Iowa Supreme Court Attorney Disciplinary Bd. v. Mathahs

• Decision Date: 21 September 2018
• Docket Number: No. 18-0535,18-0535
• Citation: 918 N.W.2d 487
• Court: Iowa Supreme Court
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Dennis R. MATHAHS, Respondent.

918 N.W.2d 487

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Dennis R. MATHAHS, Respondent.

No. 18-0535

Supreme Court of Iowa.

Filed September 21, 2018

Tara van Brederode and Wendell J. Harms, for complainant.

Leon F. Spies of Spies, Pavelich & Foley, Iowa City, for respondent.

WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against an attorney, alleging numerous violations of the Iowa Rules of Professional Conduct while the attorney performed legal services for the Iowa State Public Defender (SPD). A panel of the Iowa Supreme Court Grievance Commission found that the attorney’s conduct violated our rules.

Based on the attorney’s violation of our rules, the commission recommended we suspend his license to practice law in this state for forty-five days. On our de novo review, we find the attorney violated the provisions of our rules. We disagree, however, with the length of the recommended suspension. We suspend the attorney’s license to practice law in Iowa for sixty days from the date of the filing of this opinion.

I. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Laing , 832 N.W.2d 366, 367 (Iowa 2013). The Board must prove ethical violations by a convincing preponderance of the evidence. Id. at 368. A convincing preponderance of the evidence lies between the typical preponderance standard in a civil case and proof beyond a reasonable doubt in a criminal case. Iowa Supreme Ct. Att’y Disciplinary Bd. v. West , 901 N.W.2d 519, 522 (Iowa 2017). We may impose a greater or lesser sanction than what the commission has recommended upon proof of an ethical violation. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Vandel , 889 N.W.2d 659, 662 (Iowa 2017). The commission’s findings and recommendations do not bind us, although we respectfully consider them. Id.

II. Background Facts and Proceedings.

On June 23, 2017, the Board filed a complaint against Dennis Mathahs alleging a number of violations of the Iowa Rules of Professional Conduct. On August 28, the Board filed a recasted complaint alleging the same rule violations. On September 13, Mathahs filed a motion to dismiss, claiming the doctrine of laches. Specifically, Mathahs argued the Board delayed for more than four years in bringing its complaint after he had self-reported his misconduct in April 2013 and such delay unduly prejudiced his ability to defend himself. The Board resisted Mathahs’s motion to dismiss, arguing the delay was reasonable. The commission overruled Mathahs’s motion to dismiss. The Board then filed an amended recasted complaint alleging the same rule violations that the Board had alleged in its original complaint.

On December 29, the Board and Mathahs entered into a joint stipulation pursuant to Iowa Court Rule 36.16. In the stipulation, the parties agreed to the relevant facts and the rule violations. The parties also agreed to waive a formal hearing. On January 5, 2018, the commission approved and accepted the stipulation with the condition of commencing a hearing as scheduled on January 10, for the purpose of admitting evidence regarding the appropriate sanction for the agreed upon violations of rule 32:1.5(a) and 32:5.3(b).

Stipulations of facts bind the parties. Iowa Ct. R. 36.16(2) ; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson , 838 N.W.2d 528, 532 (Iowa 2013). We construe such stipulations "with reference to their subject matter and in light of the surrounding circumstances and the whole record, including the state of the pleadings and issues involved." Nelson , 838 N.W.2d at 532 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf , 793 N.W.2d 525, 528 (Iowa 2011) ). With stipulations conceding rule violations, however, "we will only enforce the stipulation[s] if there is sufficient legal consideration." Id. Based on the stipulations of the parties and our de novo review of the record, we make the following findings of fact.

Mathahs has practiced law in Iowa since 2001. Upon obtaining his law license, Mathahs has practiced mostly from an office in Marengo. Although he practiced with a firm for a brief period after becoming an attorney, Mathahs has been in a solo practice for most of his career.

In October 2001, the SPD and Mathahs entered into a contract whereby Mathahs would provide legal services to indigent adults and juveniles in certain Iowa counties. The contract initially specified that Mathahs would provide services in seven counties. Through a series of renewals, the geographic scope increased to as many as nineteen counties. Mathahs testified his SPD work eventually constituted more than ninety-nine percent of his practice. The parties agree Mathahs was very busy and performed his representation of indigents and juveniles satisfactorily. Mathahs continued in this line of work until the expiration of his most recent contract with the SPD on May 1, 2013. Since that time, Mathahs has not been under contract with the SPD.

