IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Kenneth J. WEILAND, Jr., Respondent.
No. 15-0156.
Supreme Court of Iowa.
May 1, 2015.
862 N.W.2d 627
Kenneth J. Weiland, Jr., Des Moines, pro se.
ZAGER, Justice.
The Iowa Supreme Court Attorney Disciplinary Board (Board) charged attorney Kenneth J. Weiland Jr. with violations of several of our ethical rules based on his actions in an appeal filed with this court. After a hearing, a division of the Grievance Commission of the Supreme Court of Iowa found Weiland‘s conduct was prejudicial to the administration of justice in violation of
I. Factual Background and Proceedings.
Weiland was admitted to practice law in Iowa in 1994. He currently works in Des Moines, as a solo practitioner. His practice includes representing clients in a variety of matters, including family law. The Board‘s complaint in this case stems from Weiland‘s representation of Ryan Pierce in an appeal from a domestic relations case.
Weiland‘s representation of Pierce began in 2012 when Weiland agreed to represent Pierce in a domestic relations case. The case proceeded to trial on December 17, 2012. The district court entered a decree in the matter on January 2, 2013. After reviewing the decree, Weiland concluded the district court failed to address an issue he believed it was required to address. Accordingly, Weiland informed Pierce that there were sufficient grounds to appeal the case. Based on Weiland‘s advice, Pierce elected to appeal the case. Weiland filed a notice of appeal on January 31.
After filing the notice of appeal, Weiland failed to file and serve a combined certificate or pay the filing fee as required by our rules of appellate procedure. See
On the morning of March 25, Weiland called the court reporter that had reported the trial, Lisa McCarville, and requested a transcript of the Pierce trial. Later that morning, McCarville sent Weiland a follow-up email in which she stated that after their phone conversation, she reviewed her records and determined the transcript would cost $220.50. The email further stated that she would need a copy of the combined certificate. Additionally, the email stated, “I will get to work on the transcript as soon as I receive your deposit.” That same day, Weiland filed a combined certificate with the clerk in which he certified that “the Transcript ha[d] been ordered.” He did not serve McCarville with the combined certificate.
On June 4, the clerk sent both Weiland and McCarville a notice of failure to timely file transcript notifying them that McCarville had not filed the transcript by the deadline. See
On June 17, this court filed an order requiring Weiland to “serve court reporter McCarville with the combined certificate and pay her required deposit” by June 27. The order further stated, “[F]ailure to pay [for] the transcript should be reported by the court reporter to this court, and will result in [the] appeal being dismissed for appellant‘s failure to comply with the appellate rules.” On July 8, eleven days after the deadline, McCarville filed a reporter‘s report of nonpayment in which she certified that as of July 3, Weiland had not sent her a combined certificate or paid the deposit. Accordingly, on July 18, this court filed an order dismissing the appeal for failure to comply with our appellate rules and instructing the clerk to forward a copy of the order to the Board for further action. See
Based on these facts, the Board filed a complaint on August 11, 2014. In its complaint, the Board alleged Weiland violated Iowa Rules of Professional Conduct
The commission conducted an evidentiary hearing in November. At the hearing, the following witnesses testified: Christine Mayberry, deputy clerk for the Iowa appellate courts; McCarville; and Weiland. Mayberry testified that between 1998 and 2014 Weiland has received forty notices of default for failing to comply with deadlines in various appeals. She testified that based on her fifteen years of experience as deputy clerk, this is an excessive number of notices of default. She further testified that when the clerk‘s office is required to send default notices, it causes “a significant drain on [the office‘s] workload.”2
McCarville testified that when a party files an appeal, the court reporter in the underlying matter typically receives a copy of the combined certificate. This combined certificate notifies the court reporter that a party has filed an appeal for which a transcript is needed and provides the court reporter with details as to the dates of future deadlines. She testified that in Pierce‘s case she did not receive a combined certificate. Instead, Weiland called her to request a transcript. She testified that after receiving the call from Weiland, she found the appeal online and discovered that Weiland had recently filed the combined certificate. She then emailed Weiland and requested that he send her a copy of the combined certificate and informed him of the cost of the transcript.
McCarville gave conflicting testimony as to whether she considered the transcript ordered after speaking with Weiland on the phone on March 25. Initially, she testified that she requires the deposit to be paid prior to considering the transcript ordered. She testified that she typically requires a deposit in advance because doing so ensures that she receives payment for her services. However, she then testified that after her conversation with Weiland, she “considered [Weiland to have] ordered the transcript verbally.” She further testified that although she was waiting for both the combined certificate and her deposit, she probably began doing some preliminary work on the transcript to ensure she did not miss any deadlines.
