ATTY. DISCIPLINARY BD. v. Carpenter

• Decision Date: 16 April 2010
• Docket Number: No. 09-1343.,09-1343.
• Citation: 781 N.W.2d 263
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. William Shaw CARPENTER, Respondent.
• Court: Iowa Supreme Court

781 N.W.2d 263

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. William Shaw CARPENTER, Respondent.

No. 09-1343.

Supreme Court of Iowa.

April 16, 2010.

COPYRIGHT MATERIAL OMITTED

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

James Quilty of Crawford & Quilty Law Firm, Des Moines, and William Shaw Carpenter, pro se, for respondent.

TERNUS, Chief Justice.

The complainant, Iowa Supreme Court Attorney Disciplinary Board, filed charges against the respondent, William Shaw Carpenter, alleging numerous violations of the Iowa Rules of Professional Conduct. Carpenter is licensed to practice in Minnesota, but not in Iowa. Carpenter practices in Iowa under our rules that permit lawyers not licensed in Iowa to practice in federal law matters venued in this state. Iowa R. Prof'l Conduct 32:5.5(d)(2). The disciplinary complaint against Carpenter is based on his representation of clients in seventeen separate federal immigration matters, his two misdemeanor convictions, and his trust account violations.

After a hearing panel denied Carpenter's motion to dismiss, the parties entered into a stipulation with regard to Carpenter's ethical violations and a recommended sanction of a suspension for thirty months, as well as a requirement that any application for reinstatement include an evaluation by a licensed health care professional verifying Carpenter's fitness to practice law. Upon the parties' request, a hearing panel of the Grievance Commission of the Supreme Court of Iowa convened without the parties' participation. Subsequent to the panel's discussion of the issues, the panel adopted the parties' stipulation and recommended sanction. The panel also recommended the return of all client funds taken without a proper accounting.

We agree that Carpenter engaged in the charged misconduct. Therefore, we order Carpenter to cease and desist from all practice of law in Iowa indefinitely with no opportunity to request that this order be lifted for a period of not less than two years. We also order Carpenter to submit, with any request to lift this order, an evaluation by a licensed health care professional that he is fit to practice law.

I. Standard of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Ct. R. 35.10(1); 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 Profl Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004) (citation omitted)).

II. Jurisdiction.

Although licensed to practice law in Minnesota, Carpenter is not licensed to practice law in Iowa. From 2005 to 2007, Carpenter maintained offices in Iowa and provided legal services to persons in Iowa on federal immigration matters under Iowa Rule of Professional Conduct 32:5.5(d)(2), which provides:

A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that . . . are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.¹

Since October 18, 2007, Carpenter has been prohibited from all practice of law in Iowa due to his disability related to depression.² With regard to his disability suspension, we determined we had jurisdiction to prohibit Carpenter's practice under Iowa Rules of Professional Conduct 32:5.5(d)(2) and 32:8.5(a). Comment 19 to rule 32:5.5(d)(2) provides:

A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See rule 32:8.5(a).

Rule 32:8.5(a) provides:

(a) Disciplinary Authority. A lawyer admitted to practice in Iowa is subject to the disciplinary authority of Iowa, regardless of where the lawyer's conduct occurs. A lawyer not admitted in Iowa is also subject to the disciplinary authority of Iowa if the lawyer provides or offers to provide any legal services in Iowa. A lawyer may be subject to the disciplinary authority of both Iowa and another jurisdiction for the same conduct.

Comment 1 to rule 32:8.5(a) provides in pertinent part:

It is longstanding law that the conduct of a lawyer admitted to practice in Iowa is subject to the disciplinary authority of Iowa. Extension of the disciplinary authority of Iowa to other lawyers who provide or offer to provide legal services in Iowa is for the protection of the citizens of Iowa.

These same provisions give us authority to prohibit Carpenter's practice in Iowa on the basis of professional misconduct. Our jurisdiction to discipline attorneys practicing in Iowa under rule 32:5.5(d)(2) rests on our responsibility to protect the citizens of our state from unethical conduct of attorneys who provide services in Iowa.

