Iowa Supreme Court Attorney Disciplinary Bd. v. McCarthy, No. 11–1868.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtWIGGINS
Citation814 N.W.2d 596
PartiesIOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. James William McCARTHY, Respondent.
Docket NumberNo. 11–1868.
Decision Date15 June 2012

814 N.W.2d 596

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
James William McCARTHY, Respondent.

No. 11–1868.

Supreme Court of Iowa.

June 15, 2012.


[814 N.W.2d 599]


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

Dan T. McGrevey, Fort Dodge, for respondent.


WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board alleged the respondent, James W. McCarthy, violated the Iowa Rules of Professional Conduct in nine separate legal matters. A division of the Grievance Commission of the Supreme Court of Iowa filed a report finding McCarthy violated numerous rules and recommended that we indefinitely suspend the respondent's license to practice law in Iowa with no possibility of reinstatement

[814 N.W.2d 600]

for at least two years. Pursuant to our court rules, we are required to review the commission's report. SeeIowa Ct. R. 35.10(1).1 Upon our review, we agree the respondent violated our ethical rules and suspend his license to practice law indefinitely for at least two years.

I. Prior Discipline.

McCarthy is no stranger to the disciplinary process. In 1991, McCarthy was admonished because he failed to advise his client of the filing of a motion for sanctions, the hearing thereon, and the order imposing sanctions. In 1992, McCarthy received a public reprimand for failing to make timely filings in a probate matter and for failing to cooperate with the subsequent disciplinary investigation. In 1993, McCarthy received another admonishment after he represented a client in a proceeding substantially related and adverse to the interests of a former client without the informed consent of both parties. In 1996, McCarthy received a second public reprimand for again representing a client in a proceeding substantially related and adverse to the interests of a former client. In 2000, the Board admonished McCarthy after he failed to appear for a trial and a hearing. The Board admonished McCarthy in 2001 for the fourth time after he neglected a client's matter by failing to tell his client that he would not pursue the client's claim. Next, in 2003, we publicly reprimanded McCarthy for failing to cooperate with a Board investigation.

In 2006, we suspended McCarthy's license for six months for his conduct in multiple matters. Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 722 N.W.2d 199, 200 (Iowa 2006). In one matter, McCarthy represented a husband and wife in a bankruptcy proceeding. Id. at 202. He also represented the husband in a separate dissolution of marriage proceeding. Id. Six months after the bankruptcy discharge, McCarthy used knowledge he acquired during his representation of both parties to amend the bankruptcy petition to the detriment of the wife. Id. at 202–03. He also neglected client matters, which resulted in two dismissed appeals. Id. at 203. Further, he failed to answer the Board's complaint in four matters. Id. at 205.

Since that time, we have temporarily suspended McCarthy's license on four occasions for failing to respond to notices from the Board. Finally, in 2009, we publicly reprimanded McCarthy for the fourth time after he represented both parties in a dissolution of marriage proceeding and neglected that representation.

II. Grievance Commission Proceedings in the Current Matter.

The Board's original complaint contained seven counts alleging McCarthy violated numerous disciplinary rules. The Board later amended the complaint by adding two more counts alleging further violations. The Board and McCarthy entered into a joint stipulation admitting all of the factual allegations of the complaint and agreeing to the admission of exhibits supporting the allegations. The stipulation also admitted rule violations in each count, listed McCarthy's extensive history of prior discipline as an aggravating factor, and noted his heart disease and open-heart surgery in April 2008 were mitigating factors.

[814 N.W.2d 601]

Finally, the stipulation waived a hearing on the complaint and requested that the commission recommend a sixty-day suspension of McCarthy's license.

The commission filed a report adopting the stipulation of facts. The report set out more than fifty violations of the Iowa Rules of Professional Conduct and seven violations of our court rules, all of which were admitted in the joint stipulation. The commission recommended we suspend McCarthy's license to practice law indefinitely with no possibility of reinstatement for at least two years.

III. Scope of Review.

We review lawyer disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Adams, 809 N.W.2d 543, 545 (Iowa 2012). The Board must prove disciplinary violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 763 (Iowa 2010). A convincing preponderance of the evidence is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt. Id. Although we give the commission's recommendations respectful consideration, we are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 304 (Iowa 2009). Upon proof of misconduct, we may impose a greater or lesser sanction than that recommended by the commission. Id.

When the parties enter into a stipulation of facts, it is binding on them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 803 (Iowa 2010). In our attempt “to give effect to the parties' intentions” we interpret a factual stipulation “ ‘with reference to its subject matter and in light of the surrounding circumstances and the whole record, including the state of the pleadings and issues involved.’ ” Id. at 803–04 (quoting Graen's Mens Wear, Inc. v. Stille–Pierce Agency, 329 N.W.2d 295, 300 (Iowa 1983)). However, a stipulation is not binding as to a violation or a sanction. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 528 (Iowa 2011); Gailey, 790 N.W.2d at 804. We will determine whether a violation occurred and the appropriate sanction based upon the facts we find from the stipulation and our review of the record.

IV. Findings of Fact.

Based on the parties' stipulation and our review of the record, we make the following findings of fact.

A. Meiners Matter. In March 2008, Gary Meiners hired McCarthy to bring a contempt action against his ex-wife and modify a dissolution decree. Meiners paid McCarthy a $1500 retainer. The stipulation does not indicate whether McCarthy deposited the retainer into a client trust account. Meiners also signed a verification on a petition to modify a dissolution decree. McCarthy did not file the petition at this time.

