IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Brian Jesse NELSON, Respondent.
No. 13-0480.
Supreme Court of Iowa.
Oct. 11, 2013.
528
Van M. Plumb, Des Moines, for respondent.
WIGGINS, Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against the respondent, Brian Jesse Nelson, alleging violations of the Iowa Rules of Professional Conduct, Iowa Court Rules, and Attorney Disciplinary Board Rules of Procedure. A division of the Grievance Commission of the Supreme Court of Iowa found Nelson‘s conduct violated numerous provisions of the rules, recommended we defer a two- to six-week suspension of Nelson‘s license to practice law until the filing of a future substantiated complaint with the Board within three years from our decision, and recommended restitution. We are required to review the commission‘s report. See
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Stowe, 830 N.W.2d 737, 739 (Iowa 2013).
Factual matters admitted by an attorney in an answer are deemed established, regardless of the evidence in the record. Stowe, 830 N.W.2d at 739. Additionally, stipulations of facts are binding on the parties. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 528 (Iowa 2011). We interpret such stipulations “with reference to their subject matter and in light of the surrounding circumstances and the whole record, including the state of the pleadings and issues involved.” Id. (internal quotation marks omitted). However, with stipulations conceding rule violations, we will only enforce the stipulation if there is sufficient legal consideration. Id. The court is “not bound to enforce these stipulations if they are unreasonable, against good morals, or contrary to sound public policy.” Id. (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 804 (Iowa 2010)).
II. Findings of Fact.
On our de novo review and in light of the facts stipulated by the parties, we find the facts as follows. In 1999, Nelson was admitted to the Iowa bar. As a new attorney, he worked as an associate in a private firm. When the firm split, Nelson started his own practice. Since approximately July 2000, he has been a sole practitioner in Des Moines, sharing office space with several other lawyers over the years.
When Nelson first became a sole practitioner, he took court-appointed cases, and his workload was slow. However, over the next three years, Nelson developed a high-volume practice in which he concentrated his efforts on handling criminal matters. Nelson estimated that by 2008, two-thirds of his practice involved “doing anywhere from 100 to 120 OWIs a year.”
When taking on a new client matter, Nelson‘s standard procedure was to enter a written fee agreement. However, in the fall of 2009, Nelson admits he abandoned this business practice because personal issues began negatively affecting his professional life. Specifically, Nelson and his wife started having marital problems. He moved out of the marital home on Thanksgiving Day 2009 and then started drinking. By his own admissions, Nelson “knew [he] was drinking too much,” “went drinking pretty hard” after the separation, and “drank hard as heck for quite awhile.” He and his wife ultimately divorced.
Nelson indicated that during this time, his practice began slipping through the cracks. He reduced his caseload to approximately five or six matters, abandoned his practice, and retreated to his parents’ farm in southwest Iowa. He spent his time doing manual labor for a high school friend who owns a construction company.
The Board received six complaints regarding Nelson‘s professional activities, or lack thereof, between August 19 and September 3, 2010. On October 12, 2012, the Board filed a six-count complaint against Nelson, alleging violations of the Iowa Rules of Professional Conduct, Iowa Court Rules, and Attorney Disciplinary Board
A. Bump Representation (Count I). The Board received a complaint on July 9 from another attorney, who was concerned about Nelson‘s professional conduct. Assistant Washington County Attorney, Shawn Showers, was prosecuting one of Nelson‘s clients, Daniel Bump. On September 16, 2009, Nelson entered his appearance to represent Bump in the criminal matter. Subsequently, both Nelson and his client missed court proceedings, including a suppression hearing on May 12 and a pretrial conference on June 2. Thereafter, the district court issued a warrant for Bump‘s arrest for failure to appear in court, and he was arrested on July 12. In his complaint, Showers also reported that Nelson was not responding to communication from Showers or the district court.
