Iowa Supreme Court Attorney Disciplinary Board v. Duane J. Goedken

IN THE SUPREME COURT OF IOWA
No. 19–1740
Filed February 14, 2020
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
DUANE J. GOEDKEN,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
In an attorney disciplinary action, the grievance commission
recommends suspension for multiple violations of ethical rules. LICENSE
SUSPENDED.
Tara van Brederode and Wendell J. Harms, Des Moines, for
complainant.
Duane J. Goedken, Muscatine, pro se.
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WIGGINS, Chief Justice.
The Iowa Supreme Court Attorney Disciplinary Board (the Board)
brought a complaint against an attorney arising out of several
delinquencies in probate matters. The attorney was delinquent in filing
reports for five estates and one trust. He also failed to respond to the
Board’s complaint and failed to cooperate with the Board’s investigation of
his violations. The Iowa Supreme Court Grievance Commission (the
commission) found the attorney’s conduct violated our ethical rules.
The commission recommended we suspend the attorney’s license to
practice law for ninety days. On our de novo review, we agree that the
attorney violated our ethical rules and agree with the commission’s
recommended suspension.
Therefore, we suspend the attorney’s law license indefinitely with no
possibility of reinstatement for ninety days.
I. Standard of Review.
“We review attorney disciplinary proceedings de novo.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Capotosto, 927 N.W.2d 585, 587 (Iowa
2019). “The Board must prove the misconduct by a convincing
preponderance of the evidence.” Id. “A convincing preponderance of the
evidence is more than the typical preponderance standard in a civil case
but less than proof beyond a reasonable doubt.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. West, 901 N.W.2d 519, 522 (Iowa 2017). We give
respectful consideration to the commission’s findings but we are not
bound by them. Id.
II. Findings of Fact.
We find the facts as follows. We admitted attorney Duane J.
Goedken to practice law in Iowa in 1963. Goedken practices law in
Muscatine County. In the course of his practice, Goedken has represented
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business entities and a large utility, as well as parties in various estates
and trusts.
Goedken experienced serious health problems in the later years of
his career. He had escalating heart problems until, around January 21,
2014, Goedken had a heart attack that left him hospitalized for fifteen
days. After he recovered from the heart attack, his doctor kept him on
many medications, including blood thinners. This proved an issue when,
in 2017, Goedken began experiencing problems with his vision. By late
2017, he was unable to read his computer screen. Goedken’s eye doctors
recommended surgery. However, the eye surgeon refused to perform the
surgery while Goedken was on blood thinners, due to the bleeding risk.
Because taking Goedken off the blood thinners risked causing a stroke,
Goedken’s doctor was forced to find a surgeon willing to operate while
Goedken was on blood thinners. The surgeon performed the operation on
May 9, 2018. Goedken’s vision was slow to improve, but by fall of 2018,
Goedken could read computer screens well enough to get by again.
Tragedy stuck Goedken around this time. In 2018, Goedken’s eldest
daughter, who lived in Arizona, was diagnosed with breast cancer. Despite
undergoing treatment, the daughter’s cancer rapidly spread to other
organs until she eventually checked herself into hospice care in December
2018. Goedken and his wife planned to go to Arizona to be with her, but
Goedken wanted to finish his work first. However, Goedken’s daughter’s
cancer was aggressive, and she passed away around one week after
checking herself into hospice care.
Many, but not all, of the delinquencies in this case arose during or
between Goedken’s vision problems and the death of his daughter. The
current complaint arose out of Goedken’s trust and estate representation.
He received delinquencies in five estates and one trust.
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A. Count I: Wathan Trust. Count I of the commission’s report
concerns the Wathan trust. Goedken’s involvement in the Wathan trust
dates back to 1986. In 1986, Grace Wathan filed an application to appoint
a trustee to the Cecil Wathan Residuary Trust after the death of her
husband, Cecil Wathan. Goedken represented the trustee, Blue Grass
Savings Bank.
