Iowa Supreme Court Attorney Disciplinary Board v. T.J. Hier

IN THE SUPREME COURT OF IOWA
No. 19–1320
Filed January 17, 2019
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
T.J. HIER,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
Grievance commission recommends public reprimand for violation
of ethical rules. LICENSE SUSPENDED.
Tara van Brederode and Crystal W. Rink, Des Moines, for
complainant.
David L. Brown and Tyler R. Smith of Hansen, McClintock & Riley,
Des Moines, for respondent.
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WATERMAN, Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against attorney T.J. Hier charging her with violating Iowa
disciplinary rules in connection with her handling of a disputed attorney
fee payment in what she aptly describes as a “hotly contested, emotional
family law matter.” A division of the Iowa Supreme Court Grievance
Commission found that Hier violated several rules but that the Board
failed to prove several other rule violations. The commission recommends
a public reprimand. The Board seeks a suspension. Hier requests a
private admonition. We agree with the commission’s findings as to Hier’s
rule violations, but we disagree with the commission’s recommended
sanction. In light of Hier’s prior disciplinary history, we suspend her
license to practice law for thirty days.
I. Background Facts and Proceedings.
Hier obtained her Iowa law license in 1997. She began her career
in private practice in Newton, and she served as an assistant county
attorney in Jasper County. She had an inactive law license from 2001 to
2005. She resumed practicing law solo out of her home in Baxter in 2006.
She now practices in the areas of criminal, juvenile, and family law. Hier
is under contract with the state public defender’s office for criminal and
juvenile court appointments. She represents many clients pro bono and
serves other low-income clients. She volunteers as a mock trial coach and
for domestic violence victim groups, her church, and the Special Olympics.
Hier is legally blind, having lived nearly her entire life with Stargardt
disease, a rare macular degeneration that requires her to use
magnification techniques and devices to read documents.
Our court has previously disciplined Hier five times. We publicly
reprimanded her in 2009. We temporarily suspended her law license in
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2012 for failure to respond to the Board. We publicly reprimanded her
again later that year and again in 2014. Most recently, in December of
2017, we disciplined Hier for trust account violations after an audit by the
Client Security Commission determined that she failed to maintain written
monthly reconciliations, lacked a journal of receipts and disbursements,
lacked documentation of electronic transfers, and failed to properly
maintain client ledger subaccounts. We publicly reprimanded her for
violating Iowa Rules of Professional Conduct 32:1.15(a) and (f) and Iowa
Court Rule 45.2. Our 2017 public reprimand preceded some of Hier’s
conduct at issue in this opinion.
Hier represented Amanda Rothfus against Edwin Van Dorn, a
former boyfriend with whom Rothfus had two children. In late 2016, Hier,
on behalf of Rothfus, filed an “Application for Rule to Show Cause and an
Application to Modify Custody, Visitation, and Child Support.” The
applications alleged Van Dorn was willfully violating the visitation
schedule in the decree and was in arrears paying child support. Attorney
Jeff Carter represented Van Dorn. Those matters were pending when
Rothfus was deposed on August 11, 2017. The parties halted the
deposition to negotiate a settlement agreement to resolve the pending
litigation and recited the terms into the record transcribed by the court
reporter. Rothfus agreed to dismiss the contempt action against Van Dorn
in return for his payment of $1032.42 in child support and his payment
of $750 towards Hier’s attorney fees. According to Carter, Hier told
Van Dorn to make the $750 check out to her trust account. The same
day, Van Dorn delivered his check for $1032.42 to the Iowa Child Support
Recovery Unit and delivered his $750 check payable to Hier’s client trust
account (CTA).
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Rather than deposit the check in her CTA, Hier deposited the check
into her firm’s general account and credited the payment against Rothfus’s
outstanding balance. Hier later testified she did not remember telling
Van Dorn to make the check payable to her CTA, but he did so.
Carter agreed to draft the stipulation reflecting the parties’
agreement, but he did not send the draft to Hier until a month later.
During the intervening weeks, Van Dorn failed to remain current on his
child support payments and failed to exercise visitation. Rothfus declined
to sign the stipulation and insisted on proceeding to trial, contending that
Van Dorn had misrepresented his work schedule, which was the basis for
the custody modification. In response, on September 28, Carter filed a
motion to enforce the settlement agreement that requested the stipulation
be signed or the $750 returned. Hier filed a resistance asserting she need
not return the $750 because Van Dorn’s misrepresentations excused
Rothfus from signing the stipulation.
