Iowa Supreme Court Attorney Disciplinary Board v. Samuel Zachary Marks
2012 Iowa Sup. LEXIS 52
| Iowa | 2012Background
- Marks, Iowa-licensed since 2000, faced multiple prior disciplinary actions including suspensions and a 2009 30-day suspension.
- Linda Kenney hired Marks to defend a foreclosure on her Des Moines home; foreclosure judgment entered November 29, 2005 with sheriff’s sale set for May 29, 2006.
- Before the sale, Marks proposed and executed a real estate maneuver: his wife would purchase the property via a purchase-money mortgage, with Kenney remaining in the home under a later-back transfer plan.
- On April 14, 2006, Marks drafted an agreement terminating representation and recognizing Kenney should seek independent counsel for any real estate transaction with Marks and his wife.
- On April 28, 2006, Kenney’s deed transferred the property to Marks’ wife; mortgage and subsequent contract documents followed, with Kenney and her boyfriend living in the home.
- In July 2008 Kenney filed a complaint; Marks did not respond timely, leading to Board charges for violating ethics rules and failure to cooperate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Marks violate 32:1.8(a) in the Winona transaction? | Kenney argues a current client transaction occurred without proper safeguards. | Marks contends the relationship ended prior to the deed; risk to client was mitigated by termination. | Rule not applicable; relationship terminated prior to deed. |
| Did Marks violate 32:1.9(a) by representing his wife in a sale adverse to Kenney? | Kenney alleges continued representation harmed her interests. | Marks argues altruistic motive; no informed consent confirmed in writing exists. | Violated; informed written consent required. |
| Did Marks violate 32:8.1(b) and 32:8.4(d) by failing to cooperate with the Board? | Board's investigation required timely response; failure constitutes misconduct. | Marks may have reasonable grounds; not clearly stated in record. | Yes, violated both rules. |
Key Cases Cited
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fay, 619 N.W.2d 321 (Iowa 2000) (broad definition of business transaction between lawyer and client)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wintroub, 745 N.W.2d 469 (Iowa 2008) (business transaction safeguards applied to conflicts of interest)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Axt, 791 N.W.2d 98 (Iowa 2010) (de novo review standard in attorney discipline)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d 301 (Iowa 2009) (respectful consideration of commission findings; sanctions range guided by misconduct)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 792 N.W.2d 674 (Iowa 2010) (failure to respond to Board inquiries supports disciplinary finding)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moore, 729 N.W.2d 801 (Iowa 2007) (discipline severity influenced by prior record and mitigation)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Mershon, 316 N.W.2d 895 (Iowa 1982) (public reprimand for attorney who formed corporation with client)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hall, 463 N.W.2d 30 (Iowa 1990) (sanction range for business transactions with a client)