Iowa Supreme Court Attorney Disciplinary Bd. v. Stowe

• Decision Date: 10 May 2013
• Docket Number: No. 13–0103.,13–0103.
• Citation: 830 N.W.2d 737
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Brian Loren STOWE, Respondent.
• Court: Iowa Supreme Court

830 N.W.2d 737

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Brian Loren STOWE, Respondent.

No. 13–0103.

Supreme Court of Iowa.

May 10, 2013.

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

Brian Loren Stowe, Waverly, pro se.

WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against the respondent, Brian L. Stowe, alleging violations of the Iowa Rules of Professional Conduct and Iowa Court Rules. A division of the Grievance Commissionof the Supreme Court of Iowa found Stowe's conduct violated numerous provisions of the rules and recommended we revoke his license to practice law. We are required to review the commission's report. SeeIowa Ct. R. 35.11. On our de novo review, we find the Board established by a convincing preponderance of the evidence that Stowe committed violations of our rules when he converted a client's funds. Accordingly, we adopt the commission's recommendation and revoke Stowe's license.

I. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 601 (Iowa 2012). These proceedings are special, civil in nature, not criminal, and are akin to an investigation by the court into the conduct of its officers. Comm. on Prof'l Ethics & Conduct v. Wright, 178 N.W.2d 749, 750 (Iowa 1970).

The Board must prove the disciplinary violations by a convincing preponderance of the evidence. McCarthy, 814 N.W.2d at 601. “A convincing preponderance of the evidence is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt.” Id. Accordingly, the burden on the Board is higher than the burden in civil cases, but less than in criminal cases. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995).

We deem factual matters admitted by an attorney in an answer as established, regardless of the evidence in the record. See Iowa Supreme Ct. Comm'n on Unauthorized Practice of Law v. Sturgeon, 635 N.W.2d 679, 686 n. 1 (Iowa 2001) (rejecting the attorney's argument that the record did not support license revocation because the attorney admitted the misconduct in his answer); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Torgerson, 585 N.W.2d 213, 213–14 (Iowa 1998) (finding rule violations when the attorney admitted collection of a clearly excessive fee). But see Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 804 (Iowa 2010) (“[W]e will not be bound by a stipulation of a violation or of a sanction in reaching our final decision in a disciplinary case.”).

We give respectful consideration to the commission's recommendations, but they are not binding upon us. McCarthy, 814 N.W.2d at 601. We may impose a greater or lesser sanction than the commission recommends upon proof of misconduct. Id.; see alsoIowa Ct. R. 35.11. Our determination of the appropriate sanction “is guided by the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the bar as a whole, and [the attorney's] fitness to continue in the practice of law.” Comm. on Prof'l Ethics & Conduct v. Kaufman, 515 N.W.2d 28, 30 (Iowa 1994). The primary purpose of lawyer disciplinary proceedings is to protect the public, not punish the lawyer. Comm. on Prof'l Ethics & Conduct v. Tullar, 466 N.W.2d 912, 913 (Iowa 1991).

II. Prior Disciplinary Proceedings and the Board's Present Complaint.

This is not the first time the court has evaluated Stowe's fitness to practice law. On April 25, 2011, we granted the Board's request for a disability suspension of Stowe's license and the appointment of a trustee, due to his mental impairment and drug addiction. We temporarily suspended his license once again on February 15, 2012, because Stowe failed to timely respond to an inquiry by the Board.

The current disciplinary action commenced on April 17, 2012, when the Board brought a complaint against Stowe, alleging five counts of misconduct. The Board alleged Stowe's plea to possession of methamphetamine constituted misconduct reflecting adversely on his honesty, trustworthiness, or fitness as a lawyer, in violation of Iowa Rule of Professional Conduct 32:8.4(b). Next, in counts two and three the Board alleged Stowe breached our rules by mishandling client trust funds, after he endorsed and cashed checks on two different clients' trust accounts without authority to do so. The Board specifically cited violations of Iowa Rules of Professional Conduct 32:1.3, 32:1.4, 32:1.15, and 32:8.4(b), (c), and (d), in addition to Iowa Court Rules 45.1, 45.2(1)–(2), and 45.7. In the fourth count, the Board alleged that Stowe tendered bad checks, violating Iowa Code sections 714.1(6) and 714.2(5), as well as Iowa Rule of Professional Conduct 32:8.4(b) and (c). Finally, the Board alleged that Stowe participated in the unauthorized practice of law after we suspended his license, violating Iowa Rules of Professional Conduct 32:5.5(a) and 32:8.4(c) and (d).