On November 9, the parties appeared before Judge Rickers for a
hearing on the motion to enforce the settlement. The hearing was
continued at the request of the children’s guardian ad litem who had not
received timely notice. Judge Rickers met with Hier and Carter in
chambers and off the record discussed the dispute over Van Dorn’s $750
payment to Hier. Hier offered to place the $750 payment in her CTA. Hier
later testified that
Mr. Carter was highly agitated and so I said, “Jeff, if it will
make you feel better I can put it in my trust account.” And
Judge Rickers said, “Well, I’m not going to order you to do
that.” And I said -- I said, “Well, I will offer to do that.” And
then there was nothing further said about it.
Judge Rickers later testified he lacked a specific recollection of that
in-chambers discussion:
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Q. Judge Rickers, Ms. Hier testified during her
testimony that you said, “I’m not going to order you to return
the fees.” That was referring to a statement that you
supposedly made on November 9, 2017. Do you recall making
that statement? A: I do not specifically recall making that
statement. . . . I said, “I don’t recall making it.” I’m not saying
I didn’t say it either. I just don’t recall it. If I did make that
statement, it was in the context of that the $750 had to be
placed in Ms. Hier’s trust account.
In any event, Judge Rickers promptly issued a written order continuing
the hearing until January 26, 2018. The order stated,
Petitioner paid the Respondent’s attorney $750.00 in attorney
fees in contemplation of consummation of the settlement
agreement. Respondent’s attorney has agreed to immediately
transfer $750 to her client trust account pending resolution
of the motion. Disposition of the attorney fees held in trust
shall depend upon final resolution of the pending motion.
Despite this court order, Hier never deposited the $750 into her CTA, nor
did she inform the court that she neglected to do so. Hier testified that
she did not read the order and thus was unaware of its terms.
On January 25, the day before the scheduled hearing, Carter
withdrew his motion to enforce the settlement agreement. He emailed Hier
to inform her, but he stated that he expected her to return the $750 to
Van Dorn as “that payment was made solely for the universal settlement
that your client pulled out of.” Hier replied, stating that she would put the
check in the mail that day and that she expected the check to arrive by
January 29. Later that day, Hier emailed Carter to ask whether she should
make the check payable to Van Dorn or to Carter’s law office. Carter
received the email, but the record does not state whether Carter
responded. Hier did not mail the check.
Carter emailed Hier again on March 6. This email stated, “We are
still waiting for you to return my client’s $750. I have been instructed to
file something with the Court if we do not get it immediately. Please reply
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ASAP[.]” Hier did not reply to this email. Carter emailed Hier again on
March 27, stating,
Are you going to do anything on this? You told us repeatedly
you would return these funds. My client is continuing to
threaten his own action as well as instruct me to file
something as well. Please show the courtesy of a reply to this
email.
Hier replied by email within the hour, stating she had discussed the matter
with Rothfus and that they believed that “at least a portion of the amount
should be attributed to resolution of the contempt action against
Mr. Van Dorn.” Hier also suggested the payment issue be addressed at
trial.
Hier mailed Carter a letter dated March 27 stating,
Against my better judgment, I am returning ½ of the $750
($375) to you for the payment made by your client at
depositions. Although my client has decided not to follow
through with the custody/visitation issue, we did resolve the
contempt action. This seems to me to be a fair resolution of
our difference of opinion regarding this matter.
Hier included a check to Carter for $375 from her law office account.
The parties went to trial on May 31. The court issued its ruling on
the modification on June 6 as follows:
Petitioner paid $750 to [Hier] in connection with settlement
negotiations which ultimately failed. [Hier] has returned $375
of that payment, but claims she was entitled to keep the
remainder as attorney fees. The Petitioner owes no attorney
fees to [Hier] unless ordered by the court as a part of the
proceedings, or under a contractual obligation. It is obvious
that there was no contract entered into by these parties, and
the court has previously entered no order regarding attorney
fees. The court does find that in connection with this
modification action, the Petitioner shall pay Respondent, as
attorney fees, the sum of $1000, and the $375 previously
retained by [Hier] shall be credited against that amount.
