Iowa Supreme Court Attorney Disciplinary Bd. v. Kingery, 15–0673.

• Decision Date: 30 October 2015
• Docket Number: No. 15–0673.,15–0673.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Heather Marie KINGERY, Appellant.
• Court: Iowa Supreme Court

871 N.W.2d 109

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee,

v.Heather Marie KINGERY, Appellant.

No. 15–0673.

Supreme Court of Iowa.

Oct. 30, 2015.

David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellant.

Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for appellee.

HECHT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (the Board) charged attorney Heather Marie Kingery with violating multiple rules of professional conduct after the Board received four separate complaints. After a hearing, the Iowa Supreme Court Grievance Commission (the commission) found Kingery committed the alleged violations and recommended suspension of her license for six months and several conditions upon any future reinstatement. Kingery appeals, contending the sanction and conditions recommended by the commission are excessive. On our de novo review, we agree Kingery's conduct merits a suspension, but impose a shorter one with fewer conditions.

I. Background Facts.

Kingery received a bipolar disorder

diagnosis while she was in law school. Since then she has consistently taken prescribed medications to manage the disorder. Kingery has also struggled with alcoholism and committed two misdemeanor criminal offenses involving alcohol, one in 1994 and one in 2007.

Kingery was admitted to practice law in Iowa in 2010 and initially practiced with a law firm in northeast Iowa. After approximately one year with the firm, Kingery opened her own practice in Decorah. A majority of Kingery's cases in her solo practice were criminal defense matters, including court appointments in Winneshiek County and adjacent Howard County. In addition to criminal cases, Kingery also handled a few civil matters.

Kingery was married in September 2013. Her husband lived in Europe and was not a United States citizen at the time of the marriage. The couple retained an immigration attorney to work toward securing his legal immigration to the United States. Kingery testified at the hearing before the commission in this case that the immigration issue caused her significant stress leading up to and immediately following the marriage. Kingery also testified the immigration issue has not been resolved in the two years since the marriage, and as a result, she and her husband communicate almost exclusively by telephone and through webcam videoconferencing.

While coping with the stress of the immigration issue and the bipolar disorder

, Kingery drank alcohol heavily and frequently in October 2013. Her life very quickly spun out of control, and by December her daily routine consisted only of buying alcohol, drinking alcohol, and sleeping. She did not open her mail, and she stopped responding to all communication from clients, opposing attorneys, court staff and judges, and the Board.

In January 2014, Kingery sought medical assistance for detoxification. She received inpatient alcohol treatment in Waterloo and outpatient treatment in Decorah. In August 2014, Kingery moved to West Des Moines so that she could be closer to a more robust support system and live in a bigger market for legal employment. She attends weekly support group meetings and has become an active church congregant there. She has also received helpful assistance from the Iowa Lawyers Assistance Program (ILAP). She has not consumed alcohol in over a year and has not practiced law since fall 2013. She currently holds a part-time job in retail customer service, but she hopes to resume practicing criminal law in the near future as an assistant county attorney, a private criminal defense attorney, or a public defender.

II. Events Giving Rise to the Board's Complaint.

A. James Steenhard Matter. Kingery was court appointed to represent James Steenhard in a criminal appeal. She filed a combined certificate and ordered a transcript, but she never filed a proof brief or a designation of appendix. On July 30, 2013, the clerk of the Iowa Supreme Court entered a notice of default notifying Kingery she was obligated to file those documents within fifteen days. See Iowa R.App. P. 6.1202(1)(a). Kingery did not respond to the notice or cure the default. Rather than dismissing the appeal, on September 24—almost two months after the default notice—this court removed Kingery as counsel, directed the district court to appoint new counsel, and referred Kingery to the Board.

B. Christine Kelly Matter. Christine Kelly hired Kingery in 2011 to represent her in enforcing provisions of Kelly's marriage dissolution decree. Kingery filed an application for rule to show cause on Kelly's behalf. The matter was delayed, however, when the court granted an indefinite continuance in July 2012.

In early May 2013, Kingery met with Kelly to discuss and draft responses to discovery requests opposing counsel had served. On May 20, Kelly requested a copy of the discovery responses and reciprocal discovery requests prepared for service on the opposing party. Kingery did not respond to Kelly's request until May 29, but she apologized for the delay and assured Kelly her case was still a priority.

