Committee on Professional Ethics and Conduct of Iowa State Bar Ass'n v. Havercamp
| Decision Date | 14 June 1989 |
| Docket Number | No. 89-353,89-353 |
| Citation | 442 N.W.2d 67 |
| Parties | COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. Alan R. HAVERCAMP, Respondent. |
| Court | Iowa Supreme Court |
Charles L. Harrington, Des Moines, for complainant.
Michael W. Liebbe, Davenport, for respondent.
Considered by McGIVERIN, C.J., and HARRIS, LARSON, SCHULTZ, and LAVORATO, JJ.
In this attorney disciplinary proceeding involving the respondent, Alan R. Havercamp, we review the Grievance Commission's findings and recommendations pursuant to Iowa Supreme Court Rule 118.10. We suspend Havercamp's license to practice law indefinitely, with no possibility of reinstatement for a period of six months from the date of this opinion.
Havercamp has been a licensed attorney since 1966. He practices in Davenport. His law practice can be described as general, touching such areas as criminal, juvenile, probate, and domestic relations law. He is also a judicial magistrate.
The Committee on Professional Ethics and Conduct filed a complaint against Havercamp. The complaint consists of four counts, alleging that Havercamp had violated various disciplinary rules and ethical considerations of the Iowa Code of Professional Responsibility for Lawyers.
The record made in the hearing before the commission included the complaint, the committee's request for admissions, testimony of witnesses, and other evidence. Havercamp did respond to the request for admissions. After finding that the allegations of the complaint were true, the commission recommended that Havercamp's license to practice law be suspended for a period of not less than six months.
Havercamp has not appealed from the commission's report to this court. See Iowa Sup.Ct.R. 118.11. Nevertheless, we review de novo the record made before the commission, determine the matter, and impose, as we deem appropriate, a lesser or greater sanction than the discipline recommended by the commission. Iowa Sup.Ct.R. 118.10.
We give the commission's findings and recommendations respectful consideration although they are not binding on this court. The complaint's allegations must be established by a convincing preponderance of the evidence. Matters in a request for admissions may be relied upon to meet this burden if not denied or otherwise objected to by the respondent. Committee on Professional Ethics & Conduct v. Blomker, 379 N.W.2d 19, 20-21 (Iowa 1985).
Like the disciplinary rules in the Code of Professional Responsibility, violations of ethical considerations are subject to disciplinary sanctions. We review the record de novo to determine whether and to what extent discipline should be imposed. Our determination in this respect is guided by certain well-recognized standards: the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the law as a whole, and the respondent's fitness to continue in the practice of law. Id. at 21.
Two of the four counts in the complaint deal with Havercamp's handling of a collection suit and an estate. The other two counts deal with Havercamp's alleged failure to respond to the committee's inquiries regarding complaints about his handling of the two matters. We first consider the complaints regarding the suit and the estate and then Havercamp's alleged failure to respond.
In May 1980 Havercamp filed a $33,000 collection suit for Brunswick Corporation against David F. Smith, d/b/a 4-Seasons Sport Center. The suit was filed in Scott County District Court. In June Smith appeared and answered through counsel.
After a continuance pursuant to Iowa Rule of Civil Procedure 215.1 in 1981, the case was dismissed in January 1983 for lack of prosecution. Havercamp took no action to reinstate the case within six months as required by the rule.
Three letters from Brunswick--one in May 1986, another in February 1987, and a third in October 1987--all refer to an alleged statement by Havercamp that the case had been refiled. Havercamp testified he was sure these letters were in response to his telephone conversations with Brunswick's in-house counsel that he would refile the suit. Nevertheless, Havercamp admitted that he never wrote back to correct what he characterized as Brunswick's misunderstanding of the status of the case.
Although Havercamp could have refiled the suit (the statute of limitations had not expired), he never took steps to do so. His only excuse was, "It just didn't get done."
The commission found that Havercamp's inaction demonstrated a conscious disregard of the responsibilities that he undertook in agreeing to represent Brunswick. It also found that he actively misrepresented the status of the case by allowing Brunswick to believe he had refiled the lawsuit when, in fact, he had not. We think the evidence establishes these findings by a convincing preponderance of the evidence.
We agree with the commission that these findings establish Havercamp violated Iowa Code of Professional Responsibility DR 1-102(A)(1) (violating disciplinary rule); DR 1-102(A)(4) (); DR 1-102(A)(5) (); DR 1-102(A)(6) (); DR 6-101(A)(3) (); DR 7-101(A)(1) (); DR 7-101(A)(2) (); DR 7-101(A)(3) (); EC 1-5 (lawyer should refrain from all illegal and morally reprehensible conduct); EC 6-1 (lawyer should act with competence and proper care in representing clients and accept only matters lawyer is competent to handle); and EC 6-4 (lawyer should prepare adequately for and give appropriate attention to legal work entrusted to lawyer).
In the late 1960's Havercamp began doing legal work for Ross O. Hopkins, a chiropractor in Davenport. In 1975 Havercamp prepared a will for Hopkins in which Havercamp was named executor. There were three beneficiaries named in the will: Mrs. Ada G. Allen, a daughter; Lucille Wellington, a niece; and Mr. and Mrs. Keltner, two close friends. In the will Hopkins specifically devised his home to Wellington and another piece of realty to the Keltners. The rest of the estate was divided equally between Allen and Wellington.
In June 1981 Mrs. Keltner was appointed guardian over the person of Hopkins and conservator of his property. Havercamp filed the petition seeking her appointment. In August 1981 an inventory was filed listing the homestead with a value at $29,500 and the other piece of realty with a value of $11,000. Personal property consisting of two bank accounts totaling $40,182.85 was also listed. The following November Hopkins died. The next month Havercamp opened the estate and had himself appointed executor.
Havercamp conceded that little was done in the estate until January 1985 when an inventory was filed. Havercamp testified that he relied upon Mrs. Keltner and her husband to maintain the decedent's homestead and to provide information to the other beneficiaries, Allen and Wellington.
Mrs. Keltner died in June 1983, and thereafter her husband moved out of the state. Havercamp claimed that Keltner's death prevented him from obtaining information for a final accounting to close the conservatorship and to prepare the inheritance tax report and probate inventory for the estate. Havercamp was ultimately appointed as successor conservator on December 31, 1986.
Wellington appeared and testified at the disciplinary hearing. Allen did not. According to Wellington, she met Havercamp at her uncle's funeral but he neglected to tell her that she was a beneficiary under the uncle's will.
Wellington ultimately learned she was a beneficiary in 1983. The information came to her through a Chicago attorney, Arthur G. McLendon, hired by Allen who also lived in Chicago. McLendon traveled to Davenport where he discovered that the estate had been opened and that Wellington and Allen were beneficiaries.
An affidavit, filed by Allen and apparently prepared by McLendon, complaining that the estate had been pending for an unduly long period of time triggered a court order on February 21, 1986. The order directed Havercamp to appear before the court on February 26 "for the purpose of setting a timetable and schedule for the winding up of this estate."
After the February 26 hearing, the court ordered Havercamp to (1) prepare a final report in the conservatorship within ten days, (2) file an Iowa inheritance tax return in three weeks, (3) file any federal tax returns within thirty days, (4) make a partial distribution to the residuary beneficiaries in ninety days, and (5) make every reasonable effort to file a final report and close the estate within the next six months. The order was not complied with in any respect.
In December 1986 McLendon advised...
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