Iowa Supreme Court Attorney Disciplinary Bd. v. Johnson

• Decision Date: 30 December 2010
• Docket Number: No. 10-0651.,10-0651.
• Citation: 792 N.W.2d 674
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Anthony Ray JOHNSON, Respondent.
• Court: Iowa Supreme Court

792 N.W.2d 674

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Anthony Ray JOHNSON, Respondent.

No. 10-0651.

Supreme Court of Iowa.

Dec. 30, 2010.

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

Anthony Ray Johnson, Ankeny, pro se.

STREIT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board filed charges against the respondent, Anthony R. Johnson, alleging violations of the Iowa Rules of Professional Conduct relating to Johnson's representation of four separate clients. The alleged misconduct primarily concerns Johnson's failure to communicate with his clients and his neglect of their legal matters. Johnson failed to communicate with the board throughout the duration of the disciplinary process. Johnson did not file an answer to the board's complaint, and therefore, the complaint's allegations were deemed admitted at the misconduct hearing. Iowa Ct. R. 36.7. The commission found Johnson neglected client matters, failed to keep his clients informed or respond to their requests for information, failed to make necessary court filings or appear at court hearings, improperly presented an ex parte order to a court for signature, did not provide an accounting of fees or refund unearned attorney's fees, and failed to respond to the board's demand for information. The commission recommended Johnson be suspended for three years with no possibility of reinstatement and that, prior to reinstatement, Johnson be required to pay restitution, associate himself with a lawyer in good standing, maintain his continuing legal education (CLE) requirements, undergo a psychiatric and psychological evaluation, and complete a bar examination review class. Upon our review of the record, we suspend Johnson's license to practice law for three years and order that prior to reinstatement, Johnson must pay restitution, maintain CLE credits, and undergo a mental health evaluation.

I. Background Facts and Prior Proceedings.

Johnson was admitted to practice in Iowa in 2007. Prior to his admission in Iowa, Johnson was suspended from practice in Illinois for three months and ordered to pay $9,794.50 in restitution for receiving an excessive fee in a routine probate matter. In 2008, the Iowa Supreme Court Attorney Disciplinary Board privately admonished Johnson for charging an unreasonable fee, lack of diligence, and failure to keep a client informed in violation of rules 32:1.5, 32:1.3, and 32:1.4. The board explained that Johnson had procrastinated five months before filing a client's dissolution of marriage petition, filed an "embarrassingly sloppy" petition that referred to the parties' children in a childless marriage, and charged an excessive fee in light of the limited and poor quality work Johnson performed.

The board filed the instant three-count complaint against Johnson in September 2009. The complaint alleged Johnson, during the course of four separate representations, violated ethical rules by failing to take action on client matters, neglecting to attend court hearings, failing to communicate with his clients, ceasing representation without notification, failing to take proper steps to protect his clients' interests after ceasing representation, presenting an improper ex parte order to a court, and failing to cooperate with the board's investigation.

Johnson did not file an answer to the board's complaint. He did not answer the board's interrogatories, request for production of documents, or request for admissions. The hearing was scheduled for December 21, 2009. On December 15, 2009, Johnson's wife sent a letter informing the commission that Johnson would not be able to attend the scheduled hearing because he was currently incarcerated in the Polk County jail for failure to pay child support. Neither Johnson nor an attorney representing him requested a continuance.

Johnson did not attend the hearing, nor did he mount a defense or response to the complaint. The board's evidence is uncontested. The board's complaint is deemed admitted pursuant to Iowa Court Rule 36.7 because Johnson failed to file an answer. The board also deemed the request for admissions, received into evidence as exhibit 1, admitted because Johnson failed to respond. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 395 (Iowa 2005) (accepting board's exhibits as uncontested when attorney failed to respond to complaint or request for admissions). Although the complaint was deemed admitted, the commission conducted a hearing, admitted exhibits one through eight, and heard the testimony of Robert Peters, a client of Johnson. After the hearing, the commission filed its findings of fact, conclusions of law, and recommendations, concluding the board had proven its allegations and recommending a three-year suspension along with other conditions for reinstatement.

