Committee on Professional Ethics and Conduct of the Iowa State Bar Ass'n v. Nadler, 90-1599

• Decision Date: 20 March 1991
• Docket Number: No. 90-1599,90-1599
• Citation: 467 N.W.2d 250
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Complainant, v. Isadore NADLER, Respondent.
• Court: Iowa Supreme Court

Page 250

467 N.W.2d 250

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Complainant, v. Isadore NADLER, Respondent.

No. 90-1599.

Supreme Court of Iowa.

March 20, 1991.

Charles L. Harrington, Des Moines, for complainant.

David Nadler, Cedar Rapids, for respondent.

Considered by McGIVERIN, C.J., and HARRIS, NEUMAN, SNELL, and ANDREASEN, JJ.

ANDREASEN, Justice.

In May 1990, the Committee on Professional Ethics and Conduct of the Iowa State Bar Association (committee) charged Isadore Nadler with three counts of unethical and unprofessional conduct. Following hearing, a division of the Grievance Commission of the Supreme Court of Iowa (commission) found Nadler had violated provisions of the Iowa Code of Professional Responsibility for Lawyers. The commission recommended Nadler's license to practice law be suspended for a period of three years.

We review de novo the commission's findings, conclusions and recommendations. Iowa Sup.Ct.R. 118.11. The committee has the burden of proving the violations as charged by a convincing preponderance of the evidence. Committee on Professional Ethics & Conduct v. Seff, 457 N.W.2d 924, 925 (Iowa 1990).

Isadore Nadler was admitted to practice law in Iowa in 1950. He maintained a law practice in Waterloo, Iowa, from 1953 until his license was suspended by us in August of 1989. He also secured a real estate license in 1989.

I. Greer Matter.

The commission found Nadler violated DR 6-101 (failure to act competently) in his handling of a legal matter entrusted to him. The commission also found he violated DR 6-102 (attempt to limit liability to client) when he offered to pay his clients the sum of $1900 after discovering the statute of limitations had run out on the personal injury claim he was handling.

David Greer, Jr., a seventeen-year-old high school senior, was injured in a collision on February 8, 1985. He was a passenger on a school bus that was struck by an automobile driven by Leland Sommerfelt and owned by Ronald Sommerfelt. David's mother retained Nadler to represent David and his parents in connection with their claims against the Waterloo Independent School District and the Sommerfelts.

Nadler secured a patient's waiver and obtained medical records relating to David's injuries. He contacted the insurance carriers of both the school district and the Sommerfelts advising them of his employment as legal counsel for the Greers.

In January of 1986, Nadler obtained a partial settlement of his clients' claims. The school district insurance carrier paid $2000 to David and his parents for a covenant not to sue and a limited release. Nadler retained $500 as legal fees and $100 as advance costs from the cash settlement. He told the Greers he was going to bring suit against the Sommerfelts.

The two-year statute of limitations ran on the personal injury claims without Nadler having filed suit. In March 1987, the Greers contacted Nadler to find out what was going on. Nadler told them the lawsuit had not been filed and that the statute of limitations had run. Nadler offered to pay the Greers the sum of $1900, this being the amount he considered their claim was worth less his one-third contingent fee and less $100 for expenses advanced. The offer was not accepted. Rather, the Greers brought an action for legal malpractice against Nadler. The action was tried to the court, and on November 8, 1988, the court entered judgment against Nadler for $35,500 ($35,000 for David and $500 for his parents). The judgment has not been satisfied. The Greers have foreclosed on two parcels of real estate and garnished attorney fees to secure partial satisfaction of the judgment.

Based on these facts, the commission found Nadler had violated two disciplinary rules. In addition to the transcript of the proceedings before the commission, we review the exhibits offered and received at the hearing. Here, a transcript of the evidence in the legal malpractice action was received as an exhibit. In our de novo review, we agree with the commission's findings but make additional findings and conclusions.