After the first trustee’s report was approved on April 6, 1994, the
district court waived further reports to March 31, 1997. However,
Goedken did not file the trustee report and the clerk of court sent a
delinquency notice October 26, 1999. Goedken filed the report
December 30, 1999. The district court again waived further reports, this
time until March 31, 2002. Goedken filed this report April 16, 2002. The
next report was due March 31, 2007. Once again, Goedken failed to file
the report on time, and the clerk of court sent him a delinquency notice
on June 5, 2007. Goedken filed the report August 1, 2007. The next
report was due March 31, 2012. On November 29, 2012, the clerk of court
sent Goedken another delinquency notice. He filed the report February 1,
2013, and the next report was due March 31, 2017. On December 1, 2017,
the clerk of court sent Goedken another delinquency notice. Goedken filed
the trustee’s report March 14, 2018. After scheduling and cancelling
hearings to explain the delay in the filing and to address Goedken’s
suspension, the district court approved the report on April 24. In total,
Goedken received four delinquency notices in the Wathan trust.
In May 2019, Grace Wathan passed away. The Wathan trust’s
assets go to Wathan’s children. Another attorney, Steve Kundel, is
handling Wathan’s estate.
B. Count II: Milder Estate. Goedken also represented Timothy J.
Dickerson as the executor of Phyllis D. Milder’s estate. Dickerson
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petitioned to probate Milder’s will on March 22, 2017, and the district
court appointed Dickerson executor and Goedken as Dickerson’s attorney.
After Goedken failed to file the inventory report, the clerk of court
sent him a delinquency notice on December 1. Goedken filed the inventory
report February 2, 2018. However, the clerk of court again issued
Goedken a delinquency notice December 1, 2018, this time for failure to
file an interlocutory report. On April 25, 2019, Kundel filed an appearance
in the case and Dickerson filed his interlocutory report. On July 15, the
day before the commission hearing, Goedken withdrew from the Milder
estate.
C. Count III: Price Estate. Michael D. Price petitioned to probate
Ralph E. Price’s estate on June 8, 2017. The district court appointed Price
as executor and Price designated Goedken as his attorney in the matter.
When Goedken failed to file the inventory report, the clerk of court sent
him a delinquency notice on December 1.
The estate was still delinquent March 20, 2018, so the district court
set a hearing for May 4, directing Price and Goedken “to show cause as to
why they should not be removed or held in contempt.” Neither Price nor
Goedken attended this hearing. The court rescheduled the hearing for
May 24 and ordered Price and Goedken to appear. On May 8, the
Muscatine County sheriff served Goedken with the court’s order. The next
day, Goedken had eye surgery.
Goedken and Price attended the May 24 hearing, and Goedken
explained his vision issues, taking the blame for Price missing the hearing.
The court ordered him to file the report within ten days. The next day,
Goedken filed the inventory report. He filed the interlocutory report
June 7.
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On December 18, 2018, Goedken filed an interim final report,
certifying the only thing left open in the estate was the filing of an Iowa tax
return. Goedken did not complete the report because of amendments to
the federal tax code. On December 20, the court held the estate would be
held open until Goedken filed a supplemental report confirming the taxes
had been taken care of and withheld $500 of Goedken’s fee to reflect the
incomplete work. In the meantime, on March 28, 2019, the court
scheduled a hearing for April 25 to address our suspension of Goedken’s
license for failing to respond to the Board. On April 23, after we reinstated
his license, Goedken filed the supplemental report and the court closed
the Price estate and cancelled the April 25 hearing.
D. Count IV: Briggs Estate. Deborah S. McNamara and Donald D.
Briggs petitioned the court to probate the will of Dorothy A. Briggs and
applied to be coexecutors on June 14, 2017. When they were appointed,
they designated Goedken as their attorney of record.
On December 1, the clerk of court issued a delinquency to Goedken
for failure to file the inventory report. Goedken filed the inventory report
December 12. On December 10, 2018, Goedken filed an interim final
report pending tax clearance. On December 31, the court approved the
interim final report and held the estate open, reserving $1000 of Goedken’s
payment for when Goedken filed a supplemental report confirming the
taxes had been taken care of. In the meantime, on March 28, 2019, the
court scheduled a hearing for April 25 to address our suspension of
Goedken’s license. On April 22, Goedken filed the tax certificate, and on
April 23, he filed two supplemental reports. The court closed the Briggs
estate on April 23 and cancelled the April 25 hearing.
