IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Jeffrey FIELDS, Respondent.
No. 09-1111.
Supreme Court of Iowa.
Nov. 19, 2010.
791 N.W.2d 791
The same facts used by the majority to uphold the stop in this case unquestionably made the search permissible under the automobile exception. We have numerous cases upholding a search of a vehicle when there is evidence of illegal drug activity in plain view. See, e.g., State v. Carter, 696 N.W.2d 31, 38 (Iowa 2005) (finding sufficient probable cause to search vehicle upon seeing plastic container); State v. Bergmann, 633 N.W.2d 328, 338 (Iowa 2001) (upholding warrantless search after police dog alerted to narcotics); Gillespie, 619 N.W.2d at 353 (denying existence of sufficient probable cause for warrantless search of vehicle when officer did not see contraband, but merely saw the defendant‘s vehicle driving away from an anhydrous ammonia facility). Consequently, the ineffective-assistance-of-counsel claim raised by Vance on appeal is totally without merit.
STREIT, J., joins this dissent.
Jeffrey Fields, Iowa City, pro se.
STREIT, Justice.
This matter comes before the court on the report of a division of the Grievance Commission of the Supreme Court of Iowa. See
The grievance commission found Fields violated the Iowa Code of Professional Responsibility for Lawyers and the
I. Standard of Review.
Our review of attorney disciplinary proceedings is de novo. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 55 (Iowa 2009). We give respectful consideration to the findings and recommendations of the commission, but we are not bound by them. Id. The burden is on the board to prove attorney misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792 (Iowa 2006). “This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.” Iowa Supreme Ct. Bd. of Prof-‘l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). Upon proof of misconduct, we may impose a lesser or greater sanction than that recommended by the commission. Conrad, 723 N.W.2d at 792.
II. Background Facts and Proceedings.
Jeffrey Fields has been practicing law in Iowa since 1997. Except for a very short
A. Townsend Civil Rights Claim. In August 2003, Fields agreed to represent Orville and Billie Townsend in a civil rights claim. In 2005, an action was filed in state court against Johnson County, the City of Iowa City, and individual defendants. The defendants subsequently removed the claim to federal court. Fields, who was not admitted to practice in federal court, advised the federal district court that he would associate with an admitted attorney on the case and that he would seek admission himself. Fields failed to do either. Fields also made representations to his clients that he did not keep. After numerous delays, the case was dismissed due to Fields continued failure to respond to discovery requests and his failure to file a resistance to the defendants’ motions for summary judgment. At the time of the dismissal, the federal district court‘s order encouraged the federal magistrate to enter sanctions against Fields for his failure to comply with the Federal Rules of Civil Procedure, the local rules, and the court‘s orders. In addition, the court forwarded a copy of its order dismissing the civil rights action to the disciplinary board.
B. Ferguson Estate. From 2004 to 2007, Fields was the attorney for the executor of the John H. Ferguson, Jr. estate. On June 1, 2006, a notice of delinquency for failure to file an interlocutory report was issued to Fields. When Fields failed to rectify the delinquency, the board sent a letter of inquiry. After a second inquiry from the board, Fields responded that he would file a response on or before January 5, 2007. When he failed to respond by the self-imposed deadline, the board initiated a notice of complaint against the respondent on January 9, 2007. The estate was subsequently closed in March 2007, three years after it was opened.
C. Failure to File Income Tax Returns. On April 25, 2008, Fields was charged with three counts of fraudulent practice in the second degree as a result of his failure to file state income tax returns for tax years 2002, 2003 and 2004. See
D. Board Complaint. On November 21, 2008, the disciplinary board filed a complaint against Fields.3 The board alleged Fields’ neglect and misrepresentations in the Townsend civil rights claim violated the Iowa Code of Professional Responsibility DR 1-102(A)(1) (prohibiting conduct that violates a disciplinary rule), DR 1-102(A)(4) (prohibiting conduct involving misrepresentation), DR 1-102(A)(5) (prohibiting conduct prejudicial to the administration of justice), DR 1-102(A)(6) (prohibiting conduct that adversely reflects on the fitness to practice law), and DR 6-101(A)(3) (prohibiting neglect of a client matter), as well as the
The board alleged Fields’ conduct in his representation of the executor in the Ferguson estate constituted neglect and incompetence. Combined with his failure to cooperate with the investigation, the board alleged the respondent violated DR 1-102(A)(1), (5), and (6) and DR 6-101(A)(3) of the Iowa Code of Professional Responsibility for Lawyers and rules
The board alleged Fields’ failure to file his state income tax returns for the years 2002 through 2004 and his subsequent guilty plea to two counts of fraudulent practice in the second degree supported a finding Fields violated DR 1-102(A)(3) (prohibiting conduct involving moral turpitude), as well as DR 1-102(A)(4), (5), and (6).