Van Dorn filed his complaint with the Board alleging Hier’s mishandling
of his $750 payment. Ultimately, the Board charged Hier with violating
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Iowa Rules of Professional Conduct 32:1.15(a), (d), (e), and (f); 32:3.3(a)(1);
and Iowa Court Rules 45.1 and 45.2(2). On May 2, 2019, the commission
conducted an evidentiary hearing with testimony from Carter, Hier, and
Judge Rickers. The commission found Hier violated Iowa Rules of
Professional Conduct 32:1.15(a), (e), and (f); and Iowa Court Rule 45.1. It
found the Board failed to prove violations of the remaining rules.
The commission recommended that Hier be given a public
reprimand, reciting as mitigating factors Hier’s contract with the state
public defender’s office, her pro bono work, charitable contributions and
community service, Judge Ricker’s testimony that he considered Hier to
be a truthful and good lawyer, and Rothfus’s satisfaction with Hier’s
representation. The commission considered Hier’s prior disciplinary
history as an aggravating factor. In statements to our court, the Board
requests a suspension while Hier proposes a private admonition.
II. Scope of Review.
“We review attorney disciplinary proceedings de novo.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Silich, 872 N.W.2d 181, 188 (Iowa
2015). “The Board must prove attorney misconduct by a convincing
preponderance of the evidence, a burden greater than a preponderance of
the evidence but less than proof beyond a reasonable doubt.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Morse, 887 N.W.2d 131, 138 (Iowa
2016) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weiland, 862
N.W.2d 627, 634–35 (Iowa 2015)). While “[w]e give the commission’s
findings and recommendations respectful consideration, . . . we are not
bound by them. Id. (quoting Weiland, 862 N.W.2d at 635).
III. Ethical Violations.
“[W]e approach with caution ethics complaints initiated by a
litigation adversary.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ouderkirk,
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845 N.W.2d 31, 40 (Iowa 2014). Based on our de novo review of the record,
we agree with the commission that Hier violated Iowa Rule of Professional
Conduct 32:1.15(a), (e), and (f) and Iowa Court Rule 45.1, and that the
Board failed to prove the remaining charges by a convincing
preponderance of the evidence.
A. Iowa Rule of Professional Conduct 32:1.15(a). Iowa Rule of
Professional Conduct 32:1.15(a) states, “A lawyer shall hold property of
clients or third persons that is in a lawyer’s possession in connection with
a representation separate from the lawyer’s own property. Funds shall be
kept in a separate account.” Comment 1 elaborates, “All property that is
the property of clients or third persons . . . must be kept separate from the
lawyer’s business and personal property and, if monies, in one or more
trust accounts.” Iowa R. Prof’l Conduct 32:1.15 cmt. [1]. “The common
theme running through Rule [32:1.15] and related court rules is that funds
and property belonging to others must be kept scrupulously separate from
the lawyer’s own funds and property.” 16 Gregory C. Sisk & Mark S. Cady,
Iowa Practice Series:™ Lawyer and Judicial Ethics § 5:15(b) author’s cmt.,
at 517–18 (2019).
Van Dorn paid $750 by check payable to Hier’s CTA on August 11,
2017, as part of the parties’ oral settlement agreement. Hier admittedly
deposited the $750 into her firm’s general account rather than her CTA.
Hier should have deposited the $750 into her CTA until the written
stipulation was executed and approved by the court. See In re Marriage of
Udelhofen, 538 N.W.2d 308, 310 (Iowa Ct. App. 1995) (recognizing that a
stipulation in a family law case “becomes final when it is accepted and
approved by the court”); see also In re Marriage of Jones, 653 N.W.2d 589,
593–94 (Iowa 2002) (“[T]he parties’ stipulation is not binding on the court,
. . . [and] the court has the authority to reject the stipulation. . . . The
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decree, not the stipulation, determines what rights the parties have.”
(Citations omitted.)). The settlement broke down, and Judge Rickers
ultimately ordered Hier to transfer the funds to her CTA, which she failed
to do.
We reject Hier’s claim that the $750 was hers to keep upon receipt
as a fee payment in settlement of the contempt action. Hier never
dismissed the contempt action, which was submitted the following year for
hearing with the modification action. Nor is Hier exonerated by the fact
the district court later ordered Van Dorn to pay a larger amount ($1000)
toward the fees Rothfus owed Hier. The $750 belonged in Hier’s CTA until
the dispute was finally resolved by the court. We determine that Hier
violated rule 32:1.15(a).
