Iowa Supreme Court Attorney Disciplinary Bd. v. Marks

• Decision Date: 24 May 2013
• Docket Number: No. 13–0128.,13–0128.
• Citation: 831 N.W.2d 194
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Samuel Zachary MARKS, Respondent.
• Court: Iowa Supreme Court

831 N.W.2d 194

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Samuel Zachary MARKS, Respondent.

No. 13–0128.

Supreme Court of Iowa.

May 24, 2013.

Charles L. Harrington and Patrick W. O'Bryan, Des Moines, for complainant.

Samuel Z. Marks, pro se.

ZAGER, Justice.

This matter comes before us on the report of a division of the Grievance Commission of the Supreme Court of Iowa. SeeIowa Ct. R. 35.10. The Iowa Supreme Court Attorney Disciplinary Board (Board) alleged the respondent, Samuel Zachary Marks, violated four ethical rules in handling a probate matter by providing representation that was not competent, failing to act with reasonable diligence, failing to expedite litigation, and engaging in conduct prejudicial to the administration of justice. The grievance commission found Marks violated the Iowa Rules of Professional Conduct and recommended a six-month suspension. Upon our de novo review of the findings of fact, conclusions of law, and recommendation of the commission, we find Marks committed ethical violations and suspend his license to practice law indefinitely with no possibility of reinstatement for three months.

I. Background Facts and Proceedings.

The Board filed its complaint against Marks on August 2, 2012. Marks did not file an answer, and the Board's motion to invoke Iowa Court Rule 36.7 was granted by the commission on November 20, 2012. Under that rule, the Board's allegations are deemed admitted. Iowa Ct. R. 36.7; see also Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cunningham, 812 N.W.2d 541, 544 (Iowa 2012). Based on the admitted allegations, and upon our de novo review of the record, we find the following facts.

Marks opened the estate of William General Rumley on November 14, 2003, and became the attorney of record for the administrator of the estate. Since the opening of the estate, the estate has been subject to nine notices of delinquency. On December 1, 2009, Marks was issued a notice of delinquency for failing to file a final report in the estate. Marks was given sixty days to cure the delinquency. When he failed to cure the delinquency by December 1, 2010, the Polk County District Court filed a certification with respect to this delinquent probate matter with the court administrator, who then forwarded it to the Board.

The Board sent four separate communications regarding the matter to Marks over a period of eight months. Marks did not respond until two months after the fourth communication, promising to follow up within two weeks of that communication. He failed to follow up.

Marks has appeared before this Court in both 2009 and 2012 for disciplinary issues. In the 2009 case, we found Marks had neglected his responsibilities in probating two estates—one of which was the Rumley estate that is the subject of this disciplinary matter. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marks (Marks I), 759 N.W.2d 328, 330–31 (Iowa 2009). In that case, we suspended Marks's license for a period of thirty days. Id. at 333. In the 2012 case, we concluded Marks had violated ethics rules in a transaction that had occurred in 2005, prior to the date in 2009 when we suspended Marks's license. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marks (Marks II), 814 N.W.2d 532, 536, 542 (Iowa 2012). Ultimately, we determined that “[h]ad we been aware in 2009 of the conduct that is the subject of the present disciplinary proceeding, it is unlikely that we would have suspended Marks'[s] license for more than thirty days.” Id. As a result, we issued only a public reprimand. Id.

Marks has also been the subject of prior discipline for failure to cooperate with the Board, which we detailed in both the 2009 and 2012 cases. Id. at 536 (“We temporarily suspended his license in 2006 and 2008 for failure to cooperate with the Board. Further, in 2007, the Board publicly reprimanded him for lack of diligence, incompetence, and failing to cooperate timely and fully with the Board.”); Marks I, 759 N.W.2d at 332 (“In the present case, Marks neglected two probate matters and failed to cooperate with the Board's investigation.... Marks had been publicly reprimanded in 2007, and his license was temporarily suspended for failure to cooperate with the Board in 2006.” (Citations omitted.)).