The Board sent a letter to Nelson, requiring a response to the complaint pursuant to
B. Hackman Representation (Count II). Count II deals with a complaint received by the Board on June 21, 2010. The supreme court clerk notified the Board that Nelson failed to cure a default regarding an appeal. Nelson failed to file and serve the combined certificate in the appeal within the period required by the Iowa Rules of Appellate Procedure. The clerk notified Nelson the appeal would be dismissed unless he cured the default within fifteen days. Nelson failed to act so the appeal was dismissed and procedendo issued on July 13. The Board sent a letter to Nelson, requiring a response to the complaint pursuant to
The Board alleged that such conduct violated
C. Lenihan Complaint (Count III). Another complaint came from Tom Lenihan, an attorney who shared office space with Nelson. Lenihan became concerned about Nelson‘s abandonment of his practice. In a complaint to the Board dated July 16, Lenihan reported that Nelson had been absent from the office for a number of weeks and did not keep regular office hours. His telephone and cellular voicemail system were full and had not been accepting new messages for weeks. Nel-
We suspended Nelson‘s license on July 23, 2010, for abandoning his practice. The Board alleged in its complaint that such conduct violated
D. Nolte Representation (Count IV). Joshua Nolte entered a verbal agreement for representation by Nelson on April 29, 2010, regarding criminal charges. Joshua‘s wife, Julia, did not have any agreement to be represented by Nelson. Nolte remitted the requested fee of $2500 to Nelson, who deposited the funds in the client trust account for representation regarding a proffer agreement only.1 The parties stipulated that an additional retainer for $2500 was due before arraignment. Nolte did not remit that amount. Nelson did not provide Nolte any accounting regarding how the funds would be disbursed as they were earned. The result was a fee dispute, which both parties agree could have been avoided had there been a written fee agreement. Nolte also did not receive any refund when Nelson ceased the representation.
Nolte stated in his complaint that Nelson indicated there was no warrant for either Nolte or his wife‘s arrest. Nelson countered by telling the Board he repeatedly told Nolte there was a warrant issued for his arrest. Nolte and his wife were arrested on June 11, 2010, posted bond of $3620, and paid $131 to retrieve their vehicle from the impound lot. Both were unable to get into contact with Nelson while in custody. Nelson continued to be nonresponsive to calls and personal messages in the form of sticky notes left in his office. The couple eventually went to a bar, where they were told they could find Nelson and did. Nelson said there were no arrest warrants.
Thereafter, Nelson did appear at one hearing but then disappeared once again. Nolte indicated he had left at least twenty voicemails for Nelson, none of them being returned. To hire a new attorney, Nolte paid $1800, $109 in jail fees, $212 for impound fees, and around $3654 for bond, totaling $5775. Nolte was forced to pay these expenses because Nelson was unable to handle his case.
On July 16, the Board sent a letter to Nelson about Nolte‘s complaint. Nelson did not respond. The Board alleged that such conduct violated
E. Thomas Representation (Count V). The Board received a client complaint from Matthew Thomas, which was filed on August 13. In November 2009, Nelson agreed to represent Thomas in a criminal matter and had accepted and deposited in the client trust account a $2000 retainer. There is no evidence of a written fee agreement, only evidence Nelson told Thomas he would undertake the representation.
Nelson entered his appearance and then a written arraignment on Thomas‘s behalf. The written arraignment was unacceptable to the court because it failed to reflect Thomas underwent a substance abuse evaluation. In reality, Thomas had timely completed the required evaluation, but Nelson failed to remit the documentation to the court. Resultantly, the district court issued a warrant for Thomas‘s arrest, which was valid only if proper arraignment was not filed by December 7. Nelson did not comply with the deadline, resulting in the issuance of the first arrest warrant. Thereafter, despite Thomas repeatedly calling and visiting Nelson‘s office to inquire about his court dates and the status of his case, Nelson made no contact. Eventually, the court issued a second warrant for Thomas‘s failure to appear in court, which occurred because Nelson failed to notify Thomas of his court dates. Thomas was eventually arrested on these warrants on August 2, 2010.
Nelson was removed as counsel by court order on August 10, 2010, due to the temporary suspension of his license. Nelson did not provide Thomas with a final disbursement, although he did discuss prior to being retained how the retainer would be disbursed. The Board sent a letter to Nelson regarding Thomas‘s complaint, to which Nelson did not respond. In its complaint, the Board alleged such conduct violated
F. Muscato Representation (Count VI). The Board received the final complaint on August 31, 2010, from client Kathryn Muscato. Nelson verbally agreed to represent Muscato in a criminal matter for $2500, which she promptly remitted for full representation. Nelson testified that in representing Muscato, he entered a written appearance, filed a plea and a waiver of preliminary hearing, sent out the Iowa Department of Transportation
Nelson told the Board that at that time, he gave Muscato notice of her pretrial conference date, which he allegedly attended but she did not. Muscato indicates that she never received such notification. Muscato states she missed the court date as a result, Nelson did not represent her at the court date, the court issued an arrest warrant, and then she was subsequently arrested on July 6, 2010. Muscato secured other counsel, fired Nelson, and requested a refund of the money she paid him. Muscato paid $1500 for the new attorney. She has received no accounting or refund from Nelson.
