Iowa Supreme Court Attorney Disciplinary Bd. v. Western

• Decision Date: 15 September 2017
• Docket Number: No. 17-0420.,17-0420.
• Citation: 901 N.W.2d 519
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Kim Marlow WEST, Respondent.
• Court: Iowa Supreme Court

901 N.W.2d 519

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Kim Marlow WEST, Respondent.

No. 17-0420.

Supreme Court of Iowa.

Filed September 15, 2017

Tara van Brederode and Susan A. Wendel, Des Moines, for complainant.

Kim Marlow West, Des Moines, pro se.

WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against an attorney alleging multiple violations of the Iowa Rules of Professional Conduct in connection with the probate and closing of an estate. A division of the Iowa Supreme Court Grievance Commission found the respondent's conduct violated the rules. The commission recommended we order the attorney to refund half of the attorney fee he received, personally pay the attorney's fee and court costs to close the estate, and suspend his license to practice law with no possibility of reinstatement for a period of six months. The Board urges us to adopt the recommendation. On our de novo review, we find the attorney violated provisions of our rules, which requires us to impose sanctions. Accordingly, we suspend the attorney's license to practice law for a period of sixty days from the date of filing this decision.

I. Scope of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Vandel , 889 N.W.2d 659, 662 (Iowa 2017). The Board has the burden to prove ethical violations by a convincing preponderance of the evidence. Id . A convincing preponderance of the evidence is more than the typical preponderance standard in a civil case but less than proof beyond a reasonable doubt. Id ."While we respectfully consider the commission's findings and recommendations, they are not binding on us." Id .

II. Findings of Fact.

On September 14, 2016, the Board filed a complaint against Kim Marlow West alleging various ethical violations in connection with the estate of Betty Maxine Rumme. The Board amended its complaint twice. West responded to the Board's complaints by admitting all of the Board's allegations. On December 1, the Board and West filed a stipulation pursuant to Iowa Court Rule 36.16, wherein the parties agreed to the facts, rule violations, and mitigating and aggravating circumstances.

Facts admitted in an answer are "deemed established," and a stipulation of facts is binding on the parties. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Nelson , 838 N.W.2d 528, 532 (Iowa 2013). We construe a factual stipulation "with reference to its subject matter and in light of the surrounding circumstances and the whole record, including the state of the pleadings and issues involved." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey , 790 N.W.2d 801, 803–04 (Iowa 2010) (quoting Graen's Mens Wear, Inc. v. Stille-Pierce Agency , 329 N.W.2d 295, 300 (Iowa 1983) ). However, we are not "bound by a stipulation of a violation or of a sanction in reaching our final decision in a disciplinary case." Id. at 804 ; accord Iowa Ct. R. 36.16(3). The Iowa Constitution and our court rules solely vest the function of determining violations and sanctions for such violations with our court. See Gailey , 790 N.W.2d at 804.

Using the stipulation of the parties, together with our de novo review of the record, we make the following findings of fact. West has practiced law in Iowa since 1983. He worked in the Cerro Gordo, Story, and Polk County public defender offices until approximately 2002. In 2004, West began a solo private practice in criminal law, which he continues today at a substantially reduced volume.

On October 16, 2007, William Rumme hired West to handle a probate matter for the estate of his mother Betty Maxine Rumme. William Rumme paid West an attorney fee of $1000, which he subsequently deposited without court authorization as required by statute. West filed a petition for probate of the will and obtained an order admitting the will of Betty Maxine Rumme to probate. West then failed to file the estate inventory, and on June 1, 2008, he received a notice of delinquency from the district court clerk's office. On August 22, West filed an application for extension of time to file the estate inventory, which the district court granted. On August 29, West filed the estate inventory. On June 2, 2009, West received a notice of delinquency after he failed to file an interlocutory report for the estate. West prepared and filed the interlocutory report on August 13. West subsequently failed to file the second notice of publication and failed to file the final report. The clerk sent several additional delinquency notices to West from 2014 through 2016, but he did nothing to cure the delinquencies. Further, the Board sent numerous notices and requests regarding the probate delinquencies from 2014 through 2015, to which the Board received minimal or no response from West.

