Iowa Supreme Court Attorney Disciplinary Bd. v. Nelson

• Citation: 838 N.W.2d 528
• Decision Date: 11 October 2013
• Docket Number: No. 13–0480.,13–0480.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Brian Jesse NELSON, Respondent.
• Court: United States State Supreme Court of Iowa

838 N.W.2d 528

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Brian Jesse NELSON, Respondent.

No. 13–0480.

Supreme Court of Iowa.

Oct. 11, 2013.

Charles L. Harrington, Des Moines, and Margaret E. Johnson, Des Moines, for complainant.

Van M. Plumb, Des Moines, for respondent.

WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against the respondent, Brian Jesse Nelson, alleging violations of the Iowa Rules of Professional Conduct, Iowa Court Rules, and Attorney Disciplinary Board Rules of Procedure. A division of the Grievance Commission of the Supreme Court of Iowa found Nelson's conduct violated numerous provisions of the rules, recommended we defer a two- to six-week suspension of Nelson's license to practice law until the filing of a future substantiated complaint with the Board within three years from our decision, and recommended restitution. We are required to review the commission's report. SeeIowa Ct. R. 35.11. Based on our de novo review, we conclude the Board established by a convincing preponderance of the evidence that Nelson violated our rules. However, we disagree with the commission's recommended discipline and suspend Nelson's license to practice law for thirty days.

I. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Stowe, 830 N.W.2d 737, 739 (Iowa 2013). The Board must prove the attorney's ethical misconduct by a convincing preponderance of the evidence. Id. “ ‘A convincing preponderance of the evidence is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt.’ ” Id. (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 601 (Iowa 2012)). This places a burden on the Board that is higher than the burden in civil cases but lower than in criminal matters. Id. We respectfully consider the commission's recommendations; however, they are not binding upon us. Id.

Factual matters admitted by an attorney in an answer are deemed established, regardless of the evidence in the record. Stowe, 830 N.W.2d at 739. Additionally, stipulations of facts are binding on the parties. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 528 (Iowa 2011). We interpret 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.” Id. (internal quotation marks omitted). However, with stipulations conceding rule violations, we will only enforce the stipulation if there is sufficient legal consideration. Id. The court is “ ‘not bound to enforce these stipulations if they are unreasonable, against good morals, or contrary to sound public policy.’ ” Id. (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 804 (Iowa 2010)).

II. Findings of Fact.

On our de novo review and in light of the facts stipulated by the parties, we find the facts as follows. In 1999, Nelson was admitted to the Iowa bar. As a new attorney, he worked as an associate in a private firm. When the firm split, Nelson started his own practice. Since approximately July 2000, he has been a sole practitioner in Des Moines, sharing office space with several other lawyers over the years.

When Nelson first became a sole practitioner, he took court-appointed cases, and his workload was slow. However, over the next three years, Nelson developed a high-volume practice in which he concentrated his efforts on handling criminal matters. Nelson estimated that by 2008, two-thirds of his practice involved “doing anywhere from 100 to 120 OWIs a year.”

When taking on a new client matter, Nelson's standard procedure was to enter a written fee agreement. However, in the fall of 2009, Nelson admits he abandoned this business practice because personal issues began negatively affecting his professional life. Specifically, Nelson and his wife started having marital problems. He moved out of the marital home on Thanksgiving Day 2009 and then started drinking. By his own admissions, Nelson “knew [he] was drinking too much,” “went drinking pretty hard” after the separation, and “drank hard as heck for quite awhile.” He and his wife ultimately divorced.

Nelson indicated that during this time, his practice began slipping through the cracks. He reduced his caseload to approximately five or six matters, abandoned his practice, and retreated to his parents' farm in southwest Iowa. He spent his time doing manual labor for a high school friend who owns a construction company.

The Board received six complaints regarding Nelson's professional activities, or lack thereof, between August 19 and September 3, 2010. On October 12, 2012, the Board filed a six-count complaint against Nelson, alleging violations of the Iowa Rules of Professional Conduct, Iowa Court Rules, and Attorney Disciplinary Board Rules of Procedure. The parties filed a joint stipulation on December 24. Therein, Nelson admits several of the allegations in the complaint are true and concedes multiple rule violations occurred during his representation of various clients. Each count and the accompanying facts are detailed below.