The Board sent a letter to Nelson on July 16, 2010, but did not receive a response. The Board alleged such conduct violated
III. Interim Suspensions.
On July 23, 2010, the court approved a disability suspension of Nelson‘s license because he abandoned his practice. The disability suspension order authorized the chief judge of the fifth judicial district to appoint a trustee for Nelson‘s practice and set a show-cause hearing under
IV. Ethical Violations.2
A. Diligence: Rule 32:1.3.
Nelson failed to exercise due diligence by not representing his clients in a reasonably timely manner. He neglected to inform his clients of and did not attend three pretrial hearings for Bump, a hearing for Thomas, and a court date for Muscato, resulting in the court‘s issuance of warrants and the subsequent arrest of these clients. Moreover, he failed to file a valid written arraignment and substance abuse evaluation in Thomas‘s matter, resulting in the issuance of two more arrest warrants. He failed to notify Nolte of an outstanding arrest warrant. He failed to file and serve the combined certificate to cure a default in the Hackman appeal. Additionally, Nelson was slow, at best, to act in representing his clients. Most distressing, he did not respond to calls from clients who were sitting in jail simply because their attorney‘s own ineptitude prompted the court‘s issuance of warrants for their arrest. The commission found Nelson violated this rule. We concur and find, based on his own admissions and a plethora of evidence in the record, Nelson violated
B. Communication: Rule 32:1.4. The Board also alleged violations of
- (1) promptly inform the client of any decision or circumstance with respect to which the client‘s informed consent is required by these rules;
- (2) reasonably consult with the client about the means by which the client‘s objectives are to be accomplished;
- (3) keep the client reasonably informed about the status of the matter;
- (4) promptly comply with reasonable requests for information; and
- (5) 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.
Nelson neither initiated nor returned client phone calls, despite requests by clients that he do so. He did not
The commission found Nelson violated
C. Failure to Communicate Regarding Fees: Rule 32:1.5(b).3 The Board also alleged Nelson violated
The record demonstrates Nelson did not enter written fee agreements with at least two clients, including Muscato and Nolte. Nelson testified to that effect. Moreover, he failed to communicate the fee arrangements, resulting in confusion and disputes in both matters. Nelson admitted that in the Thomas and Muscato matters he did not respond or send a final disbursement summary, but did inform the clients prior to retention of how the funds would be disbursed. Based on the record, we find the Board established by a convincing preponderance of the evidence that Nelson violated
D. Safekeeping Property: Rule 32:1.15. The Board alleges Nelson violated
This rule requires “a lawyer to place client funds, including a retainer, in a trust account, account for those funds, and when requested to do so, properly deliver a client‘s funds to the client.” Netti, 797 N.W.2d at 602. There is no evidence that Nelson commingled client funds. See
E. Failure to Properly Terminate Representation: Rule 32:1.16.
A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client‘s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by law.
Based on his admissions and the evidence in the record, it is clear Nelson violated these rules on multiple occasions. He failed to promptly deliver client files to other attorneys, who would be able to competently represent the clients. But cf. Netti, 797 N.W.2d at 603 (finding an attorney who did not promptly, but eventually did deliver client files to successor counsel or the client did not violate the rule). Moreover, there is no evidence he made any arrangements to protect the interests of his clients. Nelson simply abandoned his practice. Thus, we find the Board established by a convincing preponderance of the evidence that Nelson‘s conduct repeatedly breached
F. Disobeying an Obligation Under the Rules of a Tribunal: Rule 32:3.4(c). The Board alleged Nelson violated
G. Failure to Respond to the Board and to Disciplinary Authority: Rules 34.7 and 32:8.1(b).
There is no doubt Nelson failed to respond to a lawful demand for information from the Board regarding the various ethical complaints.4 Having the act element satisfied, we must ask whether he “knowingly” failed to respond to the Board.
