IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Cоmplainant, v. Thomas G. McCUSKEY, Respondent.
No. 11-2114.
Supreme Court of Iowa.
May 18, 2012.
817 N.W.2d 250
MANSFIELD, Justice.
Thomas G. McCuskey, Cedar Rapids, pro se.
MANSFIELD, Justice.
An attorney continued to practice while his license was temporarily suspended. He also accepted advance fee payments in a matter and did not provide an accounting of earned fees or a refund of unearned fees. In addition, the attorney failed to respond to inquiries from the Iowa Supreme Court Attorney Disciplinary Board (Board) or gеnerally cooperate with the disciplinary process.
This case comes before us on the report of a division of the Grievance Commission of the Supreme Court of Iowa (commis-
I. Factual and Procedural Background.
Because McCuskey did not answer the Board‘s complaint, its factual allegations are deemed admitted.2 We also rely on several exhibits that the Board рut into evidence at the commission hearing; McCuskey did not attend that hearing.
McCuskey was admitted to practice law in Iowa in 1974. At times relevant to these proceedings, he resided and maintained his law office in Linn County, Iowa.
On July 22, 2009, the Iowa Department of Revenue filed a certificate of noncompliance, informing this court that McCuskey‘s license was subject to suspension for an unpaid debt. See
The order made the suspension effective immediately and stated it would continue until the department of revenue withdrew its certificate of noncompliance and this court reinstated McCuskey‘s license. The order also directed McCuskey to comply with
The suspension order was sent to McCuskey by restricted certified mail to two separate addresses. One of these addresses was the actual Cedar Rapids address (including the suite number) that McCuskey was using at the time as his business address according to his own letterhead.3
Nonetheless, McCuskey continued to practice law. On September 24, 2009, several days before the temporary suspension order but two months after our July 23, 2009 notice warning McCuskey of his impending suspension, McCuskey met with Frank and Lаuri Gusta. The next day,
On October 7, after the suspension had taken effect, McCuskey sent the Gustas another letter, this time enclosing a draft of their proposed bankruptcy schedules and statement of affairs. On October 22, McCuskey arrаnged for a $1200 money order from the Gustas, dated October 21, to be deposited.
On January 21, 2010, McCuskey sent a letter to the Gustas “to follow up on our brief discussion this morning.” The letter confirmed that the Gustas had provided updated information regarding their income and advised them it was “probably best to wait until your tax refund is determined before going further.” The next day, McCuskey caused a $400 check from the Gustas, also dated January 21, to be deposited.
In addition, McCuskey corresponded by mail with several оf the Gustas’ creditors on December 18, 2009, February 17, 2010, February 26, 2010, March 22, 2010, and April 7, 2010. These letters informed the creditors that he represented the Gustas and expected to file a Chapter 13 (not a Chapter 7) bankruptcy petition on their behalf soon.
McCuskey never filed a bankruptcy petition for the Gustas. He also failed to send accountings to them for their earned fees or refund unearned fees.
McCuskey not only represented the Gustas after being suspended, he also filed a “suрplemental argument” on behalf of The Views, LLC in a Linn County case on October 13, 2009.4 In addition, according to the federal PACER system, McCuskey filed reports on behalf of debtor Carney Enterprises, LLC on November 13, 2009, December 16, 2009, and January 18, 2010. McCuskey also made a filing on behalf of Daniel Oakley in a Linn County case on June 8, 2010. There is no indication that McCuskey withdrew as counsel of record in these cases. See
On April 29, 2010, the Board filed a certificate with this court stating that McCuskey had failed to respond to the Board‘s second notice of inquiry concerning a complaint. On April 30, we issued a notice that McCuskey‘s license would be suspended unless he caused the Board to withdraw its certificate within twenty days. McCuskey did not respond, and on June 8, we ordered another suspension of his license effective immediately and lasting until the Board filed a withdrawal of the certificate and this court entered an order to reinstate his license. The order was sent to the same two addresses as before by both certified and regular mail.
