Iowa Supreme Court Attorney Disciplinary Bd. v. Dolezal

• Citation: 796 N.W.2d 910
• Decision Date: 29 April 2011
• Docket Number: No. 11–0157.,11–0157.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,v.Kenneth F. DOLEZAL, Respondent.
• Court: Iowa Supreme Court

796 N.W.2d 910

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Kenneth F. DOLEZAL, Respondent.

No. 11–0157.

Supreme Court of Iowa.

April 29, 2011.

Charles L. Harrington and David J. Grace, Des Moines, for complainant.Kenneth F. Dolezal, Cedar Rapids, pro se.MANSFIELD, Justice.

This attorney disciplinary proceeding 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(1). The Iowa Supreme Court Attorney Disciplinary Board alleged the respondent, Kenneth F. Dolezal, violated ethical rules by neglecting three clients' matters, failing to deposit fees into a client trust account, failing to provide an accounting, failing to communicate with a client, making misrepresentations to a client, and improperly terminating representation of a client.

The commission found Dolezal violated several of the Iowa Rules of Professional Conduct and recommended Dolezal be suspended from the practice of law for thirty days. The commission further recommended Dolezal be required to submit a report from a qualified physician or mental health professional stating he is presently fit and capable to practice prior to reinstatement and attend a continuing legal education class on trust accounting. Upon our consideration of the commission's findings of fact, conclusions of law, and recommendation, we find Dolezal committed several violations of the Iowa Rules of Professional Conduct and suspend his license for thirty days.

I. Scope of Review.

We review attorney disciplinary proceedings de novo. 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 we 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.

II. Ethical Violations.

Dolezal was admitted to the bar in 1983 and maintains a law office in Linn County. This proceeding is based on Dolezal's handling of three separate legal matters between 2008 and 2010. We will set forth our findings and conclusions with respect to each matter.

A. Conservatorships of Wesley and Lenora Buresh. The first matter involves Dolezal's failure, despite repeated warnings, either to pursue or dismiss two appeals before this court.

In approximately 2007, Dolezal was retained by the daughter of Wesley and Lenora Buresh to represent her in connection with the Bureshes' conservatorships. On March 26, 2008, Dolezal filed a notice of appeal challenging a district court ruling. He subsequently filed a combined certificate and paid the docketing fee but did nothing thereafter. On August 6, 2008, Dolezal was found in default and personally assessed a $50 penalty for failing to timely file a proof brief and designation of appendix in this court.

On August 22, 2008, Dolezal paid the penalty and also applied for an extension of time to file the brief and designation. The extension of time was granted, but on October 16, 2008, Dolezal was again found in default for not filing the proof brief and designation and assessed another $50 fine. Dolezal paid the fine as before but, again, asked for another extension. On March 17, 2009, an order was entered directing the proof brief and designation of appendix to be filed within thirty days or the case would be dismissed. No brief or designation was filed, so on May 5, 2009, a notice of default was issued, and Dolezal was personally assessed another $50 fine. That default was not cured, and the appeal was dismissed by our clerk of court on June 5, 2009, over a year after it had been initiated.

On May 26, 2009, Dolezal filed a second notice of appeal. This appeal related only to the conservatorship of Lenora Buresh, Wesley Buresh having died. Dolezal, however, did not pay the filing fee for this appeal. See Iowa R.App. P. 6.102(3). On September 11, 2009, Dolezal received written notice that the $150 fee needed to be paid within seven days to avoid penalty. The fee was still not paid. On October 2, 2009, a notice of default was issued based on failure to pay the filing fee, and Dolezal was personally assessed a $150 fine. This notice of default, like the default notice from the previous appeal, specifically stated in bold:

You are advised that if the appeal is dismissed as a result of counsel's failure to comply with this default notice, a copy of the dismissal order will be forwarded to the Iowa Supreme Court Attorney Disciplinary Board.... The dismissal may serve as grounds for an investigation of neglect of a client's legal matter.

This default also was not cured, so on November 10, 2009, the second appeal was dismissed by our clerk of court for want of prosecution.

