Iowa Supreme Court Attorney Disciplinary Bd. v. Cunningham

• Decision Date: 13 January 2012
• Docket Number: No. 11–1570.,11–1570.
• Citation: 812 N.W.2d 541
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Matthew Warren CUNNINGHAM, Respondent.
• Court: Iowa Supreme Court

812 N.W.2d 541

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Matthew Warren CUNNINGHAM, Respondent.

No. 11–1570.

Supreme Court of Iowa.

Jan. 13, 2012.

Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.

Matthew Warren Cunningham, Des Moines, pro se.

ZAGER, Justice.

This matter comes before us on the report of a division of the Grievance Commission of the Supreme Court of Iowa. SeeIowa Ct. R. 35.10(1). The Iowa Supreme Court Attorney Disciplinary Board filed a complaint against Matthew W. Cunningham. The complaint alleged misconduct arising out of Cunningham's representation of two different clients involving divorce and bankruptcy matters. The Board alleged multiple violations related to neglect, misrepresentation, conduct prejudicial to the administration of justice, and failure to properly withdraw from representation. Cunningham failed to respond to these allegations and resulting proceedings in any way. The commission found Cunningham violated several Iowa Rules of Professional Responsibility and recommended we suspend his license with no possibility of reinstatement for three years. The commission also recommended Cunningham be required to undergo a mental health evaluation and present evidence of his fitness to practice law prior to reinstatement. Upon our de novo review, we find Cunningham violated numerous provisions of the Iowa Rules of Professional Responsibility and suspend his license to practice law for eighteen months. We also order that prior to reinstatement, Cunningham must complete a mental health evaluation and present evidence of his fitness to practice law.

I. Background Facts and Prior Proceedings.

Cunningham was admitted to the Iowa bar in 2001. He leased office space in downtown Des Moines from another attorney, Pamela Vandel. At some point, Cunningham and Andrew Hope, another attorney who leased office space from Vandel, formed a partnership. In early 2008, Cunningham began to have problems.¹ According to Vandel's testimony, Hope called her to assist him in taking over some of Cunningham's cases because Cunningham had “just left” his practice, and “[Hope] didn't think [Cunningham] could practice law.”

After Cunningham left, Vandel, Hope, and another attorney took over Cunningham's cases, with Vandel taking over eight or nine bankruptcy cases and three personal injury cases. Hope met with the rest of Cunningham's clients in an effort to salvage their cases. In at least one case, Hope filed a motion to withdraw on Cunningham's behalf. Shortly before the complaints that form the basis of this action were brought by the Board, Cunningham received a private reprimand for failing to inform a client of a withdrawal from representation and failing to deliver the client's file to him. In late 2008 and early 2009, Cunningham twice failed to respond to the Board's notices, and his license was temporarily suspended by this court on January 7, 2009, and May 14, 2009. These temporary suspensions remain in effect.

II. Standard of Review.

Attorney disciplinary proceedings are reviewed de novo. Iowa Ct. R. 35.10(1); see also Iowa Supreme Ct. Att'y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 677 (Iowa 2010). We give the grievance commission's factual findings respectful consideration, but they are not binding on us. Johnson, 792 N.W.2d at 677. The Board must prove misconduct by a convincing preponderance of the evidence. Id. This burden is more than the standard required in a usual civil case, but less than proof beyond a reasonable doubt. Id. If we find misconduct has been proven by a convincing preponderance of the evidence, “we may impose a lesser or greater sanction than the discipline recommended by the grievance commission.” Id. (citation and internal quotation marks omitted).

III. Findings of Fact.

The Board filed a complaint against Cunningham on June 8, 2011. Cunningham did not file an answer, and the Board's motion to invoke Iowa Court Rule 36.7 was granted on August 9, 2011. Under that rule, the Board's allegations are deemed admitted. Iowa Ct. R. 36.7; see also Johnson, 792 N.W.2d at 677. Based on the admitted allegations, and upon our de novo review of the record, we find the following facts.

A. Count I: Mary K. Walker Matter. In late 2007, Mary Walker retained Cunningham to assist her with her divorce from her husband, Brett Walker. Cunningham filed Walker's petition for dissolution of marriage on November 1, 2007. On November 21, Brett's attorney, R.J. Hudson, II, sent interrogatories and a request for production of documents to Cunningham. Cunningham did not forward these documents to Walker. On January 2, 2008, as part of a good-faith effort to resolve the discovery dispute, Hudson wrote a letter to Cunningham demanding responses to the requested discovery by January 13, 2008. Hudson did not receive any response from Cunningham and, on February 4, filed a motion to compel. A hearing on the motion was scheduled for February 26.