On June 26, Kelly requested an update on the status of the discovery process. Kingery did not respond, so Kelly sent another inquiry on July 8. That same day Kingery informed Kelly she had prepared and mailed the discovery requests. However, after that she did not communicate with Kelly despite repeated emails and phone calls from Kelly. For example, on August 8, Kelly emailed Kingery noting that the time for her adversary's discovery responses had passed and asking for copies of any discovery responses Kingery had received. Kingery did not respond. On August 16, Kelly sent Kingery an email requesting a case status update and expressly citing the rule setting forth Kingery's obligation to keep Kelly informed about the status of the matter, but Kingery again did not respond. See Iowa R. Prof'l Conduct 32:1.4(a)(3).

On September 3, Kelly sent Kingery a letter terminating the attorney-client relationship and requesting Kingery return all paperwork and case files. Kingery did not respond to the letter. Kelly sent an email requesting the case file on September 10. Again, Kingery did not respond. On September 20, Kelly sent Kingery an email proposing to meet at the Winneshiek County Courthouse to exchange payment and documents. After Kingery did not respond to this email, Kelly filed a complaint with the Board.

In February 2014, Kelly filed a small claims action against Kingery seeking the return of her file plus $1500 in damages. Kingery filed an answer and counterclaim seeking $800 in allegedly unpaid attorney fees and costs associated with copying Kelly's file. After hearing the case, the court awarded damages to each party and, offsetting the amounts, ultimately awarded Kingery $38.40. Kelly paid the amount and received her file.

C. Court Appointed Criminal Defense Matters. Kingery was court appointed to represent a number of criminal defendants in Winneshiek County. On July 16, 2013, the district court granted continuances to three of Kingery's clients—Lee Holkesvik, Karlie Marlow, and Scott Swehla—when they appeared for arraignment or other proceedings but Kingery did not. Another client, Justin Borseth, requested new counsel after Kingery failed to appear as scheduled for a hearing on July 30. The court granted Borseth's request.

Kingery was also court appointed to represent Dante DeGrazia. In fall 2013, Kingery twice failed to appear for DeGrazia's arraignment, although DeGrazia personally appeared both times. On the second of these occasions, DeGrazia reported he had been unable to contact Kingery. On its own motion, the court removed Kingery from the case and appointed replacement counsel. That same day, it removed Kingery as counsel for Abbey Lowe in a separate criminal case for the same reason—Kingery had failed to appear in court as scheduled and had not communicated with the court or her client.

On October 31, another of Kingery's clients, James Thorne, filed a request for new counsel with the district court. Thorne's request for new counsel stated Kingery "does not answer or return my phone calls" and also alleged she had missed a scheduled appointment with Thorne that day. A magistrate granted Thorne's request, removed Kingery from representing Thorne, and appointed replacement counsel. The magistrate found removal was "necessary to secure defendant's rights."

Unfortunately, for two of Kingery's clients—Scott Geary and Dylan Carlson—receiving newly appointed counsel was not the only consequence of Kingery's missed appearances and proceedings. In late July 2013, Kingery requested and received a continuance of proceedings in Geary's case until August 6. The order granting the continuance stated Geary was required to appear personally on August 6. Kingery and Geary both failed to appear on August 6. The court issued a warrant for Geary's arrest, and he was arrested and jailed. The court later released Geary on bond, in part because Geary wrote a letter from his jail cell asking for a new lawyer and explaining both he and the jail staff had tried unsuccessfully to reach Kingery.

Similarly, Carlson sent a handwritten pleading from his jail cell to the district court after he was arrested for failing to appear. He asked the district court to consider contacting him personally to discuss payment options for court fees owed, and he explained he did not appear in court because Kingery did not respond to his phone calls inquiring about the scheduled time for hearing. Kingery does not dispute that both Geary and Carlson served time in jail because she did not apprise them of the need to appear personally in court.

Local prosecutors and judges noted Kingery's absence from the courthouse as it stretched over several months. By mid-December, Kingery had not retrieved any notices from the clerk's office for over a month. The chief judge of the First Judicial District suspended Kingery from receiving any further court appointments and the...