West also failed to communicate with the executor of the estate, causing such frustration that the executor attempted to file a final report and communicate directly with the probate judge. West never contacted the executor of the estate to explain what was going on with the estate or to inform him of how the probate matter was progressing. The executor of the estate attempted to contact West about the delinquency notices. Nevertheless, West failed to keep the executor of the estate informed with respect to the status of the probate matter and failed to respond to the executor's attempt to reach him.

Prior to undertaking the probate matter that is the subject of this disciplinary action, West had no experience handling estates and did not take any steps to understand that area of the law or follow through in pursuing outside expertise. Because of the lack of proper administration, the estate remains open. Based on West's handling of the estate, the Board alleged and West admitted violations of the Iowa Rules of Professional Conduct related to providing competent representation, acting diligently, failing to respond to a disciplinary authority, engaging in conduct prejudicial to the administration of justice, violating a fee restriction imposed by law, and keeping a client reasonably informed. We discuss additional facts as needed in the violations and sanction sections of this opinion.

III. Ethical Violations.

A. Competence—Rule 32:1.1. This rule states, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." Iowa R. Prof'l Conduct 32:1.1. "Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Netti , 797 N.W.2d 591, 598 (Iowa 2011) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Tompkins , 733 N.W.2d 661, 668 (Iowa 2007) ).

West's experience as an attorney was primarily in the area of criminal law, and he had no experience in probate matters. West admitted that he did not possess the requisite knowledge to handle this probate matter competently. He neither took steps to understand the probate requirements nor followed through in seeking outside expertise. Accordingly, West's failure to administer the estate constituted incompetent representation, violating rule 32:1.1.

B. Diligence—Rule 32:1.3. This rule provides, "A lawyer shall act with reasonable diligence and promptness in representing a client." Iowa R. Prof'l Conduct 32:1.3. Rule 32:1.3"requires an attorney to handle a client matter in a ‘reasonably timely manner.’ " Vandel , 889 N.W.2d at 667 (quoting Netti , 797 N.W.2d at 598 ). Violations of this rule occur "when an attorney fails to appear at scheduled court proceedings, does not make the proper filings, or is slow to act on matters." Id . (quoting Nelson , 838 N.W.2d at 537 ); see also Iowa Supreme Ct. Att'y Disciplinary Bd. v. Ackerman , 786 N.W.2d 491, 495 (Iowa 2010) (holding attorney violated rule 32:1.3 for the dilatory handling of estates, despite receiving delinquency notices and inquiries from the beneficiaries).

Generally, a violation does not "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) (alteration in original) (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold , 642 N.W.2d 288, 293 (Iowa 2002) ). "[N]eglect involves ‘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.’ " Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 867 (Iowa 2010) (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman , 683 N.W.2d 549, 551 (Iowa 2004) ). It often involves "a lawyer doing little or nothing to advance the interests of a client after agreeing to represent the client." Moorman , 683 N.W.2d at 552.

West repeatedly failed to perform the legal obligations he assumed in probating the Rumme estate. He failed to perform the required functions as an attorney for the executor, meet deadlines, publish required notice, file the final report, and timely close the estate prior to the three-year statutory deadline in Iowa Code section 633.473 (2017). West's consistent failures to perform his obligations as an attorney in the Rumme estate violate rule 32:1.3.

C. Failure to Respond to the Board—Rule 32:8.1(b). This rule provides a lawyer shall not "knowingly fail to respond to a lawful demand for information from ... [a] disciplinary authority." Iowa R. Prof'l Conduct 32:8.1(b). " ‘Knowingly’ means ‘actual knowledge of the fact in question’ and ‘may be inferred from circumstances.’ " Nelson , 838 N.W.2d at 539–40...