To receive payment from the SPD for his services, Mathahs was required to submit General Accounting Expenditure (GAX) forms to the SPD detailing the dates, specific services performed, and the amount of time for each service. Mathahs was also required to submit itemization of expenses, including mileage. The GAX form requires the submitter to certify the following:

I, the undersigned attorney, certify that I have completed my services under the appointment; that I have not received nor have I entered into any agreement to receive compensation for these services, direct or indirect, from any source other than the State Public Defender; and that the above information summarizes the services and expenses for which I am entitled to payment. I further state that an itemized statement of services and expenses is attached hereto and a copy has been provided to my client.

At least two SPD employees review each GAX form before approving it.

On March 1, 2013, Samuel Langholz from the SPD wrote to Mathahs about his concerns over the accuracy of the hours and mileage expenses recorded on Mathahs’s GAX forms. Langholz wrote that Mathahs had claimed more than 3000 hours and had received more than $180,000 in fiscal year 2010 (July 1, 2009, to June 30, 2010).

Langholz and Mathahs met on March 7 to discuss the matter. On March 24, Mathahs wrote to Langholz to explain the inaccuracies and discrepancies in his GAX forms. After acknowledging he had signed the GAX forms and accepting responsibility for the incorrect information, Mathahs explained how the errors had occurred.

With regard to the excessive hours, Mathahs explained it was the result of inattentiveness on the part of his legal secretary. Mathahs attributed his secretary’s inattentiveness to the brutal murder of her ex-husband. He stated he could not fire her because her ex-husband’s death had ended child support and left her with no income.

Mathahs further explained he had instructed his secretary as to her duties by dictation on cassette tapes and had told her to work from the dictation sequentially. Each tape contained information regarding not only billings but also all correspondence, motions, reports to the court, and other matters. She would listen to the tapes and transcribe the correspondence, motions, and reports but would put the billing off until later. She would then go back and listen to the same tapes, fast-forwarding through the correspondence, motions, and reports she had already completed to get to the parts about billing. Because she skipped around when transcribing the dictation, she would bunch together time from many different dates into one date instead of recording the time as hours spent over the course of many days. According to Mathahs, after becoming aware of her mistakes, he told her to stop skipping around, but she failed to comply. The secretary also haphazardly entered the dates of service, and thus the dates of service on the GAX forms often did not correspond to the dates Mathahs had done the actual work.

With regard to the excessive mileage expenses, Mathahs explained that beginning in 2009, he made single trips for several clients and erroneously billed each client for the total mileage.

On April 23, Langholz rejected Mathahs’s explanation of his fee reimbursement claims based on the number of hours Mathahs had allegedly worked and Mathahs’s explanation of his mileage reimbursement claims. On April 26, Mathahs self-reported his misconduct in a letter to the Board. The Board received the letter on April 29.

On September 23, 2015, after investigating the overpayments by the SPD to Mathahs, the attorney general’s office informed the SPD that the Iowa Department of Justice and Division of Criminal Investigation found no provable evidence of intent to steal or defraud, and Mathahs’s explanations were contrite and did not contradict any documentary evidence.

Based on Mathahs’s misconduct, the Board filed a complaint, alleging a number of violations of the Iowa Rules of Professional Conduct. Relevant to this appeal are rules 32:1.5(a) (unreasonable fees or expenses) and 32:5.3(b) (lack of supervision over a nonlawyer employed by a lawyer). On January 5, 2018, the commission approved and accepted the stipulation with the condition of commencing a hearing as scheduled. The commission held the hearing on January 10. On March 27, the commission entered its findings of fact, conclusions of law, and recommendations. The commission found Mathahs violated rules 32:1.5(a) and 32:5.3(b).

Mathahs did not appeal but submitted a statement regarding sanctions, asserting that a suspension greater than fifteen days was unwarranted. See Iowa Ct. R. 36.21. We discuss additional facts as necessary.

III. Laches.

Laches constitutes "an ‘equitable doctrine premised on unreasonable delay in asserting a right, which causes disadvantage or prejudice to another.’ " See Comm. on Prof’l Ethics & Conduct v. Wunschel , 461 N.W.2d 840, 846 (Iowa 1990) (quoting ...