E. Count V: Manatt Estate. On July 9, 2017, Sue A. Cox
petitioned to probate the will of Mona I. Manatt and become executor in
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the Manatt estate. Cox designated Goedken as her representative in the
matter.
On December 1, 1 the clerk of court issued a delinquency notice
because Goedken failed to file the inventory report. When the estate was
still delinquent on March 20, 2018, the court scheduled a hearing for
May 4, for Cox and Goedken “to show cause as to why they should not be
removed or held in contempt.” Neither attended. After the Muscatine
County sheriff personally served Goedken and after his eye surgery,
Goedken appeared before the district court. 2
The court ordered Goedken to file the inventory and an interlocutory
report by June 8, 2018. Goedken filed the inventory on May 25. He filed
an interlocutory report on June 5, reporting the impediments to closing
the estate had been removed. On March 28, 2019, the district court
scheduled a hearing on the issue of Goedken’s suspended law license.
However, on April 25, the court continued the hearing to July 25. On
July 15, Goedken filed a final report and accounting, though he admitted
before the commission that the estate became more complicated after his
June 5 report. Attorney Gregory A. Johnston has since filed an
appearance in the Manatt estate, and Goedken has withdrawn.
F. Count VI: Lechner Estate. On June 18, 2018, Michael C.
Wilson petitioned to probate Elizabeth F. Lechner’s estate and have an
executor appointed. The court appointed First National Bank of Muscatine
as executor, and the bank designated Goedken as the attorney in the
estate.
1Goedken thus received four delinquency notices on December 1, 2017.
2The scheduled Cox hearings overlapped with the scheduled Price hearings and
were before the same district court judge.
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On December 1, 2018, the clerk of court issued Goedken a
delinquency notice for failure to file the inventory report. Goedken filed
the inventory report January 22, 2019. On April 8, 2019, attorney Kundel
appeared on behalf of the bank. The court ordered Goedken withdrawn
from the case on May 2, 2019.
G. Count VII: Response to Delinquency Notices. After Goedken
failed to cure the delinquencies in the Wathan trust, Milder estate, Price
estate, and Manatt estate, on April 17, 2018, the Board mailed Goedken
letters giving him thirty days to certify he had cured the delinquencies.
The Board explained it would take no further actions if the delinquencies
were cured, but it would open a formal complaint against Goedken if he
did not cure the delinquencies.
When Goedken failed to cure the delinquencies, the Board opened a
complaint against him under Iowa Court Rule 35.6. The Board sent
Goedken a letter explaining the situation on July 23, and Goedken
acknowledged receipt of that letter on July 26. However, Goedken did not
respond to the Board’s complaint.
On August 17, the Board sent Goedken a second letter notifying him
a complaint had been opened against him. He acknowledged receipt of the
letter on August 24 but again failed to respond to the Board.
Due to Goedken’s failure to respond, on December 27, the Board
filed a certificate with this court under Iowa Court Rule 35.7(3). On
January 2, 2019, the clerk of our court notified Goedken we would
suspend his license if the certificate the Board filed was not withdrawn
within twenty days. Goedken acknowledged receipt of this notice on
January 4.
Still, Goedken did not respond. Therefore, we suspended Goedken’s
license on January 30. Goedken acknowledged receipt of the suspension
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order February 4. Our order informed Goedken of his obligation to comply
with the notification provisions of Iowa Court Rule 34.24, requiring him to
notify his clients of his suspension and advise them to seek legal advice
elsewhere. However, he did not inform his clients of his suspension or
withdraw from their cases at this time.
Finally, on April 9, Goedken responded to the Board’s complaint.
The Board withdrew its certificate, and Goedken paid the reinstatement
fee. We reinstated Goedken’s law license on April 10.
