Iowa Supreme Ct. Atty. Disc. Bd. v. Piazza

• Decision Date: 03 October 2008
• Docket Number: No. 08-0376.,08-0376.
• Citation: 756 N.W.2d 690
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. James P. PIAZZA, Sr., Appellant.
• Court: Iowa Supreme Court

756 N.W.2d 690

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. James P. PIAZZA, Sr., Appellant.

No. 08-0376.

Supreme Court of Iowa.

October 3, 2008.

Michael J. Carroll of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, for appellant.

Charles L. Harrington and Wendell J. Harms, Des Moines, for appellee.

PER CURIAM.

This matter comes before the court on the report of a division of the Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.10. The Iowa Supreme Court Attorney Disciplinary Board alleged the respondent, James P. Piazza, Sr., violated ethical rules by collecting an illegal fee, failing to preserve the identity of funds of a client, failing to maintain the required books and records, and engaging in misconduct in his representation of a client. The Grievance Commission found Piazza violated the Iowa Code of Professional Responsibility for Lawyers by failing to deposit the client's money into an interest-bearing trust account and by failing to provide a contemporaneous accounting to the client when that money was withdrawn. The Commission recommends the imposition of a public reprimand. Upon our respectful consideration of the findings of fact, conclusions of law, and recommendation of the Commission, we find the respondent committed several of the charged ethical violations and agree a public reprimand is warranted.

I. Standard of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 815 (Iowa 2007). The Commission's findings and recommendations are given respectful consideration, but we are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Isaacson, 750 N.W.2d 104, 106 (Iowa 2008). The Board has the burden of proving 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. Once misconduct is proven, we "may impose a lesser or greater sanction than the discipline recommended by the grievance commission."

Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).

II. Factual Background and Prior Proceedings.

A. Alberto-Portillo Criminal Matter. On September 28, 2004, the State of Iowa arrested and charged Noe Alberto-Portillo with conspiracy to deliver methamphetamine, distribution of methamphetamine, and failure to affix a tax stamp. The following day, Piazza, an experienced criminal defense attorney, was contacted by Alberto-Portillo's brother-in-law, Julio Cordoba, about representing Alberto-Portillo. After a consultation with Cordoba Piazza agreed to the representation. Piazza told Cordoba that he would represent Alberto-Portillo for $7500 if the case stayed in state court, but if the case was transferred to federal court, his fee would be $15,000. Piazza explained the complexity of a federal case warranted the higher fee and that, based on the nature of the charges and Alberto-Portillo's immigration status, the likelihood of transfer to federal court was high. The agreement was not reduced to writing.

Late in the day on Friday, October 1, Cordoba returned to Piazza's office with a woman named Maria Portillo.¹ Maria gave Piazza's receptionist $5000 in cash toward Piazza's fee. The money was not deposited into Piazza's client trust account, but was locked in a desk drawer for safekeeping over the weekend. Piazza was aware on October 1 the $5000 had been paid. He admits he had constructive possession of the money at that time. After the payment was made, Piazza spent several hours in conference with Alberto-Portillo's relatives.

Over the weekend, Piazza, who had yet to meet his client or review any trial information or indictment, conducted extensive research to prepare for Alberto-Portillo's preliminary hearing scheduled for October 8. Piazza compiled "the potential anticipated law of the case" concerning conspiracy, entrapment, alibi, and evidentiary issues. He also prepared cross-examination questions of the Department of Criminal Investigations (DCI) agent, even though he was aware that preliminary hearings are generally "very pro forma," and the State is only required to "make out a minimal prima facie case."

On Monday, October 4, Piazza returned to his office where he retrieved the $5000 payment. Believing he had earned all of the $5000 over the weekend, having worked twenty hours at $250/hour, the respondent deposited $4200 in his office bank account and withheld $800 for various personal expenses.

At the preliminary hearing on October 8, Piazza was informed the state charges would be dismissed and the United States was preparing to indict Alberto-Portillo. As a result, the defendant and Piazza waived the preliminary hearing. Over the next few weeks, Piazza continued to work on his client's case. During this time, DCI agents presented Piazza with evidence that supported his client's involvement in the alleged drug activity.