The Board later added three additional counts to the complaint. Count six alleged that Stowe violated our rules by being convicted of felony forgery for writing two checks on a client's private account without permission, offending Iowa Rule of Professional Conduct 32:8.4(b) and (c). Count seven accused Stowe of committing another act of unauthorized practice, in violation of Iowa Rules of Professional Conduct 32:5.5(a) and 32:8.4(c) and (d). The Board's final allegation accused Stowe of engaging in illegal drug use and fraudulent billing activity with a client, in violation of Iowa Rules of Professional Conduct 32:1.5(a), 32:1.8(a), 32:5.4(a), and 32:8.4(b), (c), and (d).

In total, the Board alleges Stowe violated multiple rules of professional conduct and court rules. In his subsequent answers, Stowe admitted four of the counts are true. The commission held a hearing on October 31, where Stowe appeared pro se.

III. Findings of Fact.

On our de novo review, we make the following findings of fact. The life story of forty-one-year-old Brian Stowe mirrors that of Dr. Jekyll and Mr. Hyde. In the early phase of Stowe's legal career, he was a model citizen. During the day, he studied at Drake Law School. By night, he worked as a police officer and drug enforcement agent in various counties. In his spare time, Stowe coached youth basketball and little league, in addition to authoring and publishing novels.

In 2000, Stowe graduated from law school with honors. After his admission to the bar, he joined the Finley Law Firm in Des Moines. He made partner in only five years. To celebrate this accomplishment, in March 2007, Stowe took his family on a cruise, which included a stop in Belize.

Stowe alleges that while in Belize, he was abducted, beaten, sexually abused, and ransomed. However, other accounts indicate local authorities arrested him for possessing cocaine. The commission did not make a finding as to what really transpired in Belize. Neither do we. Whatever happened is not relevant to our decision.

Stowe later returned to the United States, where he received medical care. The Board launched an ethics investigation but ultimately did not file a complaint.

After the alleged Belize incident, Stowe's Hyde-like opposite emerged. Stowe claims he developed posttraumatic stress disorder, but did not seek counseling or treatment. He alleges he became severely depressed and began suffering from violent nightmares. Based on his training as a drug agent, he knew that taking methamphetamine would prevent him from falling asleep and consequently, experiencing nightmares. Stowe was acquainted with a drug dealer through his position as an attorney, purchased methamphetamine, and began to self-medicate. Stowe found it glamorous to talk about himself as a lawyer to individuals in the drug business, because he was not the typical drug user.

Stowe was unable to work because of these circumstances. His marriage eventually ended. He left his position as partner with the Finley Law Firm and moved to northern Iowa, where he found employment as an associate at the Thul Law Firm in Whittemore. Thul Law Firm ultimately terminated Stowe's employment on May 10, 2010.

Shortly thereafter, Stowe was convicted in Emmet County for possession of methamphetamine, in violation of Iowa Code section 124.401(5). Stowe submitted an Alford plea and received a deferred judgment contingent upon substance abuse treatment, which lasted eighteen months. Stowe was then convicted in Palo Alto County on two counts of felony forgery, in violation of Iowa Code section 715A.2. The felony convictions arose from Stowe forging the signature of his client, Ryan Yager, on two checks Stowe had stolen and used to transfer funds into his personal bank account.

Suffice it to say the record is replete with examples of Stowe's ethical failings, stemming from his unauthorized practice, excessive fees, improper fee splitting, neglect of client matters, trust account violations, and misconduct arising from multiple criminal convictions.¹ However, it is unnecessary for us to address these other infractions because there is sufficient evidence in the record to prove Stowe engaged in conversion of client funds. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Adams, 809 N.W.2d 543, 546 (Iowa 2012).

IV. Ethical Violation.

Stowe misappropriated client funds when he stole two checks from his client and housemate, Ryan Yager. Stowe made out each check for $200, forged Yager's signature on both checks, and deposited the funds in his Iowa Trust & Savings Bank account in Emmetsburg. Stowe did so without Yager's knowledge or permission. Moreover, Yager did not owe Stowe legal fees based on their mutual agreement that Stowe could live with Yager in exchange for free legal services.

Based on his conduct, the State convicted Stowe on two counts of felony forgery, pursuant to Iowa Code section 715A.2. At his plea...