III. Violations.
The Board alleged, and the commission found, that Goedken
violated six of the Iowa Rules of Professional Conduct. First, the
commission found Goedken violated Iowa Rule of Professional Conduct
32:1.3, diligence, in his handling of the trust and estates listed above. The
commission also found Goedken violated several rules with respect to his
uncooperative behavior and suspension. Those violations include rule
32:1.4(a)(3), keeping the client reasonably informed; rule 32:1.16(a)(1),
withdrawing from the representation; rule 32:1.16(d), protecting the
client’s interests; and rule 32:8.1(b), knowingly failing to respond. Finally,
the commission found Goedken violated rule 32:8.4(d), conduct prejudicial
to the administration of justice, both in his dilatory handling of the trust
and estates and in his failure to cooperate with the Board.
Although Goedken’s failure to answer the Board’s complaint made
“the facts alleged . . . properly deemed admitted, we nonetheless conduct
an independent review of [his] alleged ethical violations.” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. McCuskey, 814 N.W.2d 250, 257 (Iowa 2012).
A. Rule 32:1.3: Diligence. Iowa Rule of Professional Conduct
32:1.3 states that “[a] lawyer shall act with reasonable diligence and
promptness in representing a client.” In the probate context, an attorney
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does not typically violate rule 32:1.3 by missing one deadline or receiving
one delinquency notice. Capotosto, 927 N.W.2d at 588. However, repeated
failures “to perform required functions as attorney for the executor,” meet
deadlines, and close the estate within a reasonable time can amount to a
violation of the rule. Id. (quoting Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012)). Receipt of multiple
delinquencies can result in violation of this rule. Id. Neglect of the type
that violates rule 32:1.3 “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.’ ” Van Ginkel, 809 N.W.2d at 102
(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d
860, 867 (Iowa 2010)). We have held that failure to appear at a scheduled
hearing violates rule 32:1.3. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Weiland, 885 N.W.2d 198, 208 (Iowa 2016).
This case arose from Goedken receiving a total of nine delinquency
notices. Goedken failed to file interlocutory reports in multiple cases and
received four delinquency notices in the Wathan trust alone. This record
of delinquencies demonstrates Goedken’s consistent failure to perform his
obligations. Goedken also failed to appear at two scheduled court hearings
and had to be personally served by the sheriff to ensure his attendance
when those hearings were rescheduled.
Moreover, Goedken’s attitude toward his delinquencies, displayed in
his hearing before the commission, showed he had a conscious disregard
for our probate rules. When questioned about the delinquencies, Goedken
expressed that he does not “attend to details very much” and had “better
things to do with [his] time than interlocutory reports.” Goedken went on
to explain that he has difficulty adhering to “the standards that other
people set for [him], which [he does not] see any sense for,” and noted that
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he also practices in Illinois, which does not require the same deadlines in
handling estates. He further referred to requests that he file required
reports as “silly requests.” Accordingly, we find Goedken violated rule
32:1.3 by his dilatory handling of the Wathan trust and the five estates.
B. Rule 32:1.4(a)(3): Keeping the Client Reasonably Informed,
Rule 32:1.16(a)(1): Withdrawing from the Representation, and Rule
32:1.16(d): Protecting the Client’s Interests. The commission next
found Goedken violated three interrelated rules when his law license was
suspended. The commission found Goedken violated rule 32:1.4(a)(3) by
failing to inform his clients of his suspension and rule 32:1.16(a)(1) by
failing to withdraw despite his suspended license, thereby not protecting
his client’s interests in violation of rule 32:1.16(d).
Rule 32:1.4(a)(3) says “[a] lawyer shall . . . keep the client reasonably
informed about the status of the matter.” Iowa R. Prof’l Conduct
32:1.4(a)(3). We ordinarily find violations of rule 32:1.4(a)(3) when an
attorney fails to respond to client inquiries or update the client about
required hearings. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Turner, 918
N.W.2d 130, 145 (Iowa 2018); Weiland, 885 N.W.2d at 209. Here, Goedken
failed to inform two clients, Price and Cox, about hearings that were held
to determine why reports in those matters were delinquent. Goedken’s
failure to inform his clients Cox and Price of hearings in their cases
violated this rule.
