Committee on Professional Ethics and Conduct of The Iowa State Bar Ass'n v. Garretson, 93-1823

• Decision Date: 20 April 1994
• Docket Number: No. 93-1823,93-1823
• Citation: 515 N.W.2d 25
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. William W. GARRETSON, Respondent.
• Court: Iowa Supreme Court

Page 25

515 N.W.2d 25

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. William W. GARRETSON, Respondent.

No. 93-1823.

Supreme Court of Iowa.

April 20, 1994.

Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.

Lee H. Gaudineer of Austin, Gaudineer, Austin, Salmons & Swanson, Des Moines, for respondent.

Considered by HARRIS, P.J., and LARSON, CARTER, SNELL, and TERNUS, JJ.

SNELL, Justice.

This lawyer disciplinary action comes to us on appeal by the Committee on Professional Ethics and Conduct of the Iowa State Bar Association. The Grievance Commission of the Iowa Supreme Court found that respondent, William W. Garretson, violated the Iowa Code of Professional Responsibility for Lawyers by refusing to provide an accounting to a client and by suing that client without first trying to resolve a fee dispute. The issues on appeal involve the sanction selected and whether respondent attempted to obstruct the disciplinary process.

William W. Garretson has practiced law in Iowa since 1960. Currently, he has a solo practice in West Des Moines primarily in areas of litigation and criminal law. The present dispute arose when Garretson agreed to represent Robert Dompkosky, a student at the school of osteopathic medicine in Des Moines, in an OWI case. Garretson met his client on November 1, 1991, after being called on the telephone to come to the Polk County Jail at 6:30 a.m. After Dompkosky was released, he met Garretson on November 4 and employed him. Dompkosky mentioned that he might want to employ a public defender but nevertheless gave Garretson a $500 check postdated to November 8 so that Garretson could "continue on with the paperwork knowing he had a check in hand." The following day Dompkosky telephoned Garretson and told him he had decided to employ a public defender. From this an argument ensued over how much money was owed for Garretson's legal work. Garretson claimed a minimum of $273; Dompkosky demanded to be sent a fee schedule showing what work had been done. Garretson asked if he could cash the $500 check and take his fee from that and was told no. Dompkosky stopped payment on the check fearing it would be cashed.

Instead of sending an itemized statement of services rendered, Garretson attempted to cash the check on November 8. When it was returned to Garretson ten days later, he filed suit in small claims court on November 18th. Dompkosky told Garretson he was exploring the possibility of returning to Pennsylvania to attend a school there. He moved out of his residence in Des Moines and left for Pennsylvania on November 19. He did not inform Garretson of his change of address but did return to Des Moines on January 6, 1992.

On returning, Dompkosky learned that Garretson had obtained a default judgment for $500 and had garnished his bank account for $377. Representing himself, Dompkosky tried unsuccessfully to set aside the judgment. In the meantime, on January 13, 1992, he filed a complaint against Garretson with the Committee on Professional Ethics and Conduct.

Dompkosky also sought other remedies. He proposed paying $100 in settlement on January 24, 1992. On February 4, 1992, he filed a small claims action against Garretson for breach of contract. Garretson responded by counterclaiming for $500 for abuse of process.

The parties discussed their dispute in a chance meeting at the courthouse and through telephone calls back and forth. As civility deteriorated, Dompkosky called Garretson for a meeting. Since Dompkosky did not have a driver's license, Garretson agreed to meet him in the parking lot of the Hy-Vee store. Dompkosky equipped himself with a hidden tape recorder and recorded the conversation. It was put in evidence at the disciplinary hearing for the purpose of supporting the committee's charge that Garretson tried to buy off the ethics complaint.

Our scope of review in these disciplinary proceedings of both the facts and the commission's recommendation is de novo. Iowa Sup.Ct.R. 118.11; Committee on Professional Ethics & Conduct v. Oltrogge, 463 N.W.2d 19, 19 (Iowa 1990). The court gives respectful consideration to the findings of the commission but is not bound by them. Committee on Professional Ethics & Conduct v. Tullar, 466 N.W.2d 912, 913 (Iowa 1991). It is the committee's burden to prove by a convincing preponderance of the evidence that respondent committed the conduct charged in the complaint. Committee on Professional Ethics & Conduct v. Hutcheson, 471 N.W.2d 788, 789 (Iowa 1991). This burden does not require proof beyond a reasonable doubt, but lies somewhere between the proof required in criminal cases and that required in civil cases. Committee on Professional Ethics & Conduct v. Hurd, 375 N.W.2d 239, 246 (Iowa 1985).

The commission found that Garretson violated DR 9-102(B)(3) under which a lawyer shall render accountings to his client. A further violation was found by the commission of EC...