Committee on Professional Ethics and Conduct of the Iowa State Bar Ass'n v. Shifley

• Decision Date: 23 July 1986
• Docket Number: No. 86-400,86-400
• Citation: 390 N.W.2d 133
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. Doren M. SHIFLEY, Respondent.
• Court: Iowa Supreme Court

Page 133

390 N.W.2d 133

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v.Doren M. SHIFLEY, Respondent.

No. 86-400.

Supreme Court of Iowa.

July 23, 1986.

James E. Gritzner, of Nyemaster, Goode, McLaughlin, Emery & O'Brien, P.C., Des Moines, and Hedo M. Zacherle, Des Moines, for complainant.

Robert B. Scism, of Scalise, Scism, Sandre & Uhl, Des Moines, for respondent.

Considered en banc.

REYNOLDSON, Chief Justice.

Before us for review are the findings and recommendation of the grievance commission in a disciplinary proceeding brought by complainantCommittee on Professional Ethics and Conduct of The Iowa State Bar Association against respondentDoren M. Shifley.

The incident that led to this proceeding was the basis of a prior disciplinary action before us involving respondent's former partner, Thomas M. Kelly, Jr. See Committee on Professional Ethics & Conduct v. Kelly, 357 N.W.2d 315(Iowa1984).

At the hearing now before us there was substantial evidence to support the commission's findings that while Kelly and respondent were partners, the latter caused a motion to be filed on January 4, 1980, to secure a reduction in a cash appeal bond posted for one of Kelly's clients.This was without the client's knowledge or consent.The motion stated the money obtained by the reduction would be used for attorney fees, "costs of securing transcripts, and other necessary costs including printing of appendix and brief."This motion was signed with Kelly's name.Although respondent denied signing Kelly's name in the latter's hearing ¹ and professed no knowledge of it in this proceeding, the commission found, as do we, there was clear and convincing evidence by two expert witnesses that respondent did sign Kelly's name on the motion.

The evidence also is clear that respondent caused the order granting the motion to be executed by the court, ex parte.The clerk of court issued a check for $2500 payable to Thomas M. Kelly, Jr.Respondent obtained the check, acknowledging receipt thereof on the records of the clerk "Thomas M. Kelly, Jr., by Doren Shifley."

Respondent took the check to his office where it was deposited in the partnership office account, not the firm trust account.Before that deposit on January 4, 1980, the office account had a balance of only $71.14.On that date respondent made two $500 withdrawals for Kelly and himself.Respondent again made a $500 withdrawal for himself on January 7, 1980.The balance of the $2500 was used to pay miscellaneous office expenses.None of the money was used toward the appeal for Kelly's client, which appeal ultimately was dismissed for lack of attention.

I.Under our ethics rules, lawyers must conduct themselves "with honesty and truthfulness, and should avoid statements or actions that are calculated to deceive or mislead."Committee on Professional Ethics & Conduct v. Hurd, 325 N.W.2d 386, 390(Iowa1982).Here, despite respondent's denial, the committee proved by a convincing preponderance that respondent caused the bond reduction motion to be prepared, signed Kelly's name on it, arranged for the motion to be submitted to the court, and obtained the $2500 check from the district clerk of court.Further, the committee has shown that respondent promptly commingled these funds in the firm's office account and converted a portion of them to his own use.

We find, as did the commission, that respondent's conduct violated DR1-102(A)(1)(violation of a disciplinary rule);DR1-102(A)(3)(conduct involving moral turpitude);DR1-102(A)(4)(dishonesty, fraud, deceit or misrepresentation);DR1-102(A)(5)(conduct prejudicial to the administration of justice);DR1-102(A)(6)(conduct reflecting adversely on counsel's fitness to practice law); EC 9-5 (separation of client's funds); EC 9-6 (upholding the integrity and honor of the profession);DR9-102(A)(maintenance of a trust account for only client's funds);andDR9-102(B)(maintenance of a record of those funds).SeeCommittee on Professional Ethics & Conduct v. O'Connor, 329 N.W.2d 1, 4(Iowa1983);Committee on Professional Ethics & Conduct v. Pappas, 313 N.W.2d 532, 533-34(Iowa1981);Committee on Professional Ethics & Conduct v. Toomey, 253 N.W.2d 573, 575(Iowa1977);Committee on Professional Ethics & Conduct v. Shaffer, 230 N.W.2d 1, 2(Iowa1975).

II.We determine the discipline to be imposed based on the facts of each case.Committee on Professional Ethics & Conduct v. Rogers, 313 N.W.2d 535, 537(Iowa1981).Here, respondent previously has been disciplined and his license suspended for a six-month period.SeeCommittee on Professional Ethics & Conduct v. Shifley, 312 N.W.2d 558(Iowa1981).We consider this fact in making our current determination.See Iowa Sup.Ct.R. 118.7.

Moreover, we have an obligation to protect the public and the courts from theft and deceit.Our prior case law discloses that commingling a client's funds and converting them to personal use may result in license revocation and not mere suspension.See, e.g., O'Connor, 329...