E. Disciplinary Hearing and Commission Recommendation. On May 1, 2009, a hearing on this matter came before a division of the commission. Due to his failure to respond to the board‘s inquiries, the allegations against Fields were deemed admitted, and the hearing was limited to the issue of the appropriate sanction.
At the hearing, Fields did testify on his own behalf. In his testimony, Fields did not deny the allegations brought against him. He admitted he neglected his clients and failed to file his state income tax returns for the years alleged. He also admitted he had still not filed the delinquent returns, although it was a condition of his probation.
Fields testified to the circumstances surrounding the time upon which the allegations are based. According to Fields, during this period of time, he would often go to work but be unable to complete the tasks at hand. Although he knew how to complete tax returns and had completed many client returns in the past, Fields found himself putting off his own tax returns until completing them became a huge task that he was unable to address. He experienced severe financial problems and had difficulty keeping his office open. Until recently, Fields testified, he did not understand why this was occurring.
Fields requested the commission not revoke his license, but instead suspend it so that he might have the opportunity in the future, should he establish his medical competency, to practice law again. The commission, however, recommended the Fields’ license to practice law be revoked.
III. Ethical Violations.
The commission found, and we agree, that in his representation of the Townsends and the Ferguson estate, the respondent neglected his clients’ matters in violation of DR 6-101(A)(3) and rule 32:1.3. See Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 283 (Iowa 2009) (dilatory handling of estate violated
However, we conclude the board has failed to establish by a convincing preponderance of the evidence Fields’ actions in the Ferguson estate constituted incompetence. Although his dilatory handling of the probate matter evidenced serious neglect, the board has provided no evidence Fields was incompetent in this matter. See Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 153 (Iowa 2010) (providing that a finding of incompetence requires a showing the attorney lacked the necessary legal knowledge and skill to complete the tasks or had not made a competent analysis of the problem).4
“[W]hen a lawyer‘s income exceeds the sum triggering the tax return filing requirement, failure to file a tax return constitutes misrepresentation of that income” in violation of DR 1-102(A)(4). In addition, “[s]uch misrepresentation is a deceitful offense involving moral turpitude” in violation of DR 1-102(A)(3). It is also conduct ... that adversely reflects on the fitness to practice law in violation of DR 1-102(A)(6).6
Iowa Supreme Ct. Bd. of Prof-‘l Ethics & Conduct v. Runge, 588 N.W.2d 116, 118 (Iowa 1999) (quoting Comm. on Prof‘l Ethics & Conduct v. Belay, 420 N.W.2d 783, 784 (Iowa 1988)); accord Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Iversen, 723 N.W.2d 806, 810 (Iowa 2006). Therefore, upon our de novo review, we concur with the board that Fields’ failure to file and pay his taxes and subsequent conviction for fraud constitute violations of DR 1-102(A)(3), (4), and (6).
IV. Sanction.
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.” When deciding on an appropriate sanction for an attorney‘s 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.
The board‘s complaint alleged misconduct under the Iowa Code of Professional Responsibility for Lawyers only with respect to Fields’ failure to file tax returns for the years 2002 through 2004. In the past, we have held that failing to file tax returns constituted conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). See Runge, 588 N.W.2d at 118. Recently, however, we held a violation under a comparable provision of the Iowa Rules of Professional Conduct required an impact on the functioning of the courts or the processing of court matters or matters ancillary to the court. See Templeton, 784 N.W.2d at 768-69 (holding “the mere act of committing a crime does not constitute a violation of [rule 32:8.4(d) which] specifically prohibits an act that ... violat[es] the well-understood norms and conventions of the practice of law“). Therefore, unless the facts and circumstances establish a lawyer‘s failure to file tax returns adversely impacted the functioning of the courts, we would not find such conduct in the future to violate rule 32:8.4(d).