Weiland admitted that he failed to serve McCarville with the combined certificate. However, he maintained that he did not know our appellate rules required him to do so. Additionally, he testified that when he spoke with McCarville on the phone on March 25, he believed he had ordered the transcript. He testified that when he certified in the combined certificate that he had ordered the transcript, he knew he had not paid McCarville. However, he believed that ordering the transcript and paying for the transcript were distinct concepts. Accordingly, in certifying on the combined certificate that he had ordered the transcript, he “didn‘t believe [he] was lying to the Court ... or misrepresenting anything.”
Weiland expressed remorse for failing to dismiss Pierce‘s appeal once he realized Pierce would not be able to obtain funds for the transcript. He testified that when a client is unable to obtain funds for an appeal in the future, he will withdraw as counsel instead of repeatedly missing deadlines. He further noted that although he has a history of failing to meet appellate deadlines, he has recently improved his compliance with appellate deadlines. Specifically, he highlighted that many of the notices of default he has received in the past occurred “closer to the early 2000s.” However, he admitted he received notices of default in two other appeals in 2014 for failing to file the required combined certificates. Finally, Weiland acknowledged that the Board privately admonished him in 2003 for failing to dismiss an appeal after the client decided not to pursue it. However, he distinguished the instant case from this prior misconduct, noting that in this case his client wanted to pursue the appeal, but was unable to obtain the necessary funds to do so.
The commission issued its written findings of fact, conclusions of law, and recommended sanction on January 27, 2015. It concluded the Board failed to present sufficient evidence to demonstrate Weiland‘s conduct violated rules
II. Standard of Review.
Our review of attorney disciplinary proceedings is de novo. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Conroy, 845 N.W.2d 59, 63 (Iowa 2014). The Board must prove attorney misconduct by a convincing preponderance of the evidence, a burden greater than a preponderance
III. Review of Alleged Ethical Violations.
The Board alleged numerous violations of the Iowa Rules of Professional Conduct based on Weiland‘s conduct in the Pierce appeal. Weiland admitted each of the factual allegations in the Board‘s complaint. “Factual matters admitted by an attorney in an answer are deemed established, regardless of the evidence in the record.” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa 2013). We turn now to address the individual rule violations alleged by the Board.
A. Rule 32:1.3: Reasonable Diligence and Promptness.
This rule requires a lawyer to “act with reasonable diligence and promptness in representing a client.”
We have previously held that “even if a client no longer wants a matter to be pursued, it is neglect for the attorney to allow the matter to languish, without terminating it.” Dolezal, 796 N.W.2d at 915. We have explained:
Regardless of the client‘s interest in the case, the onus is on the attorney to comply with the deadlines provided in the appellate rules. Unless the court relieves an attorney of his or her responsibility to the client on appeal, as an officer of the court, the attorney is required to file the appropriate documents and briefs. Anything less may be considered neglect.... [S]imply because a client does not want to pursue the case does not relieve the attorney from taking steps necessary to end the matter.
Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 105 (Iowa 2006) (citations omitted).
We concluded the attorney‘s conduct did not amount to neglect. Id. at 230. We explained:
[I]t was [the client‘s] failure to pay for the transcript, not [the attorney]‘s actions, that prevented [the client] from proceeding with the appeal. Under the facts presented here, we find the Board failed to prove [the attorney] neglected [the client]‘s interests. [This attorney] in fact protected [his client]‘s interest by commencing and maintaining the appeal notwithstanding her failure to pay his fee as she had agreed, and by allowing her time ... to raise the funds to pay for the transcript.
In this case, as in Wright, we do not find Weiland‘s conduct amounted to neglect in violation of
B. Rule 32:3.2: Expedite Litigation.
This rule provides, “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”
The commission concluded that Weiland did not violate
C. Rule 32:8.4(d): Conduct Prejudicial to the Administration of Justice.
This rule prohibits an attorney from engaging in “conduct that is prejudicial to the administration of justice.”
The commission concluded Weiland‘s failure to dismiss the appeal by the June 27 deadline established by this court‘s June 17 order violated
D. Rule 32:3.3(a)(1): Candor Toward the Tribunal.
This rule prohibits a lawyer from “knowingly ... mak[ing] a false statement of fact or law to a tribunal.”
