Iowa Supreme Court Attorney Disciplinary Bd. v. Hearity

• Decision Date: 24 February 2012
• Docket Number: No. 11–1645.,11–1645.
• Citation: 812 N.W.2d 614
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Robert J. HEARITY, Respondent.
• Court: Iowa Supreme Court

812 N.W.2d 614

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Robert J. HEARITY, Respondent.

No. 11–1645.

Supreme Court of Iowa.

Feb. 24, 2012.

Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.

Robert J. Hearity, Waterloo, pro se.

WATERMAN, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against Robert J. Hearity alleging twelve violations of the Iowa Rules of Professional Conduct in his work for five clients. Hearity failed to answer the Board's complaint or otherwise respond, and as a result, his license has been under temporary suspension since January 11, 2011. A division of the Grievance Commission of the Supreme Court of Iowa determined Hearity engaged in “multiple instances of misconduct” and unanimously recommended a suspension. Upon our de novo review, we find Hearity has engaged in multiple acts of misconduct. We suspend his license to practice law indefinitely with no possibility of reinstatement for one year from the date of this opinion.

I. Scope of Review.

“We review attorney disciplinary proceedings de novo.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Dunahoo, 799 N.W.2d 524, 528 (Iowa 2011) (citation and internal quotation marks omitted). We respectfully consider the commission's findings, but we are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Schmidt, 796 N.W.2d 33, 36 (Iowa 2011). “The [B]oard must establish attorney misconduct by a convincing preponderance of the evidence.” Dunahoo, 799 N.W.2d at 528. If we find the Board proved misconduct, we may impose a sanction more or less severe than the commission's recommended sanction. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 282 (Iowa 2009).

II. Prior Proceedings and Findings of Fact.

On June 27, 2011, the Board filed its complaint against Hearity, alleging five counts of misconduct. Hearity failed to answer the Board's complaint against him and failed to comply with the Board's requests for information. “[T]he allegations of an ethics complaint are deemed admitted if the respondent fails to answer within the specified time.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Conroy, 795 N.W.2d 502, 506 (Iowa 2011); accordIowa Ct. R. 36.7. At the evidentiary hearing, the commission properly found the complainant's allegations admitted. The commission received into evidence forty-seven exhibits. The commission considered brief testimony from Sarah Burgess, who hired Hearity to defend her charge of driving while intoxicated (DUI) in Georgia. Based upon this record, we find the following facts on our de novo review.

Hearity became a licensed attorney in Iowa in 1982. He resided and practiced in Black Hawk County. We suspended his license to practice law pursuant to Iowa Court Rule 35.21 on September 15, 2010, for failure to comply with an obligation owed to the Iowa Department of Revenue. On January 11 and March 8, 2011, this court again temporarily suspended his license, pursuant to Iowa Court Rule 34.7(3), for his failures to respond to Board inquiries. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cunningham, 812 N.W.2d 541, 551 (Iowa 2012) (discussing purpose and effect of temporary license suspension for failure to respond to the Board). Hearity has yet to participate in this proceeding, and his license remains suspended.

A. Estate of Mary S. Theroith (Count I). Mrs. Theroith died intestate on January 28, 2007. A month later, the estate's coadministrators retained Hearity as counsel to facilitate the estate's closing. Three and one-half years later, the estate still had not closed. While representing the coadministrators, Hearity filed the report and inventory two months late, never filed the interlocutory report despite receiving three delinquency notices, and twice asked the district court for additional time to close the estate. The district court learned of Hearity's September 15, 2010 suspension and, on September 27, removed him from the case and appointed attorney Timothy Ament as substitute counsel. Ament had to ask Hearity for the case file three times before Hearity turned it over to him in late November. Ament identified numerous tasks Hearity had left unresolved, including paying the Waterloo Courier for publication of notice, ascertaining whether the Estate Recovery Program had a claim, addressing three pending claims, collecting funds held by the Child Support Recovery Unit, filing tax returns, and distributing assets.

B. Robert Campbell (Count II). In September 2009, Campbell retained Hearity in six criminal matters pending in Black Hawk County. Hearity filed his appearances in all six cases and collected a $5000 advance fee. In February 2010, Campbell filed a complaint with the Board against Hearity. Hearity filed a response with the Board regarding Campbell's complaint, but never responded to the Board's August 11 request for information and documentation.