The sanction for attorney misconduct involving neglect typically ranges from a public reprimand to a six-month suspension. See Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 868 (Iowa 2010). The sanction imposed in a particular instance often depends upon whether there are multiple instances of neglect, other additional violations, or a history of past disciplinary problems. Id.
In this case, Fields has been disciplined in the past for similar conduct. In 2001, Fields received a private admonition for failing to respond to an inquiry from the board. In 2004, he received a public reprimand for neglecting two clients, failing to return papers to a client, and failing to cooperate with the board. And in 2005, he was publically reprimanded for failing to prosecute a postconviction relief appeal, which resulted in dismissal of the client‘s appeal.
The second public reprimand for the neglect of appellate deadlines was of the same character and occurred concurrently with the neglect that is the basis for this disciplinary action. We have held that when a lawyer has already been sanctioned for similar, relatively contemporaneous misconduct, we may refrain from imposing additional discipline for newly discovered ethical violations if we conclude that a more severe sanction would not have been imposed had the newly discovered ethical violations been known when the initial discipline was ordered. Id. at 869; see also Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. D‘Angelo, 652 N.W.2d 213, 215 (Iowa 2002) (imposing a concurrent sentence, reasoning if additional violations had been brought to the court‘s attention at the time of the previous sanction, the court “seriously doubt[s] that respondent‘s prior suspension ... would have been enlarged“).
This current case involves more than a single instance of neglect. At the same time Fields was neglecting the Townsend civil rights action, he was also neglecting the Ferguson estate. Moreover, in an attempt to cover his neglect, Fields engaged in misrepresentations to his clients and the court, which constituted companion ethical violations. He also failed to respond to the board‘s inquiries. When these circumstances are considered together, we conclude that Fields’ additional misconduct in the civil rights and estate cases would have warranted a more severe sanction than the public reprimand given for the concurrent neglect in the postconviction relief appeal. See, e.g., Wagner, 768 N.W.2d at 282-86, 289 (imposing six-month suspension for misconduct involving neglect, misrepresentations, premature taking of fees, trust account violations, failure to respond to the board, and prior public reprimands for neglect and misrepresentation); Casey, 761 N.W.2d at 63 (imposing three-month suspension in a disciplinary case involving a probate matter and a personal injury case
We have repeatedly held that “[i]t is as wrong for a lawyer to cheat the government as it is for him to cheat a client.” Iversen, 723 N.W.2d at 810 (quoting Comm. on Prof‘l Ethics & Conduct v. Strack, 225 N.W.2d 905, 906 (Iowa 1975)). Depending on the circumstances, we have imposed license suspension from sixty days to three years for an attorney‘s failure to file income tax returns. See id. at 810, 812 (imposing one year suspension for failure to file tax returns for ten years); Iowa Supreme Ct. Bd. of Prof-‘l Ethics & Conduct v. Engelhardt, 630 N.W.2d 810, 811-12, 815 (Iowa 2001) (imposing six-month suspension for failure to timely file tax returns for six years); Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Wickey, 619 N.W.2d 319, 319-21 (Iowa 2000) (imposing six-month suspension for failure to file income taxes for four years); Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Neuwoehner, 595 N.W.2d 797, 797-98 (Iowa 1999) (imposing three-month suspension for failure to file income tax returns for three years); Runge, 588 N.W.2d at 118-19 (holding attorney‘s failure to file income tax returns for four years warranted six-month suspension); Comm. on Prof‘l Ethics & Conduct v. Baudino, 452 N.W.2d 455, 460 (Iowa 1990) (imposing six-month suspension for failing to timely file income tax returns for three years and making false statement on client security questionnaire); Comm. on Prof‘l Ethics & Conduct v. Jay, 430 N.W.2d 115, 116, 118 (Iowa 1988) (failure to timely file two years of tax returns warranted sixty-day suspension); Comm. on Prof‘l Ethics & Conduct v. McKey, 343 N.W.2d 489, 490 (Iowa 1984) (imposing two year suspension for failure to file Iowa and federal income tax returns for three years and for falsifying client security questionnaire); Strack, 225 N.W.2d at 906 (imposing three year suspension for fraudulently reporting taxable income for two years and failing to file tax return for two years).
