Iowa Supreme Court Attorney Disciplinary Bd. v. Hauser

• Decision Date: 14 May 2010
• Docket Number: No. 09-1445.,09-1445.
• Citation: 782 N.W.2d 147
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,v.Ross G. HAUSER, Respondent.
• Court: Iowa Supreme Court

782 N.W.2d 147

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,v.Ross G. HAUSER, Respondent.

No. 09-1445.

Supreme Court of Iowa.

May 14, 2010.

COPYRIGHT MATERIAL OMITTED

Charles L. Harrington and David J. Grace, Des Moines, for complainant.

Ross G. Hauser, Cedar Rapids, pro se.

WIGGINS, Justice.

This matter comes before us on the report of a division of the Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.10. The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against the respondent, Ross G. Hauser, alleging multiple violations of our ethical rules based on his neglect of a client matter. After a hearing, the grievance commission recommends we suspend Hauser's license to practice law in Iowa indefinitely with no possibility of reinstatement for nine months. Upon our de novo review, we concur the respondent violated our ethical rules and suspend his license to practice law indefinitely with no possibility of reinstatement for six months.

I. Scope of Review.

This court reviews lawyer disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Dull, 713 N.W.2d 199, 201 (Iowa 2006). The board's burden to prove disciplinary violations is by a convincing preponderance of the evidence. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 330 (Iowa 2009). A convincing preponderance of the evidence is “ ‘less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.’ ” Iowa Supreme Ct. Att'y Disciplinary Bd. v. D'Angelo, 710 N.W.2d 226, 230 (Iowa 2006) (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)). Weight is afforded the commission's findings, but we are not bound by them. Marks, 759 N.W.2d at 330.

II. Background Facts and Prior Proceedings.

Hauser has been practicing law in the state of Iowa for the past twenty-three years. During this period of time, the respondent has received a series of private admonitions, public reprimands, and suspensions. Beginning in 1988, we have privately admonished him twice for neglect of legal matters and failure to respond to the board's inquiries. We have publicly reprimanded him three times for neglect of client matters, failure to respond to the board's inquiries, and failure to return a retainer. Finally, we have suspended his license five times between October 2005 and June 2009 for failing to comply with the rules of the Commission on Continuing Legal Education, failing to comply with the rules of the Client Security Commission, and failing to respond to the board's inquires.

This current disciplinary action involves Hauser's handling of a dissolution action. In 2005 the respondent was retained by Ricky Clemens to represent Clemens in his dissolution-of-marriage case. At the start of the representation, Clemens gave the respondent a $1000 retainer.

Initially, Hauser appeared to be providing appropriate representation to his client. He filed an answer to Clemens' now ex-wife's dissolution petition and participated in obtaining an agreement on temporary matters and a pretrial statement. On February 26, 2006, he attended a mediation session with his client and the opposing party. Thereafter, however, Hauser did not file any further pleadings or motions on Clemens' behalf. On July 5, 2006, the respondent and his client failed to appear at the scheduled trial on the dissolution petition, and the court entered a default decree. Hauser had not notified Clemens of the trial date, and Clemens was not aware the trial had occurred until he received a copy of the dissolution decree in the mail.

After receiving the decree, Clemens placed numerous telephone calls to Hauser, which Hauser failed to return. Clemens then employed another attorney who motioned the district court to get the default judgment set aside. On August 31, 2006, the district court entered an order denying the motion. Clemens did not appeal. He subsequently filed a complaint against Hauser with the board.

