Iowa Sup. Ct. Atty. Disc. Bd. v. Kadenge, 05-1249.

• Citation: 706 N.W.2d 403
• Decision Date: 02 December 2005
• Docket Number: No. 05-1249.,05-1249.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Nyaradzai M. KADENGE, Respondent.
• Court: United States State Supreme Court of Iowa

706 N.W.2d 403

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Nyaradzai M. KADENGE, Respondent.

No. 05-1249.

Supreme Court of Iowa.

December 2, 2005.

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

Max E. Kirk of Ball, Kirk & Holm, Waterloo, for respondent.

STREIT, Justice.

An attorney comes before us because of his neglect of his clients' matters and his problems with alcohol. The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint against the respondent, Nyaradzai M. Kadenge, alleging he had violated several provisions of the Iowa Code of Professional Responsibility by neglecting legal matters entrusted to him, by mishandling his trust account, by making misrepresentations, by being intoxicated in court, and by failing to respond to inquiries from the Board. The Grievance Commission found the Board proved the alleged violations and recommended we suspend Kadenge's license to practice law for six months.

We find the Board proved the ethical violations. Based on the seriousness and number of violations we believe an eighteen-month suspension is warranted.

I. Facts and Prior Proceedings

Nyaradzai M. Kadenge graduated from the University of Iowa Law School in 1993 and spent several years clerking for both the federal and state courts. He spent two years in the public defender's office, and started practicing on his own in Waterloo in late 1997 or 1998. Within the next few years, Kadenge bought an interest in two bars. He soon began to show signs of alcohol abuse. At times he would spend long periods of time out of the office, neglecting his clients and pending cases. His alcohol problems came to the forefront on July 11, 2003 when he appeared for a sentencing matter before Associate District Court Judge Nathan Callahan in an intoxicated state. Kadenge was charged with public intoxication and pled guilty to the charge.

This matter came before the Grievance Commission upon a complaint filed by Iowa Supreme Court Board of Professional Ethics and Conduct ("Board") in May of 2004. The complaint alleged ethical violations in five areas: Kadenge repeatedly mishandled his trust account, neglected his responsibilities to his clients, failed to respond to the Board's complaints, made misrepresentations, and was arrested and convicted for public intoxication when he appeared in court for a client's sentencing hearing.

In June of 2005, the Grievance Commission held a hearing regarding Kadenge's conduct. Kadenge testified candidly about his struggle with alcoholism and depression, but still cast blame for many of his violations on his support staff, the attorney with whom he shared an office, and his clients.

The Grievance Commission found Kadenge had repeatedly violated the Iowa Code of Professional Responsibility for Lawyers. The Commission recommended we order Kadenge pay a former client, Ismet Sadikovic, the balance of a judgment rendered against him in the amount of $2000. It also recommended we order Kadenge refund Deborah Sallis's retainer of $1000. See Iowa Ct. R. 35.9 ("the commission may recommend additional ... sanctions such as restitution"). Finally, it recommended we suspend his license to practice law for six months.

II. Standard of Review

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ruth, 656 N.W.2d 93, 97 (Iowa 2002); Iowa Ct. R. 35.10(1). We give respectful consideration to the Commission's findings and recommendations, but are not bound by them. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 650 (Iowa 2002) (revoking license even though Commission recommended five-year suspension).

The Board must prove attorney misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002). This burden is "less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). "On review we may adopt, increase, or reduce the sanction recommended by the commission." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Eich, 652 N.W.2d 216, 217 (Iowa 2002).

III. Factual Findings

Based upon Kadenge's admissions and the evidence presented to the Grievance Commission concerning the various ethical violations, we make the following factual findings:

A. The Roth Matter

Gerald Roth paid Kadenge a $500 retainer for representation in a small claims suit filed against Roth in Wisconsin. The retainer was never placed in a client trust account. Kadenge was not licensed to practice in Wisconsin, and he did not attempt to be admitted in Wisconsin pro hac vice. Kadenge assisted Roth in drafting an answer to the small claims petition, but he did not provide further assistance until the day of trial when he desperately tried to find an attorney to represent Mr. Roth in Wisconsin. Kadenge was unable to find an attorney, and a default judgment was entered against Mr. Roth in the amount of $2200. This judgment was paid by Kadenge. Mr. Roth filed a complaint with the Board. Kadenge did not reply to the Board's first and second notices of the complaint. He replied to the third notice, but failed to reply to further inquiries into the matter.

