Iowa S.C. Atty. Disciplinary Bd. v. Earley

• Citation: 774 N.W.2d 301
• Decision Date: 16 October 2009
• Docket Number: No. 09-0701.,09-0701.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Brian L. EARLEY, Respondent.
• Court: United States State Supreme Court of Iowa

774 N.W.2d 301

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Brian L. EARLEY, Respondent.

No. 09-0701.

Supreme Court of Iowa.

October 16, 2009.

Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for complainant.

Brian L. Earley, Malcolm, pro se.

TERNUS, Chief Justice.

The complainant, Iowa Supreme Court Attorney Disciplinary Board, filed charges against the respondent, Brian L. Earley, alleging numerous violations of the Iowa Code of Professional Responsibility for Lawyers and the Iowa Rules of Professional Conduct.¹ The complaint was based on Earley's representation of four separate clients. While most of the misconduct centered on Earley's neglect of his clients' legal matters, the most egregious of the alleged violations involved his misappropriation of client funds. Earley did not file an answer to the complaint, and the allegations of the board were, therefore, deemed admitted. See Iowa Ct. R. 36.7. A panel of the Iowa Supreme Court Grievance Commission, after hearing, concluded that Earley engaged in the charged misconduct and recommended that we revoke his license to practice law. We agree with the commission and revoke Earley's license to practice law.

I. Standard of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Ct. R. 35.10(1); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 815 (Iowa 2007). The commission's findings and recommendations are given respectful consideration, but we are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Isaacson, 750 N.W.2d 104, 106 (Iowa 2008). The board has the burden of proving attorney misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792 (Iowa 2006).

"This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case. Once misconduct is proven, we `may impose a lesser or greater sanction than the discipline recommended by the grievance commission.'"

Id. (quoting Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).

II. Factual Background and Prior Proceedings.

A. Prior Disciplinary Proceedings. Earley has been practicing law in Iowa since 1993. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Earley, 729 N.W.2d 437, 440 (Iowa 2007). On March 30, 2007, this court disciplined Earley by suspending his license for a period of not less than four months. Id. at 439. The violations that led to his suspension included neglecting cases, failing to deposit retainer fees to his trust account, failing to account for retainer fees paid to him by his clients, failing to return a file to a client, failing to cooperate with the board's inquiries, engaging in conduct reflecting poorly on his fitness to practice law, and engaging in misconduct that is prejudicial to the administration of justice. Id. at 442-43 (finding Earley violated DR 1-102(A)(1), (5), (6), DR 2-110(A)(2), DR 6-101(A)(3), DR 7-101(A)(1) and DR 9-102(A), (B)(3)). Although we concluded Earley's mishandling of retainers paid by clients "stemm[ed] from poor office organization and management," as opposed to deliberate misconduct and dishonesty, we determined his ethical infractions were serious enough to warrant a four-month suspension. Id. at 443.

B. Current Disciplinary Proceedings. On October 28, 2008, the board initiated this action by filing its complaint. In the complaint, the board alleged Earley had violated his ethical duties in his representation of four clients, Hall Runner, Nicole Cleary, Michelle Fuller, and Mollie Marti. The claimed violations largely mirrored the charges in the earlier disciplinary action.

On February 5, 2009, Earley participated in a telephone conference during which he stated that he would send an answer to the complaint on that day and would admit to all allegations in the complaint. The parties also agreed at that time they would submit a joint recommendation as to the appropriate sanction. Earley did not send an answer, and a joint recommendation was never submitted to the commission. Subsequently, the board filed a motion to amend the complaint to include allegations regarding Earley's misappropriation of settlement money owed to his client, Mollie Marti. Earley did not respond to the motion, which was eventually granted by the commission.

At the hearing before the commission, evidence in support of the board's charges was admitted. Earley did not appear at the hearing, and therefore, the board's evidence was uncontested. In its findings and conclusions, the commission properly held that, under Iowa Court Rule 36.7, Earley's failure to file an answer resulted in his admission of the allegations in the amended complaint.

In its report to this court, the commission found the board had proven its charges and recommended revocation of Earley's license to practice law due to his misappropriation of client funds. Upon our de novo review of the record, we agree with the findings, conclusions, and recommended sanction of the commission, as detailed below.

