IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Lawrence L. LYNCH, Respondent.
No. 17-0193
Supreme Court of Iowa.
September 15, 2017
901 N.W.2d 501
MANSFIELD, Justice.
LICENSE REVOKED.
Leon F. Spies of Spies, Pavelich & Foley, Iowa City, for respondent.
MANSFIELD, Justice.
In an effort to salvage his troubled real estate investments, an attorney borrowed money from certain longtime clients. The attorney failed to advise the clients to obtain independent counsel, failed to obtain their written informed consent, and continued to represent those clients after borrowing the money. The attorney also did not disclose his perilous financial situation. The loans eventually totaled $177,000 in principal amount, none of which has been repaid. The attorney later self-reported his conduct to the Iowa Supreme Court Attorney Disciplinary Board (the Board). The Board charged the attorney with violating Iowa Rules of Professional Conduct 32:1.7(a), 32:1.7(b), and 32:1.8(a).
The parties reached a stipulation concerning the facts and the rule violations but went to a hearing regarding the appropriate sanction. After this hearing, the Iowa Supreme Court Grievance Commission (the commission) recommended suspending the attorney‘s license for nine months. On our review, we agree that the violations occurred and suspend the attorney‘s license to practice law for six months.
I. Background Facts and Proceedings.
Lawrence Lynch was first admitted to the Iowa bar in 1971 and has practiced law
In the early 1980s, Lynch began performing legal services on an ongoing basis for Darrel Bell, a farmer in Lone Tree, and Darrel‘s wife, Carolyn. Lynch represented Darrel and Carolyn in a variety of business and personal matters. Around the same time, Lynch also began acting as legal counsel for Darrel‘s son and daughter-in-law, Tom and Terri Bell. Over the years, Lynch formed a close friendship with the Bell family in addition to a good working relationship. Until 2014, Lynch regularly provided paid legal services to Darrel, Carolyn, Tom, and Terri.
In October 2008, Lynch was experiencing personal financial difficulties related to his real estate ventures. He telephoned Darrel and Carolyn, who were then on vacation in Florida, and asked to borrow $90,000 from them. Lynch told Darrel and Carolyn he needed the money the next day. Darrel and Carolyn agreed to lend Lynch the money and took out a corresponding short-term loan from their own bank. Because Darrel and Carolyn were in Florida at the time, they overnighted the check to Lynch the following day. Lynch executed a promissory note for the $90,000, payable June 1, 2009, with a 7.5% interest rate. The following month, Lynch prepared and signed a mortgage giving Darrel and Carolyn a security interest in one of the rental properties Lynch owned. Lynch did not tell Darrel and Carolyn they should retain independent counsel in connection with the transaction, nor did he ask for or receive their informed consent in writing.
In March 2010, Lynch contacted Tom and asked to meet him personally in Coralville. At that meeting, Lynch sought a personal loan from Tom and Terri “to put a roof on one of his buildings.” Tom wrote a check for $17,000 that same day. Lynch signed a promissory note to repay the loan, with 8% interest, by August 10. Lynch did not provide any security for the note. Lynch did not tell Tom and Terri they should retain independent counsel in connection with the transaction, nor did he ask for or receive their informed consent in writing.
Later that month, Lynch wrote to Darrel and Carolyn stating that he could not repay their $90,000 promissory note. Lynch explained that he was “in the pro-cess of rebuilding two buildings . . . and because [he] had to evict most of the tenants, it [had] left [him] a little bit shorter than what [he] had anticipated.” Lynch therefore included with his letter a written extension to October of the past-due note. He asked Darrel and Carolyn to sign and drop off the extension. Lynch also enclosed a check for $3140.50, which amounted to about a third of the accrued and unpaid interest. Additionally, Lynch prepared and signed a second promissory note to Darrel and Carolyn for $6000, representing the balance of the overdue and unpaid interest.
Darrel and Carolyn signed off on the requested extension. As before, Lynch did not tell them they should retain independent counsel, nor did he ask for or obtain their written informed consent.
As October approached, Lynch again lacked sufficient funds to repay Darrel and Carolyn. He sought another extension and, as before, Darrel and Carolyn agreed. Lynch neither advised Darrel and Carolyn to get independent counsel nor obtained their informed consent.
In February 2012, Lynch asked Darrel and Carolyn to lend him an additional $70,000. In this transaction, Lynch execut-
In 2013, Darrel, Carolyn, Tom, and Terri took a foreign trip together. During the trip, each of the two couples learned for the first time that Lynch had borrowed money from the other couple.
On January 30, 2014, Darrel died. Lynch filed a petition in probate as attorney for Carolyn, the executor of Darrel‘s estate. Shortly after this filing, Lynch requested another extension from Carolyn on the outstanding note payable to Darrel and her.