Although Nadler, in September of 1985, secured from Dr. Crouse, an orthopedic specialist, a written medical evaluation suggesting David had no long-term disability, Nadler was aware David continued to have back and knee problems after the evaluation. After securing the partial settlement in January of 1986, Nadler suggested David get a second opinion from Dr. Delbridge, an orthopedic surgeon. On April 25, 1986, Greer was examined by Dr. Delbridge. Greer continued to experience back and knee problems. He was again seen by Dr. Delbridge on December 24, 1986. In the opinion of Dr. Delbridge, Greer's injury to his back and knee would continue, and he would have future pain and problems. In his opinion, these injuries were related to the accident on February 8, 1985. Although he was aware of Dr. Delbridge's examination of his client, Nadler did not talk to the surgeon or secure a written report from him.

In August and October of 1986 the claims representative of Sommerfelt's insurance carrier wrote letters to Nadler requesting the opportunity to sit down and discuss possible settlement of the Greers' claim and also requesting Nadler furnish an update of the medical condition of his client. Nadler did not respond to these requests.

Although Nadler advised Greers of his failure to timely file suit, he did not alert them of their possible malpractice claim nor did he advise them to seek the advice of another attorney. Contrary to Nadler's explanation, we do not find his offer of $1900 was intended as a gift.

Nadler acted pro se in defense of the legal malpractice suit. The district court found Nadler's handling of the Greers' legal matter was negligent in (1) attempting to negotiate a settlement of the claim without having appropriate medical information upon which to value the claim, (2) attempting to negotiate a settlement at a level that was not authorized by his clients, and (3) allowing the statute of limitations to run without filing a suit.

The court also found Nadler displayed the same lack of professional care and competence in defending the legal malpractice case as he did in representing the Greers. He failed to respond to requests for admissions. He responded untimely and improperly to the plaintiffs' motion for partial summary judgment. He filed an untimely request to designate additional expert witnesses. He was late for the beginning of the trial, and he was late in returning from several recesses during the trial. After the completion of the plaintiffs' case, Nadler's request for a recess was granted. However, Nadler failed to return to court following the recess, and the trial was completed in Nadler's absence with no additional evidence presented on his behalf. No appeal was taken from the district court judgment.

While the legal malpractice action was pending, Nadler conveyed two parcels of real estate to his wife without consideration. On November 10, 1988, one day after judgment was entered, the Greers filed an action to set aside the Nadler conveyance as fraudulent. Following hearing, the court on February 21, 1989, granted the Greers' motion for summary judgment and set aside the Nadler deed. No appeal was taken. Nadler acknowledged he "goofed" by not preparing a proper resistance to the motion for summary judgment. The two parcels of real estate held by Nadler were sold at sheriff's sale, and the proceeds of approximately $22,000 were applied as partial satisfaction of the judgment.

While an honest mistake made by a lawyer in handling a client's legal matter does not ordinarily afford a basis for disciplinary action, Committee on Professional Ethics & Conduct v. Wright, 178 N.W.2d 749, 752 (Iowa 1970), incompetence is grounds for disciplinary action. There is a convincing preponderance of evidence of Nadler's neglect and indifference in handling legal work. We find the acts and conduct of Nadler, as charged in count I of the complaint, violated DR 6-101 and DR 6-102(A) as found by the commission and, in addition, violated EC 1-5 (requires high standards of professional conduct), EC 6-1 (requires competent and proper care in representing clients), EC 6-4 (requires adequate preparation for and appropriate attention to legal work), EC 9-2 (requires lawyers fully and promptly to inform clients of developments in matters being handled for the client), EC 9-6 (requires lawyers to uphold the integrity of the profession and to inspire confidence of clients and public), and DR 1-102(A) (prohibits lawyer misconduct). See also Annotations, Negligence, Inattention, or Professional Incompetence of Attorney in Handling Client's Affairs in Personal Injury or Property Damage Actions as Ground for Disciplinary Action--Modern Cases, 68 A.L.R.4th 694 (1989); Attorney's Conduct in Connection with Malpractice Claim Against Himself as Meriting Disciplinary Action, 14 A.L.R.4th 209 (1982). L. Gaudineer, Ethics and Malpractice, 26 Drake L.Rev. 88 (1976).

II. Denton Purchase.

After he secured a real estate license, Nadler was employed as a sales person for Peachtree Realty. Betty Graybill, the executor of the Herman Boike estate, listed a...