On July 1, 2011, the Board filed a complaint against McCuskey, alleging he had violated
McCuskey did not appear at the hearing on November 29, 2011, and he did not submit any evidence to the commission. The Board did appear through counsel and introduced a number оf exhibits. Following the hearing, the commission issued a report finding that McCuskey had violated
II. Scope of Review.
We review attorney disciplinary proceedings de novo.
III. Review of Alleged Ethical Violations.
McCuskey repeatedly failed to comply with this court‘s order temporarily suspending him from the practice of law. From this misconduct, we find that several ethical violations follow.
A. Rule 32:5.5.
The record does not reflect that McCuskey personally signed for the certified mailing that contained the September 30, 2009 suspension order. Nonetheless, we noted in Hearity that
There is no question that McCuskey‘s post-September 30, 2009 representation of the Gustas, Carney Enterprises, and Daniel Oakley constituted the practice of law. In particular, McCuskey took money from the Gustas, advised the Gustas, and corresponded on their behalf with creditors—all after September 30. Continuing to practice law despite being suspended is, of course, prohibited. This includes practicing in federal bankruptcy court. See Iowa Supreme Ct. Att‘y Disciplinary Bd. v. D‘Angelo, 710 N.W.2d 226, 233 n. 3 (Iowa 2006). Accordingly, we find McCuskey violated
B. Rule 32:8.4(c).
C. Rule 32:1.16(a).
D. Rule 32:1.4.
In sum, we find that McCuskey‘s continued efforts to practice law despite his suspension violated rules
E. Trust Account Rules (Rules 32:1.15, 45.2, and 45.7). We now turn to the alleged violations related to McCuskey‘s handling of funds entrusted to him by the Gustas.
In the Gusta matter, McCuskey admittedly did none of these things. McCuskey accepted funds from the Gustas on three different occasions, did not render an accounting to them when he took these funds into his own income, and did not refund any unearned portion of those fees relating to activity that occurred after his suspension took еffect. See Vilmont, 812 N.W.2d at 680 (finding an attorney violated rules
F. Rule 32:1.3. Finally, the Board alleged that McCuskey neglected the Gusta matter in violation of
Although McCuskey did not answer the Board‘s complaint and the facts allegеd therein were therefore properly deemed admitted, we nonetheless conduct an independent review of alleged ethical violations. See Fields, 790 N.W.2d at 795-96 (conducting an independent review even though the attorney failed to respond and the allegations against him were deemed admitted, and finding the attorney did not violate
Based upon our de novo evaluation of the record, we conclude the Board has shown by a convincing preponderancе of the evidence that McCuskey violated
IV. Consideration of Appropriate Sanction.
Having determined that McCuskey violated a number of disciplinary rules,
We have repeatedly held that the goal of our ethical rules is to maintain public confidence in the legal profession as well as to provide a policing mechanism for poor lawyering. Important considerations include the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer‘s fitness to practice, and our duty to uphold the integrity of the profession in the eyes of the public. In fashioning the aрpropriate sanction, we look to prior similar cases while remaining cognizant of their limited usefulness due to the variations in their facts. Often, the distinction between the punishment imposed depends upon the existence of multiple instances of neglect, past disciplinary problems, and other companion violations, including uncooperativeness in the disciplinary investigation. Aggravating and mitigating circumstances are also important. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Humphrey, 812 N.W.2d 659, 666 (Iowa 2012) (citations and internal quotation marks omitted).
The violations here centеr upon McCuskey‘s refusal to honor the terms of his September 30, 2009 temporary suspension. In addition, we have a single instance of trust account misconduct, including a failure to provide accountings, as well as the withdrawal of and failure to refund unearned fees.
