Iowa Supreme Court Attorney Disciplinary Bd. v. Crum, 14–1988.

• Decision Date: 27 March 2015
• Docket Number: No. 14–1988.,14–1988.
• Citation: 861 N.W.2d 595
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Machelle Lee CRUM, Respondent.
• Court: Iowa Supreme Court

861 N.W.2d 595

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant

v.Machelle Lee CRUM, Respondent.

No. 14–1988.

Supreme Court of Iowa.

March 27, 2015.

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

Machelle L. Crum, Newton, pro se.

Opinion

WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against Machelle L. Crum, alleging Crum violated the Iowa Rules of Professional Conduct and the Iowa Court Rules, and committed theft by misappropriation under Iowa Code section 602.10119 (2013). A division of the Grievance Commission of the Supreme Court of Iowa found Crum violated the Iowa Rules of Professional Conduct and the Iowa Court Rules, and committed theft by misappropriation. Specifically, the commission found she has a pattern of repeated neglect, a lack of communication with clients, a lack of regard for the administration of justice, and she made dishonest statements to clients and the court and committed theft by misappropriation of client funds. The commission recommends we revoke Crum's license to practice law.

On our de novo review, we find the Board established by a convincing preponderance of the evidence Crum committed numerous violations of our rules and committed theft by misappropriation of client funds without having a colorable future claim to those funds. Accordingly, we revoke Crum's license.

I. Prior Proceedings.

On July 29, 2014, the Board filed a complaint against Crum alleging six counts of ethical violations. On August 1, a Jasper County deputy sheriff personally served the Board's complaint on Crum. On August 7, the Board filed a motion with the commission requesting permission to serve more than thirty requests for admissions on Crum. The commission set a conference call hearing on the motion for August 22. On August 22, the commission was unable to reach Crum at the number on file with the office of professional regulation and she did not attempt to dial into the conference call at any time. The commission granted the Board's motion on the same day.

On September 9, the Board filed a motion to invoke Iowa Court Rule 36.7. The motion alleged Crum failed to file an answer to the Board's complaint within twenty days as required by rule 36.7, and therefore, under the rule the commission should consider all allegations of the complaint admitted. See Iowa Ct. R. 36.7. On September 10, the commission set a hearing on the motion for September 22 by conference call.

On September 22, the commission granted the motion finding, pursuant to rule 36.7, it would deem all factual allegations in the complaint admitted. The commission noted Crum failed to answer or request more time for responding to the complaint. Crum also failed to dial into the conference call for the motion hearing.

The commission held a hearing on October 23. The Board presented three witnesses and introduced eighty-four exhibits in support of the allegations against Crum. The Board chose not to call three of the clients in the complaint. The commission issued a written finding of facts on December 1.

Through her conduct with the six clients, the commission found Crum violated numerous rules. In the Cook matter, the commission found Crum violated Iowa Rules of Professional Conduct: 32:1.3 (requiring a lawyer to act with reasonable diligence and promptness), 32:1.4(a)(2) (requiring a lawyer to consult with the client regarding how “the client's objectives are to be accomplished”), 32:1.4(a)(3) (requiring a lawyer to keep the client informed of the status of his or her case), 32:1.4(a)(4) (requiring a lawyer to comply with the client's request for information), 32:3.2 (requiring a lawyer to “make reasonable efforts to expedite litigation consistent with the interests of the client”), and 32:8.4(d) (stating it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice”).

In the Graham matter, the commission found Crum violated Iowa Rules of Professional Conduct 32:1.3, 32:1.4(a)(2), 32:1.4(a)(3), 32:1.4(a)(4), 32:1.15(d) (requiring a lawyer to promptly return any client funds or property to the client when he or she is entitled to them), 32:1.16(d) (requiring a lawyer to protect his or her client's interest upon termination of representation), 32:3.4(c) (stating it is misconduct for an attorney to “knowingly disobey an obligation under the rules of a tribunal”), 32:8.4(b) (stating it is professional misconduct for a lawyer to commit a crime that reflects poorly on his or her “honesty, trustworthiness, or fitness”), 32:8.4(c) (stating it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation”), and 32:8.4(d). The commission also found Crum violated Iowa Court Rule 45.7(4) (requiring a lawyer to provide clients with an accounting of advance fee withdrawals including the time, amount, and purpose of the withdrawal) and Iowa Code section 602.10119 (2013) (stating an attorney who retains unearned funds or property after the client has demanded its return is “guilty of a theft and punished accordingly”).

