IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Cоmplainant, v. Pamela Ann VANDEL, Respondent.
No. 16-1704
Supreme Court of Iowa.
Filed January 27, 2017
889 N.W.2d 659
WIGGINS, Justice.
LICENSE SUSPENDED.
Tara van Brederode and Elizabeth Quinlan, Des Moines, for complainant.
Pamela Ann Vandel, Runnells, pro se.
WIGGINS, Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against an attorney alleging multiple violations of the Iowa Rules of Professional Conduct. A division of the Grievance Commission of the Supreme Court of Iowa found the respondent‘s conduct violated the rules and recommended we suspend her license to practice law with no possibility of reinstatement for a period of one year. On appeal, the Board urges us to reaffirm the recommendation. On our de novo review, we find the attorney violated numerous provisions of our rules, which
I. Scope of Review.
We review attorney disciplinary proceedings de novo.
Additionally, because the attorney failed to respond to the Board‘s complaint, we treat the allegations in the complaint as admitted pursuant to
II. Findings of Fact.
Upon on our de novo review of the record and the admitted allegations, we make the following findings of fact. In 1996, Pamela A. Vandel received her license to practice law in Iowa.
On September 28, 2012, Vandel began representing Nichole Phillips in a custody, visitation, and child-support modification case. In 2004, a dissolution decree was entered granting physical custody of a minor child to Nichole, and it provided her former husband, Floyd Phillips, with a specific visitation schedule. On Seрtember
After Vandel entered her appearance on behalf of Nichole, she filed answers and counterclaims to Floyd‘s petition for modification and application for rule to show cause. On April 10, 2013, Floyd‘s attorneys filed a motion to withdraw. The court held a hearing on April 15 and granted Nichole‘s request for designation of expert witness and addressed Floyd‘s failure to obtain a psychological evaluation as previously ordered. After the hearing on April 15, Vandel advised Nichole to deny Floyd further visitation and filed a motion to suspend visitation. Based on Vandel‘s advice, Nichole began denying Floyd visitation on April 17. Thereafter on April 22, Floyd‘s attorneys filed an application for a rule to show cause asserting Nichole denied Floyd visitation on April 17. That application along with Witherwax‘s and Johnston‘s motion to withdraw, and the motion to suspend visitation were scheduled for hearing on May 9 at 1:30 p.m.
On the morning of May 9, Vandel called Floyd‘s attorney, Tyler Johnston, and told him the hospital notified her she needed to go in for a blood transfusion that day and asked if he would agree to a continuance. After Johnston agreed to the continuance, Vandel called Judge Gunderson and indicated she was medically incapable of attending the hearing. Vandel followed up with an email expressing her gratitude to Judge Gunderson and Johnston for understanding her need for the transfusion. Due to Vandel‘s representations concerning her need for a blood transfusion, the court continued the hearing to the date of trial on May 20. Despite her representations, Vandel did not receive a blood transfusion on May 9.
On May 13, Floyd, through his new attorney Jason Springer, filed an application for rule to show cause alleging that Nichole, based on the advice of Vandel, had denied Floyd visitation nine times betwеen April 17 and May 11, in violation of the dissolution decree.
The modification trial occurred May 20 through May 24 before Judge Blane. Prior to the start of the trial, counsel for both parties met with Judge Blane and agreed the court would consider, in addition to modification, Nichole‘s counterclaim filed on October 1, 2012; Floyd‘s application for rule to show cause filed on April 22, 2013; and Floyd‘s application for rule to show cause filed on May 13. In order for the court to hear the application for rule to show cause filed on May 13, Vandel waived Nichole‘s right to notice without consulting her. Nichole found out about the second application for rule to show cause on the third day of trial when Vandel showed her the application during a break.