Additionally, comment 3 to rule 32:1.4 explains paragraph (a)(3)
“requires that the lawyer keep the client reasonably informed about the
status of the matter, such as significant developments affecting the timing
or the substance of the representation.” Iowa R. Prof’l Conduct 32:1.4 cmt.
[3]. In Iowa Supreme Court Attorney Disciplinary Board v. Earley, we found
attorney Brian Earley violated, inter alia, rule 32:1.4(a)(3) by failing to
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inform his clients when his law license was suspended. 774 N.W.2d 301,
308 (Iowa 2009). Moreover, the timing and substance of representation
are undoubtedly affected by a lawyer’s law license being suspended. Thus,
we find Goedken’s failure to inform his clients of his suspension violates
rule 32:1.4(a)(3).
Rule 32:1.16(a)(1) says a lawyer “shall withdraw” from representing
a client when “the representation will result in violation of the Iowa Rules
of Professional Conduct or other law.” Iowa R. Prof’l Conduct 32:1.16(a)(1).
We have found that “a lawyer’s representation of a client after suspension”
violates rule 32:1.16(a)(1). McCuskey, 814 N.W.2d at 255. Despite his
suspension, Goedken continued to attempt to represent his clients, even
commenting that his loss of access to EDMS caused him problems.
Without a valid license, this representation was in contravention of the
Iowa Rules of Professional Conduct. Thus, Goedken violated rule
32:1.16(a)(1).
Finally, the commission found Goedken violated rule 32:1.16(d) by
violating rules 32:1.4(a)(3) and 32:1.16(a)(1) and not informing his clients
his law license had been suspended. Rule 32:1.16(d) requires a lawyer,
[u]pon termination of representation, . . . [to] take steps to the
extent reasonably practicable to protect a client’s interests,
such as giving reasonable notice to the client, allowing time
for employment of other counsel, surrendering papers and
property to which the client is entitled, and refunding any
advance payment of fee or expense that has not been earned
or incurred.
Iowa R. Prof’l Conduct 32:1.16(d). In Earley, we found attorney Earley
violated rule 32:1.16(d) when he failed to inform his clients of his
suspension. 774 N.W.2d at 308. Like Earley, Goedken did not inform his
clients that his law license was suspended. Accordingly, Goedken violated
rule 32:1.16(d).
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C. Rule 32:8.1(b): Knowingly Failing to Respond. The
commission next found Goedken violated rule 32:8.1(b) by failing to
respond to the Board’s inquiries. Rule 32:8.1(b) requires “a lawyer . . . in
connection with a disciplinary matter” to not “knowingly fail to respond to
a lawful demand for information from an admissions or disciplinary
authority.” Iowa R. Prof’l Conduct 32:8.1(b). “We can infer an attorney’s
knowing failure to respond to the demand for information when there is
proof the attorney received the Board’s inquiries but still did not provide
the information sought.” Turner, 918 N.W.2d at 150. Goedken received
multiple letters from the Board, all acknowledged received, but failed to
respond to any of the Board’s complaints until after his law license was
suspended. He admitted he chose not to open the Board’s letters because
they upset him. Therefore, Goedken violated rule 32:8.1(b).
D. Rule 32:8.4(d): Conduct Prejudicial to the Administration of
Justice. Finally, the commission found Goedken violated rule 32:8.4(d)
by engaging in conduct prejudicial to the administration of justice. The
commission found Goedken violated this rule both through his dilatory
handling of the five estates and the Wathan trust and through his failure
to cooperate with the Board throughout the complaint process.
Rule 32:8.4(d) states 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). “There is no precise test for
determining whether an attorney’s conduct violates the rule.” Weiland,
885 N.W.2d at 212. In general, acts that are prejudicial to the
administration of justice “hamper[] the efficient and proper operation of
the courts or of ancillary systems upon which the courts rely.” Id. (quoting
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Monroe, 784 N.W.2d 784, 788
(Iowa 2010)). “We have consistently held an attorney’s misconduct
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causing prolonged or additional court proceedings violates this rule.”
