IA SUPR. CT. BD. OF PROF'L ETHICS v. Bell
| Decision Date | 05 September 2002 |
| Docket Number | No. 02-0651.,02-0651. |
| Citation | 650 N.W.2d 648 |
| Parties | IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Curtis A. BELL, Respondent. |
| Court | Iowa Supreme Court |
Norman Bastemeyer and Charles Harrington, Des Moines, for complainant.
Jane Rosien, Winterset, for respondent.
This attorney disciplinary proceeding involves the conduct of attorney Curtis A. Bell in his role as treasurer of the Iowa Intellectual Property Law Association. The Iowa Supreme Court Grievance Commission found that Bell had made two withdrawals from the Association's account, totaling $11,000.00, and had placed these funds in his personal account for his individual use. Finding these actions violated Bell's ethical obligations, the Commission recommends Bell's license to practice law be suspended for five years.
We review de novo the record made before the Commission and decide the matter, taking into consideration the factual findings and disciplinary recommendation made by the Commission. Comm. on Prof'l Ethics & Conduct v. Shepler, 519 N.W.2d 92, 93 (Iowa 1994). While we agree with the factual findings made by the Commission in this case, as well as its conclusion that Bell's conduct violated our disciplinary rules, we respectfully differ in our assessment of the appropriate sanction. We conclude Bell's misconduct demonstrates his unfitness to continue in this profession and, accordingly, we revoke his license to practice law in this state.
We find the following facts. Bell was admitted to the Iowa bar in 1992. Since then, he has engaged in the private practice of law, primarily in the field of patent law.
In 1995, Bell became the treasurer of the Iowa Intellectual Property Law Association, a not-for-profit organization formed to promote intellectual property in Iowa. The Association holds an annual fall seminar, which is the primary source of income for the organization. Bell, as treasurer, was responsible for maintaining the Association's funds.
Sometime in the latter part of 1998, Bell wrote a $2000 check on the Association's account made payable to himself. In January 1999 he deposited this check in his personal bank account. In April 1999 Bell issued a second check to himself on the Association's account, this time in the amount of $9000. This check was also deposited in Bell's personal checking account and was used to pay Bell's 1998 income taxes. Both withdrawals from the Association's account were made without the knowledge or consent of the Association's officers or members. In addition, Bell's written and oral reports to the organization in his capacity as treasurer did not disclose these transactions.
Prior to the fall 2000 seminar, Bell's secretary informed the Association of his April 1999 withdrawal of Association funds and his deposit of those moneys into his personal account. The Association president, Herbert Jervis, and a board member then met with Bell. When confronted with a copy of the $9000 check, Bell admitted that these funds were not in an Association account. Bell did not, however, reveal his initial $2000 withdrawal.
After this meeting, on October 4, 2000, Bell opened a savings account in the Association's name and deposited $11,310.69 into the account. He testified this sum represented the $11,000 he had taken from the Association's checking account with interest. Bell subsequently wrote to Jervis, informing Jervis that the missing funds had been returned to the Association. Bell then resigned from his position as treasurer.
Later, the Association's new president, Jeffrey Harty, met with Bell. Bell was candid at this meeting about what had happened and admitted he made a mistake by taking an "inappropriate loan" from the Association. Bell told Harty he had always intended to put the funds in an interest-bearing account in the name of the Association, but through procrastination had never accomplished that objective.
Bell subsequently spoke with Harty by phone and told Harty that he—Bell—had consulted an attorney as to whether or not his conduct should be reported as an ethical violation. Bell informed Harty that because he had no intent to deprive the Association of its funds, it was not necessary to report the matter to the Iowa Supreme Court Board of Professional Ethics and Conduct. When the Association board learned that Bell did not intend to inform the Ethics Board of his actions, Harty, on behalf of the Association, contacted the disciplinary authorities.
The Ethics Board filed a complaint with the Grievance Commission alleging that Bell had misappropriated and converted funds belonging to the Association. The Board asserted this conduct violated the Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(1), (3), (4), and (6), which provides:
After a hearing at which Bell, Harty, and others testified, the Commission concluded Bell had committed theft by misappropriation as defined in Iowa Code section 714.1(2) (2001), which states:
The Commission concluded that Bell's misappropriation of Association funds violated DR 1-102(A)(3) () and (4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and reflected adversely on his fitness to practice law in violation of DR 1-102(A)(6). The Commission also noted that Bell's conduct was prejudicial to the administration of justice, a violation of DR 1-102(A)(5).
The Ethics Board must establish the respondent's violations of the code of professional responsibility by a convincing preponderance of the evidence. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 818 (Iowa 2001). We conclude the Board has satisfied this burden.
Having reviewed the record in this case, we concur in the Grievance Commission's finding that Bell misappropriated Association funds. Bell took money of another under his control and used it in a manner inconsistent with the owner's rights. Although Bell argues he always intended to place the money he took in an interest-bearing account in the Association's name, his professed lack of intent to deprive the Association of its moneys is no defense to the crime of misappropriation. See State v. Ludvigson, 482 N.W.2d 419, 423 (Iowa 1992).
We agree with the Commission that Bell's conversion of the Association's funds to his personal benefit violates DR 1-102(A)(3) because he engaged in "illegal conduct involving moral turpitude." See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Schatz, 595 N.W.2d 794, 795-96 (Iowa 1999) (); see also Comm. on Prof'l Ethics & Conduct v. Hall, 463 N.W.2d 30, 33, 35 (Iowa 1990) (); Comm. on Prof'l Ethics & Conduct v. Pappas, 313 N.W.2d 532, 534 (Iowa 1981) (). Bell's actions also violated DR 1-102(A)(4), which prohibits "conduct involving dishonesty, fraud, deceit, or misrepresentation." See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Leon, 602 N.W.2d 336, 338 (Iowa 1999) (); Hall, 463 N.W.2d at 33 (theft by deception). Finally, we agree with the Commission's conclusion that Bell violated DR 1-102(A)(6) since his misappropriation clearly reflects adversely on his character and, hence, his fitness to practice law. See Schatz, 595 N.W.2d at 796 (); Pappas, 313 N.W.2d at 534 (). We now consider the appropriate discipline.
The appropriate sanction in a particular case depends upon several factors that reflect the broad purpose of our disciplinary system. The disciplinary process is intended to protect not only the public, but also our system of justice. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 684 (Iowa 2001). Therefore, we consider the nature and extent of the respondent's ethical violations not only to determine the respondent's fitness to practice law, but also to assess the need to deter other lawyers from similar misconduct. Id.; Adams, 623 N.W.2d at 818. Only by ensuring that such conduct does not become commonplace or acceptable can we maintain the reputation of the bar and safeguard the integrity of our system of justice and the public's confidence in it. See Mulford, 625 N.W.2d at 684. Because "[s]anctions must be tailored to the facts of each case," we also consider any mitigating and aggravating circumstances. Id.
The nature of Bell's ethical violations is very serious indeed. In fact, we have stated, Comm. on Prof'l Ethics & Conduct v. Ottesen, 525 N.W.2d 865, 866 (Iowa 1994); accord Leon, 602 N.W.2d at 338 (...
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