Iowa Supreme Court Attorney Disciplinary Board v. Kristy Boyer Arzberger
2016 Iowa Sup. LEXIS 97
| Iowa | 2016Background
- Kristy B. Arzberger, an Iowa solo practitioner with long service and prior private admonitions, represented the estate of John Nepstad and informed the executor (Matthew Nepstad) about ordinary probate fees and potential for court‑approved extraordinary fees.
- A dispute arose when Lori Thomas claimed the decedent’s residence and brought litigation; Arzberger assisted pretrial and at trial, then testified for the estate while co‑counsel Colin Murphy conducted the defense after the court ordered Murphy to handle Thomas’s claim and left Arzberger as counsel for other probate matters.
- Arzberger billed the estate $6,325.20 for litigation work (including $2,564.25 for work after the court’s order delegating litigation to Murphy) and Murphy billed $3,698.30; no application for court approval of extraordinary fees was filed as required by Iowa Code §633.199 and Iowa Ct. R. 7.2(3).
- Executor Nepstad disputed the extraordinary fees, requested a process to resolve the billing dispute, and ultimately paid a reduced amount; he later filed a disciplinary complaint in March 2014.
- The Disciplinary Board charged Arzberger with violating Iowa R. Prof. Conduct 32:1.5(a) for charging/collecting fees in violation of legal restrictions; the commission found credibility problems with Arzberger, concluded she charged/collected unreasonable fees without court approval, and recommended a 30‑day suspension.
- The Iowa Supreme Court agreed Arzberger violated Rule 32:1.5(a) by collecting fees without required court approval, found aggravating misrepresentations and pattern of errors beyond a mere oversight, ordered a 30‑day suspension, required restitution or reopening of the estate, and taxed costs to Arzberger.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arzberger violated Iowa R. Prof. Conduct 32:1.5(a) by charging/collecting extraordinary probate fees without court approval | Board: Arzberger charged and collected extraordinary fees in violation of statutory/court‑rule restrictions and failed to obtain court approval | Arzberger: Failure to file was an honest mistake; fees were appropriate and a public reprimand suffices | Court: Violation proven; collecting probate fees without required court approval violates Rule 32:1.5(a) |
| Whether Arzberger’s conduct involved dishonesty or was merely inadvertent (affecting sanction) | Board: Repeated client objections, lack of file verification, and questionable testimony indicate deliberate or reckless conduct | Arzberger: Took responsibility, cooperated, implemented remedial measures, and had no intent to deceive | Court: Commission credibility findings persuasive; record shows more than inadvertence—misrepresentations and pattern of mistakes aggravate sanction |
| Appropriate sanction for the violation (reprimand vs. suspension) | Board: Suspension justified given misrepresentation and excessive/unapproved fees | Arzberger: Public reprimand appropriate—analogous cases where fees were later approved or not excessive | Court: Thirty‑day suspension appropriate, balancing aggravating (misrepresentation) and mitigating (community service, remediation) factors |
| Restitution or remedial relief required for client harm | Board: Restitution or reopening estate may be necessary | Arzberger: Willing to refund or reopen; argued cooperating and remedial steps should mitigate | Court: Conditioned no automatic reinstatement on restitution; ordered refund or reopening per amended stipulation |
Key Cases Cited
- Comm. on Prof'l Ethics & Conduct v. Elson, 430 N.W.2d 113 (Iowa 1988) (public reprimand where fees taken early were later proper)
- Comm. on Prof'l Ethics & Conduct v. Winkel, 415 N.W.2d 601 (Iowa 1987) (reprimand for collecting probate fees before court authorization)
- Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Smith, 569 N.W.2d 499 (Iowa 1997) (thirty‑day suspension where attorney took extraordinary fees later found excessive and engaged in misrepresentations)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860 (Iowa 2010) (collecting probate fees without prior approval violates Rule 32:1.5(a))
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carty, 738 N.W.2d 622 (Iowa 2007) (restitution required where attorney collected fees in excess of those authorized by law)