In the current case, Marks failed to answer the Board's complaint, and the commission thus deemed the allegations admitted. The commission found that Marks's conduct in the handling of the Rumley estate violated four ethics rules and recommended he be suspended for six months. Further, as a condition of reinstatement, the commission recommended we require Marks to obtain a medical evaluation from a qualified physical or mental health professional who specializes in the treatment of professionals such as lawyers, certifying that Marks is fit to practice law.

II. Standard and Scope of Review.

We have previously articulated our standard of review in attorney disciplinary cases as follows:

Attorney disciplinary proceedings are reviewed de novo. The Board bears the burden of proving misconduct by a convincing preponderance of the evidence, which is a lesser burden than proof beyond a reasonable doubt but a greater burden than is imposed in the usual civil case. If we determine the Board has met its burden and proven misconduct, we may impose a greater or lesser sanction than the sanction recommended by the commission.

Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cannon, 821 N.W.2d 873, 876–77 (Iowa 2012) (citation and internal quotation marks omitted).

III. Ethical Violations.

The Board charged Marks with violating four provisions of the Iowa Rules of Professional Conduct. The commission concluded that the Board had proven each of the four charges.

A. Competence. Iowa Rule of Professional Conduct 32:1.1 provides that “[a] lawyer shall provide competent representation to a client. Competent representationrequires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Iowa R. Prof'l Conduct 32:1.1.

Recently, we have defined competent representation in the scope of rule 32:1.1 to “ ‘include[ ] inquiry into and analysis of the factual and legal elements of the problem’ as well as ‘adequate preparation.’ ” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Dunahoo, 799 N.W.2d 524, 531 (Iowa 2011) (quoting Iowa R. Prof'l Conduct 32:1.1 cmt. 5). We further stated that

[t]o establish an attorney has violated rule 32:1.1, the board must prove the attorney did not possess the requisite legal knowledge and skill to handle the case or that the attorney did not make a competent analysis of the factual and legal elements of the matter.

Id. (citation and internal quotation marks omitted).

Marks's testimony before the grievance commission indicated he did not feel he was competent to practice in the area of probate. One of the commissioners asked whether Marks felt he (Marks) was “fit to practice law and proficient in the probate area.” Marks responded, “No, I don't feel I'm proficient in the probate area,” though he further stated he believed he was “fit to practice law.” Marks was also asked, “When did you realize that probate was not an area of practice that you could handle?” Marks responded, “Many, many years ago. Well, 2003, 2004, in that general area.” Marks told the commission he had restricted his probate practice to favors for friends and a former client.

We find that the Board has proven by a convincing preponderance of the evidence that Marks did not possess “the requisite legal knowledge and skill to handle the case or that [he] did not make a competent analysis of the factual and legal elements of the matter.” See Dunahoo, 799 N.W.2d at 531 (citation and internal quotation marks omitted). Marks's conduct constituted more than mere instances of neglect. Marks testified that he found probate, in general, and the Rumley estate in particular, “unpleasant,” and that he faced “some sort of mental block” that prevented him from completing his responsibilities in regard to this estate. We have stated that when the Board has only “shown instances of neglect,” this does not constitute a showing that an attorney “lacked the skill or knowledge to handle” the matters which the attorney undertook. Id. Here, however, Marks acknowledged that he lacks the legal knowledge and skill necessary to handle probate matters and is not competent in this area. The Board has shown by a convincing preponderance of the evidence that Marks is not competent to handle probate matters. SeeIowa R. Prof'l Conduct 32:1.1 cmt. 5. We thus conclude that the Board has proven a violation of rule 32:1.1.

B. Diligence. Iowa Rule of Professional Conduct 32:1.3 provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Id. r. 32:1.3. Acting with diligence means that “[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor.” Id. r. 32:1.3 cmt. 1. This rule requires an “attorney to handle matters in a reasonably timely manner.” Dunahoo, 799 N.W.2d at 532 (citation and internal quotation marks omitted).

We have further clarified, in the context of probate law that

an ethical violation does not typically occur from one missed deadline, but arises when a lawyer repeatedly fail[s] to perform required functions as attorney for the executor, repeatedly fail[s] to meet deadlines, and fail[s] to close the estate within a reasonable period of time.

Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012) (citation and internal quotation marks omitted). The Board cannot prove a violation unless it demonstrates that a lawyer has shown “a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.” Id. (...