During that timeframe, Lynch attempted to sell many of his properties, including the rental property on which Darrel and Carolyn held a mortgage. Lynch approached Carolyn and asked her to sign a release of that mortgage. Carolyn initially declined, and Lynch then sent her a letter explaining that the mortgage was actually a second mortgage. After payment of closing costs and fees (including $130,000 in delinquent taxes), Lynch‘s letter explained that the property sale would not generate enough even to satisfy the first mortgage. Accordingly, Lynch proposed that in exchange for the release, he would grant Carolyn a second mortgage on another property.2 Lynch‘s letter continued,
I have no more money to pay other debts that [are] still associated with this property, but all of the other creditors have agreed to work with me. This puts me in a much stronger position to be able to make my payments to you monthly. If I do not receive your release back in my hands to present to the other people, the sale will be lost, and the property simply reverts back to the individuals who bought the back taxes and I will have no equity to pay anyone.
On the advice of her children, Carolyn decided to consult with another attorney to review the release.
Lynch also obtained counsel. Soon thereafter, he wrote a letter to the Board reporting “what [he] now believe[d] to be” several violations of the Iowa Rules of Professional Conduct related to his dealings with the Bell family.
Since the events described above, Lynch has made some interest payments on his notes to the Bell family. However, he has made no payments of principal.
On May 18, 2016, the Board filed a complaint against Lynch alleging violations of three Iowa Rules of Professional Conduct:
The commission held a hearing for the limited purpose of receiving evidence on the appropriate sanction. Carolyn, Tom, and Terri each testified. Lynch also testified at the hearing. He accepted responsibility for the rule violations. Yet, he was adamant that he had orally advised the Bells that he “could not be their attorney”
Lynch further testified that he has been an active member of the Iowa City community, serving on the Iowa City city council in the early 1980s and as an involved member of the Johnson County Bar Association. He indicated that he occasionally does pro bono work, primarily in family law and divorce cases. Lynch has not been the subject of any prior discipline.
Following the hearing, the commission found that Lynch‘s conduct violated rules
II. Standard of Review.
“We review attorney disciplinary matters de novo.” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Pederson, 887 N.W.2d 387, 391 (Iowa 2016); see
Although stipulations of fact are binding on the parties, Pederson, 887 N.W.2d at 391, “[a]n attorney‘s stipulation as to a violation is not binding on us,” Willey, 889 N.W.2d at 653 (alteration in original) (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Kingery, 871 N.W.2d 109, 117 (Iowa 2015)). “Even if an attorney‘s stipulation concedes a rule violation, we will only find that a violation occurred if the facts are sufficient to support the stipulated violation.” Id.
III. Analysis.
A. Rule Violations.
We agree that Lynch violated
[a] lawyer shall not enter into a business transaction with a client . . . unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer‘s role in the transaction, including whether the lawyer is representing the client in the transaction.
There is no dispute that an ongoing attorney-client relationship existed between Lynch and all four members of the Bell family at the time the loan agreements were entered into. See Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Fay, 619 N.W.2d 321, 325 (Iowa 2000) (recognizing that a “client” includes a person “who regularly rel[ies] on an attorney for legal services . . . on an occasional and on-going basis” (alterations in original) (quoting Comm. on Prof‘l Ethics & Conduct v. Carty, 515 N.W.2d 32, 35 (Iowa 1994))).
In this case, all three branches of the rule—subparts (1), (2), and (3)—were violated. The loan terms were not fair and reasonable. Lynch went to the Bells because he needed immediate money and could not get it elsewhere. The interest rates were low for the risk involved, as subsequent events have proved.4 We agree with the commission that Lynch did not advise the Bells orally of the need to obtain independent counsel, let alone in writing as the rule requires. Informed consent in writing was not obtained. These rule violations were not just technical. The stipulated facts and exhibits and the hearing record leave no doubt that Lynch did not convey the full extent of his financial distress to the Bells.
Next, we must determine whether Lynch violated
The comments to rule 32:1.7 explain that if a lawyer‘s personal financial interests interfere with a client‘s interests, “it may be difficult or impossible for the lawyer to give a client detached advice.”
B. Sanction.
We must now determine the appropriate sanction for Lynch‘s misconduct. “We seek to ‘achieve consistency with prior cases when determining the proper sanction.“’ Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Crotty, 891 N.W.2d 455, 466 (Iowa 2017) (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010)). Nevertheless, “[a]lthough we consider our prior cases instructive when we
When crafting a sanction, we consider the nature of the violations, the attorney‘s fitness to continue in the practice of law, the protection of society from those unfit to practice law, the need to uphold public confidence in the justice system, deterrence, maintenance of the reputation of the bar as a whole, and any aggravating or mitigating circumstances. Id. “Generally, sanctions in cases involving improper business transactions between lawyers and clients range from a public reprimand to revocation.” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Johnston, 732 N.W.2d 448, 456 (Iowa 2007); accord Fay, 619 N.W.2d at 326.