During the modification trial, Nichole testified that Vandel told her three days before the trial she was going to withdraw as counsel on the first day of trial if Nichole did not pay her an additional $10,000. When Nichole told Vandel she was unable to pay $10,000, Vandel lowered the amount to $5000. Although Nichole did not make an additional payment, Vandel appeared for trial and did not file a mоtion to withdraw. However, throughout the trial, Vandel continued to tell Nichole that she was going to withdraw if she did not make an additional payment. Nichole explained to Judge Blane that Vandel‘s threats to with-
Additionally, on the first day of trial, Vandel presented Nichole with documents to sign in the form of a mortgage with a promissory note, attorney fee lien, assignment of income, judgment by confession, and assignment of wages. Vandel falsely told Judge Blane she did not present any documents for Nichole to sign during the trial. Further, when Vandel threatened to withdraw if she did not receive an additional payment, Vandel did not inform Nichole of the likelihood that the judge would grant or deny such a motion.
On May 28, Judge Blane found Vandel “guilty [beyond a reasonable doubt] of nine (9) counts of contempt of court by willfully counseling, thereby aiding and abetting the violation of the Court‘s Decree of May 19, 2004, pursuant to
During the period in which Vandel represented Nichole, she maintained an Interest on Lawyers Trust Account (IOLTA). Between September 2012 and March 2013, Niсhole made payments to Vandel of $3000, $3894, $4080.30, $5000, and $8000. They did not have a written fee agreement. The only information Nichole had regarding the scope of Vandel‘s representation was that she would be charged $295 per hour for legal services.
As part of its investigation into the complaints against Vandel, the Board discovered Vandel did not deposit any of the payments by Nichole into her trust account, did not maintain a check register, did not perform monthly reconciliations of her trust account, and did not maintain client ledgers. However, Vandel falsely cеrtified that she had deposited all retainers into her trust account and performed reconciliations of trust account balances with bank statement balances and client ledger balances on a monthly basis when she answered the 2013 and 2014 Iowa Supreme Court Client Security Commission Questionnaires.
On May 3, 2016, the Board filed a complaint alleging Vandel engaged in multiple violations of the Iowa Rules of Professional Conduct, concerning false statements to a tribunal, conduct prejudicial to the administration of justice, failure to maintain a trust account, dishоnesty, and misrepresentation.
After Vandel failed to file an answer within the specified time, on June 16, the Board filed a motion to invoke
At the hearing, Vandel asked the commission to take into consideration the fact that she does not intend to practice law in the future and her history of providing pro bono legal services throughout her career. Following the hearing, the commission recommended we suspend Vandel‘s license to practice law with no possibility of reinstatement for a period of one year.
III. Violations.
A. Rule 32:1.4(b).
Vandel violated this rule when she repeatedly told Nichole she was going to withdraw if Nichole did not make an additional payment to her. Vandel did not explain to Nichole that in order to withdraw she would have to make a motion to the court to do so. Further, she did not explain the likelihood that a judge would grant such a motion on the first day of trial or during the trial. Vandel‘s threats to withdrаw caused Nichole extreme stress, and she felt harassed and badgered. Accordingly, Vandel‘s failure to fully explain the circumstances left Nichole unable to make an informed decision regarding Vandel‘s representation and effectively prepare for and participate in the trial. Thus, Vandel violated rule 32:1.4(b).
B. Rule 32:3.3(a)(l).
Vandel knowingly made a false statement of fact to a tribunal when she told Judge Gunderson that she was medically incapable of attending the hearing on May 9 due to her need for a blood transfusion. During the modification trial before Judge Blane, she continued to claim she had a blood transfusion. Finally, in her statement of facts to the court of appeals, Vandel asserted that she was unavailable for the hearing on May 9 because she had to go in for a blood transfusion. Despite her representations to these tribunals, Vandel has no medical records showing she had a blood transfusion on May 9. We find Vandel made these statements knowingly due to the number of times she repeated it to various persons and entities.
Accordingly, Vandel knowingly made several false statements to tribunals and therefore violated rule 32:3.3(a)(l).
C. Rule 32:4.1(a).
This rule prohibits a lawyer from knowingly making “a false statement of material fact . . . to a third person.”
Vandel violated this rule when she knowingly told her opposing counsel, Johnston, that she needed to go in for a blood transfusion on May 9 and asked if he would agree to a continuance. Despite her representation to Johnston, Vandel did not receive a blood transfusion on May 9. We find at the time she made the statement she knew it was false.