Capotosto, 927 N.W.2d at 589. This is true because such proceedings
waste “valuable judicial and staff resources.” Id. (quoting Van Ginkel, 809
N.W.2d at 103).
1. Violation of rule 32:8.4(d) due to neglect. We have held receipt of
repeated delinquency notices is conduct prejudicial to the administration
of justice. Id. This rule forbids attorneys from using the clerk of court as
a “private tickler system” to remind them to file required reports. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 699 (Iowa
2008); accord Van Ginkel, 809 N.W.2d at 103.
Here, the clerk of court was forced to issue nine delinquency notices
to Goedken, and the district court wasted significant time attempting to
schedule and hold hearings related to those delinquencies. Although some
of those delinquency notices were issued during a time when mitigating
factors were present in Goedken’s life, the delinquency notices in the
Wathan trust were sent prior to Goedken’s heart attack, eye issues, and
the death of his daughter. Indeed, the repeated delinquencies in the trust
suggest Goedken was using the clerk of court as a “private tickler system.”
We therefore find Goedken’s handling of the five estates and the Wathan
trust was conduct prejudicial to the administration of justice in violation
of rule 32:8.4(d).
2. Violation of rule 32:8.4(d) by Goedken’s lack of response to the
Board’s complaint. Failure to timely respond to Board communications
can result in a violation of rule 32:8.4(d). West, 901 N.W.2d at 525. When
an attorney fails to respond to Board communication, the attorney wastes
Board resources and time in pursuing a response from the attorney. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 831 N.W.2d 194, 200
(Iowa 2013).
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In this case, Goedken received repeated notices from the Board, first
a notice that if he did not cure the delinquencies in his cases a complaint
would be opened, then the opening of the complaint, then a second notice
that a complaint had been opened, and lastly a notice the Board had filed
a certificate against him. Finally, we suspended Goedken’s law license on
January 30. Not until over two months after this suspension, April 9, did
Goedken finally respond to the Board. We find this conduct was
prejudicial to the administration of justice, in violation of rule 32:8.4(d).
IV. Sanction.
We have no standard sanction for types of attorney misconduct.
Capotosto, 927 N.W.2d at 589. We determine what sanction is appropriate
based on the facts of each individual case. Id.
When fashioning a sanction, we examine several factors,
including “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.”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ackerman, 786 N.W.2d 491, 497
(Iowa 2010) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Ramey, 639 N.W.2d 243, 245 (Iowa 2002)). We consider both aggravating
and mitigating factors to determine the appropriate sanction. West, 901
N.W.2d at 526. The commission recommended a ninety-day suspension
for Goedken’s misconduct. However, we have the discretion to impose a
greater or lesser sanction. Id.
A. Aggravating and Mitigating Factors. The commission found
several aggravating factors in Goedken’s conduct. Those factors included
Goedken’s history of prior discipline, lengthy experience with the practice
of law, and multiple violations of the same type. On our de novo review,
we find these factors, as well as Goedken’s attitude toward and failure to
16
cooperate with the Board and his continued practice of law despite his
suspension, are aggravating factors.
Prior admonitions are considered an aggravating factor. Id. at 528.
This factor is even stronger when those prior actions involved the same
cases or subject matter as the present action because they put the attorney
“on notice of his [or her] ethical requirements.” Id. Even “somewhat dated”
prior reprimands can be considered an aggravating factor. Van Ginkel,
809 N.W.2d at 110. However, “for prior discipline to qualify as an
aggravating factor, we must have disciplined an attorney before he or she
commits the subsequent act.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Noel, 933 N.W.2d 190, 205 (Iowa 2019).