The Board alleges Weiland violated this rule by falsely certifying in the combined certificate he filed with the clerk that “the Transcript ha[d] been ordered.” In fact, he had not served McCarville with the combined certificate or made the necessary deposit at the time he filed the
We agree with the commission that the Board failed to present sufficient evidence to establish a violation of this rule. Here again, with respect to the testimony of both Weiland and McCarville, we defer to the commission‘s credibility determinations because it heard their live testimony and observed their demeanor. See Clarity, 838 N.W.2d at 659. At the hearing before the commission, McCarville gave conflicting testimony as to whether Weiland ordered the transcript during their phone conversation. However, she ultimately conceded she “considered [Weiland to have] ordered the transcript verbally.” Weiland testified he believed he had ordered the transcript at that time as well. Nothing in the email McCarville sent to Weiland is inconsistent with Weiland having placed a verbal order. Thus, the record showed that at the time Weiland certified in the combined certificate that he had ordered the transcript, he reasonably believed he had done so. We find the Board failed to establish that Weiland possessed the requisite knowledge to have violated
IV. Consideration of Appropriate Sanction.
Having found the foregoing rule violations, we now consider the appropriate sanction. The commission found only a single violation of our rules and recommended we publicly reprimand Weiland. We give respectful consideration to the commission‘s recommendation. Ricklefs, 844 N.W.2d at 699. However, the issue of appropriate sanction is exclusively within this court‘s authority. Id.
“There is no standard sanction for a particular type of misconduct, and though prior cases can be instructive, we ultimately determine an appropriate sanction based on the particular circumstances of each case.” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 308 (Iowa 2009). As we have previously stated,
In considering an appropriate sanction, this court considers all the facts and circumstances, including the nature of the violations, the attorney‘s fitness to practice law, deterrence, the protection of society, the need to uphold public confidence in the justice system, and the need to maintain the reputation of the bar.
McGinness, 844 N.W.2d at 463. “Where there are multiple violations of our disciplinary rules, enhanced sanctions may be imposed.” Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Alexander, 574 N.W.2d 322, 327 (Iowa 1998). Further, we “consider mitigating and aggravating circumstances, including companion violations, repeated neglect, and the attorney‘s disciplinary history.” Conroy, 845 N.W.2d at 66.
In this case, Weiland failed to comply with appellate deadlines in a single matter and failed to dismiss his client‘s appeal. Instead, Weiland allowed the appeal to be administratively dismissed. Sanctions for conduct of this nature range from a public reprimand when the attorney‘s misconduct is relatively isolated, to suspensions of several months when the conduct is egregious or accompanied by related misrepresentations, additional violations, or other aggravating circum-
We draw guidance from the following attorney discipline cases involving similar misconduct. In Dolezal, we suspended an attorney‘s license for thirty days. Id. at 923. There, the attorney failed to cure default notices in two appeals leading to their dismissal. Id. at 914. We concluded this conduct violated rules
In Hoglan, we suspended an attorney‘s license for thirty days when he failed to prosecute four appeals resulting in their dismissal. Id. at 282-83, 287. We concluded this conduct violated rules
In Wright, we publicly reprimanded an attorney who failed to comply with appellate deadlines in a single client matter and failed to dismiss his client‘s appeal, instead allowing it to be administratively dismissed. Id. at 230-31. We found the attorney‘s reliance on a default notice to dismiss the appeal after his client could not raise funds for the transcript was prejudicial to the administration of justice. Id. at 231. However, we concluded this same conduct did not amount to neglect because the attorney was attempting to protect his client‘s interests by allowing her time to obtain funds for the transcript. Id. at 230. In crafting the proper sanction, we considered as aggravating factors that the lawyer had over twenty-five years of experience in the field, had been publicly reprimanded on one prior occasion, and that he had been privately admonished on two prior occasions. Id. at 231.
Finally, in Tompkins, we publicly reprimanded an attorney who neglected two client matters. Id. at 669-70. In the first matter, the attorney neglected the client “by failing to communicate with [him] and respond to his inquiries.” Id. at 669. In the second matter, the attorney allowed the client‘s “appeal to be administratively dismissed, neglecting his client, and wasting judicial resources.” Id. In crafting the proper sanction, we emphasized that little harm ultimately befell either client because they were unlikely to succeed on their claims. Id. We considered as an aggravating factor that the attorney had been publicly reprimanded on two prior occasions. Id. at 670.
