Iowa Supreme Court Attorney Disciplinary Bd. v. O'Brien

Decision Date18 March 2022
Docket Number21-1410
Citation971 N.W.2d 584
CourtIowa Supreme Court

Tara van Brederode, Lawrence F. Dempsey, IV, and Allison A. Schmidt, Des Moines, for complainant.

Brien P. O'Brien, Sioux City, pro se.

McDermott, J., delivered the opinion of the court, in which all justices joined.

McDERMOTT, Justice.

This attorney disciplinary matter presents the curious, but unfortunately not unheard of, circumstance of a lawyer who inexplicably "ghosts" his client in the middle of representation. Clients in these unfortunate situations, often anxious and always confused by the lawyer's repeated failures to respond, eventually figure out that they've been abandoned, but sometimes not before they've suffered harm because of the lawyer's misconduct. This type of behavior, of course, defies our ethics rules that impose clear-cut duties on lawyers to act with diligence, to keep clients reasonably informed, and to respond to clients’ reasonable requests for information about their legal matters.

In this case, the Iowa Supreme Court Attorney Disciplinary Board charged the lawyer with neglect and other violations of the Iowa Rules of Professional Conduct and recommended an eighteen-month suspension. The grievance commission concluded that the lawyer committed each of the charged violations and recommended that we revoke the lawyer's license. On review, we find all the same violations of our ethics rules and impose a three-year suspension.

I. Background Facts and Proceedings.

Brien O'Brien was admitted to practice law in Nebraska in 1991. He received his license to practice law in Iowa five years later and set up practice in Sioux City. The Nebraska Supreme Court disbarred him in 2002 for violating Nebraska's trust account rules and for making false statements to its disciplinary authorities during the investigation into those violations. We imposed reciprocal discipline in 2003 based on the Nebraska disciplinary action, suspending his license to practice in Iowa for three years. In 2004, O'Brien was convicted of the crime of fraudulent practices in the third degree (an aggravated misdemeanor) for failing to file Iowa income tax returns. For this conviction we again suspended his license, this time for six months, to run concurrently with his ongoing three-year suspension.

In 2019, Damon Krull met with O'Brien about possible representation in a child custody case that Krull's ex-wife filed. O'Brien agreed to represent him. O'Brien required that Krull pay a $2,750 retainer, which Krull did. O'Brien soon thereafter filed an answer in the custody case on Krull's behalf and dismissed a contempt claim that Krull had filed earlier by himself against his ex-wife.

And then, as to Krull, O'Brien seems to have attempted to put on an invisibility cloak. O'Brien ceased further communications. In the ensuing months, Krull called, left messages, and eventually even started dropping in unannounced at O'Brien’s office in attempts to discuss his case with O'Brien. Despite promises from O'Brien’s receptionist that O'Brien would call Krull, O'Brien remained unmoved. He never returned a call, never sent an email or letter, and indeed never stepped out of his office when Krull appeared in person. As it turned out, their initial meeting would be the first, last, and only time that O'Brien would communicate with Krull.

After about four months of O'Brien’s silence, Krull received a call from O'Brien’s legal secretary informing him that his ex-wife's lawyer had served discovery requests. In fact, as Krull would later learn, those discovery requests had been served fifty-six days earlier, making responses to them already several weeks past due. Krull provided the requested materials to O'Brien’s secretary within three days, although he noted to the secretary that he didn't know how to respond to several of the requests. O'Brien’s secretary said that O'Brien would call Krull to work through those items. No call came. Krull tried to reach O'Brien to discuss the discovery responses, but to no avail.

After several more weeks without hearing from O'Brien, Krull, on his own, accessed the online docket for his case to try to discern the status of things. He discovered that his ex-wife's lawyer had filed a motion to compel production of responses to the discovery requests. The motion noted opposing counsel's repeated unsuccessful attempts to contact O'Brien about these items, and further noted O'Brien’s failure to serve initial disclosures as well. In response to one of opposing counsel's calls, O'Brien’s legal secretary apparently had requested a two-week extension to provide the responses. Opposing counsel had agreed. Yet O'Brien provided no responses within the two-week extension.

