Ia S. Ct. Atty. Disciplinary Bd. v. McCann, 05-1643.

• Decision Date: 31 March 2006
• Docket Number: No. 05-1643.,05-1643.
• Citation: 712 N.W.2d 89
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Thomas J. McCANN, Respondent.
• Court: Iowa Supreme Court

Page 89

712 N.W.2d 89

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Thomas J. McCANN, Respondent.

No. 05-1643.

Supreme Court of Iowa.

March 31, 2006.

COPYRIGHT MATERIAL OMITTED

Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.

Roger J. Kuhle, West Des Moines, for respondent.

WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) filed a complaint alleging Thomas J. McCann violated numerous rules of the Iowa Code of Professional Responsibility for Lawyers in handling six different legal matters. The Grievance Commission (Commission) found the Board had proved the allegations of the complaint and recommended we suspend McCann's license to practice law indefinitely with no possibility of reinstatement of his license for a period of at least two years. We agree with the Commission that McCann's conduct violated numerous rules of the Iowa Code of Professional Responsibility for Lawyers and suspend McCann's license to practice law in this state indefinitely with no possibility of reinstatement for two years.

I. Proceedings Before the Grievance Commission.

The Board filed a complaint against McCann consisting of six counts alleging numerous violations of the Iowa Code of Professional Responsibility for Lawyers. McCann filed an answer admitting and denying various paragraphs of the complaint. Prior to the hearing, the Board and McCann entered into a stipulation admitting all the factual allegations of the complaint and agreeing to the admission of certain exhibits supporting the allegations. The stipulation also included documents detailing McCann's major depressive disorder and a joint recommendation that McCann's conduct warranted an indefinite suspension of his license to practice law with no possible reinstatement for at least two years. Finally, the stipulation waived a hearing on the complaint. Based on the stipulation, the Commission cancelled the evidentiary hearing and only heard the arguments of the parties.

The Commission filed a report in our court concluding the Board had proved all the factual allegations of the complaint by a convincing preponderance of the evidence and McCann's conduct amounted to multiple violations of the Iowa Code of Professional Responsibility for Lawyers. The Commission recommended that we suspend McCann's license to practice law indefinitely with no possibility of reinstatement for a period of at least two years. As conditions of McCann's reinstatement, the Commission recommended McCann make restitution to all persons and entities that have lost money as a result of his actions, McCann provide our court with an evaluation completed by a licensed psychiatrist verifying McCann's fitness to practice law, and McCann agree to refrain from practicing law as a sole practitioner for a period of at least two years after his reinstatement.

II. Scope of Review.

We review the record made before the Commission de novo. Iowa Supreme Ct. Attorney Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 396 (Iowa 2005). The Board has the obligation to prove an ethical violation by a convincing preponderance of the evidence. Id. Although we consider the factual findings and discipline recommendations made by the Commission in deciding the matter, they do not bind us. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d 812, 815 (Iowa 2004).

III. Factual Findings.

Using the stipulation of the parties together with our review of the record, we make the following findings of fact.

Armstrong Matter. McCann undertook representation of Jerry and Karen Armstrong in an action to enforce grandparent visitation rights. McCann filed an intervenors' application for rule to show cause and request for declaratory ruling. At the hearing on the application, the court noted the difficulty in proving the grandchild's mother was in contempt and suggested the grandparents' time might be better spent if they focused on requesting a specific visitation schedule. McCann did not proceed with the contempt hearing.

McCann never filed an application requesting a specific visitation schedule, although he did give a copy of an intervenors' application for further order concerning visitation to the Armstrongs indicating to them he filed it with the court. The Armstrongs attempted to contact McCann from November 2000 to February 2001 to determine the status of their case. McCann did not respond to the Armstrongs' inquiries. On February 21, 2001, the Armstrongs notified McCann that he was no longer their attorney. The Armstrongs filed a complaint with the Board in March. Two days after the Armstrongs filed the complaint, the Board notified McCann of the complaint. McCann then filed the intervenors' application for further order concerning visitation.

