Iowa Supreme Court Attorney Disciplinary Bd. v. Ginkel, No. 11–0886.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtAPPEL
Citation809 N.W.2d 96
PartiesIOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. James C. VAN GINKEL, Respondent.
Docket NumberNo. 11–0886.
Decision Date13 January 2012

809 N.W.2d 96

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
James C. VAN GINKEL, Respondent.

No. 11–0886.

Supreme Court of Iowa.

Jan. 13, 2012.


[809 N.W.2d 99]

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

Carlton G. Salmons, West Des Moines, for respondent.

APPEL, Justice.

This case shows once again how a respected member of the bar can become entangled in a web of ethical violations arising from the neglect of an estate in probate proceedings.

The Iowa Supreme Court Attorney Disciplinary Board charged attorney James Van Ginkel with multiple violations of our disciplinary rules in connection with the probate and closing of the estate of John Oxley. The Board charged that Van Ginkel engaged in neglect in connection with the estate; engaged in conduct that was prejudicial to the administration of justice; knowingly made false statements to the tribunal; and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The grievance commission found Van Ginkel had engaged in neglect and had made at least one misrepresentation to the court. It also found that Van Ginkel had received both the first half and second half of the attorneys' fees prematurely in connection with the estate. Upon our review of the facts and law, we conclude Van Ginkel engaged in neglect and conduct prejudicial to the administration of justice, made a false representation to the court in connection with his neglect, and prematurely obtained attorneys' fees in the probate proceeding. Based on these violations, we conclude that a suspension for sixty days is the appropriate sanction.

I. Background Facts and Proceedings.

On December 23, 2010, the Board filed its complaint against Van Ginkel alleging various ethical violations in connection with the estate of John Oxley. The Board amended its complaint once. After discovery, the commission held a one-day evidentiary hearing on March 21, 2011. At the hearing, the commission heard testimony and received exhibits from the parties. The record of this proceeding and the evidence offered at the hearing demonstrate how the procrastination of an attorney in completing uncomplicated probate matters can ripen into serious disciplinary problems.

Van Ginkel has been a member of the Iowa bar since January 1980. He maintains a solo private practice in Atlantic,

[809 N.W.2d 100]

Iowa. He is involved in the general practice of law, including estate planning and probate. He has served as Cass County Magistrate from November 1984 to June 1985 and from August 2001 to the present.

Van Ginkel has been active in a variety of community activities. To his credit, he has been active in Boy Scouts, Girl Scouts, the local YMCA, Rotary, and economic development activities in a variety of capacities. He has served as president of the Southwest Iowa Bar Association and as president of the Cass County Bar Association.

Although Van Ginkel has generally been successful in the practice of law, he received two private admonitions relating to a lack of diligence in closing estates. He received a private admonition relating to probate delinquencies in 1987, and in 1994, he was admonished for failure to timely file a probate inventory.

Van Ginkel became friends with John Oxley through mutual service on the board of the Exchange State Bank in Collins, Iowa. John Oxley asked Van Ginkel to draft wills for himself and his wife, Ruth. The wills drafted by Van Ginkel provided that the assets of the first decedent would pour over into the John and Ruth Oxley Trust established for the benefit of the survivor. When the survivor passed away, the trust assets were to be divided and given to four beneficiary nieces.

John Oxley died on October 28, 2005. Upon John's death, Van Ginkel opened a probate estate. The Exchange State Bank of Collins was appointed executor for the estate. Gary Hested, a trust officer at that bank, served as executor of the estate and as trustee for the John and Ruth Oxley Trust. Ruth Oxley died on October 4, 2006, and her estate was opened shortly thereafter.

Upon John's death, the assets in his estate poured over into the John and Ruth Oxley Trust for the benefit of the survivor as contemplated, and upon Ruth's death, the assets of the trust were timely distributed to the beneficiaries. While the estate of Ruth Oxley was timely closed, the estate of John Oxley remained open for almost five years, well in excess of the three-year statutory limitation. See Iowa Code § 633.473 (2005) (requiring final settlement to be made within three years).

The Board charged Van Ginkel with a violation of rule 32:1.3 (diligence and promptness) and rule 32:8.4(d) (conduct prejudicial to the administration of justice) based on seven notices of delinquencies in the relatively uncomplicated estate. Van Ginkel's dilatory conduct caused one of Ruth's beneficiaries, Marcia Moore, to contact Judge Ruth Klotz directly to try to determine why John's estate had not been closed. Judge Klotz responded thoughtfully to her and ultimately wrote directly to the estate's executor in the hope of receiving necessary waiver and tax clearances to close the estate.

While the estate was not timely closed, Van Ginkel did succeed in obtaining his fees in a timely fashion. In an application for first-half fees filed in February 2007, Van Ginkel, in order to comply with Iowa Probate Rule 7.2(4), stated that the inheritance tax return had been “prepared.” See Iowa Ct. R. 7.2(4) (“One half of the fees for ordinary services may be paid when the ... Iowa inheritance tax return ... [is] prepared.”). The evidence showed, however, that at the time he made the representation, Van Ginkel did not have the funeral expense information necessary to complete schedule J on the inheritance tax return. Given these facts, the Board charged Van Ginkel with prematurely withdrawing his first-half fees in violation of rule 32:8.4(d).

[809 N.W.2d 101]

Van Ginkel also obtained second-half fees in December 2007. In his application in support of the fees, Van Ginkel stated that a final report had been filed with the court. All costs of the estate, however, had not been paid. Instead, Van Ginkel placed $2000 in trust in order to cover the anticipated costs. The Board charged that his withdrawal of second-half fees violated rule 7.2(4), which requires that the costs of the estate “have been paid” prior to receiving second-half attorneys' fees and, as a result, violated rule 32:8.4(d).