Goedken received a public reprimand in 1986 for probate
delinquencies. The Committee on Professional Ethics and Conduct
privately admonished Goedken in 1987 and 1988 for probate
delinquencies as well. Finally, Goedken received a public reprimand in
October 2018 for delinquencies in his handling of two estates between
2015 and 2017. However, the 2018 reprimand occurred after many of the
relevant delinquencies in this case. That reprimand is only properly
considered an aggravating factor in those delinquencies that arose after
October 2018. Yet, the reprimands in 1986, 1987, and 1988 are properly
considered an aggravating factor in our determination of the appropriate
sanction.
Multiple instances of the same type of neglect constitute another
aggravating factor. Capotosto, 927 N.W.2d at 589. The clerk of court
issued Goedken delinquencies in six separate cases. These six instances
of the same or substantially similar neglectful conduct represent an
aggravating factor in our analysis.
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We also consider experience in the practice of law to be an
aggravating factor. West, 901 N.W.2d at 528. Goedken has been
practicing law for over fifty-six years. Thus, Goedken’s lengthy experience
represents an aggravating factor.
Additionally, failure to cooperate with and a dismissive attitude
toward the Board can be an aggravating factor. Turner, 918 N.W.2d at
154–55. Goedken waited until after his license was suspended by this
court to finally respond to the Board. Goedken’s failure to cooperate with
the Board is properly considered an aggravating factor. Moreover,
Goedken’s conduct before the commission included a failure to
acknowledge wrongdoing. He excused the delinquencies by saying he does
not “attend to details very much” and had “better things to do with [his]
time than interlocutory reports.” He admitted he did not “see any sense
for” Iowa’s probate rules. He referred the delinquency notices and requests
that he file required probate reports as “silly requests” and spoke flippantly
about attorney withdrawal rules, dismissing them as “your [(the
commission’s)] rules” rather than rules he must be familiar with and abide
by.
Finally, continued practice of law with a suspended license is an
aggravating factor, apart from itself being a violation of rule 32:1.16(a)(1).
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Crotty, 891 N.W.2d 455,
467–68 (Iowa 2017). Despite being suspended, Goedken continued to
work on the estates in issue here and even told the commission that losing
access to EDMS slowed him down.
The commission also noted certain mitigating factors, among them
Goedken’s vision problems, personal matters, lack of apparent harm to his
clients, and lack of dishonest or selfish motive. On our do novo review, we
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agree these factors mitigate Goedken’s conduct, alongside the work
Goedken completed in the cases.
We consider health issues to be a mitigating factor in determining
the appropriate sanction. West, 901 N.W.2d at 527. Thus, Goedken’s
vision difficulties, making using a computer a near impossibility, and his
heart complications constitute a mitigating factor. Additionally, although
personal issues do not excuse ethical violations, they can be considered a
mitigating factor. Van Ginkel, 809 N.W.2d at 110. Moreover, “personal
stress may relate directly to neglect.” Id. It is evident Goedken’s
daughter’s illness and death impacted Goedken’s legal practice in late
2018. Lack of harm to clients “is a significant mitigating factor.” Id. There
is no evidence in this record suggesting harm came to Goedken’s clients
due to his neglect of their matters. Substantial work completed can also
be a mitigating factor. Capotosto, 927 N.W.2d at 590–91. Goedken
ultimately managed to close three of the relevant estates and has
withdrawn from the others. Finally, lack of selfish motive or desire for
pecuniary gain is a mitigating factor. Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Bieber, 824 N.W.2d 514, 528 (Iowa 2012). Like the commission, we
find no evidence of a selfish motive in Goedken’s conduct.
These mitigating factors are significant. Although Goedken allowed
multiple delinquencies to occur across six cases, a majority of those
delinquencies took place during a period when his vision had deteriorated
to the point that he could not even read a computer screen. Moreover, it
is apparent Goedken’s failure to respond to the Board and degree of neglect
were affected by both his health issues and his personal stresses. Finally,
Goedken is eighty-one years old and is currently seeking to retire after a
lengthy legal career. He has taken steps toward this retirement by closing
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estates or withdrawing from matters. We find reasons such as protection
of the public and deterrence less persuasive in this context.
