Iowa Supreme Court Attorney Disciplinary Bd. v. Powell

• Citation: 901 N.W.2d 513
• Decision Date: 15 September 2017
• Docket Number: No. 17-0254.,17-0254.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Rodney Howard POWELL, Appellant.
• Court: Iowa Supreme Court

901 N.W.2d 513

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee,

v.Rodney Howard POWELL, Appellant.

No. 17-0254.

Supreme Court of Iowa.

Filed September 15, 2017

Rodney H. Powell, West Des Moines, pro se.

Tara van Brederode and Amanda K. Robinson, Des Moines, for appellee.

CADY, Chief Justice.

The Iowa Supreme Court Attorney Disciplinary Board charged attorney Rodney Powell with violating the rules of professional conduct pertaining to conflicts of interest with current clients, using information obtained in the course of representation against current clients, and using information obtained in the course of representation against former clients. The Iowa Supreme Court Grievance Commission found Powell violated the rules and recommended a six-month suspension. Upon our de novo review, we find Powell violated the Iowa Rules of Professional Conduct and impose a two-year suspension.

I. Background Facts and Proceedings.

Rodney Powell is seventy years old. He has been licensed to practice law in Iowa since 1973. His legal background and disciplinary history was last documented in an opinion by this court in 2013. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Powell ( Powell II ), 830 N.W.2d 355, 356–57 (Iowa 2013). At that time, we added to his disciplinary history by finding he engaged in a series of trust fund violations over a period of years. Id. at 357–58. The violations primarily involved the premature withdrawal of attorney fees from his trust account. Id. at 357. We imposed an interim suspension from the practice of law for seven months followed by an additional suspension of three months. Id. at 356, 359–60. Powell had been previously suspended from the practice of law in 2007 for six months after he engaged in a series of unethical actions over a period of time involving the collection of attorney fees. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Powell ( Powell I ), 726 N.W.2d 397, 408 (Iowa 2007). Powell was also privately admonished in 2005 for charging an excessive fee in a case and was privately admonished in 2010 "for failing to make an accounting before withdrawing fees from his trust account." Powell II , 830 N.W.2d at 356.

In this disciplinary action, Powell is accused of obtaining a $20,000 loan from the administrator of an estate during the time he served as the designated attorney for the estate in violation of the rules of professional conduct. The administrator was the beneficiary of a $40,000 life insurance policy on the life of the decedent in the estate. The insurance company paid the insurance proceeds to Powell, and he deposited them in his law firm trust account. At the request of Powell, the administrator orally agreed to loan Powell $20,000 of the proceeds. Powell withdrew the loan proceeds from the trust account before a written loan agreement was executed. The written agreement subsequently prepared by Powell provided for the law firm to repay the loan in monthly installments at ten percent interest. The amount of each monthly payment was to be based on an unspecified amount of firm receipts received during the preceding month. Powell claimed he asked the administrator if he wished to seek independent counsel before agreeing to make the loan. The administrator denied any request was made.

Powell subsequently made sporadic and minimal monthly payments. The administrator eventually filed a breach-of-contract action. Powell settled the lawsuit by agreeing to pay $25,000 to the administrator in monthly installments of $1500.

The Board charged Powell with violating Iowa Rules of Professional Conduct 32:1.8(a) (improperly entering into a business transaction with a client), 32:1.8(b) (using information relating to representation of a client to the disadvantage of the client), and 32:1.9(c) (using information relating to the representation of a former client to the disadvantage of the former client). The commission found Powell violated Iowa Rules of Professional Conduct 32:1.8(a), 1.8(b), and 1.9(c). It recommended that Powell's license to practice law be suspended for six months. It also recommended Powell reimburse the administrator's travel costs to testify at the hearing.

II. Violations.

"A client has a right to expect loyalty and independent judgment from an attorney." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Johnston , 732 N.W.2d 448, 455 (Iowa 2007) ; see also Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Fay , 619 N.W.2d 321, 326 (Iowa 2000) ("A person who seeks legal advice must be able to ‘expect unfettered independence of professional judgment of a lawyer whose loyalty to that person is total.’ " (quoting Comm. on Prof'l Ethics & Conduct v. Oehler , 350 N.W.2d 195, 199 (Iowa 1984) )). This concept is crucial to the client–lawyer relationship, and thus, it rightfully pervades our rules on conflicts of interest with clients and the duties owed to them. See Iowa Rs. Prof'l Conduct 32:1.8–.9.