In the Feagins matter, the commission found Crum violated Iowa Rules of Professional Conduct 32:1.3, 32:1.4(a)(2), 32:1.4(a)(3), 32:1.4(a)(4), 32:1.15(d), 32:1.16(d), 32:3.4(c), 32:8.4(b), 32:8.4(c), and 32:8.4(d). The commission also found Crum violated Iowa Court Rule 45.7(4) and Iowa Code section 602.10119.

In the Heck matter, the commission found Crum violated Iowa Rules of Professional Conduct 32:1.3, 32:1.4(a)(2), 32:1.4(a)(3), 32:1.4(a)(4), 32:1.15(a) (requiring a lawyer to keep client property in the lawyer's possession separate from their own property), 32:1.15(c) (requiring client's advance payments to be deposited into a trust account and permitting client funds which were paid in advance to be withdrawn only as they are earned), 32:1.15(f) (stating all client trust accounts are governed by Iowa Court Rules chapter 45), 32:1.16(d), 32:3.4(c), 32:8.4(b), 32:8.4(c), and 32:8.4(d). The commission also found Crum violated Iowa Court Rule 45.2(2) (requiring a lawyer to provide clients with a full accounting of retained funds or property and return any funds or property the client is entitled to), rule 45.7(4), and Iowa Code section 602.10119.

In the Elliott matter, the commission found Crum violated Iowa Rules of Professional Conduct 32:1.3, 32:1.4(a)(2), 32:1.4(a)(3), 32:1.4(a)(4), 32:1.16(b), 32:3.4(c), and 32:8.4(c).

In the Steil matter, the commission found Crum violated Iowa Rules of Professional Conduct 32:1.3, 32:1.4(a)(2), 32:1.4(a)(3), 32:1.4(a)(4), 32:1.15(a), 32:1.15(c), 32:1.15(f), 32:1.16(d), 32:3.4(c), 32:8.4(b), 32:8.4(c), and 32:8.4(d). The commission also found Crum violated Iowa Court Rule 45.2(2), rule 45.7(4), and Iowa Code section 602.10119.

The Board did not recommend a particular sanction, but rather requested the commission recommend an appropriate sanction for Crum's actions. The commission recommends we revoke Crum's license to practice law in Iowa based on our strong history of revocation when an attorney misappropriates client funds.

II. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa Ct. R. 35.11(1). The Board must prove violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa 2013). “A convincing preponderance of the evidence is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt.” Id . (internal quotation marks omitted). The court reviews the commission's findings and recommendations, but they are not binding on the court. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Barnhill, 847 N.W.2d 466, 470 (Iowa 2014).

Additionally, because Crum failed to respond to the Board's complaint in any manner, we treat the allegations in the complaint as admitted pursuant to Iowa Court Rule 36.7. Further, the evidence the Board presented regarding the allegations is uncontested. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 677 (Iowa 2010). We base our decision upon our de novo review of the record and the admissions. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cunningham, 812 N.W.2d 541, 544 (Iowa 2012).

III. Findings of Facts.

On our de novo review, we make the following findings of facts.

A. Jerome Cook Representation (Count I). On December 24, 2012, Jerome Cook filed an application for postconviction relief, arguing his sentence was incorrectly calculated. On December 26, the district court appointed Crum to represent Cook in his PCR proceedings. Cook sent Crum a time computation and notes explaining why he believed the state incorrectly calculated his sentence.

On February 21, 2013, Cook filed a letter with the district court judge notifying the court that Crum had not answered any of his letters. He also asked for an update on the progress of his case because according to his calculations his correct release date was February 18, 2013. The district court ordered a conference call for April 9 to set the trial for the PCR application. Crum failed to call in for the hearing.

The district court ordered another trial-setting conference call noting Crum failed to make contact with the court on April 9, and noting Cook's correspondence with the court complaining about Crum's lack of contact with her client. The district court set the new trial-setting conference call for April 30 and ordered Crum to appear personally and be prepared to explain to the court the efforts she had made in the case.

On April 19, Cook filed a motion claiming ineffective assistance of counsel. Cook stated he had written Crum four times and she had not responded to any of his correspondence or done anything on his case. Crum sent attorney T.J. Hier to the trial-setting conference on April 30 in her place, and Hier reported to the court Crum had a family emergency and requested a continuance. The district court rescheduled the...