B. Iowa Court Rule 45.1 and Iowa Rule of Professional Conduct
32:1.15(f). For the same reasons, we determine that Hier violated Iowa
Court Rule 45.1 and Iowa Rule of Professional Conduct 32:1.15(f). Rule
45.1 states,
Funds a lawyer receives from clients or third persons for
matters arising out of the practice of law in Iowa must be
deposited in one or more identifiable interest-bearing trust
accounts at a financial institution with a branch
geographically located in Iowa.
Iowa Ct. R. 45.1. Because Hier placed funds that arose out of the practice
of law that were owned by a third person into her firm account rather than
her CTA, she violated rule 45.1. Hier’s violation of rule 45.1 in turn
constitutes a violation of Iowa Rule of Professional Conduct 32:1.15(f),
which states, “All client trust accounts shall be governed by chapter 45 of
the Iowa Court Rules.” See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Lubinus, 869 N.W.2d 546, 549 (Iowa 2015) (holding that a violation of
chapter 45 constitutes a violation of rule 32:1.15(f)).
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C. Iowa Rule of Professional Conduct 32:1.15(e). The
commission also found that Hier violated Iowa Rule of Professional
Conduct 32:1.15(e). This rule provides,
When in the course of representation a lawyer is in possession
of property in which two or more persons (one of whom may
be the lawyer) claim interests, the property shall be kept
separate by the lawyer until the dispute is resolved. The
lawyer shall promptly distribute all portions of the property as
to which the interests are not in dispute.
Iowa R. Prof’l Conduct 32:1.15(e). Van Dorn demanded return of the $750
when the settlement broke down, and Hier acknowledged the ongoing
dispute when she later returned half that amount. Hier was obligated to
keep the balance of the disputed funds in her CTA. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 181–82 (Iowa 2013)
(stating rule 32:1.15(e) requires lawyers to keep “the disputed portion of
the funds . . . in a trust account” until the dispute is resolved (quoting
Iowa R. Prof’l Conduct 32:1.15 cmt. [3])).
Hier argues that Van Dorn never had any valid claim to the $750,
and thus, she did not violate the rule by failing to place the funds in her
trust account. Hier’s argument misunderstands the purpose of the rule.
An attorney “must not take advantage of physical control of [disputed]
funds.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431,
440 (Iowa 2012) (quoting 2 Geoffrey C. Hazard, Jr., et al., The Law of
Lawyering § 19.7, at 19–14 (3d ed. 2005 Supp.)). So long as the claim is
not frivolous, an attorney must place disputed funds in her possession in
a CTA. Iowa R. Prof’l Conduct 32:1.15(e) cmt. [3]. Hier cannot act as
“judge and jury to resolve the dispute in [her] own favor.” Morse, 887
N.W.2d at 141. We determine that Hier violated rule 32:1.15(e) by failing
to place the disputed funds in her CTA pending resolution of Van Dorn’s
claim.
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D. Iowa Rule of Professional Conduct 32:1.15(d) and Iowa Court
Rule 45.2(2). The commission found the Board failed to meet its burden
to prove that Hier violated Iowa Rule of Professional Conduct 32:1.15(d)
and Iowa Court Rule 45.2(2) by failing to return the full $750 to Van Dorn.
We agree with the commission. Rule 32:1.15(d) states, “[A] lawyer shall
promptly deliver to the client or third person any funds or other property
that the client or third person is entitled to receive . . . .” Iowa R. Prof’l
Conduct 32:1.15(d). “[A] lawyer must promptly deliver to the client or third
person any funds or other property that the client or third person is
entitled to receive and must promptly render a full accounting regarding
such property.” Iowa Court R. 45.2(2). The district court ultimately
ordered Van Dorn to pay $1000 of Rothfus’s attorney fees. While Carter
had demanded Hier return the full $750, their dispute merely required
Hier to place the funds in her CTA. See Iowa R. Prof’l Conduct 32:1.15(e).
E. Iowa Rule of Professional Conduct 32:3.3(a)(1). The
commission also found that the Board failed to meet its burden to prove
Hier violated Iowa Rule of Professional Responsibility 32:3.3(a)(1). We
agree with the commission. That rule states, “A lawyer shall not knowingly
. . . make a false statement of fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the tribunal by
the lawyer[.]” Id. r. 32:3.3(a)(1). “[M]isrepresentation requires intent to
deceive to support an ethical violation.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Sobel, 779 N.W.2d 782, 787 (Iowa 2010). “[T]he inability
of a person to accurately recall an event does not necessarily lead to the
conclusion that the person’s inaccurate recollection is an expression of
dishonesty or deceit.” Id.