The Board also charged Van Ginkel with making a number of false statements and/or misrepresentations in documents he filed in the estate in violation of rule 32:3.3(a)(1) (knowing false statement to a tribunal) and rule 32:8.4(c) (misrepresentation). The Board charged that Van Ginkel in the November 20, 2007 final report misrepresented the status of obligations related to taxes, claims, and attorneys' fees. The Board further claimed that Van Ginkel's representation in a July 31, 2008 interlocutory report that the Iowa estate income tax return had been filed was false. The Board also asserted Van Ginkel made a false representation in the July 30, 2009 interlocutory report when he stated that revised tax returns for the estate had been prepared and submitted to the executor for review. Finally, the Board maintained that statements in a draft order regarding an affidavit for publication and relating to costs were false.

Based on the evidence presented, the commission entered its findings of fact and conclusions of law on June 13, 2011. The commission found that Van Ginkel had neglected to close the estate in a timely fashion and that his conduct caused the district court to send numerous delinquency notices and ultimately required the intervention of Judge Klotz to close the estate. While the commission found that Van Ginkel had not, in fact, filed the affidavit of publication as represented to the court, it found this error to be a result of a mistake and not a knowing misrepresentation. The commission, however, found that Van Ginkel in the July 31, 2008 interim report knowingly misrepresented that the tax return had been filed. In connection with this finding, the commission specifically found the testimony of Van Ginkel's staffer credible and that of Van Ginkel not credible. The commission also found that Van Ginkel received his first- and second-half fees prematurely.

As a result of its findings, the commission concluded that Van Ginkel violated rule 32:1.3, rule 32:8.4(d), rule 32:3.3(a)(1), and rule 7.2(4). In light of the violations, the commission recommended a public reprimand for Van Ginkel.

The Board urges us in this proceeding to impose a suspension of at least thirty days. The Board suggests that the seriousness of the violations justifies a harsher sanction than a public reprimand.

Van Ginkel recognizes that if he had, in fact, engaged in the misrepresentations claimed by the Board, a sanction more substantial than public reprimand would be warranted. But Van Ginkel asserts that he did not engage in any knowing misrepresentations or additional misconduct. As a result, he urges us to reject suspension and to follow the recommendation of the commission to impose a public reprimand.

II. Standard of Review.

In disciplinary proceedings, our review of the factual findings of the grievance commission is de novo. Iowa Ct. R. 35.10(1). While the court gives respectful consideration to the commission's findings, it is not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). The

[809 N.W.2d 102]

burden of proof is on the Board to prove charges by a convincing preponderance of the evidence. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Kress, 747 N.W.2d 530, 537 (Iowa 2008). This burden is higher than the burden in most civil cases, but lower than in a criminal prosecution. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). Upon proof of misconduct,...

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56 practice notes
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Morse, No. 15–1502.
    • United States
    • United States State Supreme Court of Iowa
    • November 10, 2016
    ...or consciously disregards the responsibilities the lawyer owes to the client. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012).Morse did not inadvertently miss a deadline. Rather, he chose a course of action contrary to his obligation of diligence. He re......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Bauermeister, No. 18-2219
    • United States
    • United States State Supreme Court of Iowa
    • May 3, 2019
    ...Ct. Att'y Disciplinary Bd. v. Moran , 919 N.W.2d 754, 758 (Iowa 2018) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel , 809 N.W.2d 96, 102 (Iowa 2012) ). "A convincing preponderance of the evidence is more than a preponderance of the evidence, but less than proof beyond a rea......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Moothart, No. 14–1708.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 2015
    ...We review factual findings of the commission de novo. Iowa Ct. R. 35.11(1) ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 101 (Iowa 2012). We give respectful consideration to the findings of the commission, especially when considering credibility of witnesses, but a......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Kingery, No. 15–0673.
    • United States
    • United States State Supreme Court of Iowa
    • October 30, 2015
    ...neglect under a predecessor to the rules are relevant to our analysis here. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012)."Neglect involves an attorney's consistent failure to perform his or her obligations...." Iowa Supreme Ct. Att'y Disciplinary......
  • Request a trial to view additional results
56 cases
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Morse, No. 15–1502.
    • United States
    • United States State Supreme Court of Iowa
    • November 10, 2016
    ...or consciously disregards the responsibilities the lawyer owes to the client. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012).Morse did not inadvertently miss a deadline. Rather, he chose a course of action contrary to his obligation of diligence. He re......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Bauermeister, No. 18-2219
    • United States
    • United States State Supreme Court of Iowa
    • May 3, 2019
    ...Ct. Att'y Disciplinary Bd. v. Moran , 919 N.W.2d 754, 758 (Iowa 2018) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel , 809 N.W.2d 96, 102 (Iowa 2012) ). "A convincing preponderance of the evidence is more than a preponderance of the evidence, but less than proof beyond a rea......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Moothart, No. 14–1708.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 2015
    ...We review factual findings of the commission de novo. Iowa Ct. R. 35.11(1) ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 101 (Iowa 2012). We give respectful consideration to the findings of the commission, especially when considering credibility of witnesses, but a......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Kingery, No. 15–0673.
    • United States
    • United States State Supreme Court of Iowa
    • October 30, 2015
    ...neglect under a predecessor to the rules are relevant to our analysis here. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012)."Neglect involves an attorney's consistent failure to perform his or her obligations...." Iowa Supreme Ct. Att'y Disciplinary......
  • Request a trial to view additional results

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