Iowa Sup. Court Atty. Disc. Bd. v. Tompkins, 07-0132.

• Decision Date: 08 June 2007
• Docket Number: No. 07-0132.,07-0132.
• Citation: 733 N.W.2d 661
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Richard Norton TOMPKINS, Jr., Respondent.
• Court: Iowa Supreme Court

733 N.W.2d 661

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Richard Norton TOMPKINS, Jr., Respondent.

No. 07-0132.

Supreme Court of Iowa.

June 8, 2007.

Charles L. Harrington and David J. Grace, Des Moines, for complainant.

Richard Norton Tompkins, Jr., Mason City, pro se.

WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board filed a complaint against Richard Norton Tompkins, Jr., with the Grievance Commission of the Iowa Supreme Court alleging Tompkins neglected two matters and failed to respond to the Board's notices. The Commission found Tompkins' conduct violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers and recommended we suspend Tompkins' license to practice law for thirty days.

We agree with the Commission that Tompkins' conduct occurring prior to July 1, 2005, violated the Iowa Code of Professional Responsibility for Lawyers. We also find that his conduct occurring after July 1, 2005, violated the Iowa Rules of Professional Conduct.¹ We do, however, disagree with the Commission's recommendation that Tompkins' license to practice law be suspended, and instead, publicly reprimand him for his conduct.

I. Prior Proceedings.

On August 7, 2006, the Iowa Supreme Court Attorney Disciplinary Board filed a two-count complaint against Tompkins alleging he violated various rules of the Iowa Code of Professional Responsibility for Lawyers and the Iowa Rules of Professional Conduct. Count one involved Tompkins' conduct related to his client, Derrick Crume, and count two involved Tompkins' conduct related to his client, Larry Wayne Hull. The complaint charged Tompkins: (1) neglected Crume's case; (2) did not respond to the Board's repeated notices and requests for response regarding Crume's complaint; and (3) without consent, did not appeal Hull's criminal case.

In Tompkins' answer he admitted receiving three notices of Crume's complaint from the Board and failing to respond as required. Tompkins also admitted he represented Hull and without Hull's consent he failed to file and serve the appellant's brief. Tompkins admitted due to this failure he was assessed a $50 fine and Hull's appeal was dismissed.

The Commission found Tompkins violated the Iowa Rules of Professional Responsibility for Lawyers DR 6-101(A)(3) (a lawyer shall not neglect a client's legal matter) and DR 7-101(A)(1) (a lawyer shall zealously represent his clients) when he neglected Crume's legal matter. The Commission also found Tompkins violated DR 6-101(A)(3) when he neglected Hull's appeal. Finally, the Commission found when Tompkins failed to respond to the Board's notices he violated DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule), DR 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice), and DR 1-102(A)(6) (a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law). The Commission recommended Tompkins be suspended for thirty days with automatic reinstatement upon the expiration of the suspension period.

The Commission's decision was not unanimous. Two of the Commission members filed a joint dissent in this case. The dissent found even though "[i]deally, [Tompkins] should have communicated the lack of available options to Mr. Crume from the start," the record did not affirmatively establish client neglect. Further, the dissent pointed out that although Tompkins' failure to respond to the Board was inappropriate, his conduct did not establish a pattern of this failure. With regard to the Hull complaint, the dissent found Tompkins did not violate the ethics rules because Hull was not prejudiced in light of the ruling in the companion case nor was Hull dissatisfied with Tompkins' representation. The dissent would have imposed a sanction of public reprimand rather than suspension.

II. Scope of Review.

This court reviews attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa 2006). Ethical violations must be proven by a convincing preponderance of the evidence. Id. Even though we consider the Commission's factual findings and discipline recommendations, we are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Powell, 726 N.W.2d 397, 400 (Iowa 2007). Upon review, this court can impose a greater or lesser sanction than the Commission recommended. Iowa Ct. R. 35.10.

III. Findings of Fact.

We find the facts as follows. Tompkins was admitted to the Iowa bar in 1976 and practices in Cerro Gordo County. Court-appointed cases make up about one-third of his practice or about thirty cases at any time.

A. Derrick Crume matter. On January 21, 2004, a permanency hearing regarding Crume's child was held. The court ordered the child to remain in the care of the Iowa department of human services (DHS) for placement in foster care. A review of this decision was set for July 21.