III. Factual Background and Prior Proceedings.

As previously noted, the respondent is admitted to practice law in the State of Minnesota. His Minnesota license has been on "disability inactive status" since September 2008. He is not admitted to practice law in Iowa; however, from 2005 through 2007, he maintained law offices in Iowa for the purpose of providing legal services on immigration matters to persons in Iowa.

On January 7, 2009, the board filed its initial complaint against Carpenter that contained seventeen separate counts: fifteen related to his handling of fifteen different federal immigration matters; one related to his convictions for operating while intoxicated (OWI), second offense, and driving with a suspended license; and one related to trust account violations. The complaint was subsequently amended to include two additional counts relating to immigration matters.

After respondent's motion to dismiss was rejected, the parties filed a stipulation regarding the ethical violations and recommended sanction. Specifically, the respondent stipulated that, on March 29, 2007, he was convicted of an aggravated misdemeanor of OWI, second offense, in violation of Iowa Code section 321J.2 (2007), and on May 23, 2007, he was convicted of a serious misdemeanor of driving while his license was suspended in violation of Iowa Code section 321J.21. The parties stipulated that Carpenter's traffic convictions violated Iowa Rules of Professional Conduct 32:8.4(a) (violating a rule of professional conduct), 32:8.4(b) (committing a criminal act that reflects adversely on the lawyer's fitness as a lawyer), and 32:8.4(d) (engaging in conduct that is prejudicial to the administration of justice).

In addition to his convictions for traffic offenses, Carpenter's alleged ethical violations involved his representation of seventeen separate clients — Hector Hernandez, Maria Martinez, Amber Jara-Cruz, Carmen Ahidee Urrutia-Espino, Joel Villasenor, Antonia and Martin Moreno, Claudia Michelle Aguilar, Juan Gonzalez, Juan Hurtado, Ibis Melendrez Ruano, Jose Corado, Rosa Quintana, Oscar Liberato and Sara Mejicanos, Sammie Hall, Michelle Wilson, Tu Ngo, and Carolina Ibanez Galicia. His misconduct included trust account violations. The parties stipulated that, with regard to these matters, Carpenter violated Iowa Court Rule 45.7 (requiring lawyer to deposit advance fees from a client into a trust account and allowing withdrawal of such payments only as the fee is earned) and Iowa Rules of Professional Conduct 32:1.3 (requiring lawyer to act with reasonable diligence and promptness in representing a client); 32:1.4 (requiring lawyer to promptly communicate with a client); 32:1.15(a), (c), (d), (f) (requiring lawyer to deposit unearned fees into a client trust account, to account to client regarding earned fees, to promptly deliver to client any funds the client is entitled to receive, to promptly render a full accounting, and to abide by the rules governing trust accounts contained in Iowa Court Rules ch. 45); 32:1.16(d) (requiring lawyer to take steps to protect client's interests upon termination of representation, including returning or forwarding files and refunding fees); 32:8.1(b) (requiring lawyer to respond to the board's demand for information); and 32:8.4(d) (engaging in conduct that is prejudicial to the administration of justice).

As detailed in the parties' stipulation, with regard to all seventeen separate immigration matters, Carpenter failed to deposit unearned fees in a client trust account and withdrew funds without a proper accounting to the client as to the services provided. With regard to the Hernandez, Martinez, Jara-Cruz, Hurtado, Ruano, Corado, Quintana, Liberato/Mejicanos, Hall, Wilson, Ngo, and Galicia matters, the parties stipulated that Carpenter "failed to take all reasonable steps practicable to protect the client's interests upon termination of representation." With regard to the Martinez, Jara-Cruz, Hurtado, Quintana, Liberato/Mejicanos, Hall, Wilson, Ngo, and Galicia matters, the parties stipulated that Carpenter "was not prompt or diligent with his communications with his clients." Finally, with regard to the Galicia matter, the parties stipulated that Carpenter failed to respond to two notices he received from the board regarding the client's complaint.

The parties' stipulation also noted mitigating circumstances, including Carpenter's temporary disability due to depression, for which he has sought treatment, and his...