B. The Sadikovic Matter

Ismet Sadikovic hired Kadenge to represent him in a workers' compensation case against his employer. The deputy industrial commissioner decided against Sadikovic. Although Kadenge had originally agreed to represent Sadikovic on a contingent fee basis, Sadikovic wrote Kadenge a check for $3000 to handle the appeal to the industrial commissioner. Kadenge deposited the $3000 in his general firm account but did not file the appeal. Sadikovic filed a complaint with the Black Hawk County Bar Association Ethics and Grievance Committee and brought a legal malpractice case against Kadenge. Kadenge and Mr. Sadikovic settled on the legal malpractice claim with Kadenge agreeing to pay Mr. Sadikovic $5000. At the time of the Commission's hearing Mr. Sadikovic had still not received $2000 of the agreed settlement amount. Kadenge failed to respond to the first, second, and third notices of this complaint by the Board.

C. The Sallis Matter

Kadenge agreed to represent Deborah Sallis on a civil rights matter against multiple defendants. Kadenge filed the suit in the United States District Court for the Northern District of Iowa without being admitted to practice there. After receiving two right-to-sue letters, Kadenge became confused by the corresponding case numbers and lost the opportunity to sue one of the defendants. The entire suit was eventually dismissed after Kadenge failed to resist a motion to dismiss.

D. The Begic Matter

Mirsad Begic hired Kadenge to represent him on a workers' compensation claim. After filing the claim and beginning discovery, Kadenge stopped returning Begic's phone calls. Begic contacted another attorney to determine the status of his claim. This attorney discovered the claim had been dismissed due to Kadenge's failure to respond to discovery requests and subsequent failure to respond to a motion to dismiss. When confronted, Kadenge denied the claim had been dismissed and claimed it was still progressing as planned. Kadenge eventually admitted the claim was dismissed, and blamed the dismissal on the fact he had not been able to contact his client to complete discovery. Begic contemplated filing a claim for malpractice. Kadenge made a false representation to Begic's new attorney claiming he had malpractice insurance, when, in fact, he knew he did not.

E. The Lenius Matter

Kadenge was hired to attempt to rectify an adverse custody ruling regarding Audrey Delagardelle, the daughter of Stephanie Lenius. The district court had recently issued an order awarding primary physical care of Audrey with her father, Blake Delagardelle. The court had also ordered Lenius to pay child support. Lenius's original attorney filed a motion to reconsider the court's ruling on child support. Kadenge, having only discussed the matter with Lenius's mother, filed an additional motion on Lenius's behalf to reconsider the custody ruling. The court issued one order overruling both motions to reconsider. Kadenge did not read the entire order and he did not realize the court had also rejected his motion to reconsider. More importantly, he did not inform Lenius of the court's adverse decision, and she missed the deadline to file an appeal.

F. The Cox Matter

Shane Cox filed a complaint with the Board alleging Kadenge failed to render an accounting of his services and failed to refund the unearned portion of his $2500 retainer. The Commission found his representation of Mr. Cox was substantial and disagreed with Mr. Cox's contention that Kadenge had not earned the full amount of the retainer. However, even if Kadenge earned the full amount of the retainer, he did not earn the entire $2500 at the beginning of his representation. This money should have been deposited in his client trust account until it was actually earned. In addition to this trust account violation, the Commission determined Kadenge did not render an accounting and he failed to respond to the various notices of the complaint served upon him.

G. Appearance in Court While Intoxicated

In July of 2003, Kadenge appeared before Judge Nathan Callahan for a client's sentencing hearing. Kadenge was staggering, his voice was slurred, and his breath smelled of alcohol. Judge Callahan confronted Kadenge, but Kadenge denied he had been drinking. Judge Callahan asked him to take a preliminary breath test and Kadenge agreed. The breath test indicated an alcohol concentration in excess of .10. Kadenge was charged with, and pled guilty to, the misdemeanor offense of public intoxication.

H. Other Matters

Kadenge mishandled his trust account by...