The Board alleged Hier intended to deceive the court when she told
Judge Rickers that she would place the $750 in her CTA. However, Hier
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testified that Judge Rickers stated that he would not order her to transfer
the funds. Judge Rickers could not recall their discussions, and he testified
that he believed Hier to be a good, truthful lawyer and that Hier had acted
towards the court with honesty and honor during the child support dispute.
In addition to Judge Rickers’s testimony, the commission heard the live
testimony of Carter and Hier. We decline to second-guess the commission’s
creditability determination that Hier did not intend to deceive the court.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clarity, 838 N.W.2d 648, 659
(Iowa 2013) (“We give deference to the commission’s credibility
determination because the commission heard [the respondent attorney’s]
live testimony and observed [his] demeanor.”).
IV. Sanction.
We must decide the appropriate sanction for Hier’s failure to place
the disputed funds in her CTA pending resolution of Van Dorn’s claim.
The commission recommended a public reprimand. The Board argues for
a suspension. Hier requests a private admonition. If this were Hier’s first
disciplinary transgression, no suspension would be warranted. But Hier
already has had four prior public reprimands and a suspension. “[T]he
prior disciplinary history of an attorney is a factor we must consider in
imposing discipline.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish,
925 N.W.2d 163, 181 (Iowa 2019) (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 589 (Iowa 2011)).
Hier’s most recent public reprimand in December 2017 was for
violating some of the same trust account rules she violated here, and yet
for the next six months, Hier persisted in refusing to place the disputed
funds in her CTA. We consider the December 2017 public reprimand to
be prior discipline because Van Dorn’s counsel renewed his demands for
return of the disputed funds in January and March 2018. Hier paid back
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half of the disputed amount but neglected to place the balance in her CTA.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Noel, 933 N.W.2d 190, 205
(Iowa 2019) (explaining that “[i]n order to be prior discipline, we must have
found [the respondent lawyer’s] prior conduct violated our rules and
sanctioned him before he committed the conduct giving rise to the present
proceeding”). The 2017 public reprimand should have motivated Hier to
study and comply with the requirements of rule 32:1.15.
We conclude a suspension is required based on Hier’s disciplinary
history. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Santiago, 869
N.W.2d 172, 183 (Iowa 2015) (citing Santiago’s “failure to learn” from trust
account problems identified in an earlier audit as an aggravating factor
even though no discipline was imposed previously); Iowa Supreme Ct. Bd.
of Prof’l Ethics & Conduct v. Fleming, 602 N.W. 340, 342 (Iowa 1999) (“[T]he
board’s past leniency has not had the intended effect of moving [the
respondent] toward higher standards of ethical practice.”); Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Sprole, 596 N.W.2d 64, 66 (Iowa 1999)
(Sprole’s “prior discipline . . . has failed to curb the misconduct. . . . The
protection of the public and the reputation of the bar require more than a
public reprimand.” (Citation omitted.)). We now consider the length of the
suspension to impose.
“There is no standard sanction warranted by any particular type of
misconduct.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cannon, 821
N.W.2d 873, 880 (Iowa 2012). “Though prior cases can be instructive, the
sanction warranted in a particular case must be based on the
circumstances of that case.” Id.
In determining what sanctions should be imposed, we
consider 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 attorney’s fitness to continue
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practicing law, as well as any aggravating or mitigating
circumstances.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Khowassah, 890 N.W.2d 647,
651 (Iowa 2017) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bartley,
860 N.W.2d 331, 337 (Iowa 2015)). “Our primary purpose for imposing
sanctions in not to punish the lawyer but to protect the public.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 542 (Iowa
2013).
In Morse, we imposed a thirty-day suspension for the lawyer’s
violation of rule 32:1.15(e) after he kept $1400 that his client had
advanced to pay the court reporter for a trial transcript. 887 N.W.2d at
146. We discerned minimal client harm, and the client owed him a larger
amount in fees. Id. at 144. But we considered “Morse’s twenty-six years
of experience . . . [as] an aggravating factor.” Id. In another case,
Rhinehart, we imposed a sixty-day suspension for violating rule 32:1.15(e),
among other rules. 827 N.W.2d at 183. Hier obtained her law license in
1997 and has practiced continuously since 2006. We consider her
experience as an aggravating factor. Hier’s obstinate refusal to place the
disputed funds in her trust account as ordered was reckless and self-
defeating.