On October 27, Maria returned to Piazza's office with another $2500 in cash. Piazza, believing this amount too had been already earned, took possession of the money and did not deposit it in his client trust account. He also reminded Maria the fee agreement for a federal case was $15,000. When Maria objected, Piazza verbally modified the agreement to $7500, an amount which he claimed had already been totally earned.

On November 2, the United States filed a two-count indictment against Alberto-Portillo, charging him with conspiracy to distribute methamphetamine and distribution of methamphetamine. Piazza continued to represent Alberto-Portillo on the federal charges, meeting with him on several occasions, reviewing evidence, and attempting negotiations with the United States District Attorney, until Alberto-Portillo, dissatisfied with Piazza's representation, requested his withdrawal from the case on April 16, 2005. The request was granted on April 22. Alberto-Portillo eventually entered into a plea agreement and pled guilty to reduced charges.

On April 21, Alberto-Portillo filed a complaint with the Iowa Supreme Court Board of Professional Ethics and Conduct, appellee's predecessor. In addition, Alberto-Portillo filed a request for fee arbitration with the Polk County Fee Arbitration Board. After a hearing on that matter, the Fee Arbitration Board determined Piazza had earned the $7500 paid to him for his representation of Alberto-Portillo.

In his initial response to the Disciplinary Board, Piazza explained the steps he had undertaken in representing Alberto-Portillo as well as the fee arrangement to which the parties agreed. He maintained the fee he received from Alberto-Portillo's family was earned by him "through preparation for trial, including law research, final argument preparations ..., evaluation of federal evidence, several conferences with the U.S. Attorney, payments to interpreters, meeting with [Alberto-Portillo's] new attorney and sharing information and strategies for trial preparation, and ... meetings with [Alberto-Portillo's] family."

On October 18, the Disciplinary Board requested additional information from Piazza including proof the $7500 fee had been placed in Piazza's client trust account and proof of the accounting provided to Alberto-Portillo. In his response, Piazza reiterated the work he had performed on his client's case after receiving each fee installment. He stated he deposited the money in his office account because he believed the money had been earned by the time he had an opportunity to deposit it or, in the case of the second installment, by the time it was received.

Piazza did not provide an accounting for his services until Maria asked for one on December 15, 2005. On December 21, Piazza provided to Maria a statement of "Professional Services" in the Alberto-Portillo criminal matter. The statement contains little detail and no documentation of the hours spent by Piazza on the defendant's behalf. Later, Piazza added handwritten notations to the statement provided to the Disciplinary Board regarding the number of hours spent each day on Alberto-Portillo's representation.

B. Disciplinary Board's Complaint. The Board filed its formal complaint against Piazza on September 18, 2007. In its complaint, the Board alleged Piazza's failure to deposit the fee payments in his client trust account and failure to provide an accounting to Alberto-Portillo constituted violations of Iowa Code of Professional Responsibility DR 1-102(A)(4) ("A lawyer shall not ... [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation."); DR 1-102(A)(5) ("A lawyer shall not ... [e]ngage in conduct that is prejudicial to the administration of justice."); DR 1-102(A)(6) ("A lawyer shall not ... [e]ngage in any other conduct that adversely reflects on the fitness to practice law."); DR 2-106(A) ("A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee."); DR 7-102(A)(8) ("In the representation of a client, a lawyer shall not ... [k]nowingly engage in conduct contrary to a disciplinary rule."); DR 9-102(A) ("All funds of clients paid to a lawyer ... including advances for costs and expenses, except retainer fees paid on a regular and continuing basis, shall be deposited in one or more identifiable interest-bearing trust accounts maintained as set forth in DR 9-102(C)."); DR 9-102(B)(3) ("A lawyer shall ... [m]aintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them."); and DR 9-103(A) ("Every lawyer engaged in the private practice of law shall maintain or cause to be maintained on a current basis books and records sufficient to demonstrate compliance with DR...