Lynch argues the nine-month suspension recommended by the commission is excessive, urging instead that the facts warrant only a thirty-day suspension. Lynch points out that we have imposed sanctions of far less than a nine-month suspension in other attorney-client business transaction cases.
For instance, in Wintroub—a case Lynch cites—an attorney had engaged in two separate business transactions with the same client. 745 N.W.2d at 474. Wintroub and the client “were close personal friends for many years before the two entered into an attorney-client relationship.” Id. at 472. In the first transaction, Wintroub sold the client several shares of stock in a company the attorney had formed. Id. In the second, the attorney procured an unsecured, zero-percent interest loan in the amount of $275,000. Id. Although the attorney made “significant material disclosures” in connection with the transactions, it was undisputed that the attorney did not advise the client of the need to obtain independent counsel. Id. at 474-75. Once the client put pressure on Wintroub to begin paying back the loan, the attorney was unable to do so. Id. at 472. To make matters worse, the attorney then filed for bankruptcy, so the client was not repaid the loan amount. See id. at 472.
In determining that only a public reprimand was needed, we pointed out that Wintroub had already served a two-year suspension imposed by the Nebraska Supreme Court for misconduct occurring around the same time as the violations in our case. Id. at 477; see State ex rel. Counsel for Discipline v. Wintroub, 267 Neb. 872, 678 N.W.2d 103, 113-14 (2004). We emphasized that “[w]ithout this history, Wintroub‘s ethical violations would require suspension of his license for a three-to six-month period of time.” Wintroub, 745 N.W.2d at 477. Accordingly, we cautioned,
We are confident that this additional sanction in light of the unusual historical circumstances of this file will not be interpreted as a relaxation of our approach to situations where attorneys engage in business relations with clients, which remain subject to the strictest scrutiny, or to the need for attorneys to return client property.
Just recently, in Pederson, we suspended an attorney‘s license for sixty days when, among other things, the attorney violated rule 32:1.8 in obtaining a $29,000 loan from a client. 887 N.W.2d at 390, 393, 395. The attorney needed the funds to repay fees a court had ordered her to repay. Id. at 390. As here, the client loan
Also, we recently suspended an attorney‘s license for sixty days based on his facilitation of an ill-fated loan transaction between two clients. See Willey, 889 N.W.2d at 650, 658. In Willey, the attorney had been working closely with a “client and business partner” in connection with a business for which the attorney was the registered agent. Id. at 650. Willey advised a second client that the business was looking for investors and suggested that the client could invest in the company for $100,000, a transaction which would be structured as a loan. Id. The attorney did not obtain informed consent in writing from this second client and did not recommend the client consult with independent counsel prior to advancing the funds in this high-risk transaction. Id. at 651. Nearly two years later, the client had not been repaid his $100,000 “investment.” Id. at 651-52. On review, we found violations of rules
In determining that a two-month suspension was appropriate in Willey, we recognized as an aggravating circumstance the harm to the client, i.e., a loss of $100,000. Id. at 658 (“To this day, the [client has] not received any money for the [ ] investment.“). We also noted that the client was not “a sophisticated or wealthy business person who was in a position to lose his and his wife‘s money.” Id. We cited repeated instances of the attorney reassuring the client that the money would be coming “soon“—in total, the attorney “continued to tell [the client] the payment would be coming ‘just next week’ for nearly two years.” Id. We said these and other aggravating circumstances “weigh[ed] in favor of a longer period of suspension.” Id.
Earlier, in Committee on Professional Ethics & Conduct v. Hall, we went so far as to revoke an attorney‘s license for improper client business transactions. 463 N.W.2d 30, 36 (Iowa 1990). In that case, the attorney entered into numerous business transactions and joint ventures with a client. Id. at 33-35. After several of these ventures failed, the attorney found himself “in severe financial difficulty” and contacted the client about his outstanding debts. Id. at 34. The attorney requested that the client cosign a note to pay off a $200,000 debt and personally advance an additional $81,500 to satisfy a second debt. Id. The attorney did not advise the client to obtain independent counsel but instead indicated “that the situation regarding the debts was urgent.” Id. The client agreed and the attorney prepared a document reflecting the agreement, including a provision that released the attorney from “any and all claims” the client may pursue against the attorney or his law firm in the future. Id. Ultimately, however, the attorney‘s financial problems did not improve, and the client was forced to pay most of the money owed on the debts. Id.