“Our sanctions for trust account violations have ranged from a
public reprimand to license revocation.” Lubinus, 869 N.W.2d at 550.
“When an attorney’s minor trust account violations are the result of
sloppiness or lack of oversight, we have levied a public reprimand rather
than a suspension.” Id. By contrast, “when an attorney has committed
multiple or more systematic trust account violations, we have imposed
suspensions, often of thirty days.” Id. at 551. In Lubinus, an attorney
violated rule 32:1.15(a) and related rules by knowingly removing unearned
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funds from his trust account to cover personal expenses. Id. at 553. We
imposed a thirty-day suspension. Id. at 554.
In Boles, we imposed a thirty-day suspension on an attorney for
multiple trust account violations and failures to promptly return unearned
fees. 808 N.W.2d at 442–43. The attorney’s pattern of misconduct was
an aggravating factor. Id. at 442. We considered as a mitigating factor
that the attorney had taken corrective action to prevent further violations.
Id. We also considered the attorney’s volunteer service and pro bono work,
as well as the fact that no clients were harmed, as mitigating factors. Id.
In Parrish, we imposed a sixty-day suspension for multiple trust
account violations. 801 N.W.2d at 590. We noted as an aggravating factor
the attorney’s six prior private admonitions, two of which involved trust
account violations. Id. at 589. We noted that “Parrish’s conduct over the
last ten years has now developed into a pattern of violating the Iowa Rules
of Professional Conduct and the rules of this court relating to the
administration of trust accounts.” Id. But we considered in mitigation
Parrish’s pro bono legal services and community involvement. Id.
We consider such mitigating factors in calibrating Hier’s discipline.
She accepts court appointments from the state public defender’s office. A
“willingness to accept court-appointed cases” is a mitigating factor. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Capotosto, 927 N.W.2d 585, 590 (Iowa
2019). Hier performs pro bono work and works for low-income clients and
indigent criminal defense clients. “Providing legal representation to an
underserved part of the community is a significant mitigating factor.”
Weiland, 862 N.W.2d at 643 (quoting Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Taylor, 814 N.W.2d 259, 168 (Iowa 2012)). Hier volunteers for her
church, for domestic assault victims, and as a mock trial coach and judge.
See Boles, 808 N.W.2d at 442 (considering volunteering in the community
16
as a mitigating factor). And we give weight to the testimony of Judge
Rickers that he considered Hier to be a good and truthful lawyer. See
Rhinehart, 827 N.W.2d at 183 (“Rhinehart’s general reputation for being a
hardworking, highly competent, zealous advocate . . . are mitigating
factors.”). Importantly, Hier’s client suffered no harm. See Iowa Supreme
Ct. Att’y Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 467 (Iowa 2014)
(noting the absence of client harm as a mitigating factor).
After considering all of the relevant mitigating and aggravating
factors here, we return to the most significant aggravating factor, Hier’s
disciplinary history, and we determine that a thirty-day suspension is
appropriate.
V. Disposition.
For these reasons, we suspend T.J. Hier’s license to practice law for
thirty days. This suspension applies to all facets of the practice of law.
See Iowa Ct. R. 34.23(3). Hier must comply with the notification
requirements of rule 34.24. See id. r. 34.24. The costs of this proceeding
are assessed against Hier pursuant to Iowa Court Rule 36.24(1). Unless
the Board files an objection, Hier’s license will be automatically reinstated
after the thirty-day period of suspension on the condition that all costs
have been paid. See id. r. 34.23(2).
LICENSE SUSPENDED.
All justices concur, and Appel, J., also concurs specially.
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#19–1320, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hier
APPEL, Justice (concurring specially).
I join the majority opinion in this matter. I write separately to
emphasize that the canard “possession is nine tenths of the law” has no
application when an attorney receives funds from a client, or third party,
that are to be used for specific or limited purposes. For example, as we
made clear in Iowa Supreme Court Attorney Disciplinary Board v. Parrish,
an attorney cannot assert a future-claim-of-right defense in the event the
attorney misappropriates limited use client funds. 925 N.W.2d 163, 179
(Iowa 2019). There is no allegation in this case that the attorney
misappropriated the funds under Iowa Rule of Professional Conduct
32:8.4. But it is worth emphasizing that an attorney who fails to honor
the restrictions of a client or third party, when entrusted with funds, could
be sailing into waters more dangerous than those presented in this case.