Iowa Supreme Court Attorney Disciplinary Bd. v. Boles

• Decision Date: 06 January 2012
• Docket Number: No. 11–0435.,11–0435.
• Citation: 808 N.W.2d 431
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Matthew M. BOLES, Appellant.
• Court: Iowa Supreme Court

808 N.W.2d 431

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee,

v.Matthew M. BOLES, Appellant.

No. 11–0435.

Supreme Court of Iowa.

Jan. 6, 2012.

Alfredo G. Parrish of Parrish Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher, L.L.P., Des Moines, for appellant.

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

WATERMAN, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against Matthew M. Boles alleging he violated the Iowa Rules of Professional Conduct and the Iowa Code of Professional Responsibility for Lawyers while working on five criminal felony defense matters. A division of the Grievance Commission of the Supreme Court of Iowa determined Boles violated certain rules, primarily related to fee charges, trust fund withdrawals, and client refunds. Boles stipulates to violating rules governing fee withdrawals and accounting procedures, but appeals the commission's determination he neglected an incarcerated client's postconviction relief case, charged several other clients unreasonable fees, failed to promptly return unearned fees, and failed to separate disputed client property. The commission recommended we suspend Boles' license for sixty days. On our de novo review, we find Boles violated seven rules and suspend him from the practice of law for thirty days.

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 give the commission's findings respectful consideration, 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 board must establish attorney misconduct by a convincing preponderance of the evidence.” Dunahoo, 799 N.W.2d at 528. If we find the Board established attorney misconduct, we can impose a more or less severe sanction than the commission's recommended sanction. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 282 (Iowa 2009).

II. Findings of Fact.

The commission conducted an evidentiary hearing on January 10, 2011. Each party admitted exhibits without objection. Boles and his wife testified. The parties stipulated to the facts for each of the Board's five counts. A stipulation of facts is binding on the parties. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 803 (Iowa 2010). Based upon our de novo review of this record, we find the following facts.

Boles has been a licensed attorney in Iowa since 1993. His practice consists of criminal defense, personal injury, and family law. From 2001 to 2008, the period relevant to this matter, Boles had an extensive, statewide criminal defense practice and regularly handled major felony cases. He drove over 120,000 miles throughout the state while pursuing a challenging and complex trial practice. In the last ten years alone, Boles represented 1105 clients of whom 225 were indigent. Boles has performed extensive court-appointed and pro bono work. He also has compiled an admirable record of public service volunteering to coach more than twenty youth sports teams while serving on nonprofit community boards, mentoring underprivileged children with Waukee schools, and raising his own family. With that background in mind, we will review the facts for each count in turn.

A. Thomas Smith (Count I). On February 1, 2001, Boles was appointed to represent Thomas Smith in his postconviction relief action, after Smith's previous attorney withdrew from the case because he believed it lacked merit. Smith was serving a twenty-five-year sentence for attempted murder after shooting at a police officer. The district court's appointment order directed Boles to “undertake a review of this file to determine whether or not a postconviction relief action is viable,” consult with Smith's former attorney and obtain relevant files, and “on at least one occasion have a personal consultation with Mr. Smith.”

Shortly after accepting the appointment, Boles contacted the prior attorney for information and documentation. On March 6, Boles wrote Smith about the case. In the letter, Boles said he would “be reviewing [Smith's] file,” trying “to set up a phone conference in the very near future” and asked Smith to write him “a letter with [his] thoughts” about the case. Several days later, Boles received a letter stating that Smith is illiterate, that others have to read and write his letters, that Smith would “really like to see [Boles] if [he could],” and that Smith looked forward to hearing from Boles. Boles responded in an April 19 letter, again asking Smith to write his thoughts on the case, and telling Smith, “I would like to come meet with you in the last week of April.” Boles, however, did not meet with Smith that spring. In a July 10 letter, Boles again wrote Smith to inform him someone from his office would be meeting with him in the next ten days. That did not happen. Frustrated, Smith sent another letter to Boles on September 15 stating, “I have waited patiently, but no one has come.” Several days later, Boles assured Smith by letter he was trying to arrange a phone conference and a visit. On November 6, Boles sent Smith a letter asking him to call his office collect. Smith sent a letter back stating prison rules did not permit him to make collect phone calls.