III. Factual Findings.

A. Hal Runner Matter. In March or April 2006, Earley began representing Hal Runner in a suit against Tamara Kriegel, who allegedly had stolen money from Runner. On May 2, 2006, Earley sent a letter to Runner stating Earley expected to receive a portion of the stolen money, $3808.51, from Kriegel's attorney. This payment was subsequently made, and Earley retained $2500 for a retainer and paid the balance, $1308.51, to Runner. On August 3, 2006, Earley filed a petition for the remaining money against Kriegel on Runner's behalf. After August 2006, Runner tried to contact Earley between forty and fifty times, but Earley did not respond. On December 13, 2006, an order setting a trial date of July 11, 2007, was issued. Earley did not inform Runner of the trial date. Earley also failed to inform Runner that this court suspended his license to practice law in March 2007. Eventually, Runner heard of the suspension "through the grapevine" and hired another attorney to handle the matter. Earley never provided Runner with an accounting of his retainer fee nor did he turn over the case file as Runner requested.

B. Nicole Cleary Matter. In spring 2006, Earley began representation of Nicole Cleary in two matters. The first involved establishing child custody and obtaining child support. The second involved terminating the parental rights of her son's father. Cleary paid Earley retainer fees totaling $750. Despite Cleary's numerous attempts to contact Earley about the status of the first case, he did not respond. Cleary found out the status of her case by contacting opposing counsel. The case was eventually resolved in Cleary's favor, but Earley's failure to respond to her inquiries caused her stress and anxiety about whether she would retain custody of her child. With regard to the second case, Earley was to locate the father, as his whereabouts were not known. Earley failed to respond to his client's requests for information, and the second case remains unresolved. Earley did not provide Cleary with an accounting of the retainer fee, did not provide Cleary with her case file despite her requests for the file, and did not inform Cleary of his license suspension.

C. Michelle Lee Fuller Matter. In 2002 Earley began representation of Michelle Lee Fuller in a dissolution-of-marriage and child-custody matter. Fuller paid a retainer fee of $1500. At a trial of the case on September 12, 2002, the parties reached a stipulation on all issues and read the settlement into the record. The trial judge ordered Earley to prepare the final decree, but he failed to do so. On numerous occasions, Fuller attempted to contact Earley, but he did not respond. Without the final decree, Fuller's case remained unresolved. On August 13, 2007, another attorney presented the final decree to the trial judge, thereby resolving the matter. Earley ignored Fuller's requests for her case file, did not provide her with an accounting of the retainer fee, and did not inform her of his license suspension.

D. Mollie W. Marti Matter. In 2004 Earley began representing Mollie W. Marti in a personal injury action. Marti was a law school friend of Earley. They did not have a formal retainer contract, but agreed that Earley would charge Marti on an hourly basis. Earley obtained a settlement of Marti's claim in the sum of $65,000, and on September 16, 2004, he paid $32,500 to Marti. Earley retained the balance of the settlement proceeds, advising Marti that he would use the money to pay insurance subrogation claims, costs and fees, and then remit the remainder to her. Marti expected to receive about $15,000 to $20,000 from the second half of the settlement. Despite Marti's multiple requests for information over the subsequent three years, Earley never responded, and Marti received no additional monies. Marti eventually contacted a subrogated liability insurer and discovered it had not been paid its subrogation claim. Marti did not determine whether the claim of her health insurer was also unpaid. Nonetheless, since Earley did not respond to the complaint, the allegation that he did not pay the health insurer's subrogation claim was deemed admitted.

Marti finally reached Earley, who initially claimed he had paid the subrogation claims. When Marti informed him of her contact with the liability insurer, Earley admitted he had not paid the claims and the money was "gone," as he had used it for personal reasons. He promised to pay it back. In addition to misappropriating the $32,500, Earley failed to inform Marti that his license had been suspended.

IV. Ethical Violations.²

A. Neglect. Our rules regarding neglect and an attorney's obligation to advance and protect his clients' interests require "`an attorney to attend to matters entrusted to his care and to do so in a reasonably timely manner.'"...