IA S. CT. BD. OF PROF'L ETHICS v. Honken

• Decision Date: 10 November 2004
• Docket Number: No. 04-1174.,04-1174.
• Citation: 688 N.W.2d 812
• Parties: IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Dale S. HONKEN, Respondent.
• Court: Iowa Supreme Court

688 N.W.2d 812

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Dale S. HONKEN, Respondent.

No. 04-1174.

Supreme Court of Iowa.

November 10, 2004.

Charles L. Harrington and Mark J. Schouten, Des Moines, for complainant.

Dale S. Honken, Sibley, respondent, pro se.

WIGGINS, Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct (Board) filed a complaint alleging Dale S. Honken had violated numerous rules of the Iowa Code of Professional Responsibility in his handling of six different legal matters. The Grievance Commission (Commission) found the Board had proven the alleged violations and recommends we suspend Honken's license to practice law for six months. We agree with the Commission that the Board proved Honken's conduct violated numerous rules of the Iowa Code of Professional Responsibility but conclude the nature of his conduct calls for a longer suspension. We therefore suspend Honken's license to practice law in this state indefinitely with no possibility of reinstatement for two years.

I. Personal Background and Proceedings.

Honken graduated from the University of Iowa College of Law in 1987. Upon graduation, he worked for a law firm in Sioux City. In 1990, he moved to Sibley to work at another law firm, eventually becoming a partner. After working at the firm for about eight years, the firm asked him to resign after his work product began to diminish. On January 1, 1999, Honken started a solo practice in Sibley.

On January 28, 2004, the Board filed its complaint and personally served Honken. Honken never filed an answer to this complaint. On April 9, the Board filed its first amended and substituted complaint. On May 17, Honken accepted service of the amended and substituted complaint, filed a stipulation admitting the allegations of the amended and substituted complaint, and requested the matter proceed to hearing on the issue of the appropriate sanction.

On May 18, the Commission held its hearing on the issue of the appropriate sanction. Honken appeared personally at the hearing. On July 27, the Commission filed its findings of fact, conclusions of law and recommendations.

II. Scope of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Williams, 675 N.W.2d 530, 531 (Iowa 2004). The court will "`decide the matter, taking into consideration the factual findings and disciplinary recommendation made by the Commission.'" Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 650 (Iowa 2002)). The court will consider the discipline recommended by the Commission but is not bound by it. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 818 (Iowa 2001).

III. Factual Findings and Ethical Violations.

Honken admitted all of the factual claims and ethical violations made against him by the Board. Accordingly, we find the facts and make a determination of Honken's ethical violations as follows. Matlock Matter. In October 2001, Matlock Electric & Satellite, Inc. (Matlock) hired Honken to represent it after it was sued for indemnification for allegedly performing negligent electrical work on a project. Honken filed an answer on Matlock's behalf. On December 10, the plaintiff filed a motion for summary judgment. On the day the motion was set for hearing, Honken filed a resistance to the motion for summary judgment and moved to continue the hearing. The court continued the hearing until March 8, 2002, so Honken could conduct discovery to prepare a resistance. Honken, however, failed to conduct discovery, failed to file an additional resistance to the motion, and failed to appear at the hearing. As a result, the court entered judgment against Matlock in the sum of $151,088.19.

Honken did not inform Matlock of the entry of judgment against it. Instead, the majority shareholder found out about the judgment when a sheriff delivered a copy of the judgment to his home. When the shareholder met with Honken to discuss the judgment, Honken informed him nothing could be done about the judgment. Ultimately, Matlock was forced to file for bankruptcy.

