Iowa Supreme Court Attorney Disciplinary Bd. v. Humphrey

• Decision Date: 30 March 2012
• Docket Number: No. 11–2062.,11–2062.
• Citation: 812 N.W.2d 659
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Bryan J. HUMPHREY, Respondent.
• Court: Iowa Supreme Court

812 N.W.2d 659

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Bryan J. HUMPHREY, Respondent.

No. 11–2062.

Supreme Court of Iowa.

March 30, 2012.

Charles L. Harrington and N. Tré Critelli, Des Moines, for complainant.

Bryan J. Humphrey, Fort Madison, pro se.

MANSFIELD, Justice.

An attorney was retained on a contingent fee basis to obtain a settlement from an insurance company. The attorney failed to put his agreement with his clients in writing. He subsequently allowed the matter to languish and did not respond to repeated inquiries from the clients. He also failed to respond to inquiries from the Iowa Supreme Court Attorney Disciplinary Board after the clients filed a complaint. We now have to decide whether the attorney violated our ethical rules and, if so, what the sanction should be.

This case 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 Board alleged the respondent, Bryan J. Humphrey, violated Iowa Rules of Professional Conduct 32:1.3, 32:1.4(a)(3), 32:1.4(a)(4), 32:1.5(c) and 32:8.1(b). The commission agreed and recommended Humphrey be suspended from the practice of law. Upon our consideration of the commission's findings of fact, conclusions of law, and recommendations, we also agree that Humphrey violated each of these rules. Considering Humphrey's current violations and his prior disciplinary record, we order his license suspended indefinitely with no possibility of reinstatement for three months.

I. Factual and Procedural Background.¹

Humphrey was admitted to the Iowa bar in 1981 and practices on his own. In July 2005, Humphrey was retained by Marty and Sheryl Victory to represent them in negotiating an insurance settlement with Amco Insurance Company. The Victorys' home had suffered fire damage following a lightning strike. Humphrey entered into an unwritten contingent fee agreement with the Victorys under which he would receive one third of their insurance recovery. On July 15, 2005, Humphrey sent a letter to Amco requesting that it cover the Victorys' hotel costs and out-of-pocket expenses. Humphrey continued to correspond regularly with the Amco adjuster through July 2008. The Victorys received an initial insurance payment of approximately $6000 from which Humphrey was paid one third.

However, beginning in October 2008, Humphrey essentially ceased responding to inquiries from the Victorys regarding the ongoing status of settlement discussions with Amco. From October 16, 2008, through December 30, 2009, the Victorys sent thirty-five text messages asking about the status of their claim. They received three text message responses from Humphrey on September 8, 2009, November 24, 2009, and December 2, 2009. The first of these responses came eleven months after the first query from the Victorys.

The Victorys also attempted to contact Humphrey through a series of certified letters. The first was sent on March 21, 2009, and stated:

We have not had any luck getting a hold of you by phone so I thought I would try writing to you. We have a few questions we want answered.

1) Why don't you answer our calls or text messages?

2) When are you available to meet with us?

3) Are you still trying to get us settled?

4) What is the statute of limitation?

5) Have you filed a lawsuit against Allied? If so when?

6) Will you send copies of the lawsuit?

7) Have you tried to call Carl?

8) Have you sent a letter to Carl for him to sign?

Please answer these and get back to us as soon as possible.

On April 19, 2009, and May 8, 2009, the Victorys sent two more certified letters asking Humphrey the same questions. Although Humphrey received all three letters, he did not reply to any of them.

On July 13, 2009, Humphrey wrote the Amco insurance adjuster about the Victorys' claim. On November 12, 2009, the Victorys sent a fourth certified letter stating:

We have not heard from you in quite awhile. You do not answer our phone or text messages so I thought I would try writing to you. We have a few questions we want answered.

1) Why don't you answer our phone calls or text messages?

2) About a year ago you told us everything would be done by the end of the year, what happened?

3) Are you still working for us?

4) Have you been in contact with the insurance company at all?

5) Are you going to file a lawsuit against the insurance company for us?

6) If you are still working for us what is going on?

7) Have we said or done something to make you not want to help us?

....

There are 202 days left before the 5 year anniversary of the fire.

