Iowa Supreme Court Attorney Disciplinary Bd. v. Weiland, No. 16–0131.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtZAGER, Justice.
Citation885 N.W.2d 198
Parties IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Kenneth J. WEILAND Jr., Respondent.
Decision Date09 September 2016
Docket NumberNo. 16–0131.

885 N.W.2d 198

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
Kenneth J. WEILAND Jr., Respondent.

No. 16–0131.

Supreme Court of Iowa.

Sept. 9, 2016.


885 N.W.2d 202

Tara M. van Brederode and Elizabeth Quinlan, Des Moines, for complainant.

Kenneth J. Weiland Jr., Des Moines, pro se.

ZAGER, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) filed a two-count complaint charging an attorney with violations of several of our ethical rules based on his actions in a dissolution-of-marriage case. After a hearing, the Grievance Commission of the Supreme Court of Iowa (commission) found the attorney's conduct violated a number of ethical rules and recommended we impose a thirty-day suspension. Upon our de novo review, we conclude the Board proved by a convincing preponderance of the evidence violations of rules 32:1.15(d) (promptly delivering client funds) and 32:1.15(f) (following court rules for trust accounts) under count I of the complaint. We also conclude the Board proved by a convincing preponderance of the evidence violations of rules 32:1.3 (diligence), 32:1.4(a)(3) (keeping client reasonably informed), 32:1.4(a)(4) (promptly complying with reasonable requests), 32:1.16(d) (terminating representation), 32:3.2 (expediting litigation), 32:8.4(c) (dishonesty, fraud, deceit, or misrepresentation), and 32:8.4(d) (conduct prejudicial to the administration of justice) under count II of the complaint. However, we find the Board did not prove by a convincing preponderance of the evidence a violation of rule 32:1.15(c) (depositing and withdrawing fees from trust account). While the commission recommended a thirty-day suspension, we impose a sixty-day suspension for the rules violations.

I. Background Facts and Proceedings.

Attorney Kenneth J. Weiland Jr. was admitted to practice law in Iowa on June 17, 1994. He has a general law practice in Des Moines with approximately one-half of his cases involving family law and criminal defense. Weiland is a sole practitioner with no support staff who works from a home office. The Board's complaint in this case arises from Weiland's representation of Chelli Gentry in a dissolution-of-marriage action.

On March 10, 2014, Weiland met Gentry at a Perkins restaurant in Ankeny to discuss a divorce proceeding. Weiland and Gentry signed an agreement whereby Weiland would represent Gentry in a dissolution-of-marriage action against her spouse, Tammy Dolan. They agreed that Gentry would pay a $1000 retainer. At this initial meeting, Gentry wrote Weiland a check for $600. Because Gentry had recently declared bankruptcy and was not in a good financial position, they agreed that Gentry would pay Weiland additional $100 monthly installments until the full $1000 retainer was reached.

Gentry made two of the additional payments in April and May, but then stopped making payments after a lack of communication from Weiland. Weiland deposited the initial $600 check into his trust account,

885 N.W.2d 203

but deposited the other two payments in his general account for work performed and filing fees. Weiland testified that he prepared a disbursement letter on March 25, which stated he had performed one and one-half hours of work at a rate of $150 per hour, and therefore $225 would be deducted from the amount held in trust. Gentry testified that she never received the disbursement letter. Weiland did not deduct the $225 from the trust account at this time.

Weiland prepared a petition for dissolution of marriage and met with Gentry for a second time on March 26. There were no custody issues or significant assets to be divided. However, Gentry's spouse lived in Oklahoma and was unaware that Gentry intended to initiate divorce proceedings. Gentry signed the petition at this second meeting, and it was her understanding that Weiland would immediately file the petition. On March 30, Gentry followed up by emailing Weiland her bankruptcy schedules and a list of personal property.

In early April, Weiland attempted to file the petition electronically through the Electronic Document Management System (EDMS). Weiland testified that he had only used EDMS to file small claims actions prior to Gentry's case and was unfamiliar with how the system worked with family law cases. He was unaware that he was required to file a separate confidential information form along with the petition for dissolution of marriage. EDMS rejected the filing, and Weiland received an email informing him of the rejection. Despite this notification, Weiland did not attempt to refile the petition, nor did he contact Gentry to inform her that he was having difficulty filing the petition. Weiland did not attempt to file the petition again until four months later, on August 6.

In the meantime, on April 14, Gentry emailed Weiland to ask whether Dolan had been served with the petition. Despite the fact that he knew the petition had not been filed, Weiland responded, “I have not been advised that Tammy has been served, but I will try to find out if the Sheriff can tell me when service will occur.” Weiland admitted during his testimony this email was misleading. Because of the email, Gentry was under the impression that the petition had been filed and Dolan would soon be served. Gentry had not informed Dolan that she was filing for divorce, so she ignored all of Dolan's phone calls during this time because she was nervous about Dolan's reaction. Gentry testified that she was under a heightened amount of stress and anxiety while she waited for Dolan to be served.

Gentry emailed Weiland again on May 14 to ask if he had heard anything from the sheriff regarding whether Dolan had been served. Between May 14 and June 11, Gentry and Weiland spoke on the phone on a number of occasions. During at least one of the phone calls, Weiland told Gentry that his mother was ill and apologized for the delay in responding to her. Weiland never informed Gentry that he had yet to file the petition. However, Weiland told Gentry that he had contacted the sheriff's office in Oklahoma and was told the sheriff was having difficulty serving Dolan because she lived out in the country and they could not find her house. Weiland asked for Dolan's work information to provide to the sheriff. As a courtesy, Gentry had not wanted to serve Dolan at her place of employment. However, since Gentry was under the impression that service had been attempted and was difficult at Dolan's home, she provided Weiland with Dolan's work address.

