Atty. Disciplinary Bd. v. Casey, No. 08-1700.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtPer Curiam
Citation761 N.W.2d 53
PartiesIOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Marc William CASEY, Respondent.
Docket NumberNo. 08-1700.
Decision Date13 February 2009
761 N.W.2d 53
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
Marc William CASEY, Respondent.
No. 08-1700.
Supreme Court of Iowa.
February 13, 2009.

[761 N.W.2d 55]

Charles L. Harrington and David J. Grace, Des Moines, for complainant.

Marc W. Casey, Dyersville, pro se.

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 Disciplinary Board alleged the respondent, Marc Casey, violated ethical rules by neglecting client matters, failing to timely disburse funds, misrepresenting the status of an estate to the court, prematurely taking probate fees, and failing to cooperate with the Board. The Grievance Commission found Casey violated the Iowa Code of Professional Responsibility for Lawyers and the Iowa Rules of Professional Conduct and recommended that we suspend Casey's license to practice law for a period of two months.1 Upon our respectful consideration of the findings of fact, conclusions of law, and recommendation of the Commission, we find the respondent committed several ethical violations and suspend his license to practice law indefinitely with no possibility of reinstatement for three months.

I. Standard of Review.

Our review of attorney disciplinary proceedings is well established. We review such proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 815 (Iowa 2007). We give the Commission's findings and recommendations respectful consideration, but are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Isaacson, 750 N.W.2d 104, 106 (Iowa 2008). 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. 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.

Casey has been an attorney for thirty-four years and is currently practicing law in Dyersville, Iowa. The charges in this disciplinary action stem from Casey's representation of clients in a personal injury case and a probate matter.

A. Trenkamp Personal Injury Action. On May 13, 2001, Susan Trenkamp was allegedly injured when a porch post fell, hitting her on the head. Trenkamp engaged Casey to represent her. They had no written or oral fee agreement. On May 12, 2003, Casey filed a personal injury

761 N.W.2d 56

claim against the property owners on Trenkamp's behalf.

After the petition was filed, Casey did little to advance the case. He did not file any requests for discovery and took no depositions in the matter. Moreover, he failed to respond to numerous letters and discovery requests by defense counsel. This inaction resulted in opposing counsel filing a motion to compel and, subsequently, a motion for sanctions. Casey also failed to keep Trenkamp advised of the status of her claim and did not inform Trenkamp of an impending trial until a few days before the trial was scheduled to start. On the day of trial, September 1, 2004, the case was settled on the courthouse steps for $20,000. According to Trenkamp, Casey advised her at that time that he would not charge her any fee if she settled, but that she would have to pay him on an hourly basis if they went to trial.

Although the defendants' insurer sent a settlement check to Casey on September 13, 2004, Casey failed to promptly dismiss the case. On December 27, 2004, after the court had granted several continuances, Casey had the plaintiff's case dismissed. Even then, Casey failed to pay out the settlement proceeds to the plaintiff until June 20, 2005, over nine months after the settlement check was received by Casey. Moreover, although his trust account shows checks were issued in 2005 on his client's behalf for court costs and to satisfy a subrogation claim made by Trenkamp's medical insurance provider, Wellmark, these payments were not received by the payees. In 2006, Trenkamp was notified by the State of Iowa that her income tax refund would be withheld pending payment of court costs. Thereafter, Casey paid the court costs. On April 27, 2007, after Wellmark threatened to offset future medical benefits due the Trenkamp family, Casey paid the $4000 subrogation claim from his client trust account, two-and-a-half years after the settlement check was received.

B. Schockemoehl Estate. In March 2004, Casey was retained as the attorney for the coexecutors of Magdalen Schockemoehl's estate. The coexecutors were two of Magdalen's sons. Magdalen had five children.

Although Casey filed the necessary papers opening the estate, his representation in the probate matter was plagued by delay. On January 31, 2006, Casey advised the district court that he would have the estate resolved in thirty days. This did not happen, and the district court certified the matter as delinquent and ordered a show-cause hearing as to why the coexecutors should not be removed from their positions. After reassurances from Casey and the coexecutors that they would move expeditiously in closing the estate, the court did not remove the coexecutors.

On June 26, 2006, the court signed an order approving the final report and discharging the coexecutors subject to payment of remaining court costs and documentation that the bequest for Catholic masses had been paid. On September 20, 2006, the coexecutors sought to reopen the estate when it was determined Magdalen's interest in certain real property had not been properly transferred. The coexecutors hired a new attorney to assist them in this endeavor. Although the coexecutors believed the estate was closed on June 26, 2006, it was discovered that the district court's contingency—documentation of the payment of the bequest for masses—had never been complied with, and therefore, the estate had never closed. Once these matters were addressed and the real estate was sold, the estate was finally closed.

The Board, having been notified of the delinquency under the probate rules, sent letters to Casey on April 5, 2006, May 16,

761 N.W.2d 57

2006, and July 13, 2006, regarding his dilatory handling of the matter. Casey failed to respond to these inquiries. During its investigation of the delinquency issue, the Board uncovered other matters of concern. Documents revealed Casey misrepresented the decedent's marital status to the court and to the Iowa Department of Revenue and Finance. Papers prepared, signed, and filed by Casey with the court erroneously stated Magdalen did not have a spouse when, in fact, Magdalen had a surviving spouse, William Schockemoehl, to whom Magdalen's will bequeathed $5000. Casey also prepared tax documents that erroneously stated Magdalen had no surviving spouse. The erroneous court and tax documents were also signed by the coexecutors. In addition, Casey did not give William the required notice regarding taking under the will. See Iowa Code §§ 633.237, .304 (2003). William was not paid his bequest under the will while Casey was the attorney for the estate, although he eventually did take under the will after representation of the estate was undertaken by another attorney.