Prior discipline is another aggravating factor we consider in determining the appropriate sanction. Marks, 759 N.W.2d at 332. The Board urges us to take into account McCuskey‘s September 30, 2009 suspension as well as the follow-up suspension order of June 8, 2010. If these were separate from the present matter, we would do so. See id. (considering as an aggravating factor the respondent‘s unrelated temporary suspension from 2006 for failure to cooperate with a Board inquiry). However, treating them as aggravating factors here, when they are intertwined with the present case, would amount to double counting. We agree with the commission and the Board, however, that McCuskey‘s substantial legal experience is another aggravating factor. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 15 (Iowa 2012) (citing the respondent‘s “considerable professional experience as аn attorney and judge” as an aggravating factor); Kirlin, 741 N.W.2d at 818 (noting as an aggravating circumstance “the fact that Kirlin is an experienced attorney“). Because McCuskey has not participated in these proceedings, we have no mitigating factors to discuss. See Hearity, 812 N.W.2d at 623 (“Because Hearity failed to participate in these proceedings, the record is devoid of evidence of any mitigating circumstances.“).
We have considered cases in the past where attorneys continued to practice after their licenses were suspended, in addition to committing trust account violations. In Netti, an attorney represented a client before the Iowa Department of Revenue after having been suspended. 797 N.W.2d at 604. However, this was merely one of a long list of violations. Id. at 598-605. In discussing the sanction to be imposed, we focused on the respondent‘s other violations, especially his “pattern of taking fees without doing the work he was hired to do,” his “trust account viоlations,” and his “knowing misrepresentations to the court.” Id. at 606. We also emphasized the harm that Netti‘s actions caused to others. Id. at 606-07. We concluded that an indefinite suspension with no possibility of reinstatement for two years was warranted. Id. at 607.
In D‘Angelo, an attorney met with a client, continued to take in fees, and held himself out as a lawyer while his license was suspended. 710 N.W.2d at 230-31, 233. But the respondent‘s other misconduct was quite extensive and included a two-year delay in responding to the Board‘s notices of cоmplaints regarding four client matters, misrepresentations to the court, neglect, and intentional misappropriation of client funds. Id. at 234-236. D‘Angelo also had a serious prior disciplinary record including an indefinite suspension with no possibility of reinstatement for three years based on another batch of violations. Id. at 229. In light of D‘Angelo‘s prior disciplinary record and “the sheer number of times D‘Angelo improperly moved client money from his client trust account to his operating account, wе simply [could] not conclude the commingling
In Hearity, an attorney appeared in one matter after he was suspended, collected and refused to refund an advance fee for an out-of-state matter that he could not handle, made a false statement to the court, and neglected two other matters. 812 N.W.2d at 616. Hearity also had a history of similar ethical misconduct and had completely failed to respond to the Board. Id. at 620. We suspended his license indefinitely with no possibility of reinstatement for one year. Id. at 622.
We conclude here that an indefinite suspension with no possibility of reinstatement for one year is appropriate. The misconduct is not as extensive as in Netti or D‘Angelo. In addition, McCuskey does not have Hearity‘s prior disciplinary record or his history of past violations. On the оther hand, McCuskey‘s willful noncompliance with a suspension order, over a period of months and with respect to more than one representation, is a serious matter. Lawyer discipline is supposed to protect the public. One bedrock of the system is that a suspension will actually be a suspension. The system does not work when lawyers continue to make filings, meet with clients, send out legal correspondence, and take in fees even while they are supposed tо be under suspension. Further, McCuskey‘s admitted failure to account for or refund the Gustas’ money is another serious matter.
V. Disposition.
Considering all the circumstances of this case, we suspend McCuskey‘s license to practice law in this state indefinitely with no possibility of reinstatement for one year. This suspension applies to all facets of the practice of law. See
McCuskey‘s prior temporary suspension of June 8, 2010, for failure to respond to the Board is terminated. Hearity, 812 N.W.2d at 623. However, McCuskеy‘s temporary suspension for failure to meet a department of revenue obligation shall remain in effect until the separate requirements for ending that suspension are met.
Upon application for reinstatement, McCuskey must establish that he has not practiced law during the suspension period and that he has complied with the requirements of
The costs of this action are taxed to McCuskey pursuant to
LICENSE SUSPENDED.