Iowa Supreme Court Attorney Disciplinary Board v. Kersenbrock
2012 Iowa Sup. LEXIS 91
| Iowa Ct. App. | 2012Background
- The Board charged Kersenbrock with multiple ethics violations based on mismanagement of client funds and recordkeeping.
- A grievance commission recommended a public reprimand; the Iowa Supreme Court conducted de novo review.
- Audits revealed failure to deposit retainers into the client trust account and inadequate trust records.
- Anderson, a former paralegal, testified that retainers were deposited inconsistently or not at all into the trust account and sometimes kept as cash.
- Brinkmeyer confirmed improper deposits, missing or incomplete records, and lack of regular reconciliations; he could not confirm earned-portion timing.
- The court found violations including failure to deposit retainers (Stanek, Harding), inadequate records, premature probate fee collection, and misrepresentation on annual reports, and suspended the license for 30 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to deposit retainers violated trust account rules | Kersenbrock failed to deposit retainers in Stanek and Harding; conduct violated 32:1.15(c). | Some fees were earned; not all retainers unearned; timing disputed. | Yes, violated 32:1.15(c) for Stanek and Harding. |
| Whether recordkeeping deficiencies violated trust accounting rules | Audit showed non-existent or incomplete client ledgers and reconciliations. | Records were imperfect but corrective measures were adopted. | Yes, violated 32:1.15(a), 32:1.15(f), and 45.2(2). |
| Whether premature collection of probate fees violated professional conduct rules | Second-half probate fee taken before final report filed. | Timing dispute; some fee anticipated but final report soon followed. | Yes, violated 32:1.5(a) through premature fee collection. |
| Whether misrepresentation occurred on annual trust accounting certifications | Certified proper reconciliations and trust status were false or misleading. | Certifications were based on belief rather than intent to mislead. | Yes, violated 32:8.4(c) for false certifications. |
Key Cases Cited
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 792 N.W.2d 674 (Iowa 2010) (de novo review standard and burden of proof for misconduct)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d 301 (Iowa 2009) (misconduct standard and burden of proof greater than preponderance)
- Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Gottschalk, 553 N.W.2d 322 (Iowa 1996) (impossibility of reconciliations as evidence of accounting violation)
- Comm. on Prof'l Ethics & Conduct v. Jackson, 492 N.W.2d 430 (Iowa 1992) (premature reception of probate fees as a basis for sanction)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clauss, 711 N.W.2d 1 (Iowa 2006) (sanction guidance and balancing aggravating/mitigating factors)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morrison, 727 N.W.2d 115 (Iowa 2007) (sanction authority and consistency in discipline)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wengert, 790 N.W.2d 94 (Iowa 2010) (false certification of trust accounting constitutes misrepresentation)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d 53 (Iowa 2009) (premature second-half probate fees implicate 32:1.5(a))