On February 5, Cunningham sent Walker a letter and forwarded a notice of scheduling conference, along with the interrogatories and request for production of documents.² Walker called Cunningham with questions regarding the discovery documents, and he told her to fill them out briefly and then she could come into his office later and “we would fill it out in detail at some point in time.” Walker also stated Cunningham told her “that [she] just needed to return it to him with some sort of answer on it.”

On February 26, the court granted Hudson's motion to compel and ordered Walker to “serve all outstanding discovery by 3–11–08 or appear on 3–18–08 at 9:30 A.M. for imposition of sanctions.” On March 5, Cunningham wrote Walker, informing her of the order and the March 11 deadline, as well as the possible imposition of sanctions. Walker briefly hand wrote her answers to the interrogatories and provided Cunningham a handwritten, numbered list in response to the request for production of documents. The discovery documents were notarized in Cunningham's office on March 7 and forwarded to Hudson on March 11. Walker never heard from Cunningham again.

The court held a hearing on the motion for sanctions on March 18. Cunningham failed to appear and did not inform Walker that she needed to appear. The court imposed sanctions on Walker by awarding $500 in attorney fees payable to her husband. Cunningham never told Walker he was not going to represent her at the sanctions hearing and did not tell her that she needed to attend the hearing. Walker did not learn that sanctions had been imposed until she was served by the sheriff. Walker did not learn of Cunningham's intent to withdraw until May 6, when Andrew Hope, Cunningham's partner, filed a motion to withdraw, stating Cunningham had “become incapacitated due to health reasons and [was] unable to proceed in this matter as counsel.” Ultimately, Walker was forced to sell some furniture and other personal property in order to retain another attorney to complete her divorce action. Walker also had temporary custody of her minor child, but due to the delay in her divorce proceedings, she did not receive an award of temporary child support for six months. She eventually received an award of temporary child support of $725 per month.

B. Count II: Sheila K. McDowell Matter. In 2006, Sheila McDowell (known then as Sheila Sammons) and her husband Bruce Sammons decided to file for divorce. Due to Bruce's medical issues, the couple had built up a large amount of credit card debt and wanted to file for bankruptcy prior to getting divorced. Sheila's divorce attorney referred them to Cunningham. On July 11, Cunningham sent Sheila a letter stating that he would begin reviewing the couple's financial information to see if they would qualify for a Chapter 7 liquidation bankruptcy. At that time, he also suggested the couple take a credit counseling course that would be required before they could file bankruptcy. Sheila wanted to remarry after the divorce, but wanted to be sure that the debts from her first marriage were discharged before getting remarried. Sheila made this known to Cunningham. On August 23, 2006, Sheila's divorce attorney copied Cunningham on a letter to Bruce Sammons, which stated, “I will do nothing with regard to pursuing this [divorce] case until such time as the bankruptcy is processed. I understand that Matt Cunningham is representing you, and I am sending him a copy of this letter as well as one to Sheila.”

On September 26, Cunningham sent Sheila a fee agreement for a joint bankruptcy, as well as the forms the couple would be required to fill out before filing. Bruce and Sheila paid Cunningham $299 for the filing fee and a $1200 up-front fee to file a joint bankruptcy for them and returned the completed bankruptcy schedules to him. The couple qualified for a Chapter 7 liquidation bankruptcy, and over the next few months, Cunningham told Sheila that he had filed her petition and that a first meeting of creditors had been scheduled. Sheila scheduled time off work to attend the first meeting of creditors three different times, but each time Cunningham informed her the day before the meeting that it had been cancelled.

The delays in the bankruptcy proceeding also delayed Bruce and Sheila's divorce. The pretrial conference for the divorce had to be postponed to March 19, 2007, so that the bankruptcy could be completed. Cunningham reviewed and approved the proposed premarital agreement between Sheila and her new husband. ³ On April 2, 2007, Sheila and Bruce's divorce was finalized. The divorce decree noted:

The Court is informed that the parties have filed a petition in bankruptcy with the Federal Bankruptcy Court for the Southern District of Iowa. No resolution of such Bankruptcy has occurred but such filing does materially affect the property division of the parties.

Sheila remarried after Cunningham again assured her that the bankruptcy would take care of everything and...