"While rule 32:1.8(a) does not prohibit business dealings between a lawyer and his or her client, it imposes stringent requirements on such a transaction." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marks , 814 N.W.2d 532, 538 (Iowa 2012). Of particular importance, the rule "requires that the client ... be advised, in writing, of the desirability of seeking the advice of independent legal counsel," and "that the client be given a reasonable opportunity to obtain such advice." Iowa R. Prof'l Conduct 32:1.8 cmt. 2. These requirements "mitigate[ ] ‘the possibility of overreaching’ created by an attorney's ‘legal skill and training, together with the relationship of trust and confidence between lawyer and client.’ " Iowa Supreme Ct. Att'y Disciplinary Bd. v. Pederson , 887 N.W.2d 387, 391–92 (Iowa 2016) (quoting Iowa R. Prof'l Conduct 32:1.8 cmt. 1). In other words, the rule not only discourages fraudulent activity by attorneys, see, e.g. , Comm. on Prof'l Ethics & Conduct v. Yates , 420 N.W.2d 455, 457–58 (Iowa 1988) (noting attorney failed to advise clients to seek other legal counsel and then successfully converted client funds), but also helps to ensure well-meaning attorneys do not inadvertently cause serious harm to their clients, see, e.g. , Iowa Supreme Ct. Att'y Disciplinary Bd. v. Wright , 840 N.W.2d 295, 301–02 (Iowa 2013) (concluding attorney violated rule requiring disclosures despite attorney's belief he was securing a good investment for his clients). Thus, the rule serves to protect confidence in the attorney-client relationship. To effect this purpose, it "must be rigidly followed by our bar, and [it] is strictly enforced." Fay , 619 N.W.2d at 325 (applying predecessor to rule 32:1.8 ).

Powell initially argued he was not subject to the rule because the administrator was not his client. He claimed he represented the estate, not the fiduciary. However, as we have recently held, and as Powell subsequently acknowledged, an attorney representing an estate can owe ethical duties to the estate's fiduciary, particularly if the fiduciary sought out the lawyer's services. Pederson , 887 N.W.2d at 392 ("Normally, an attorney-client relationship exists between the executor of an estate and the attorney designated by the executor to probate the estate.").

The parties do not dispute that a loan is a business transaction. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Wintroub , 745 N.W.2d 469, 474–75 (Iowa 2008). The rule prohibits business transactions with clients, such as a loan, unless

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

Iowa R. Prof'l Conduct 32:1.8(a)(1)–(3). In short, the rule requires (1) fair terms that are fully disclosed, (2) advice on independent counsel and the opportunity to obtain it, and (3) informed consent. These requirements must each be evidenced in writing.

We agree with the findings of the commission that Powell violated the rule. The terms of the agreement were not fair or fully disclosed and the critical requirements to enter into the transaction were ignored, including the duty of documentation. As a result, we find it unnecessary to consider the companion violations alleged by the Board. Instead, we turn to sanctions.

III. Sanctions.

"Because ‘we strive to achieve consistency in the discipline of Iowa lawyers who violate our rules of professional conduct,’ our prior cases are relevant in our determination of the appropriate sanction." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Khowassah , 890 N.W.2d 647, 651 (Iowa 2017) (quoting Powell II , 830 N.W.2d at 358 ). Powell ignored the rules governing conflicts of interest with a client. Our sanctions for similar conduct have ranged from a public reprimand, see Marks , 814 N.W.2d at 542, to revocation, see Comm. on Prof'l Ethics & Conduct v. Hall , 463 N.W.2d 30, 36 (Iowa 1990). However, we have typically only used reprimands in this context if the attorney had already served a time of suspension for the underlying conduct. See Marks , 814 N.W.2d at 542 ; Wintroub , 745 N.W.2d at 477. On the other end of the spectrum, we typically reserve revocation in this context for only the most serious violations, such as when the attorney actually converted the client's property. See Hall , 463 N.W.2d at 36 ; Yates , 420 N.W.2d at 458. Thus, suspensions for violating the conflict-of-interest rules ordinarily range from one month, see Iowa Supreme Ct. Att'y Disciplinary Bd. v. Kaiser , 736 N.W.2d 544, 546 (Iowa 2007) ; Fay , 619 N.W.2d at 327, to...