At the grievance hearing, Dolezal sought to explain his actions. He testified that he and his client jointly decided it was not necessary to pursue either appeal. He also explained that he, not his client, paid the penalties assessed by the clerk. Finally, Dolezal admitted he had received the default notices and never responded to them. He acknowledged he should have dismissed the appeals on his own, but claimed he was unaware that he had to do so instead of relying upon the clerk.

When an attorney's failure to comply with appellate deadlines results in an administrative dismissal, his actions are prejudicial to the administration of justice. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Wright, 758 N.W.2d 227, 230–31 (Iowa 2008) (finding an attorney's reliance on a default notice to dismiss an appeal when his client could not raise funds for the filing of the transcript was conduct prejudicial to the administration of justice); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 668 (Iowa 2007) (finding an attorney committed neglect and acted in a manner prejudicial to the administration of justice when he failed to prosecute or move to dismiss an appeal he believed to be without merit); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 105 (Iowa 2006) (“To simply wait for the court to dismiss the case for lack of prosecution is neglect, inappropriate, and unethical.”); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Daggett, 653 N.W.2d 377, 380 (Iowa 2002) (failing to comply with appellate deadlines “not only constitutes neglect, but also amounts to conduct that is prejudicial to the administration of justice”).

Dolezal conceded he failed to cure the defaults. Instead, he relied on the clerk to administratively dismiss both appeals. But a client's decision not to pursue an appeal does not put an end to the attorney's responsibility for that matter. See Tompkins, 733 N.W.2d at 668 (“The burden is on the attorney to comply with the appellate deadlines regardless of a client's instruction or interest in the case.”); Lesyshen, 712 N.W.2d at 105 (“[S]imply because a client does not want to pursue the case does not relieve the attorney from taking steps necessary to end the matter.”). Dolezal's failure to follow through with or dismiss the appeals and his disregard of the default notices violated ethical rules 32:3.2 (requiring reasonable efforts to expedite litigation) and 32:8.4(d) (requiring conduct not be prejudicial to the administration of justice). See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 530 (Iowa 2011) (holding that “[i]gnoring deadlines and orders, which results in default notices from the clerk of court, hampers the ‘ “efficient and proper operation of the courts” ’ and therefore is prejudicial to the administration of justice” (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa 2005))); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Monroe, 784 N.W.2d 784, 788 (Iowa 2010) (stating that acts prejudicial to the administration of justice generally have “ ‘hampered the efficient and proper operation of the courts or of ancillary systems upon which courts rely’ ” (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Borth, 728 N.W.2d 205, 211 (Iowa 2007))); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Hoglan, 781 N.W.2d 279, 284 (Iowa 2010) (holding an attorney's failure to prosecute four appeals violated rules 32:1.3, 32:3.2, and 32:8.4(d)).

The commission found that Dolezal's conduct also violated rule 32:1.3 requiring “reasonable diligence and promptness in representing a client.” In a case decided under the former Iowa Code of Professional Responsibility for Lawyers, we held that even if a client no longer wants a matter to be pursued, it is neglect for the attorney to allow the matter to languish, without terminating it. See Lesyshen, 712 N.W.2d at 105. As we put it in Lesyshen:

[S]imply because a client does not want to pursue the case does not relieve the attorney from taking steps necessary to end the matter. To simply wait for the court to dismiss the case for lack of prosecution is neglect, inappropriate, and unethical. See DR 6–101(A)(3).

Id. We see no reason to interpret rule 32:1.3 differently from former DR 6–101(A)(3) in this respect. The new rule provides that a lawyer “shall act with reasonable diligence and promptness in representing a client”; the old rule provided that a lawyer shall not “neglect a legal matter entrusted to him.” Thus, both rules are broadly worded to require diligence, or conversely to prohibit neglect, in the course of legal work on a client's behalf. It is not a defense under either rule that the client may be indifferent to the attorney's lack of diligence.

B. Social Security Disability Claim of Michael David. This attorney disciplinary proceeding also concerns Dolezal's representation of a client in a social security disability appeal to federal district court. To summarize our findings, which we discuss in more detail below, Dolezal received a retainer from his client and filed the federal court...