II. Standard of Review.

We review attorney disciplinary proceedings de novo. Iowa Ct. R. 35.10(1). "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. Earley, 774 N.W.2d 301, 304 (2009). "The board has the burden of proving attorney misconduct by a convincing preponderance of the evidence." Id. "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). Once we find the misconduct has been proven, "we 'may impose a lesser or greater sanction than the discipline recommended by the grievance commission.' " Id. (quoting Iowa Ct. R. 35.10(1)).

III. Ethical Violations.

A. Neef Matter (Count I). In May 2008, Jacqualine Neef contacted Johnson to discuss how to get her son's driver's license reinstated despite a $200,000 lien filed against her son. Johnson advised that bankruptcy would void the lien. Johnson agreed to file the son's bankruptcy petition in return for $800 plus $299 in court filing fees. Johnson informed Neef the process would take three to six months. After six weeks, Neef called Johnson to inquire about the proceeding; Johnson assured her things were progressing. On September 13, 2008, Neef observed that Johnson no longer appeared to work in his Newton, Iowa law office. Neef attempted to contact Johnson on numerous occasions, including visiting his former law office, calling repeatedly, and visiting Johnson's home. When Neef left a message on Johnson's cell phone informing him she was starting fraud charges and contacting the Iowa bar, Johnson called back and admitted he still had not filed the bankruptcy petition. Johnson never filed the petition and never returned any of Neef's fees.

The commission found violations of ethical rules 32:1.1 ¹, 32:1.3, 32:1.4, 32:1.16(d),and 32:8.4(a) ², (c), and (d). Under ethical rules prohibiting neglect, attorneys must advance and protect their clients' interests and attend to matters entrusted to their care in a reasonably timely manner. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Ackerman, 786 N.W.2d 491, 495 (Iowa 2010). Johnson's neglect and failure to take any action, including failing to file a bankruptcy petition as agreed, violated rule 32:1.3 (failing to act with reasonable diligence). See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 150-53 (Iowa 2010) (holding attorney violated rule 32:1.3 when he neglected client's dissolution of marriage proceeding by failing to make filings and by failing to appear at the scheduled trial); Ackerman, 786 N.W.2d at 495 (finding violation of rule 32:1.3 for dilatory handling of estates despite notices and inquiries from beneficiaries).

Johnson's failure to respond to Neef's phone calls and requests for information, failure to notify Neef of what progress had or had not been made on the case, and failure to provide notice of termination, contact information, return of paperwork, or a return of unearned fees violated rules 32:1.4 (duty to keep client informed) and 32:1.16(d) (duty to protect client's interests upon termination of representation). See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Carpenter, 781 N.W.2d 263, 268 (Iowa 2010) (finding attorney's neglect of client's legal matters and failure to keep clients informed about their cases violated rules 32:1.3, 32:1.4, and 32:1.16(d)); Earley, 774 N.W.2d at 307-08 (holding attorney violated rules 32:1.4 and 32:1.16(d) when he "failed to keep his clients informed about the status of their cases," "failed to communicate with his clients after their repeated requests for information," and "failed to ... account for or return client money from retainer fees"). Johnson also violated rule 32:8.4(c) (duty not to engage in dishonesty, fraud, deceit, or misrepresentation) because he told Neef things were progressing when he had not even filed the bankruptcy petition, assured Neef he would file right away when reached by her, and once again failed to file. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 286-87 (Iowa 2009) (holding repeated claims by attorney to client that documents were forthcoming constituted misrepresentations in violation of rule 32:8.4(c) when the documents were not actually ready).

We reject the commission's recommendation to find Johnson violated rule 32:8.4(d) (duty not to engage in conduct prejudicial to the administration of justice). Because Johnson never filed for bankruptcy, the board has not demonstrated how his conduct was prejudicial to the administration of justice. Acts are prejudicial to the administration of justice only when they " 'have hampered the "efficient and proper operation of the courts or of ancillary systems upon which the courts rely." ' " Iowa Supreme Ct. Att'y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 768 (Iowa 2010) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa 2005)).

B. Peters Matter (Count II). Robert...