On January 2, 2002, approximately eleven months after Boles was appointed to the case, Boles and the county attorney agreed to dismiss Smith's case without prejudice to consolidate Smith's multiple postconviction relief actions. On May 7, Boles again wrote Smith to inform him he was trying to schedule a prison visit in the next week. No such meeting occurred. Smith wrote more letters to Boles. On January 15, 2003, the district court ordered Boles and the prosecutor to meet to discuss the status of Smith's case. Smith wrote Boles on February 8, to inquire about his case, to inform Boles he is Caucasian, not African–American as the previous attorney's postconviction application stated, and to request a visit.

On March 12, Boles filed an application for postconviction relief, verified by Smith. Boles filed this application twenty-five months after being appointed and fourteen months after agreeing to dismiss Smith's prior application. The application contended Smith's conviction and sentence violated constitutional provisions. He first contended that Smith, as an African–American, was denied due process because his jury venire did not contain sufficient African–Americans. Boles also contended Smith's trial counsel erred in failing to have jury selection reported. Smith later testified his illiteracy prevented him from catching the application's erroneous identification that he is African–American.

Smith wrote Boles three times in the spring of 2003 asking Boles to update him on the status of his case; Smith also expressed a desire to give input on the case. Smith's postconviction case did not require expert testimony, nor did Boles believe he needed evidence showing prosecuting attorneys excluded African–Americans from the jury venire.

The trial was set for November 25. In October 2003, Boles visited Smith and discussed the case. Boles requested and received a continuance for the trial on November 21. In 2004, Boles requested and received two more continuances with the consent of the State. The trial date was set for November 23, 2004, nearly forty-six months after Boles was appointed to the case. On the day of trial, Boles again asked for a continuance, but then agreed with the district court the case presented “no factual or evidentiary issues” and decided to submit the case on a stipulated record consisting of a transcript of Smith's underlying criminal trial and briefs. Boles submitted his trial brief on December 20, 2004. The brief's argument section correctly noted Smith was Caucasian and argued the law accordingly. Boles' efforts were unsuccessful, but the delays caused no harm to Smith who continued serving his sentence. Boles handled the case pro bono.

B. Robert and Joanne Eide (Count II). Robert and Joanne Eide are husband and wife. Boles represented Robert in three different legal matters. On September 30, 2003, Robert was charged with second-degree sexual abuse for sexually abusing his granddaughter. In 2004, Boles agreed to represent Robert in the case. Boles received $7750 in advance fee payments. Robert pleaded guilty to third-degree sexual abuse and was sentenced to prison for ten years. While Robert was incarcerated awaiting trial, an inmate assaulted him. Robert discussed with Boles whether to file a civil lawsuit against the State for damages. He also asked Boles to ensure prosecuting authorities brought charges against the assailant. Joanne paid Boles a $5000 retainer for this matter. After an investigation, Boles concluded Robert's prison assault did not create a viable tort claim against the State, and he provided Robert with instructions and paperwork to file a pro se administrative claim. Robert filed his claim pro se, which was ultimately denied in October 2006. In October 2005, relatives filed a civil action against Robert based upon his sexual abuse of his granddaughter. Joanne paid Boles an $18,000 retainer to defend the civil suit. Boles filed a preanswer motion to change venue, which went to a hearing. He also filed an answer and raised affirmative defenses. The case was set for trial, but plaintiffs voluntarily dismissed the case without prejudice in July 2006. Boles did not communicate the results of the civil claim to Joanne and Robert until October 4, 2007—a full year after those matters had been resolved.

Boles' trust fund withdrawal and billing records were incomplete in each matter. Over the course of the representation, Boles withdrew all funds paid to him. He did not provide contemporaneous notice, accounting, or billing to the Eides. He withdrew...