We find Nelson was aware of the Board‘s requests for information and knowingly failed to comply. In his testimony, Nelson admitted that several attorney friends sat down with him and warned that he needed “to respond to these ethical complaints.” Nelson then waited six months to reply to the complaints—an egregious delay from the July 16, 2010 date upon which the Board sent its letter, to his response in April or May 2012. Accordingly, we find Nelson‘s failure to promptly comply with the Board‘s investigation violates both
H. Attorney Misconduct: Rule 32:8.4(d).
An attorney‘s failure to timely cooperate with disciplinary authorities is prejudicial to the administration of justice, violating not only rule 32:8.1 but also
Nelson violated this rule by not responding to communication from the Board, as well as court administration, attorney peers, and clients. See Casey, 761 N.W.2d at 60 (finding attorney violated
We agree with the commission‘s findings and conclude there is sufficient evidence of conduct prejudicial to the administration of justice. Nelson does not dispute this conclusion, based upon his admissions conceding multiple instances of misconduct violating this rule. Therefore, we conclude the Board proved by a convincing preponderance of the evidence Nelson violated
I. Trust Account and Accounting: Rules 45.7(4) and 45.10(3). The Board alleged Nelson violated
A lawyer accepting advance fee or expense payments must notify the client in writing of the time, amount, and purpose of any withdrawal of the fee or expense, together with a complete accounting. The attorney must transmit such notice no later than the date of the withdrawal.
A lawyer and client may agree as to when, how, and in what proportion the lawyer may withdraw funds from an advance fee payment of a flat fee. The agreement, however, must reasonably protect the client‘s right to a refund of unearned fees if the lawyer fails to complete the services or the client discharges the lawyer. In no event may the lawyer withdraw unearned fees.
Muscato and Nolte both testified they have received no accounting or refund from Nelson. Nelson admitted in his response to the complaint that he did not mail out an accounting to Nolte, arguing, “Mr. Nolte never asked for an accounting.” Furthermore, the record supports he violated this rule in his representation of Nolte, Thomas, and Muscato. Accordingly, we find there is a convincing preponderance of evidence in the record to show Nelson violated
V. Sanction.
There are no standard sanctions for this brand of attorney misconduct. Templeton, 784 N.W.2d at 769. Regardless, our goal is to achieve consistency with our prior cases in constructing the appropriate sanction. Id. To determine the proper sanction,
“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.”
Id. (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Powell, 726 N.W.2d 397, 408 (Iowa 2007)).
It is within our discretion to impose a greater or lesser sanction than recommended by the commission upon proof of such misconduct. Stowe, 830 N.W.2d at 739; see
A. Mitigating Factors. Several mitigating factors apply to Nelson‘s situation. First, Nelson admitted to engaging in unethical conduct, both through his stipulations and admissions in response to the Board‘s complaint. Nelson agreed to the stipulations because he believes most of the Board‘s allegations are true and because he acknowledges “he goofed up.” He also admits that had he not been drinking, his representation would not have been lacking. An attorney‘s acknowledgment of ethical violations is a mitigating factor. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Henrichsen, 825 N.W.2d 525, 530 (Iowa 2013).
Nelson‘s alcoholism itself can be a mitigating factor because it is a condition that contributed to the ethical misconduct. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 13 (Iowa 2012). So too are his rehabilitative efforts to control his alcohol addiction. Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 89 (Iowa 2001) (considering an attorney‘s effort to remain sober as a mitigating factor). Nelson started outpatient treatment in June 2011 at United Community Services. Later, after a relapse, he went for detox treatment at Broadlawns for three or four days. He then went to inpatient treatment at MECCA for around twenty days. Afterwards, he engaged in aftercare in Council Bluffs while living with his parents. Nelson indicated to the Board that since reinstatement of his license, he has abstained from consuming alcohol. He attends Alcoholics Anonymous meetings as needed. He told the Board there are several reasons he will not drink again, including a fear of losing everything, his infant daughter, and the fact he is no longer around his drinking partner, his ex-wife.
We can also consider other personal issues for mitigation purposes. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 110 (Iowa 2012) (stating that personal issues, including personal stress related to a parent‘s death or ill health, may be a factor to consider). The collapse and ultimate termination of Nelson‘s marriage falls within this category.