Nelson Matter. McCann agreed to represent Jennifer Nelson in an action for dissolution of marriage. McCann filed a petition for dissolution of marriage stating Nelson had been a resident of Iowa for the past year. At the time McCann filed the dissolution petition, he knew that allegation was not true. McCann attached a verification page signed by Nelson to the dissolution petition. McCann had Nelson sign the verification page before he drafted the petition. Nelson never reviewed the petition before McCann filed it.

Five months after filing the dissolution petition, McCann filed an application for temporary custody. The application for temporary custody also contained a signed verification page prepared and notarized by McCann. Again, Nelson did not review the application before signing the verification page, as McCann had not prepared the application at the time McCann presented the verification page to Nelson for her signature.

McCann never served the dissolution petition on the respondent. The district court issued an order stating that unless McCann served the opposing party with an original notice within sixty days of its order, the court would dismiss the case. McCann did not notify Nelson of this order. Instead, McCann filed a request to serve the notice by publication stating service had been attempted on the respondent but his whereabouts were unknown. This statement was false because McCann never attempted to serve the original notice on the respondent. When McCann made the representation of service to the court, he knew it was false.

Soloman Matter. McCann undertook representation of Debra Soloman in an action for dissolution of marriage. Soloman paid McCann a $750 retainer. McCann filed a petition for dissolution but neglected to pursue the dissolution matter to decree. In July 2001, McCann received a notice pursuant to Iowa Rule of Civil Procedure 1.944 informing him that the case was subject to dismissal on January 1, 2002.

In October 2001, Soloman filed a small claims action against McCann to recover her retainer. McCann and Soloman appeared on the scheduled trial date for the small claims case in December 2001. The court continued the trial of the small claims action to February 28, 2002.

Around this time, Soloman filed a complaint against McCann with the Polk County Ethics Committee. The ethics committee dismissed the complaint based on McCann's response that he hoped to have the matter resolved by the end of the year, but if he did not, he would seek a trial date to avoid dismissal under rule 1.944.

On January 1, 2002, the clerk of court dismissed the dissolution action under rule 1.944. On January 24, McCann requested that the dissolution matter be set for trial on February 28. On February 28, McCann and Soloman appeared for the small claims case. Soloman dismissed the small claims matter because McCann indicated he would complete her dissolution matter. However, the dissolution matter did not proceed to trial on this date.

After that date, Soloman attempted to call McCann and was unable to contact him. Soloman learned McCann moved from his office without informing Soloman of the move. In December 2002, Soloman sent a letter to the Polk County Court inquiring how to settle her divorce case. The court informed her that the clerk dismissed her case in January 2002 and McCann did not reinstate it. McCann failed to inform Soloman the clerk dismissed her case in January 2002 and that he did not have it reinstated.

Barritt-Jarosch Matter. In October 2002, McCann undertook the representation of Barbara Barritt-Jarosch and Jeff Jarosch in an action for custody of Jarosch's son who is also Barritt-Jarosch's grandson. They paid McCann a $2500 retainer. Instead of depositing the retainer in an IOLTA trust account, McCann deposited the retainer in his business checking account. McCann used the retainer for his personal or business use.

McCann never pursued the custody case. In February 2003, Barritt-Jarosch notified McCann that she was firing him and requesting an accounting. She also requested that he return all monies not used by him to pursue her case. McCann did not respond to these requests. Barritt-Jarosch also filed a complaint with the Board. McCann responded to the Board's complaint. The Board then made two requests of McCann asking him to provide a copy of any signed fee agreement or engagement letter and an itemization of his services, as well as an itemization and refund of the unearned portion of the retainer to Barritt-Jarosch. McCann did not respond to the Board's requests.

In November 2003, Barritt-Jarosch filed a small claims action against McCann in an attempt to recover her retainer. McCann appeared at the hearing in the case and returned the retainer in full to Barritt-Jarosch.

Moore Matter. McCann agreed to represent Larry Moore in an action for dissolution of marriage. Moore paid McCann a $750 retainer. Moore met with McCann twice, but McCann never filed the dissolution action. After a few months, Moore requested McCann pursue the matter or return his retainer. McCann failed to reply to Moore's request.

Moore filed a complaint with the Board. The Board...