On August 4, Gentry's son contacted the sheriff's office in Oklahoma for an update on whether Dolan had been served. It was at this time that he was informed by

885 N.W.2d 204

the sheriff's office that it had no documentation of Weiland ever requesting service. Based on this information, Gentry attempted to contact Weiland by phone on August 4 and August 5. When Weiland did not answer her phone calls, she left messages asking for an update on her case and informing Weiland that she would report him to the Iowa State Bar Association if she did not get a response. Weiland did not return her phone calls.

On August 7, Gentry went to the Polk County courthouse to attempt to gain information about the status of her case. At the courthouse, she was informed for the first time that there were no divorce filings under her name. Gentry proceeded to call the Iowa State Bar Association to ask what she needed to do in order to file a complaint against Weiland. She was advised to send a letter to Weiland terminating him as her attorney and then to file a complaint with the Board. On the same day, Gentry mailed Weiland a letter terminating their attorney-client relationship, asking for the return of any documents, and requesting a refund of the $800 she had paid as a retainer. Gentry filed a complaint with the Board on August 12.

It was not until December that Gentry found out Weiland had successfully filed the petition the day before she went to the courthouse on August 6. Because Gentry was unaware that Weiland had successfully filed the petition, she thought no further action was being taken on her case. Weiland never filed a withdrawal from the case and never informed Gentry that the petition was now on file. Weiland had no further contact with Gentry even though he was still the counsel of record in the case. He testified that he did not withdraw because he was waiting for another attorney to make an appearance in the case.

As part of its case processing of the divorce, the district court entered an order scheduling a pretrial conference for December 15. Weiland received a copy of the pretrial conference order, but he did not provide Gentry with a copy. Weiland did not appear in court for the pretrial conference, and because Gentry had no notice of the court date, she also did not appear. Dolan did not appear because she was unaware a dissolution action had been filed against her. The district court entered an order continuing the pretrial conference until January 16, 2015. Even though she had yet to be served with the divorce documents, Dolan received a mailed notice that she had failed to appear for a pretrial conference in a divorce proceeding. This was the first notice Dolan received that Gentry had filed for divorce. Dolan called Gentry and was extremely upset. This phone...

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18 practice notes
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Willey, 21-0214
    • United States
    • United States State Supreme Court of Iowa
    • October 15, 2021
    ...schemes is troubling.We also consider the separate harm involved in this case. See Iowa Sup. Ct. Att'y Disciplinary Bd. v. Weiland , 885 N.W.2d 198, 215–16 (Iowa 2016) (discussing that client suffered significant harm when attorney 965 N.W.2d 616 did not return the client's retainer until a......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Said, No. 20-0797
    • United States
    • Iowa Supreme Court
    • January 8, 2021
    ...to communicate with a client for four months was found to violate rule 32:1.4(a)(3). Iowa Sup. Ct. Att'y Disciplinary Bd. v. Weiland , 885 N.W.2d 198, 209 (Iowa 2016) ; see also Iowa Sup. Ct. Att'y Disciplinary Bd. v. Barry , 908 N.W.2d 217, 224 (Iowa 2018) (determining that the failure, ov......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Turner, No. 18-0352
    • United States
    • United States State Supreme Court of Iowa
    • September 14, 2018
    ...the proper filings, or is slow to act on matters,' he or she violates rule 32:1.3." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Weiland , 885 N.W.2d 198, 208 (Iowa 2016) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Kingery , 871 N.W.2d 109, 117 (Iowa 2015) ). Turner repeatedly failed ......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Noel, No. 19-0661
    • United States
    • United States State Supreme Court of Iowa
    • September 6, 2019
    ...2018) (holding attorney violated rule 32:1.3 by never filing a completed petition); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Weiland , 885 N.W.2d 198, 208–09 (Iowa 2016) (finding attorney violated rule 32:1.3 when he delayed filing a petition for four months); cf. Iowa Supreme Ct. Att'y D......
  • Request a trial to view additional results
18 cases
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Willey, 21-0214
    • United States
    • United States State Supreme Court of Iowa
    • October 15, 2021
    ...schemes is troubling.We also consider the separate harm involved in this case. See Iowa Sup. Ct. Att'y Disciplinary Bd. v. Weiland , 885 N.W.2d 198, 215–16 (Iowa 2016) (discussing that client suffered significant harm when attorney 965 N.W.2d 616 did not return the client's retainer until a......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Said, No. 20-0797
    • United States
    • Iowa Supreme Court
    • January 8, 2021
    ...to communicate with a client for four months was found to violate rule 32:1.4(a)(3). Iowa Sup. Ct. Att'y Disciplinary Bd. v. Weiland , 885 N.W.2d 198, 209 (Iowa 2016) ; see also Iowa Sup. Ct. Att'y Disciplinary Bd. v. Barry , 908 N.W.2d 217, 224 (Iowa 2018) (determining that the failure, ov......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Turner, No. 18-0352
    • United States
    • United States State Supreme Court of Iowa
    • September 14, 2018
    ...the proper filings, or is slow to act on matters,' he or she violates rule 32:1.3." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Weiland , 885 N.W.2d 198, 208 (Iowa 2016) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Kingery , 871 N.W.2d 109, 117 (Iowa 2015) ). Turner repeatedly failed ......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Noel, No. 19-0661
    • United States
    • United States State Supreme Court of Iowa
    • September 6, 2019
    ...2018) (holding attorney violated rule 32:1.3 by never filing a completed petition); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Weiland , 885 N.W.2d 198, 208–09 (Iowa 2016) (finding attorney violated rule 32:1.3 when he delayed filing a petition for four months); cf. Iowa Supreme Ct. Att'y D......
  • Request a trial to view additional results

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