On April 10, McCarthy suffered a heart attack. He underwent open-heart surgery ten days later. In June, McCarthy informed Meiners he was ready and able to proceed with his case. However, McCarthy did not take any action on Meiners' case until September 30, when he filed an application for a rule to show cause alleging Meiners' ex-wife failed to pay uncovered medical expenses for their children. That day, the district court filed a rule to show cause and set a hearing for October 20. The order required Meiners' ex-wife to be personally served with a copy of the order no less than ten days prior to the hearing date. On the day of the hearing, McCarthy filed a motion to continue the hearing because Meiners' ex-wife was not

[814 N.W.2d 602]

timely served and because McCarthy had a scheduling conflict involving a hearing in another county. McCarthy, Meiners, and Meiners' ex-wife did not appear for the hearing, and the district court dismissed the application without prejudice.

On October 31, McCarthy filed Meiners' petition and an amendment to that petition. McCarthy also filed Meiners' second application for a rule to show cause. The district court later combined the two actions and set a date for trial.

Twice during McCarthy's representation of Meiners, McCarthy failed to attend appointments with Meiners that McCarthy had scheduled. McCarthy also failed to keep Meiners informed as to the status of his case. Meiners terminated the representation in November. In December, Meiners requested a final billing statement and a refund of the remainder of the retainer. McCarthy prepared a billing statement amounting to all but $33.48 of Meiners' retainer. He refunded the remainder to Meiners. At no time prior to this point did McCarthy provide Meiners with any documentation relating to fees or expenses. Further, McCarthy did not withdraw his appearance until April 15, 2009.

After Meiners filed a complaint with the Board, McCarthy failed to respond to multiple notices from the Board regarding the matter. On May 14, we suspended his license temporarily for failing to respond to the Board's notice. McCarthy responded the next day, and we reinstated his license on May 18.

B. Ricklefs Matter. In January 2008, McCarthy agreed to represent Roberta Ricklefs in an action for dissolution of marriage. Ricklefs paid McCarthy a $1500 retainer, but the stipulation does not indicate whether McCarthy deposited the funds into a client trust account. McCarthy informed Ricklefs he would ask the district court to award her temporary alimony. Ricklefs attempted to contact McCarthy on multiple occasions in February, but was unable to reach him. Ricklefs signed the petition for dissolution of marriage on March 15. At that time, McCarthy told Ricklefs he would also seek an order demanding her husband pay roughly $600 of her medical expenses.

On April 3, McCarthy told Ricklefs he had not taken any action on the dissolution of her marriage, temporary alimony, or medical bill. Following his open-heart surgery, McCarthy told Ricklefs he would be back at work by the middle of May.

On May 21, Ricklefs was served with her husband's petition for dissolution of marriage. Ricklefs was surprised because she thought McCarthy had already filed her dissolution petition when, in fact, he had not. On May 28, Ricklefs...

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29 practice notes
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Taylor, No. 16–0130.
    • United States
    • United States State Supreme Court of Iowa
    • November 10, 2016
    ...bar from similar conduct, and help to maintain the reputation of the bar as a whole. Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 610 (Iowa 2012). Though there are no standard sanctions for particular types of misconduct, prior cases may be instructive in crafting an......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Kingery, No. 15–0673.
    • United States
    • United States State Supreme Court of Iowa
    • October 30, 2015
    ...rule 32:1.3 when he "failed to appear at a pretrial conference and a hearing." Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 606 (Iowa 2012) ; see also Nelson, 838 N.W.2d at 537 (finding an attorney violated rule 32:1.3 when he "did not attend three pretrial hearings"......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Turner, No. 18-0352
    • United States
    • United States State Supreme Court of Iowa
    • September 14, 2018
    ...a lawyer as to how to handle a retainer." Clarity , 838 N.W.2d at 655 (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy , 814 N.W.2d 596, 607 (Iowa 2012) ). Rule 45.7 requires an attorney to "deposit advance fee and expense payments from a client into the trust account" and limit......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Doe, No. 13–0856.
    • United States
    • United States State Supreme Court of Iowa
    • November 8, 2013
    ...conclusions, and recommendations, we engage in a de novo review of the record. E.g., Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 601 (Iowa 2012). The overarching purpose of this disciplinary process is to aid this court in exercising its responsibilities in regulati......
  • Request a trial to view additional results
29 cases
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Taylor, No. 16–0130.
    • United States
    • United States State Supreme Court of Iowa
    • November 10, 2016
    ...bar from similar conduct, and help to maintain the reputation of the bar as a whole. Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 610 (Iowa 2012). Though there are no standard sanctions for particular types of misconduct, prior cases may be instructive in crafting an......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Kingery, No. 15–0673.
    • United States
    • United States State Supreme Court of Iowa
    • October 30, 2015
    ...rule 32:1.3 when he "failed to appear at a pretrial conference and a hearing." Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 606 (Iowa 2012) ; see also Nelson, 838 N.W.2d at 537 (finding an attorney violated rule 32:1.3 when he "did not attend three pretrial hearings"......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Turner, No. 18-0352
    • United States
    • United States State Supreme Court of Iowa
    • September 14, 2018
    ...a lawyer as to how to handle a retainer." Clarity , 838 N.W.2d at 655 (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy , 814 N.W.2d 596, 607 (Iowa 2012) ). Rule 45.7 requires an attorney to "deposit advance fee and expense payments from a client into the trust account" and limit......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Doe, No. 13–0856.
    • United States
    • United States State Supreme Court of Iowa
    • November 8, 2013
    ...conclusions, and recommendations, we engage in a de novo review of the record. E.g., Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 601 (Iowa 2012). The overarching purpose of this disciplinary process is to aid this court in exercising its responsibilities in regulati......
  • Request a trial to view additional results

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