Iowa Supreme Court Attorney Disciplinary Bd. v. Hier

• Decision Date: 17 January 2020
• Docket Number: No. 19-1320,19-1320
• Citation: 937 N.W.2d 309
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. T.J. HIER, Respondent.
• Court: Iowa Supreme Court

937 N.W.2d 309

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.T.J. HIER, Respondent.

No. 19-1320

Supreme Court of Iowa.

Filed January 17, 2020

Tara van Brederode and Crystal W. Rink, Des Moines, for complainant.

David L. Brown and Tyler R. Smith of Hansen, McClintock & Riley, Des Moines, for respondent.

WATERMAN, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against attorney T.J. Hier charging her with violating Iowa disciplinary rules in connection with her handling of a disputed attorney fee payment in what she aptly describes as a "hotly contested, emotional family law matter." A division of the Iowa Supreme Court Grievance Commission found that Hier violated several rules but that the Board failed to prove several other rule violations. The commission recommends a public reprimand. The Board seeks a suspension. Hier requests a private admonition. We agree with the commission’s findings as to Hier’s rule violations, but we disagree with the commission’s recommended sanction. In light of Hier’s prior disciplinary history, we suspend her license to practice law for thirty days.

I. Background Facts and Proceedings.

Hier obtained her Iowa law license in 1997. She began her career in private practice in Newton, and she served as an assistant county attorney in Jasper County. She had an inactive law license from 2001 to 2005. She resumed practicing law solo out of her home in Baxter in 2006. She now practices in the areas of criminal, juvenile, and family law. Hier is under contract with the state public defender’s office for criminal and juvenile court appointments. She represents many clients pro bono and serves other low-income clients. She volunteers as a mock trial coach and for domestic violence victim groups, her church, and the Special Olympics. Hier is legally blind, having lived nearly her entire life with Stargardt disease, a rare macular degeneration that requires her to use magnification techniques and devices to read documents.

Our court has previously disciplined Hier five times. We publicly reprimanded her in 2009. We temporarily suspended her law license in 2012 for failure to respond to the Board. We publicly reprimanded her again later that year and again in 2014. Most recently, in December of 2017, we disciplined Hier for trust account violations after an audit by the Client Security Commission determined that she failed to maintain written monthly reconciliations, lacked a journal of receipts and disbursements, lacked documentation of electronic transfers, and failed to properly maintain client ledger subaccounts. We publicly reprimanded her for violating Iowa Rules of Professional Conduct 32:1.15(a) and (f) and Iowa Court Rule 45.2. Our 2017 public reprimand preceded some of Hier’s conduct at issue in this opinion.

Hier represented Amanda Rothfus against Edwin Van Dorn, a former boyfriend with whom Rothfus had two children. In late 2016, Hier, on behalf of Rothfus, filed an "Application for Rule to Show Cause and an Application to Modify Custody, Visitation, and Child Support." The applications alleged Van Dorn was willfully violating the visitation schedule in the decree and was in arrears paying child support. Attorney Jeff Carter represented Van Dorn. Those matters were pending when Rothfus was deposed on August 11, 2017. The parties halted the deposition to negotiate a settlement agreement to resolve the pending litigation and recited the terms into the record transcribed by the court reporter. Rothfus agreed to dismiss the contempt action against Van Dorn in return for his payment of $1032.42 in child support and his payment of $750 towards Hier’s attorney fees. According to Carter, Hier told Van Dorn to make the $750 check out to her trust account. The same day, Van Dorn delivered his check for $1032.42 to the Iowa Child Support Recovery Unit and delivered his $750 check payable to Hier’s client trust account (CTA).

Rather than deposit the check in her CTA, Hier deposited the check into her firm’s general account and credited the payment against Rothfus’s outstanding balance. Hier later testified she did not remember telling Van Dorn to make the check payable to her CTA, but he did so.

Carter agreed to draft the stipulation reflecting the parties’ agreement, but he did not send the draft to Hier until a month later. During the intervening weeks, Van Dorn failed to remain current on his child support payments and failed to exercise visitation. Rothfus declined to sign the stipulation and insisted on proceeding to trial, contending that Van Dorn had misrepresented his work schedule, which was the basis for the custody modification. In response, on September 28, Carter filed a motion to enforce the settlement agreement that requested the stipulation be signed or the $750 returned. Hier filed a resistance asserting she need not return the $750 because Van Dorn’s misrepresentations excused Rothfus from signing the stipulation.

