Iowa Sup. Ct. Atty. Disc. Bd. v. Gottschalk, No. 06-1885.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLarson
Citation729 N.W.2d 812
Decision Date06 April 2007
Docket NumberNo. 06-1885.
PartiesIOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Don E. GOTTSCHALK, Appellant.
729 N.W.2d 812
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee,
v.
Don E. GOTTSCHALK, Appellant.
No. 06-1885.
Supreme Court of Iowa.
April 6, 2007.

[729 N.W.2d 814]

Paul T. Shinkle, Cedar Falls, for appellant.

Don E. Gottschalk, Cedar Falls, pro se.

Charles L. Harrington and Wendell J. Harms, Des Moines, for appellee.

LARSON, Justice.


The Iowa Supreme Court Attorney Disciplinary Board charged Don E. Gottschalk with numerous violations of the Iowa Code of Professional Responsibility for Lawyers and the Iowa Rules of Professional Conduct.1 The Grievance Commission

729 N.W.2d 815

concluded that Gottschalk violated certain provisions of the Iowa Code of Professional Responsibility and Iowa Rules of Professional Conduct and recommended that we suspend Gottschalk's license to practice law for a period of not less than two years.

We agree with some of the commission's findings of misconduct, and suspend Gottschalk's license to practice law for a period of not less than one year.

I. Standard of Review.

Our review of attorney disciplinary proceedings is well established. We review the commission's findings de novo. See Iowa Ct. R. 35.10(1) (2005); Iowa Supreme Ct. Attorney Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 104 (Iowa 2006).

"We give respectful consideration to the Grievance Commission's findings and recommendations, but are not bound by them."

The Board must prove attorney misconduct by a convincing preponderance of the evidence. 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."

Iowa Supreme Ct. Attorney Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 791-92 (Iowa 2006) (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).

II. Factual Findings.

Gottschalk practices law in Iowa and, at the time of the conduct involved in this case, resided in Black Hawk County. The board filed this complaint with the commission, charging neglect, misrepresentation, conduct reflecting adversely on Gottschalk's fitness to practice law, conduct prejudicial to the administration of justice, and failure to return a client file, arising from Gottschalk's representation of five separate clients.

A. The Barbara Malone estate. Gottschalk was designated as the attorney for the executor of the Barbara Malone estate in January 1999. The clerk of court issued delinquency notices in May 1999 and December 2000 for Gottschalk's failure to file interlocutory reports. In December 2002 and again in July 2003, the court deemed the estate delinquent for Gottschalk's failure to progress toward closure. The court ordered Gottschalk to close the estate or file a supplemental case status report by September 1, 2003. Gottschalk did not do either, and the court again ordered Gottschalk to close the estate or file a supplemental case status report by November 1, 2003. Gottschalk did not close the estate nor did he file a supplemental case status report by the November 2003 deadline, and as a result, the court set a show-cause hearing for January 5, 2004, at which the executor and Gottschalk would be required to show why they should not be removed from the case. The show-cause hearing was continued, at Gottschalk's request, until June 4, 2004.

Gottschalk filed the final report for the estate on May 13, 2004. However, the final report contained a number of misrepresentations, including that the executor's notice of appointment had been published and proof of publication was on file, that the Iowa Department of Revenue inheritance/estate tax and income tax acquittances were on file, affidavits concerning the executor's and Gottschalk's fees were

729 N.W.2d 816

on file, the beneficiaries had waived the executor's accounting of estate money and personal property in her possession, and the estate beneficiaries had waived hearing on the final report and consented to its approval, the executor's discharge, and the estate's closing.

At the June 2004 show-cause hearing, the court found good cause to remove Gottschalk as attorney for the executor for his misrepresentations in the final report. The court further imposed sanctions in the amount of $5000. Gottschalk had not paid the $5000 sanction by May 3, 2005, and was again ordered by the court to pay that sum. Gottschalk finally complied with the court's order.

The executor of the estate did not appear for the June 2004 show-cause hearing, stating that Gottschalk did not provide her with notice of the hearing. The court ordered the executor to appear in September 2004 to show cause why she should not be held in contempt for her failure to appear.

B. The Miller bankruptcy. Mary Ann and Jay D. Miller retained Gottschalk to assist them in filing for bankruptcy in an effort to save their home from foreclosure. After their initial meeting, Gottschalk and the Millers agreed to move forward with a chapter 13 bankruptcy. The Millers determined that the monthly payments originally calculated were too high and requested that Gottschalk revise the plan to provide for lower payments before filing the bankruptcy petition. Though it is unclear whether an acceptable monthly payment was ultimately calculated, it is clear that the Millers were under the impression Gottschalk would file the bankruptcy petition in February 2004, and they would then be advised of the hearing date. Gottschalk did not file the bankruptcy petition on the Millers' behalf in February 2004.

The Millers met with Gottschalk in early March 2004 after receiving a sheriff's lien notifying them that their home was to be sold at a sheriff's sale on April 14, 2004. The Millers were very concerned about losing their home, and Gottschalk assured them he would file the petition for bankruptcy, and a court hearing would be set in April. The Millers also retrieved some financial information they had previously provided to Gottschalk so he could complete their income tax returns. Apparently he had not done so, and the Millers decided to have someone else complete their tax returns. The Millers did not receive a notice of court hearing in the bankruptcy they thought Gottschalk had filed, nor did Gottschalk contact them again in March or April 2004 regarding their bankruptcy or the sheriff's sale.