D. Rule 32:8.4(d).
A lawyer violates rule 32:8.4(d) when a lawyer engages “in conduct prejudicial to the administration of justice.”
We have consistently held that an attorney violates rule 32:8.4(d) when the “misconduct results in аdditional court proceedings or causes court proceedings to be delayed or dismissed.” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Dolezal, 841 N.W.2d 114, 124 (Iowa 2013) (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 180 (Iowa 2013)).
Based on Vandel‘s false statement that she needed a blood transfusion, the court granted her request for a continuance of the May 9 hearing. Although opposing counsel Johnston agreed to the continuance because of Vandel‘s “medical emergency,” he noted in an email to Judge Gunderson and Vandel that the continuance would prejudice Floyd because his application for rule to show cause would not get resolved until a latеr date. Instead of the court considering his application on May 9, the court‘s consideration of the application was delayed almost two weeks until the trial on May 20. Because Vandel‘s false statement caused a delay in the proceedings, she violated rule 32:8.4(d).
E. Rule 32:3.4(c).
The Board alleged, after the hearing on April 15, Vandel advised Nichole to deny Floyd further visitation, and based on Vandel‘s advice, Nichole began denying Floyd visitation on April 17, in violation of the 2004 dissolution decree. Vandel admitted this allegation in this disciplinary proceeding because she failed to answer the complaint.
Vandel knew that Nichole was obligated to follow the visitation order in the dissolu-
F. Rule 32:1.3.
The Board contends Vandel violated rule 32:1.3 when she waived Nichole‘s right to notice of Floyd‘s application for rule to show cause filed on May 13, without obtaining her consent and without informing Nichole until the third day of trial. Although these facts are undisputed, we find they are unrelated to reasonable diligence or promptness in Vandel‘s representation of Nichole. While Vandel‘s conduct likely violated a rule of professional conduct, we do not find rule 32:1.3 applies.2 Thus, the Board has failed to prove a violation of rule 32:1.3.
G. Rule 32:1.5(b).
This rule requires a lawyer to communicate with the client, preferably in writing, regarding “[t]he scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible.”
a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction.
There was no written fee agreement between Vandel and Nichole. Vandel did not
It is worth noting that the Board previously admonished Vandel for similar conduct in 2007, when four days prior to a hearing she demanded a client pay her an additional $3500 or she would not represent him further. The Board found her conduct violated rule 32:1.16(b)(5) because the fee contract did not unilaterally allow Vandel to require an additional retainer. Here, Vandel did not adequately explain to Nichole the scope of her representation or that she would provide her services only up to a stated amount, and therefore, she violated rule 32:1.5(b).
H. Rules 32:1.15(a), 32:1.15(c), and 32:1.15(f).
We address these alleged violations together because they apply to the safekeeping of a client‘s property, including retainer fees.
(a) A lawyer shall hold property of clients or third persons that is in a lawyer‘s possession in connection with a representation separate from the lawyer‘s own property. Funds shall be kept in a separate account. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of the rеpresentation.
. . . .
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
. . . .
(f) All client trust accounts shall be governed by chapter 45 of the Iowa Court Rules.
Vandel did not deposit any of Nichole‘s payments into her trust account. Because she did not deposit any of the payments into the trust account, Vandel did not withdraw fees and expenses as she earned them, nor did she provide Nichole with contemporaneous notices. Therefore, Vandel violated rules 32:1.15(a), 32:1.15(c), and 32:1.15(f).
I. Rule 32:8.4(c).
This rule is violated when a lawyer engages “in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
IV. Sanctions.
In determining the appropriate sanction a lawyer must face for misconduct,
we consider the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer‘s fitness to practice, and the court‘s duty to uphold the integrity of the profession in the eyes of the public. We also consider aggravating and mitigating circumstances present in the disciplinary action.
Nelson, 838 N.W.2d at 542 (quoting Templeton, 784 N.W.2d at 769-70). Our primаry purpose when imposing sanctions is to protect the public, not to punish the lawyer.