In determining the appropriate sanction, we have considered it an aggravating factor for an attorney to have failed to file tax returns for an extended period of time. Iversen, 723 N.W.2d at 810 (noting attorney failed to file federal or state income tax returns for almost ten years and viewing such routine failure as a pattern of conduct justifying an increased sanction). We have, however, considered an attorney‘s voluntary disclosure of the misconduct to be a mitigating factor of some significance. See Comm. on Prof‘l Ethics & Conduct v. Cook, 409 N.W.2d 469, 471 (Iowa 1987) (concluding voluntary disclosure indicates both an acknowledgment of failures and a willingness to face up to them). Fields’ case is aggravated by the fact that he failed to file his tax returns for ten years. Moreover, his misconduct cannot be mitigated by a finding of voluntary disclosure. His failure to respond to the board‘s inquiries also constitutes an aggravating circumstance.
On the other hand, it is important to note Fields has acknowledged his misconduct and has not attempted to shift blame for his actions elsewhere. Iversen, 723 N.W.2d at 811 (finding acknowledgement of misconduct to be a mitigating factor). We are also cognizant of the respondent‘s recent medical diagnoses. We have frequently stated that while “[p]ersonal illnesses, such as depression or attention deficit disorder, do not excuse a lawyer‘s misconduct,” they “can be mitigating factors and influence our approach to discipline.” Curtis, 749 N.W.2d at 703. Al-
We also note that Fields’ license was temporarily suspended on April 25, 2008, under
We recently noted in Lickiss that “the purpose of the temporary suspension is more than disciplinary; it is also intended to prompt a response to the board‘s inquires so the disciplinary action may proceed in a timely and informed fashion.” Lickiss, 786 N.W.2d at 870. Here, the temporary suspension was initially unsuccessful in prompting a response to the board‘s inquiries. Fields did not respond until he appeared before the commission on May 1, 2009. In explaining his failure to respond, Fields indicated the same inability to act that resulted in his neglect of his clients and his failure to file his tax returns, also prohibited him from appropriately dealing with the board‘s inquiries. Based upon these circumstances, we conclude his suspension in excess of one year prior to the hearing was adequate discipline for failing to respond to the board‘s inquiries, and we will not consider his failure to respond to the board in fashioning any additional discipline. Id. (concluding four month temporary suspension for failure to respond to board‘s inquiry was adequate discipline for that misconduct).
We must, then, consider whether Fields should receive any credit for his continuing temporary suspension since his hearing before the grievance commission, against his other misconduct including neglect of two client matters, misrepresentation, and failure to file his income tax returns.
Fields’ temporary suspension was based upon his failure to respond to the board‘s inquiry. See
the board shall, within five days ... either withdraw the certificate or file with the supreme court a report indicating that the attorney has responded, but stating cause why the attorney‘s license should not be reinstated and the suspension should be continued under the provisions of
Iowa Ct. R. 35.4 [threat of harm],35.14 [conviction of a crime], or35.16 [disability].
(Emphasis added.) See also Lickiss, 786 N.W.2d at 870 n. 3 (noting once an attorney responds, the board is required to withdraw its certificate or provide an alternative basis for continuing the suspension). There is no evidence the board sought to continue the suspension under one of the enumerated court rules after Fields appeared and responded at the hearing on May 1, 2009. Therefore, when the temporary suspension is based solely on an attorney‘s failure to respond to the board‘s inquiry, the attorney has responded, and the board 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. Compare Comm. on Prof‘l Ethics & Conduct v. Halleck, 325 N.W.2d 117, 118 (Iowa 1982) (where attorney‘s license was currently under a temporary suspension for more than
The commission, having considered the evidence and testimony given at the hearing, recommended Fields’ license to practice law be revoked. Upon our respectful consideration of the goals of our ethical rules, mitigating and aggravating circumstances, and our survey of other disciplinary cases, we conclude Fields’ conduct warrants a serious sanction, but not revocation. Accordingly, we suspend Fields’ license to practice law indefinitely with no possibility of reinstatement for eighteen months.
V. Disposition.
In light of the above facts and circumstances surrounding Fields’ conduct, we suspend Fields’ license to practice law in this state indefinitely with no possibility of reinstatement for eighteen months from the date of the hearing before the commission, May 1, 2009. This suspension shall apply to all facets of the practice of law as provided in
LICENSE SUSPENDED.
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. John W. GAILEY, Respondent.
No. 09-0937.
Supreme Court of Iowa.
Nov. 19, 2010.