On November 9, the parties appeared before Judge Rickers for a hearing on the motion to enforce the settlement. The hearing was continued at the request of the children’s guardian ad litem who had not received timely notice. Judge Rickers met with Hier and Carter in chambers and off the record discussed the dispute over Van Dorn’s $750 payment to Hier. Hier offered to place the $750 payment in her CTA. Hier later testified that

Mr. Carter was highly agitated and so I said, "Jeff, if it will make you feel better I can put it in my trust account." And Judge Rickers said, "Well, I'm not going to order you to do that." And I said -- I said, "Well, I will offer to do that." And then there was nothing further said about it.

Judge Rickers later testified he lacked a specific recollection of that in-chambers discussion:

Q. Judge Rickers, Ms. Hier testified during her testimony that you said, "I'm not going to order you to return the fees." That was referring to a statement that you supposedly made on November 9, 2017. Do you recall making that statement? A. I do not specifically recall making that statement.... I said, "I don't recall making it." I'm not saying I didn't say it either. I just don't recall it. If I did make that statement, it was in the context of that the $750 had to be placed in Ms. Hier’s trust account.

In any event, Judge Rickers promptly issued a written order continuing the hearing until January 26, 2018. The order stated,

Petitioner paid the Respondent’s attorney $750.00 in attorney fees in contemplation of consummation of the settlement agreement. Respondent’s attorney has agreed to immediately transfer $750 to her client trust account pending resolution of the motion. Disposition of the attorney fees held in trust shall depend upon final resolution of the pending motion.

Despite this court order, Hier never deposited the $750 into her CTA, nor did she inform the court that she neglected to do so. Hier testified that she did not read the order and thus was unaware of its terms.

On January 25, the day before the scheduled hearing, Carter withdrew his motion to enforce the settlement agreement. He emailed Hier to inform her, but he stated that he expected her to return the $750 to Van Dorn as "that payment was made solely for the universal settlement that your client pulled out of." Hier replied, stating that she would put the check in the mail that day and that she expected the check to arrive by January 29. Later that day, Hier emailed Carter to ask whether she should make the check payable to Van Dorn or to Carter’s law office. Carter received the email, but the record does not state whether Carter responded. Hier did not mail the check.

Carter emailed Hier again on March 6. This email stated, "We are still waiting for you to return my client’s $750. I have been instructed to file something with the Court if we do not get it immediately. Please reply ASAP[.]" Hier did not reply to this email. Carter emailed Hier again on March 27, stating,

Are you going to do anything on this? You told us repeatedly you would return these funds. My client is continuing to threaten his own action as well as instruct me to file something as well. Please show the courtesy of a reply to this email.

Hier replied by email within the hour, stating she had discussed the matter with Rothfus and that they believed that "at least a portion of the amount should be attributed to resolution of the contempt action against Mr. Van Dorn." Hier also suggested the payment issue be addressed at trial.

Hier mailed Carter a letter dated March 27 stating,

Against my better judgment, I am returning ½ of the $750 ($375) to you for the payment made by your client at depositions. Although my client has decided not to follow through with the custody/visitation issue, we did resolve the contempt action. This seems to me to be a fair resolution of our difference of opinion regarding this matter.

Hier included a check to Carter for $375 from her law office account.

The parties went to trial on May 31. The court issued its ruling on the modification on June 6 as follows:

Petitioner paid $750 to [Hier] in connection with settlement negotiations which ultimately failed. [Hier] has returned $375 of that payment, but claims she was entitled to keep the remainder as attorney fees. The Petitioner owes no attorney fees to [Hier] unless ordered by the court as a part of the proceedings, or under a contractual obligation. It is obvious that there was no contract entered into by these parties, and the court has previously entered no order regarding attorney fees. The court does find that in connection with this modification action, the Petitioner shall pay Respondent, as attorney fees, the sum of $1000, and the $375 previously retained by [Hier] shall be credited against that amount.

Van Dorn filed his complaint with the Board alleging Hier’s mishandling of his $750 payment. Ultimately, the Board charged Hier with violating Iowa Rules of Professional Conduct 32:1.15(a), (d), (e),...