In Vandel‘s case, there are several aggravating factors we must consider when determining the appropriate sanction. First, an aggravating factor is Vandel‘s prior discipline. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Baldwin, 857 N.W.2d 195, 214 (Iowa 2014). We consider both prior admonitions and prior public discipline. Id. Additionally, “[p]rior misconduct is more suggestive of increased sanctions when it involves the same type of conduct as the conduct currently subject to discipline.” Id.
The Board has previously admonished Vandel on two occasions. In 2004, the Board admonished her for representing both parties in a marriage dissolution matter. In 2007, the Board admonished her for similar conduct to the conduct in this case when she demanded a client pay an additional retainer for her continued representation four days before а hearing when the fee contract did not allow her to unilaterally require an additional retainer. In 2012, we publicly reprimanded Vandel for similar trust account violations.
Second, we consider substantial experience in the practice of law an aggravating factor affecting our determination. Morris, 847 N.W.2d at 436. Vandel has substantial experience as she has been practicing law in Iowa for twenty years.
Third, it is significant that Vandel‘s actions exposed her client to harm. See Netti, 797 N.W.2d at 606-07. Vandel‘s repeated threats to withdraw prior to and during the trial caused Nichole еxtreme stress and prevented her from effectively participating in the trial.
Finally, an “attorney‘s failure to appreciate the wrongfulness of his or her actions is an aggravating circumstance.” Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Tofflemire, 689 N.W.2d 83, 93 (Iowa 2004). On the other
We also take into consideration the mitigating factors present in this case. First, we acknowledge that Vandel was hospitalized for a severe illness near the time she requested a continuance for the hearing on May 9. Although Vandel did not have a blood transfusion on May 9, she was admitted to the hospital on May 7 for severe illness and pain. She left the hospital on the morning of May 8, despite being counseled against leaving because of the severity of her illness. “While pеrsonal illness will not excuse an attorney‘s misconduct, such illnesses may influence our approach to discipline.” Netti, 797 N.W.2d at 606.
Second, we note Vandel has provided substantial pro bono legal work throughout her career and routinely performs work for low-income clients. See Iowa Supreme Ct. Att‘y Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 467 (Iowa 2014) (stating community service is a mitigating factor).
In similar cases involving misrepresentations compounded with other misconduct, we have suspended an attorney‘s license for as short as six months to as long as two years. In McGinness, we imposed a six-month suspension for making false statements to a tribunal; conduct that involved dishonesty, fraud, decеit, or misrepresentation; and conduct prejudicial to the administration of justice. Id. at 462-63, 467.
In Morris, we imposed a six-month suspension on an attorney who falsely answered questions in the Client Security Combined Statement, had substantially and repeatedly failed to maintain a trust account, had twenty-five years of experience, and had three prior suspensions. 847 N.W.2d at 436-37.
In Iowa Supreme Court Attorney Disciplinary Board v. Hearity, we suspended an attorney for one year for making a false statement to the court in addition to neglect, charging unreasonable fees, failing to properly terminate representation, failing to respond to the board, and practicing law without a license. 812 N.W.2d 614, 618-21, 623 (Iowa 2012).
In Netti, we suspended an attorney‘s license for two years for multiple violations, including misrepresentations to the court, incompetent representation, conflict of interest, failure to properly communicate with clients, failure to maintain a trust account, taking fees without accounting for his time, failure to cooperate with the Board, and his unauthorized practice of law. 797 N.W.2d at 607.
In light of Vandel‘s multiple violations, the aggravating factors, and the mitigating factors, we conclude a suspension of six months is warranted in this case.
V. Disposition.
We suspend Vandel‘s license to practice law in Iowa with no possibility of reinstatement for six months from the date of this opinion. This suspension applies to all facets of the practice of law. See
LICENSE SUSPENDED.
Notes
- promptly inform the client of any decision or circumstance with respect to which the client‘s informed consent . . . is required by these rules;
- reasonably consult with the client about the means by which the client‘s objectives are to be accomplished;
- keep the client reasonably informed about the status of the matter;
- promptly comply with reasonable requests for information; and
- consult with the client about any relevant limitation on the lawyer‘s conduct when the lawyer knows that the client expects assistance not permitted by the Iowa Rules of Professional Conduct or other law.