had six neglected probate cases, compared to Ochs’s mishandling of
seven estates, two guardianships, and one conservatorship. While the number of
Capotosto’s neglected cases was once less than Ochs’s, it now exceeds it.
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probate cases. In 2016, he was temporarily suspended for failing to
respond to a Board complaint. One of the cases included in the 2015
reprimand is at issue in the present case. We consider these prior
reprimands and regard the further neglect of an earlier case as an
aggravating circumstance in this case.
C. Other Aggravating Factors. The commission identified
Capotosto’s failure to comply with the Agreement’s terms as an
aggravating circumstance. In Committee on Professional Ethics &
Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa 1981) (en banc), we
examined an attorney’s failure to fulfill his promise to timely complete
probate matters. “[W]hile we do not imply such representations were
deceitful, we deem the breach of them to be significant.” Id.Similarly, Capotosto’s stipulation to the Agreement was a promise
to perform tasks mandated by the Board. The Agreement required him
to cure all delinquent cases, withdraw from the cases if he did not cure
them, refrain from opening new cases, provide quarterly reports, and
attend and complete six hours of CLE in the area of probate. Capotosto
did not comply with any of these terms. This inaction, at the very least,
demonstrates a disregard for the Board’s authority. It further
disadvantages the clients and beneficiaries who fell victim to Capotosto’s
neglect. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 723
N.W.2d 439, 442 (Iowa 2006) (stating harm to a client may also be
considered an aggravating factor). Accordingly, we find Capotosto’s
failure to comply with the terms of the Agreement an aggravating factor.
D. Mitigating Factors. Our determination of the appropriate
disciplinary action also includes consideration of mitigating factors.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 831 N.W.2d 194, 201
(Iowa 2013). The commission listed the following as mitigating factors:
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letters written on Capotosto’s behalf, his willingness to accept court-
appointed cases, and the fact that he completed substantial work on
most of the cases.
A judge and a county attorney submitted compelling letters on
Capotosto’s behalf. While neither were able to comment on his probate
work, they held his professional abilities and his utility to the community
in high regard. Significantly, the letters explained Capotosto’s
importance as one of few attorneys willing to accept court-appointed
assignments in a five-county area.
I would be hamstrung and hobbled in delivering justice and
resolving my cases if Mr. Capotosto were prevented from
serving as opposing counsel in Palo Alto County non-probate
cases . . . . If he were prevented from acting as counsel in
those counties (other than in probate matters) the judicial
operations in these counties would be severely and adversely
disturbed.
We find these declarations of Capotosto’s value to the legal
communities he serves to be significant. While Capotosto has violated
multiple rules of professional conduct, he has also upheld our aim to
“devote professional time and resources and use civic influence to ensure
equal access to our system of justice for all those who because of
economic or social barriers cannot afford or secure adequate legal
counsel.” Iowa R. of Prof’l Conduct ch. 32 pmbl. [6]. This commitment is
vital to our legal community and is worthy of our consideration.
Finally, the commission noted Capotosto has completed
substantial work in all of the delinquent cases, needing only to send
notices and obtain final orders. The commission characterized
Capotosto’s failure to complete these final tasks as a “mental block.” We
agree.
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The letters submitted on Capotosto’s behalf and his willingness to
accept court appointments demonstrate his competency, collegiality, and
commitment to Iowa’s legal community. Yet, he has been incapable of
completing his clients’ probate matters, despite entering into the
Agreement and threats of reprimand. His neglect of the probate cases is
not indicative of his general ability to perform as a zealous advocate in
other matters, but it remains a potential impediment to his ability to
practice law successfully in the future.
Upon consideration of the commission’s findings and facts of this
case, we conclude a sixty-day suspension of respondent’s license to
practice law is the appropriate sanction. This sanction conforms to the
recommendation of the commission and is consistent with our prior
cases.
VI. Disposition.
We suspend the license of Donald H. Capotosto to practice law in
this state for sixty days from the filing of this opinion. This suspension
shall apply to all facets of the practice of law. See Iowa Ct. R. 34.23(3).
Capotosto shall comply with all requirements of the court rules
associated with his suspension. See id. rs. 34.23(2)–(4), .24(1)–(2). The
costs of this proceeding are assessed against Capotosto. Id. r. 36.24(1).
LICENSE SUSPENDED.