We revoked the attorney‘s license to practice law. Id. at 36. The attorney in that case had committed several other serious rule violations. Id. at 32-35. There was a separate docket involving the attorney‘s acts of bank fraud. Id. at 32-33. The attorney also gave false testimony in a sworn deposition. Id. at 35. Still, we also took note of the severity of the violations surrounding the attorney‘s financial dealings with his client. Id. at 36. We pointed out that the attorney “did not enter into a one time transaction with [the client] but, rather, a series of transactions occurring over a four year period.” Id. We recognized these transactions ended up costing the client “several hundred thousand dollars,”
Several aggravating circumstances exist in the present case.5 Lynch repeatedly went to the Bell family to borrow money over a period of several years. We have emphasized that “[a] lawyer who engages in a pattern of repeated offenses, even those of minor significance when considered separately, can project indifference to the legal obligations of the profession.” Pederson, 887 N.W.2d at 394; accord Hall, 463 N.W.2d at 36 (taking into account the number of transactions between attorney and client as well as the relevant time period).
Lynch‘s misconduct resulted in serious economic harm to the Bells. “Generally, ‘more severe discipline is warranted when the ethical violations cause harm to clients.“’ Wright, 840 N.W.2d at 303 (quoting Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Jay, 606 N.W.2d 1, 4 (Iowa 2000)); see Willey, 889 N.W.2d at 658 (“We consider harm to a client an aggravating factor.“). In Wright, we suspended the attorney‘s license for twelve months, due in part to the fact that the attorney had facilitated numerous loans from five different clients in the total amount of $236,500. See 840 N.W.2d at 297-98, 304. Here, Lynch‘s conduct has caused the Bell family to lose $177,000 in principal that was advanced to Lynch. The Bells have also spent over $13,000 in attorney fees attempting to collect the still unpaid loans.
Finally, we consider the fact that Lynch has over forty years of experience as a licensed attorney in Iowa. See Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 339 (Iowa 2015) (noting that an attorney‘s “experience should have guided her away from the violations that occurred in th[at] case“). At the hearing, Lynch testified he was unaware that he needed to advise the Bells in writing that they should seek independent counsel or that he should have obtained their written informed consent. The commission did not find this testimony credible; nor do we. An attorney with Lynch‘s experience would know better.
Several mitigating circumstances are also present. Lynch has not been the subject of prior discipline. See Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Qualley, 828 N.W.2d 282, 294 (Iowa 2013) (recognizing as a mitigating factor that “the record does not disclose any prior disciplinary action“). He has a lengthy history of serving his community. See Willey, 889 N.W.2d at 658 (“Willey has engaged in extensive community service, which we also consider a mitigating factor.“). Lynch also performs pro bono legal representation, primarily in family law and divorce cases. See Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Waterman, 890 N.W.2d 327, 332 (Iowa 2017) (recognizing pro bono work as a mitigating factor). In addition, Lynch has self-reported his misconduct, generally taken responsibility for that misconduct, and cooperated with the investigation. See id. (noting these mitigating factors). Hav-
We conclude that Lynch‘s license should be suspended indefinitely without possibility of reinstatement for six months. The misconduct here was more serious than that involved in Pederson and Willey. To bail out his collapsing real estate investments, Lynch turned to his longstanding clients, serially obtaining loans that undoubtedly no commercial lender would have made. Lynch provided no meaningful disclosures to his clients of the sort a commercial lender would have required and instead told them he needed the money right away. If Lynch had done even part of what
Still, the Board does not contend, nor has it attempted to prove, that Lynch engaged in fraud. The violations, although serious and recurring, had a single starting-point and were “uncharacteristic” when measured against the attorney‘s lengthy legal career. See Bartley, 860 N.W.2d at 337, 339 (imposing a six-month suspension on an attorney for neglect and improper fee payment compounded by “a series of knowing misrepresentations to her law firm and the court” and “fraudulently prepared documents“). Wintroub therefore appears to us to be a relevant precedent. 745 N.W.2d at 474. For these reasons, and after taking into account all the matters relevant to sanction described above, we impose a six-month suspension.
IV. Conclusion.
For the reasons stated, we suspend Lynch from the practice of law with no possibility of reinstatement for six months. This suspension applies to all facets of ordinary law practice. See
To establish his eligibility for reinstatement, Lynch must also demonstrate that he has either repaid the Bell loans, entered into agreed-upon plans with the Bells for repaying the loans (and be current on those plans), or filed bankruptcy in order to discharge or restructure the loans. See Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Walters, 603 N.W.2d 772, 778 (Iowa 1999) (conditioning reinstatement on the attorney repaying a judgment relating to a loan transaction with a former client); see also Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Ries, 812 N.W.2d 594, 600 (Iowa 2012) (conditioning reinstatement on repayment of a small claims judgment owed to former clients).
Lynch is assessed the costs of this action. See
LICENSE SUSPENDED.