During the January hearing Crume was represented by another attorney, however, this attorney withdrew because Crume filed an ethics compliant against that attorney. The court appointed Tompkins to represent Crume at the permanency hearing review.

At the time Tompkins was appointed to Crume's case, Crume was incarcerated at the Benton County jail awaiting trial on federal child pornography charges. By March 2004 Crume was convicted of the charges and faced an eleven-to fifteen-year sentence. Additionally, Crume was convicted by the Minnesota courts of third and fourth degree sexual misconduct and is a registered sex offender. These convictions made it probable that if the mother's parental rights were terminated, Crume's parental rights would also be terminated in order to place the child in a safe and permanent home.

Between the time Tompkins was first appointed to represent Crume until the time he received the first notice of Crume's complaint, Tompkins failed to respond to numerous letters and calls in which Crume made various demands of Tompkins.

One of Crume's demands was that Tompkins return an original letter he had sent Tompkins to copy. Tompkins did not return the letter as requested, but at the hearing Tompkins acknowledged it was wrong not to return the letter. Crume also demanded Tompkins provide him the exhibits presented at a previous permanency hearing and specific pages of the Iowa Code. Tompkins did not provide Crume with any of these copies because, in Tompkins' opinion, the documents were not necessary for the case.

Crume was able to reach Tompkins by telephone and talk with Tompkins about gaining access to the mother's psychological evaluation. After this conversation, Tompkins spoke to the judge about releasing the evaluation to Crume. The judge advised Tompkins to make an application to the court to determine whether Crume could have access to the evaluation. Tompkins filed Crume's request for the mother's evaluation with the court. After doing so, he advised Crume of the filing by letter. The application was never set for hearing by the court and no order was entered. Tompkins acknowledged he should have pushed for a hearing, but he did not.

Additionally, Crume requested that Tompkins contact him in order to prepare for the review hearing. However, Tompkins responded to few of Crume's letters, did a poor job of communicating with Crume, and did not manage Crume's expectations concerning the review hearing.

On June 28 Crume filed a complaint with the Board. Even after filing the complaint, Crume continued to send Tompkins letters, becoming more demanding and insistent that Tompkins respond to his requests. Tompkins received the Board's notification of Crume's complaint on July 14. Also on July 14, DHS and the court appointed special advocate (CASA) issued the case reports prepared for the July 21 hearing. After receiving Crume's complaint, Tompkins decided he needed to withdraw from the case. Tompkins stopped working on the case and filed an application to withdraw and motion for continuance. The application and motion were granted by the court.

Tompkins never responded to the Board's first notification of the complaint as required by our rules. On August 10 the Board sent Tompkins another request to respond to Crume's complaint. Tompkins received the Board's request on August 13, but he did not respond. The Board sent Tompkins a final notice on October 8.

Tompkins admitted he violated the Iowa Rules of Professional Responsibility for Lawyers with regard to his failure to respond to the notices. In explaining why he failed to respond to the Board, Tompkins stated:

I am not sure. I think that I was so incensed by Mr. Crume's demands and thought that his complaint was so frivolous and it would take so much time, that it was like dignifying it to even respond. I know that it was faulty thinking and I have always preached to others that if you do nothing else, at least respond. I had even discussed the matter with the attorney who represented him before me and against whom Mr. Crume had also made a frivolous complaint, but still I did not respond. Of course I deeply regret my lack of response as it is so stupid not to respond.

B. Larry Wayne Hull matter. Although Tompkins stated it was not his choice to represent Hull in his criminal appeal, due to a conflict in the state appellate defender office, Tompkins continued his representation of Hull from trial to appeal. At Hull's request, Tompkins filed a notice of appeal. However, Tompkins did not file a brief with this court. On August 24, 2005, the clerk of the supreme court assessed Tompkins a $50 penalty because he failed to file and serve a proof brief. Under Iowa Rule of Appellate Procedure 6.19(2), Tompkins had fifteen days from service to remedy this default or risk dismissal of the appeal for want of prosecution. Iowa R.App. P. 6.19(2). The clerk also notified Tompkins if the appeal was dismissed as a result of his failure to comply,...