Humphrey received this fourth letter on November 18 but still did not respond to the Victorys, although he did write the insurance adjuster again on their behalf on November 20, 2009.

Finally, on January 25, 2010, the Victorys mailed yet another letter which stated:

We have not heard from you in quite a while. I wanted to enclose some of the many text that I (we) have sent to you with little response from you as you can see. We have sent registered letters to you with no response. The only time we get to talk to you anymore is when we run into you some where. When we hired you to help us, we believed in you and you continually let us down. Our number # 1 question at this time is “Why?”

....

There are 137 days left before the 5 year anniversary of the fire.

Humphrey did not respond to this fifth letter, so on March 17, 2010, the Victorys filed a complaint with the Board. Humphrey responded to the Board's initial inquiry, but did not reply to a subsequent July 15, 2010 letter asking him to “provide the Board with copies of [his] written communications with the insurance carrier, the complainants, and an accounting of all settlement checks received from the insurance carrier.” He also did not reply to a second Board letter dated October 15, 2010.

The Victorys completed their negotiations with Amco on their own. On August 18, 2010, they agreed to a final settlement that involved an additional payment by Amco of $13,272.54. No portion of this insurance payment went to Humphrey. There is no evidence that the Victorys suffered any tangible financial loss because of Humphrey's actions or that Humphrey unreasonably profited from his work on their behalf. However, a substantial, multiyear delay occurred before the Victorys received their final insurance payment.

On August 5, 2011, the Board filed a complaint against Humphrey alleging that he had violated rules 32:1.3, 32:1.4(a)(3), 32:1.4(a)(4), 32:1.5(c) and 32:8.1(b). In his answer, Humphrey admitted he had violated rule 32:1.5(c) which requires that “[a] contingent fee agreement shall be in writing....” He denied the other four alleged rule violations. Humphrey's answer did not respond at all to the thirty-six numbered paragraphs of factual allegations in the Board's complaint. Accordingly, the Board filed a motion asking that those alleged facts be deemed admitted. Humphrey did not respond to this motion; an order was entered granting it on September 26, 2011.

The commission held a hearing on November 17, 2011. The Board offered three exhibits in evidence showing Humphrey's past disciplinary history: a public reprimand in 1995, a sixty-day license suspension in 1995, and a three-year license suspension in 1996. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Humphrey, 551 N.W.2d 306 (Iowa 1996); Comm. on Prof'l Ethics & Conduct v. Humphrey, 529 N.W.2d 255 (Iowa 1995).

Humphrey appeared pro se and offered no witnesses or exhibits but did testify on his own behalf. He admitted that his fee agreement with the Victorys was not in writing and that he had received a contingent fee out of the first $6000 insurance payment to them. Humphrey maintained that the Victorys had obtained other insurance payments through his efforts, from which he did not receive a share. Humphrey conceded he did not have anything to do with the Victorys' obtaining the final $13,272.54 payment.

Humphrey also admitted that “there were times I did not respond to my client.” He said he had not responded to the Board's letters “from fear of being here, and I'm here now.” He explained:

I have no evidence to present. I do admit the allegations made against me.... I won't try to mitigate what happened by telling you the circumstances.

When asked, “Is there anything else in your life or in your practice that you feel would be a mitigating circumstance you would like us to take into account?” Humphrey answered, “Honestly, I wish there were, but there's not.... And no, I don't—I can't blame anything.... No, I don't have any excuses.” When asked what in hindsight he would have done differently, Humphrey stated he would have withdrawn from the case.

Following the hearing, the commission issued a report finding that Humphrey had violated rules 32:1.3, 32:1.4(a)(3), 32:1.4(a)(4), 32:1.5(c) and 32:8.1(b). The commission recommended a five-year suspension of Humphrey's license to practice law.

II. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa Ct. R. 35.10(1); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Fields, 790 N.W.2d 791, 793 (Iowa 2010). We give respectful consideration to the commission's findings and recommendations but are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864 (Iowa 2010). “The board has the burden of proving attorney misconduct by a convincing preponderance of the evidence.” Id. “This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). It is also a less stringent burden than clear and convincing evidence which is “the highest civil law standard of proof.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996). If a violation is proven, we “may impose a lesser or greater sanction than recommended...