The district court granted the motion to compel and ordered O'Brien to provide responses within ten days. As that deadline was drawing near without action by O'Brien, Krull filed a pro se motion requesting additional time to comply with discovery. The motion stated:

I ask the courts for an extension on providing discovery responses and other information that has been requested. My attorney Brien O'Brien was not representing me to his best ability, and had not been communicating with me at all about my case. My phone calls would not get returned, requests to meet with him would go unanswered. The paralegal I met with in his place has been on vacation [for three months]. When I discovered all the requests for information and deadlines that had been passed, I asked for an explanation and I wasn't given one. I terminated services with Brien O'Brien and I would like 30 days to find proper legal representation. I apologize for the inconvenience.

The district court granted Krull's request for additional time to respond to the discovery requests. The court also ordered a hearing to address potential sanctions for the failure to respond. The district court in the order noted that O'Brien had neither filed a response to the motion to compel nor a motion to withdraw as counsel in the case, and that Krull thus needed to "timely sort out his attorney issues."

Krull asked O'Brien’s legal secretary to return the retainer and his client file. The secretary responded that O'Brien would first need to prepare an invoice for the services he'd rendered. But no invoice materialized. When Krull again contacted O'Brien’s secretary for the refund and the file, the secretary turned over the file but no refund. O'Brien never provided Krull with any invoice or accounting. He held onto the full retainer.

Meanwhile, Krull retained a new lawyer by taking out a loan from a family member to pay the new lawyer's retainer. At the sanctions hearing, the district court acknowledged the change in counsel but noted that O'Brien had not yet sought to withdraw from the case. The court observed that "the change in counsel and proactive approach of [Krull's] new counsel of getting the issue before the court suggest that the matter will now move appropriately forward." O'Brien didn't appear at the sanctions hearing or any other hearing in the case. He never filed a motion to withdraw. The custody dispute was resolved six months later.

The Board filed a complaint against O'Brien with the Iowa Supreme Court Grievance Commission alleging multiple violations of the Iowa Rules of Professional Conduct. O'Brien filed no answer. After he failed to participate in the scheduling conference call to set his hearing date, O'Brien sent an email to the clerk of the grievance commission apologizing for not participating in the scheduling conference and advising that his calendar was "pretty clear" for a hearing. But at the scheduled hearing before the grievance commission, O'Brien never appeared. The Board presented testimony from Krull. By operation of Iowa Court Rule 36.7, the Board's unanswered charges against O'Brien were deemed admitted. The grievance commission concluded that O'Brien violated all the rules as alleged and recommended revocation of O'Brien’s license.

II. Ethical Violations.

Even when a lawyer opts not to participate in disciplinary proceedings as O'Brien has done here, we still review de novo the alleged violations and evidence to ensure that the Board has proved each allegation of misconduct by a convincing preponderance of the evidence. See Iowa Sup. Ct. Att'y Disciplinary Bd. v. Wagner , 768 N.W.2d 279, 281–82 (Iowa 2009) (per curiam). The same underlying conduct may violate multiple rules of professional conduct at once. See Iowa Sup. Ct. Att'y Disciplinary Bd. v. Conroy , 845 N.W.2d 59, 65 (Iowa 2014).

A. Neglect. Iowa Rule of Professional Conduct 32:1.3 requires lawyers to "act with reasonable diligence and promptness in representing a client." Neglect of a client's case obviously includes "a lawyer doing little or nothing to advance the interests of a client after agreeing to represent the client." Iowa Sup. Ct. Bd. of Prof'l Ethics & Conduct v. Moorman , 683 N.W.2d 549, 551–52 (Iowa 2004). O'Brien failed to provide the required initial disclosures. He further failed to inform Krull about pending discovery requests until several weeks after the requests were past due. Krull then hustled to complete them, but to no avail: O'Brien simply sat on them, never producing completed responses to the other side. That failure prompted a motion to compel that O'Brien again never addressed. Krull personally had to make a filing for additional time to respond to the discovery requests as he sought replacement counsel. O'Brien’s conduct betrays the trust that his client placed in him when he sought his assistance at the outset. O'Brien failed to act at all—never mind to act with reasonable diligence—on these duties. The Board proved a violation of this rule.

B. Communication. Rule 32:1.4(a)(3) requires a lawyer to "keep the client reasonably informed about the status of the matter." Iowa R. Prof'l...

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