B. Appropriate Sanction. When neglect is the primary form of
misconduct an attorney engaged in, sanctions “have ranged from a public
reprimand to a six-month license suspension.” Capotosto, 927 N.W.2d at
589. In Capotosto, the attorney allowed six estates to become delinquent
and subsequently entered into a deferral agreement with the Board
wherein he was supposed to remedy all delinquencies or withdraw,
participate in six hours of probate-related continuing legal education, and
not begin work on any new probate cases. Id. at 587. He failed to follow
the agreement; he did not cure the existing delinquencies or withdraw and,
in fact, opened new estates, resulting in an increase of delinquent cases
where he was the attorney of record from five to twelve. Id. We considered
this course of conduct, as well as his prior reprimands, to be a significant
aggravating factor. Id. at 590. However, we found Capotosto’s important
work in the community and substantial work done on the cases to be
mitigating factors. Id. at 590–91. Based on the above, we suspended
Capotosto’s license for sixty days. Id. at 591.
Another case involving significant probate delinquencies was Iowa
Supreme Court Attorney Disciplinary Board v. Ochs, 804 N.W.2d 720 (Iowa
2011). In that case, the attorney repeatedly missed deadlines in ten cases.
Id. at 721. One of those cases resulted in a private reprimand from the
Board. Id. However, “[d]uring the hearing on the complaint, Ochs was
honest, contrite, and apologetic.” Id. Additionally, Ochs did “not involve
aggravating circumstances such as misrepresentation or violations of
court orders found in many neglect cases in which we have imposed
lengthy suspensions,” but instead “center[ed] almost entirely on the abject
failure of an attorney to comply with the basic structural rules governing
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the processing of numerous probate cases over a prolonged period of time.”
Id. at 722. Based on these factors, we suspended Ochs’s license for thirty
days. Id. at 723.
Finally, in Marks, we considered the appropriate sanction for
Samuel Zachary Marks. 831 N.W.2d at 196. Only one estate was involved,
but nine delinquency notices had been issued. Id. Marks failed to respond
to the Board’s complaint against him. Id. at 196–97. Even though
[t]he Board sent four separate communications regarding the
matter to Marks over a period of eight months[,] Marks did not
respond until two months after the fourth communication,
promising to follow up within two weeks of that
communication. He failed to follow up.
Id.
Marks also had a long and sordid history of being reprimanded and
suspended. Id. at 197. Marks had appeared before this court on two
separate occasions for disciplinary issues. Id. In 2009, we suspended
Marks’ license for thirty days for neglecting two probate estates, and in
2012, we issued a public reprimand for conduct occurring prior to 2009.
Id. Marks was also suspended in 2006 and 2008 for failure to cooperate
with the Board and was publicly reprimanded in 2007 for lack of diligence,
incompetence, and failure to cooperate with the Board. Id. Based on these
factors, we suspended Marks’ license to practice law for three months. Id.
at 202.
On our review of this case, we determine Goedken’s conduct,
coupled with the aggravating and mitigating factors, requires a ninety-day
suspension. Unlike Ochs, Goedken’s violations cover more than just a
large number of delinquencies. A thirty-day suspension is too little.
Although this case resembles Capotosto, where delinquent handling of
estates was accompanied by failure to comply with the Board and a history
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of prior reprimands, there are additional aggravating factors here.
Particularly, Goedken’s continued practice of law despite the suspension
of his license and his flippant attitude toward the Board and the
commission, similar to Marks’ uncooperative behavior and long history of
reprimands, justify a longer suspension.
V. Disposition.
In light of the above considerations, we suspend Goedken’s license
to practice law in Iowa for an indefinite period with no possibility of
reinstatement for ninety days from the date of filing this opinion. After
ninety days, Goedken must apply for reinstatement if he wishes to
continue to practice law. See Iowa Ct. R. 34.25. The suspension applies
to all facets of the practice of law. Id. r. 34.23(3). Goedken shall comply
with the notification requirements of Iowa Court Rule 34.24. We tax the
costs of this action to Goedken in accordance with Iowa Court Rule
36.24(1).
LICENSE SUSPENDED.
All justices concur except Waterman, J., who takes no part.