On April 8, 2008, the board sent Hauser a letter, seeking information on Clemens' complaint. Hauser never responded. On May 14, 2009, the board filed a one-count complaint against Hauser, alleging the respondent violated numerous ethical rules in his representation of Clemens. Specifically, the board alleged Hauser committed ethical violations by ceasing to work on his client's case without taking the proper steps to withdraw; failing to adequately communicate with his client; failing to notify his client of the trial date; failing to attend the trial, resulting in a default judgment against his client; failing to furnish his client with a timely and complete accounting regarding earned fees; and failing to respond to a request for information from the board. These acts, the board alleged, established violations of Iowa Rules of Professional Conduct 32:1.1, requiring a lawyer to provide competent representation to a client; 32:1.3, requiring a lawyer to act with reasonable diligence and promptness in representation; 32:1.4, requiring a lawyer to keep his client reasonably informed and to promptly comply with reasonable requests for information; 32:1.15, requiring a lawyer to render a full accounting of client property in his possession; 32:1.16(d), requiring a lawyer, upon withdrawal from representation, to take appropriate steps to protect his client's interests and to return any unearned fees; 32:8.1(b), requiring a lawyer to respond to lawful demands for information from the board; and 32:8.4(a) and (d), holding it is misconduct for a lawyer to violate an ethical rule and to engage in conduct prejudicial to the administration of justice. The board also asserted Hauser violated Iowa Court Rule 45.7, which requires a lawyer to notify his client of the withdrawal of advance fees from the client's trust account.

Hauser failed to respond to the board's complaint, and therefore, the commission deemed the allegations admitted. Hauser subsequently, however, responded to a motion to compel discovery. Based upon the information contained in Hauser's responses, the board moved to amend its complaint to include an additional allegation of trust account violations due to the respondent's failure to keep trust account records with respect to the advance fee he received from Clemens. See Iowa R. Prof'l Conduct 32:1.15(c) (“A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.”); Iowa Ct. R. 45.2(2) (“A lawyer shall maintain complete records of all funds ... of a client coming into the lawyer's possession and regularly account to the client for them.”). In an order granting the board's request to amend, the commission noted its prior order holding the initial allegations admitted, but the subsequent allegation was not deemed admitted, and Hauser would be permitted to present evidence on this allegation.

A hearing was held on September 1, 2009, before a division of the commission. Because the majority of the allegations were deemed admitted, the board presented the testimony of Ricky Clemens for the limited purpose of considering the appropriate sanction. The focus, therefore, was on what harm, if any, Clemens sustained from Hauser's representation.

Clemens testified the divorce decree ordered him to pay $560.55 per month in child support.¹ This, he contended, was based upon the child support guidelines worksheet submitted by his ex-wife, which listed Clemens' annual income at $42,785. Clemens, however, claimed his annual income was $25,600 in 2006 and $29,100 in 2005. No child support worksheet had been submitted to the district court by Clemens or by Hauser on Clemens' behalf, and Clemens did not present any evidence in the form of income tax returns. Clemens also asserted his ex-wife's child support worksheet erroneously understated the monthly premium he paid for health insurance. Based upon these alleged errors, Clemens believed his child support was set too high.

As previously noted, Clemens' attempt to get the default decree set aside was unsuccessful. In December 2006 Clemens developed serious medical problems and was unable to work for approximately four months. At that time, he hired a third attorney who was successful in getting his child support obligation modified as of July 2007. Clemens believed Hauser's failure to properly represent him resulted in his receiving an excessive child support obligation, which in turn required him to hire different counsel, necessitating additional attorney fees. In addition, Clemens testified he never received an accounting of the $1000 he paid to Hauser or any refund of any unearned fees from Hauser.

Hauser testified on his own behalf. He acknowledged his neglect of the Clemens dissolution matter. In his defense to the allegation of trust account violations, Hauser submitted three check stubs as evidence of his depositing Clemens' $1000 advance fee payment into his client trust account and of his subsequent withdrawals of $400, $300, and $100 in payments to himself for legal services rendered. The last withdrawal was dated October 21, 2005. The records do not show, however, how Hauser earned the fees withdrawn. Upon questioning, he admitted he could not locate any trust account ledger that may have been kept in this case, but stated it was his practice to keep such a ledger.

Hauser also testified to his lengthy history of alcohol abuse. He acknowledged his alcohol use could have played a factor in prior disciplinary actions brought against him as well as this one. In the time leading up to Clemens' trial, early 2006, Hauser asserted he was not in control of his drinking. During this time, he underwent a short period of self-committal followed by extensive participation in the Alcoholics Anonymous (AA) program. Although he was able to maintain sobriety for over eighteen...