A. Bump Representation (Count I). The Board received a complaint on July 9 from another attorney, who was concerned about Nelson's professional conduct. Assistant Washington County Attorney, Shawn Showers, was prosecuting one of Nelson's clients, Daniel Bump. On September 16, 2009, Nelson entered his appearance to represent Bump in the criminal matter. Subsequently, both Nelson and his client missed court proceedings, including a suppression hearing on May 12 and a pretrial conference on June 2. Thereafter, the district court issued a warrant for Bump's arrest for failure to appear in court, and he was arrested on July 12. In his complaint, Showers also reported that Nelson was not responding to communication from Showers or the district court.

The Board sent a letter to Nelson, requiring a response to the complaint pursuant to rule 32:8.1( b ). Nelson did not respond to the Board's letter. The Board alleged that such conduct violated Iowa Court Rule 34.7 (failing to respond to the Board's notice) and Iowa Rules of Professional Conduct 32:1.3 (failing to act with reasonable diligence and promptness in representing a client), 32:1.4 (failing to properly communicate with a client), 32:1.16( c ) (failing to properly terminate the attorney-client relationship), 32:3.4( c ) (knowingly disobeying an obligation under the rules of a tribunal), 32:8.1( b ) (knowingly failing to respond to a lawful demand for information from a disciplinary authority), and 32:8.4( d ) (engaging in conduct prejudicial to the administration of justice). The commission found Nelson violated each of these rules.

B. Hackman Representation (Count II). Count II deals with a complaint received by the Board on June 21, 2010. The supreme court clerk notified the Board that Nelson failed to cure a default regarding an appeal. Nelson failed to file and serve the combined certificate in the appeal within the period required by the Iowa Rules of Appellate Procedure. The clerk notified Nelson the appeal would be dismissed unless he cured the default within fifteen days. Nelson failed to act so the appeal was dismissed and procedendo issued on July 13. The Board sent a letter to Nelson, requiring a response to the complaint pursuant to rule 32:8.1( b ) but he did not respond.

The Board alleged that such conduct violated Iowa Court Rule 34.7 (failing to respond to the Board's notice) and Iowa Rules of Professional Conduct 32:1.3 (failing to act with reasonable diligence and promptness in representing a client), 32:3.2 (failing to make reasonable efforts to expedite litigation consistent with the interests of the client), 32:8.1( b ) (knowingly failing to respond to a lawful demand for information from a disciplinary authority), and 32:8.4( d ) (engaging in conduct prejudicial to the administration of justice). The commission found Nelson violated each of these rules.

C. Lenihan Complaint (Count III). Another complaint came from Tom Lenihan, an attorney who shared office space with Nelson. Lenihan became concerned about Nelson's abandonment of his practice. In a complaint to the Board dated July 16, Lenihan reported that Nelson had been absent from the office for a number of weeks and did not keep regular office hours. His telephone and cellular voicemail system were full and had not been accepting new messages for weeks. Nelsonhad removed his computer and other equipment from his office. His unopened mail appeared to be excessive. Clients and court administration had not been able to contact Nelson. Several clients were arrested for failure to appear at hearings because Nelson was nonresponsive and did not provide notice of their hearing dates.

We suspended Nelson's license on July 23, 2010, for abandoning his practice. The Board alleged in its complaint that such conduct violated Iowa Rules of Professional Conduct 32:1.3 (failing to act with reasonable diligence and promptness in representing a client), 32:1.4 (failing to properly communicate with a client), 32:8.1( b ) (knowingly failing to respond to a lawful demand for information from a disciplinary authority), and 32:8.4( d ) (engaging in conduct prejudicial to the administration of justice). The commission found Nelson's conduct violated each of these rules.

D. Nolte Representation (Count IV). Joshua Nolte entered a verbal agreement for representation by Nelson on April 29, 2010, regarding criminal charges. Joshua's wife, Julia, did not have any agreement to be represented by Nelson. Nolte remitted the requested fee of $2500 to Nelson, who deposited the funds in the client trust account for representation regarding a proffer agreement only. ¹ The parties stipulated that an additional retainer for $2500 was due before arraignment. Nolte did...