Another fact we take into consideration is Nelson‘s previous disability suspension and temporary suspension for failure to respond to the Board‘s inquiries. We may award credit for temporary suspensions regarding an attorney‘s failure to respond. See Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Fields, 790 N.W.2d 791, 800 (Iowa 2010) (holding that “when the temporary suspension is based solely on an attorney‘s failure to respond to the [B]oard‘s inquiry, the attorney has responded, and the [B]oard did not seek to continue the suspension, we hold it is appropriate for us, in fashioning an appropriate sanction, to consider the continuing temporary suspension from the date of the hearing before the grievance commission“). We do so because “the purpose of the temporary suspension is more than disciplinary; it is also intended to prompt a response to the [B]oard‘s inquiries so the disciplinary action may proceed in a timely and informed fashion.” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 870 (Iowa 2010). Another option is for us to simply nullify the attorney‘s failure to respond to rule violations in light of the temporary suspension for that same reason and then base the sanction on the remainder of the ethical violations that are not “duplicative” of the basis for the temporary suspension. Id. However, we have refused to give a credit for a temporary suspension imposed for a criminal conviction for criminal assault, contempt, and repeated violations of noncontact orders, based on the severity of the attorney‘s misconduct. Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Polson, 569 N.W.2d 612, 613-14 (Iowa 1997).
We have previously found, under certain circumstances, that a temporary suspension constitutes adequate punishment for an attorney‘s ethical misconduct. See Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Conroy, 795 N.W.2d 502, 506 (Iowa 2011) (holding that the attorney‘s five-month temporary suspension was sufficient to punish the attorney for failing to cooperate with the Board); Lickiss, 786 N.W.2d at 870 (finding the attorney‘s four-month temporary suspension for noncooperation was adequate discipline for a violation of the disclosure requirements in
Most recently, we have noted that we consider an interim suspension intertwined in the current case as a mitigating factor in determining the length and adequacy of a suspension as a sanction in the case. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Powell, 830 N.W.2d 355, 359 (Iowa 2013); see also Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 15-16 (Iowa 2012) (stating we will not give credit for an interim suspension in this case because the attorney would be entitled to reinstatement immediately after the issuance of our opinion).
B. Aggravating Circumstances. This is not the first time Nelson has been disciplined for unethical conduct. Boles, 808 N.W.2d at 442 (“A pattern of misconduct is an aggravating factor.“). On three previous occasions, we have publicly reprimanded Nelson. On April 30, 2003, we reprimanded Nelson for neglecting to preserve a client‘s lawsuit by not making appropriate filings and failing to maintain adequate communication with clients. The second public reprimand occurred on March 18, 2005, for (1) Nelson‘s failure to appear for a scheduled pretrial conference, constituting neglect of a client matter, and (2) not providing a timely accounting as to the $2500 retainer. The final reprimand for neglect came just a few months later on July 5, 2005, when Nelson failed to properly advise a client and did not properly handle another client matter, resulting in the issuance of an arrest warrant for the client. A record of previous disciplinary action, especially that of the same nature as before the court presently, reflects negatively on an attorney‘s character. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009).
Moreover, more severe discipline is appropriate when an attorney‘s unethical conduct causes harm to clients. Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Jay, 606 N.W.2d 1, 4 (Iowa 2000). Here, at least four clients—Bump, Nolte, Thomas, and Muscato—were arrested as a direct result of Nelson‘s abandonment of his practice and inadequate representation. In addition, Hackman‘s appeal was dismissed because Nelson failed to comply with appellate rules and deadlines.
Finally, Nelson did not cooperate with the Board during the disciplinary process by failing to respond to Board letters. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Kallsen, 814 N.W.2d 233, 240 (Iowa 2012) (recognizing an attorney‘s “failure to cooperate with the formal disciplinary process is an aggravating factor“). Yet Nelson told the Board he had done everything possible to cooperate with the investigation between July 23, 2010, and July 31, 2012.
C. Appropriate Sanction. The commission recommends we suspend Nelson‘s license for two to six weeks but defer such discipline until Nelson is the subject of new, substantiated complaints filed with the Board within three years of this decision. In addition to the conditional suspension, the commission recommends Nelson make restitution to former clients Muscato and Nolte, including (1) any unearned fees existing when Nelson failed to follow through with their representation, (2) the costs associated with hiring substitute counsel, and (3) costs incurred by either client resulting from their respective arrests.
The court has imposed sanctions ranging from two months to three years
Accordingly, we suspend Nelson from the practice of law for thirty days. This suspension applies to all facets of the practice of law, including but not limited to advertising his services. See
Nelson must also comply with
LICENSE SUSPENDED.
WIGGINS
JUSTICE