The Board also discovered that, on April 7, 2006, Casey took his entire fee for the probate matter and placed it in his firm's operating account before the final report was filed on May 31, 2006. This action was contrary to the district court's order, which stated the fees were to be paid consistent with Iowa Supreme Court Probate Rule 7.2. See Iowa Ct. R. 7.2(4) (requiring final report be filed prior to attorney receiving the second half of his or her legal fees in a probate matter).

C. Disciplinary Board's Complaint. On January 4, 2008, the Board filed a two-count complaint against Casey. Count I involved the Trenkamp personal injury lawsuit, and Count II concerned the Schockemoehl estate. The complaint was amended on June 4, 2008, to add additional claims to Count II.

With regard to Count I, the Board alleged Casey's actions in the Trenkamp matter constituted neglect, failure to promptly disperse proceeds, and failure to respond to a disciplinary inquiry in violation of the Iowa Code of Professional Responsibility for Lawyers DR 6-101(A)(2) and (3) ("A lawyer shall not ... [h]andle a legal matter without preparation adequate in the circumstances [or] neglect a client matter."), DR 7-101(A) ("A lawyer shall not intentionally fail to seek the lawful objectives of a client ...."), and DR 1-102(A)(1), (4), (5), and (6) ("A lawyer shall not violate a disciplinary rule[,] ... [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation[,] ... [e]ngage in conduct that is prejudicial to the administration of justice[,][and][e]ngage in any other conduct that adversely reflects on the fitness to practice law."). To the extent Casey's actions occurred after the adoption of the Iowa Rules of Professional Conduct on July 1, 2005, the Board contended Casey violated Iowa Rules of Professional Conduct 32:1.15(d) ("[A] lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive...."), 32:8.1 ("[A] lawyer ... shall not ... knowingly fail to respond to a lawful demand for information from [a] ... disciplinary authority ...."), 32:8.4(a), (c), and (d) ("It is professional misconduct for a lawyer to ... violate ... the Iowa Rules of Professional Conduct[,] ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, [and] engage in conduct that is prejudicial to the administration of justice[.]"),...

To continue reading

Request your trial
58 practice notes
  • Hagen v. Siouxland Obstetrics & Gynecology, P.C., No. C 11–4047–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • August 29, 2013
    ...govern Iowa lawyers today. Ia. Ct. R. Ch. 32; see also [964 F.Supp.2d 967]Iowa Supreme Court Attorney Disciplinary Bd. v. Casey, 761 N.W.2d 53, 57 (Iowa 2009) (noting that the Iowa Rules of Professional Conduct were adopted in 2005). Though the text and organization of these newer rules dif......
  • United States v. Melton, No. CR13–0014–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 6, 2013
    ...See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Schall, 814 N.W.2d 210, 213 (Iowa 2012); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 55 n. 1 (Iowa 2009). Disciplinary Rule 5–102 has been replaced by Iowa Rule of Professional Conduct 32:3.7. 5. Local Rule 83.1(g)(1) state......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Morse, No. 15–1502.
    • United States
    • United States State Supreme Court of Iowa
    • November 10, 2016
    ...their appeal.We consider whether the attorney has a colorable claim to the fees. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 62 (Iowa 2009). For example, in Casey, an attorney prematurely withdrew a probate fee and failed to deposit the fee into the trust account, a......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Bixenman, 21-1641
    • United States
    • United States State Supreme Court of Iowa
    • April 22, 2022
    ...circumstances of the violation, we also consider aggravating and mitigating factors. E.g. Iowa Sup. Ct. Att'y Disciplinary Bd. v. Casey , 761 N.W.2d 53, 61–62 (Iowa 2009) (per curiam).2. Mitigating factors. The record reflects that Bixenman entered Woodbury County Veterans Treatment Court a......
  • Request a trial to view additional results
58 cases
  • Hagen v. Siouxland Obstetrics & Gynecology, P.C., No. C 11–4047–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • August 29, 2013
    ...govern Iowa lawyers today. Ia. Ct. R. Ch. 32; see also [964 F.Supp.2d 967]Iowa Supreme Court Attorney Disciplinary Bd. v. Casey, 761 N.W.2d 53, 57 (Iowa 2009) (noting that the Iowa Rules of Professional Conduct were adopted in 2005). Though the text and organization of these newer rules dif......
  • United States v. Melton, No. CR13–0014–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 6, 2013
    ...See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Schall, 814 N.W.2d 210, 213 (Iowa 2012); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 55 n. 1 (Iowa 2009). Disciplinary Rule 5–102 has been replaced by Iowa Rule of Professional Conduct 32:3.7. 5. Local Rule 83.1(g)(1) state......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Morse, No. 15–1502.
    • United States
    • United States State Supreme Court of Iowa
    • November 10, 2016
    ...their appeal.We consider whether the attorney has a colorable claim to the fees. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 62 (Iowa 2009). For example, in Casey, an attorney prematurely withdrew a probate fee and failed to deposit the fee into the trust account, a......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Bixenman, 21-1641
    • United States
    • United States State Supreme Court of Iowa
    • April 22, 2022
    ...circumstances of the violation, we also consider aggravating and mitigating factors. E.g. Iowa Sup. Ct. Att'y Disciplinary Bd. v. Casey , 761 N.W.2d 53, 61–62 (Iowa 2009) (per curiam).2. Mitigating factors. The record reflects that Bixenman entered Woodbury County Veterans Treatment Court a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT