Iowa Supreme Court Attorney Disciplinary Board v. Thomas G. Mccuskey
2012 Iowa Sup. LEXIS 49
| Iowa | 2012Background
- McCuskey was admitted in 1974 and resided in Linn County, Iowa.
- He was temporarily suspended on September 30, 2009 for nonpayment of a Department of Revenue obligation and notified to comply with client notification rules.
- After the suspension, McCuskey continued to practice law, including representing the Gustas and filing in bankruptcy-related matters.
- He took fees from the Gustas and did not render an accounting or refund unearned fees post-suspension.
- The Board later charged multiple Rule 32 and Court Rule violations; the Grievance Commission recommended indefinite suspension for two years, which the Supreme Court adopted as one year after considering aggravating factors.
- McCuskey did not respond to the Board, did not appear at the hearing, and the license suspension was extended repeatedly until reinstatement procedures could be addressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McCuskey violated rule by practicing after suspension | McCuskey violated 32:5.5(a) by practicing post-suspension | McCuskey did not challenge the Board’s factual findings | Yes; rule 32:5.5(a) violated |
| Whether McCuskey’s post-suspension actions violated rule 32:8.4(c) | McCuskey’s misconduct showed deceit in collecting fees | McCuskey did not present a defense on intent | Yes; 32:8.4(c) violated |
| Whether McCuskey’s post-suspension representation violated rule 32:1.16(a) | Continued representation after suspension violated 1.16(a) | No substantial defense raised | Yes; 32:1.16(a) violated |
| Whether McCuskey violated trust-account and fee-advance rules | Failure to account for funds and refund unearned fees violated 32:1.15, 45.2(2), 45.7 | Not asserted against the trust-account violations | Yes; 32:1.15, 45.2(2), 45.7 violated |
| Whether McCuskey neglected the Gusta matter | Board alleged neglect under 32:1.3 | Independent review found no neglect | No; Board failed to prove 32:1.3 beyond reasonable doubt |
Key Cases Cited
- Hearity v. Iowa Supreme Ct. Att’y Disciplinary Bd., 812 N.W.2d 614 (Iowa 2012) (relevance of post-suspension conduct and constructive knowledge; aggravation factors)
- Netti v. Iowa Supreme Ct. Att’y Disciplinary Bd., 797 N.W.2d 591 (Iowa 2011) (trust account violations and patterns of fee-taking; harm to clients)
- Dunahoo v. Iowa Supreme Ct. Att’y Disciplinary Bd., 799 N.W.2d 524 (Iowa 2011) (intentional misconduct; suspension context and misrepresentations to court)
- D’Angelo v. Iowa Supreme Ct. Att’y Disciplinary Bd., 710 N.W.2d 226 (Iowa 2006) (continued practice after suspension; trust-account misuse; prior discipline)
- Kirlin v. Iowa Supreme Ct. Att’y Disciplinary Bd., 741 N.W.2d 813 (Iowa 2007) (aggravating factor: experienced attorney; informs sanction analysis)