We believe this case is distinguishable from Dolezal and Hoglan. In those cases there were multiple instances of neglect, additional rule violations, and clients suffered harm. See Dolezal, 796 N.W.2d at 920 (finding multiple instances of neglect, trust account violations, and harm to a client); Hoglan, 781 N.W.2d at 286 (finding multiple instances of neglect and harm to clients). Here, Weiland‘s misconduct stems from one instance in which he failed to meet appellate deadlines resulting in the administrative dismissal of an appeal. While we did find this conduct violated two of our rules of professional conduct, the Board has not alleged, and we have not concluded, that Weiland‘s conduct resulted in any harm to the client. Thus, Wright and Tompkins are closer parallels. See Wright, 758 N.W.2d at 230 (involving a single client matter and finding no harm to the client); Tompkins, 733 N.W.2d at 669 (finding no harm to clients). Further, as in Wright, Weiland‘s conduct did not amount to neglect. See Wright, 758 N.W.2d at 230 (finding a failure to dismiss an appeal did not amount to neglect). Accordingly, we find these cases most instructive in crafting the proper sanction.
Finally, in crafting the proper punishment we consider aggravating and mitigating factors. Conroy, 845 N.W.2d at 66. Here, several aggravating and mitigating factors warrant our consideration. We begin by addressing the aggravating factors. “[T]he prior disciplinary history of an attorney is [one] factor we must consider....” Parrish, 801 N.W.2d at 589. “In so doing, we consider both prior admonitions and prior public discipline.” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Baldwin, 857 N.W.2d 195, 214 (Iowa 2014). “Prior misconduct is more suggestive of increased sanctions when it involves the same type of conduct as the conduct currently subject to discipline.” Id.
Weiland has been subject to discipline on four prior occasions. First, in 2003, the Board privately admonished Weiland for failing to respond to default notices in an appeal, ultimately resulting in its dismissal. This prior misconduct is an aggrava-
At the hearing, Weiland conceded that his notice-of-default track record could be considered as part of our determination of an appropriate sanction. We consider his track record to be an aggravating factor. We have previously recognized that using the clerk‘s office as a private tickler system is unacceptable behavior for an attorney. See Curtis, 749 N.W.2d at 699 (characterizing an attorney‘s use of the clerk‘s office as a private tickler system as “deplorable“); Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 400 (Iowa 2005) (disapproving an attorney‘s use of the clerk‘s office as a private tickler system). Here, the record established that between 1998 and 2014, Weiland received forty notices of default for failing to meet various deadlines in eighteen appeals. As confirmed by the deputy clerk, this is an excessive number of default notices. However, we lessen our consideration of this as an aggravating factor to an extent because the record also established that Weiland received a large majority of these notices of default much earlier in his career. In fact, Weiland received thirty-three of the forty notices of default between 1998 and 2007, and from 2008 to 2010 Weiland received no notices of default. However, since 2011 Weiland‘s use of the clerk‘s office as a private tickler system seems to have reemerged, as evidenced by his receipt of seven notices of default in five separate matters between 2011 and 2014. We are troubled by this recent trend. Consequently, we consider it as an aggravating factor.
We turn now to the mitigating factors. First, the record does not suggest that any clients suffered harm in this case. We consider this a mitigating factor. See Ricklefs, 844 N.W.2d at 700 (considering lack of harm to clients a mitigating factor). Second, Weiland ultimately took responsibility for his actions before the commission, admitted that he should have dismissed the appeal once he realized Pierce would be unable to obtain funds for the transcript, and expressed remorse for his failure to do so. This is also a mitigating factor. Id. (considering attorney‘s taking responsibility for his actions as a mitigating factor). Third, Weiland testified that in the future he will require clients to advance the necessary costs for an appeal prior to proceeding. Further, he testified that if a client is unable to advance these costs after appeal, he will withdraw as
The commission recommended we publicly reprimand Weiland for his misconduct. Having considered the particular circumstances in this case, and after our de novo review of the record, we agree with the commission that a public reprimand is appropriate.
V. Conclusion.
We publicly reprimand Weiland. Costs are taxed to Weiland pursuant to
ATTORNEY REPRIMANDED.
All justices concur except WIGGINS, J., who dissents.
WIGGINS, Justice (dissenting).
Kenneth Weiland‘s prior disciplinary record and his forty prior delinquency notices from the clerk of the supreme court require a thirty-day suspension.