Honken failed to cooperate with the Board's investigation into his ethical violations concerning the Matlock matter by failing to respond to the Board's notices of complaint. For Honken's actions in the Matlock matter, the Commission concluded and we agree Honken violated Iowa Code of Professional Responsibility DR 1-102(A)(1) (providing a lawyer should not violate a disciplinary rule); DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 6-101(A)(2) (providing a lawyer shall not handle a legal matter without preparation adequate in the circumstances); and DR 7-101(A)(3) (providing a lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship). The amended and substituted complaint also alleged a violation of DR 6-101(A)(3) (providing a lawyer shall not neglect a client's matter). The Commission did not make any finding regarding DR 6-101(A)(3). We, however, find his conduct violated DR 6-101(A)(3).

Verdoorn Matter. In December 1997, Honken undertook the representation of the Estate of Cornelius B. Verdoorn. Honken opened the estate. In May 1998, the clerk issued a delinquency notice for failure to file the inventory in the time prescribed by law. Honken cured this delinquency. When Honken presented the final report for the estate to the district court in September 1999, he stated he had applied for a certificate of acquittance for Iowa income tax; when in truth, the fiduciary tax return, which would trigger the issuance of the certificate of acquittance, had not been filed. The district court approved the final report. A few days later, the probate referee issued a report of probate, indicating Honken had not filed the acquittance. The referee faxed this report to Honken. In November 2000, the judge wrote to Honken requesting that he obtain and file the acquittance prior to December 1. When Honken had not filed the acquittance by that date, the clerk issued a notice of delinquency. On January 31, 2001, Honken applied for an order to extend the time for the final settlement of the estate. Paragraph three of the application stated:

The undersigned counsel has initiated contact with the Iowa Department of Revenue and Finance to ascertain why an Iowa Income Tax Certificate of Acquittance has not been provided. A representative of the Department of Revenue and Finance advised the undersigned that a specialist in the Inheritance Tax division of the department should be responding to the inquiry by Friday, February 2, 2001.

On that same day, Honken spoke with the judge and informed him that he had already filed the tax return, and he anticipated hearing later the same week whether the estate owed any fiduciary tax. Suspicious of Honken, the judge contacted the Iowa Department of Revenue, and it informed the judge the tax return was not on file. The judge sent Honken a letter asking him why Honken told him the tax return had been filed with the department of revenue, when in fact it had not been filed, and why the tax return had still not been filed. Honken eventually filed the tax return, and the department of revenue issued an acquittance.

Honken refused to cooperate with the Board's investigation by not replying to the notices of complaint. The Commission concluded and we agree as a result of the above actions, Honken violated Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule); DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice); DR 1-102(A)(6) (providing a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law); DR 6-101(A)(2) (providing a lawyer shall not handle a legal matter without preparation adequate in the circumstances); DR 6-101(A)(3) (providing a lawyer shall not neglect a client's legal matter); and DR 7-102(A)(5) (providing a lawyer shall not knowingly make a false statement of law or fact).

Hinrichs Matter. In March 1999, Honken undertook the representation of the Estate of Grace W. Hinrichs. He opened the estate. Included in the report and inventory filed with the district court was a parcel of farmland located in Nobles County, Minnesota. In July 1999, the estate sold the farmland at auction. The sale was to close on December 1. Honken told the Minnesota realtor who was handling the transaction and the executor of the estate that a Worthington, Minnesota, attorney was handling the closing on the land and any Minnesota estate proceedings. After the closing date passed, the realtor and executor separately contacted the Minnesota attorney. The Minnesota attorney informed them that Honken had not contacted him about any Minnesota land transaction. Honken finally contacted the Minnesota attorney for the first time in March 2000.

Also in regard to the administration of the estate, the executor repeatedly contacted Honken to request he pay those individuals who prepared for the sale of personal property belonging to the decedent. Honken failed to do so. Honken also failed to respond to a statement of adjustments to inheritance and estate tax issued by the department of revenue against the estate. The executor finally hired another attorney to represent the estate. Honken failed to turn over the estate files to the new attorney, even after a court order commanded him to do so. Eventually, Honken turned over the files but not until after the court-ordered deadline had passed.

Honken failed to cooperate with the Board's investigation by failing to respond to the notices...