On April 30, 2004, the Millers received an eviction notice advising them to vacate their home within six days. The Millers contacted Gottschalk regarding the eviction, and he told them he did not file the bankruptcy petition because he was waiting for them to provide him with their income tax information. It is unclear whether Gottschalk told the Millers that he needed this information prior to filing the bankruptcy petition. Gottschalk told the Millers he would make some calls regarding the eviction; however, he did not contact the Millers despite numerous attempts by the Millers to get in touch with him. The Millers were evicted from their home. The Millers requested their file from Gottschalk, who returned most of the file but retained some of his notes and calculations, contending they were his property.

C. Jeremy Durnan matter. Gottschalk represented Mr. Durnan in an appeal of his dissolution of marriage. Gottschalk filed a notice of appeal on behalf of Mr. Durnan and, in July 2004, notified Mr.

729 N.W.2d 817

Durnan in writing that he would need $600 for the cost of the trial transcript. Apparently, Mr. Durnan did not submit the $600 to Gottschalk explaining that he could not raise the money. Gottschalk did not file and serve the proof brief or designate the appendix by the court-imposed deadline. After receiving a notice of default from the court, Gottschalk sent a letter to Mr. Durnan explaining that he could not proceed with the appeal without the transcript. The court dismissed the appeal on November 22, 2004, because of Gottschalk's failure to file and serve the brief by the deadline set in the notice of default.

D. Scott Peterson matter. Gottschalk represented Scott Peterson in his dissolution-of-marriage action. Craig Ament, attorney for Mr. Peterson's ex-wife, prepared a proposed stipulation and decree of dissolution. The stipulation required that Mr. Peterson's ex-wife be allowed to walk through the house and resolve any issues of disputed property prior to the decree being entered. On September 9, 2005, Mr. Ament sent the stipulation and decree to Gottschalk with a cover letter reiterating that the walk-through had to be completed before the stipulation and decree were filed. On September 12, 2005, Mr. Ament sent Gottschalk a substituted decree with a name-change clause and again emphasized the walk-through provision. Mr. Ament also left a message for Gottschalk on September 12, 2005, notifying him of the substituted decree. On September 13, 2005, prior to receiving the substituted decree, Gottschalk presented the September 9, 2005 decree to the court without notifying the court of the walk-through provision. The court signed the decree, and it was entered. The walk-through had not yet been completed. Upon discovering that the decree had been entered, Mr. Ament contacted the court and had the decree set aside.

E. Bobbie Jo Bengston matter. Gottschalk represented Bobbie Jo Bengston in a domestic-relations matter involving the temporary physical placement of Ms. Bengston's minor child. Dustin Bengston filed an application for temporary physical placement of the child, and a hearing on the application was set for September 13, 2005. Ms. Bengston moved to Arkansas in August 2005 and did not appear for the September 2005 hearing. The court concluded that Gottschalk forgot to notify her of the date and time of the hearing. As a result, the hearing was continued until October 13, 2005, at which time Ms. Bengston did appear.

III. Ethical Violations.

A. Neglect. We...

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31 practice notes
  • State v. Harrington, No. 15-0308
    • United States
    • United States State Supreme Court of Iowa
    • April 7, 2017
    ...would subject him to a seventy percent mandatory minimum on a fifteen-year sentence. See Iowa Code §§ 902.9(1)(c ), .12 (2013); Ross , 729 N.W.2d at 812 ("[T]he mandatory minimum sentences prescribed in section 902.12 apply to habitual offenders."). Second, the court did not fully advise Ha......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Turner, No. 18-0352
    • United States
    • United States State Supreme Court of Iowa
    • September 14, 2018
    ...breach of professional ethics, warranting a more severe sanction than neglect." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gottschalk , 729 N.W.2d 812, 821 (Iowa 2007) ; see also Iowa Supreme Ct. Att'y Disciplinary Bd. v. McGinness , 844 N.W.2d 456, 466–67 (Iowa 2014) (imposing a six-month ......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Taylor, No. 12–0228.
    • United States
    • United States State Supreme Court of Iowa
    • May 18, 2012
    ...288, 293 (Iowa 2002). Further, ordinary negligence does not constitute neglect. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 817 (Iowa 2007); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551–52 (Iowa 2004). We conclude the Board faile......
  • ATTY. DISCIPLINARY BD. v. Carpenter, No. 09-1343.
    • United States
    • United States State Supreme Court of Iowa
    • April 16, 2010
    ...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 Supr......
  • Request a trial to view additional results
31 cases
  • State v. Harrington, No. 15-0308
    • United States
    • United States State Supreme Court of Iowa
    • April 7, 2017
    ...would subject him to a seventy percent mandatory minimum on a fifteen-year sentence. See Iowa Code §§ 902.9(1)(c ), .12 (2013); Ross , 729 N.W.2d at 812 ("[T]he mandatory minimum sentences prescribed in section 902.12 apply to habitual offenders."). Second, the court did not fully advise Ha......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Turner, No. 18-0352
    • United States
    • United States State Supreme Court of Iowa
    • September 14, 2018
    ...breach of professional ethics, warranting a more severe sanction than neglect." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gottschalk , 729 N.W.2d 812, 821 (Iowa 2007) ; see also Iowa Supreme Ct. Att'y Disciplinary Bd. v. McGinness , 844 N.W.2d 456, 466–67 (Iowa 2014) (imposing a six-month ......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Taylor, No. 12–0228.
    • United States
    • United States State Supreme Court of Iowa
    • May 18, 2012
    ...288, 293 (Iowa 2002). Further, ordinary negligence does not constitute neglect. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 817 (Iowa 2007); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551–52 (Iowa 2004). We conclude the Board faile......
  • ATTY. DISCIPLINARY BD. v. Carpenter, No. 09-1343.
    • United States
    • United States State Supreme Court of Iowa
    • April 16, 2010
    ...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 Supr......
  • Request a trial to view additional results

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