C. Redell R. Walls III (Count III). Hearity represented Walls in four criminal matters in Black Hawk County beginning in October 2009. Following his conviction and sentence, Walls filed a pro se appeal in one of the cases. Our clerk of court sent Hearity a courtesy notice informing him that as counsel of record in the trial court he was presumed to be appellate counsel. The notice directed him to promptly prosecute the appeal or file a motion to withdraw. Hearity did not respond to the notice. A month later, the clerk issued him a notice of default and assessment of penalty because he failed to file the combinedcertificate and pay the filing fee. The notice informed Hearity that “unless this default is remedied within fifteen days ... the ... appeal will be dismissed.” The notice also advised Hearity that a dismissal order would be forwarded to the Board and may be grounds for an investigation. Hearity did not remedy the default, and Walls' appeal was dismissed.

D. Sarah Burgess (Count IV). On June 9, 2010, Burgess met with Hearity about her DUI case pending in Georgia. Her court date was set for June 29. Hearity assured Burgess he could represent her in Georgia by gaining admission to the Georgia court pro hac viãe. Burgess paid Hearity $500 at this meeting, without any written agreement. Hearity told Burgess this advance fee would cover the entire representation, unless he had to appear in Georgia. He advised Burgess she did not need to travel to Georgia. At the close of the meeting, Hearity assured Burgess: “I'll take care of it for you.”

Burgess attempted to reach Hearity several times on June 15 to receive an update on her pending hearing. After several attempts, Hearity called back to inform her he was still trying to obtain pro hac viãe approval. After another week of negligible progress, Burgess arranged a meeting for June 23. She asked for her money back and the case file. Hearity refused to refund the money at the meeting and insisted he would review the file and prepare a bill. Hearity claimed he worked 5.25 hours on the matter and charged a $250 hourly rate for a total bill of $1312.50. His bill reflects charges for “research of Georgia law, including pro hac viãe admission.” He never refunded her $500.

Burgess obtained counsel in Georgia. She paid the Georgia counsel $975. She also had to travel to Georgia on June 29 to appear at her court hearing.

E. Practicing Law While Suspended (Count V). On September 23, 2010, Hearity appeared on behalf of the father in a Black Hawk County juvenile permanency hearing. Judge Block questioned Hearity about the September 15 order suspending his law license:

Q. Now, Mr. Hearity, are you appearing on behalf of Mr. Grimson? A. Yes, Your Honor.

Q. All right. I was provided notice from the Supreme Court that your license had been suspended. Has it been reinstated? A. I guess I have not even received that notice so I will leave the room.

Q. You didn't receive a notice from the Supreme Court? A. I have not received that, but it may be in my mail, Judge. That's all I can say.

Q. Well, I think, you know, this is my copy, but if you want to review it, I can't believe they haven't provided you notice of that. A. It may be in my mail, Your Honor. I'm not doubting what you say at all.

Postal service records show the Office of Professional Regulation sent the September 15 order by certified mail to Hearity's home, and on September 17, he signed and accepted the certified mailing-six days before the hearing.

III. Ethical Violations.

A. Lack of Diligence and Failure to Expedite Litigation. The Board alleged Hearity violated rules 32:1.1 and 32:3.2 that govern diligence and expedition of litigation. The commission found Hearity violated both rules in the Theroith estate and Walls appeal. We agree.

Rule 32:1.3 requires counsel to “act with reasonable diligence and promptness.” This rule requires an attorney to handle matters in a “reasonably timely manner.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 678 (Iowa 2010). We find Hearity's neglect of the Theroith estate over three and one-half years and his failure to prosecute Walls' appeal resulting in its dismissal demonstrate a lack of diligence in violation of rule 32:1.3.

Rule 32:3.2 requires a lawyer to “make reasonable efforts to expedite litigation consistent with the interests of the client.” “The purpose of this rule is to prevent the ‘use of tactics that unreasonably delay litigation.’ ” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 530 (Iowa 2011) (quoting 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 28.2, at 28–3 (3d ed. Supp.2007)). On April 8, 2009, the district court filed an order requiring Hearity to participate in a review hearing in six months because the court was concerned Hearity was not taking actions to close the Theroith estate. Hearity asked to continue this hearing three times, until the district court finally removed Hearity from the case in September 2010. Hearity had left much...