Iowa Supreme Court Atty. Disc. Bd. v. Plumb

• Decision Date: 05 June 2009
• Docket Number: No. 08-1413.,08-1413.
• Citation: 766 N.W.2d 626
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Van PLUMB, Respondent.
• Court: Iowa Supreme Court

766 N.W.2d 626

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Van PLUMB, Respondent.

No. 08-1413.

Supreme Court of Iowa.

June 5, 2009.

Charles L. Harrington and David Grace, Des Moines, for complainant.

Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher, L.L.P., Des Moines, for respondent.

HECHT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board alleged the respondent, Van Plumb, violated several ethical rules by divulging a client's secrets or confidences, neglecting clients' cases, attempting to persuade a client to withdraw an ethical complaint, failing to respond to a complaint filed by the board, failing to provide responses to the board's discovery requests, failing to provide clients with an accounting for unearned retainers, failing to deposit unearned fees in a trust account, engaging in dishonesty or misrepresentation in attempting to cover up his failure to file a civil action within the statute of limitations, and misappropriation of funds from a trust account. A division of the Grievance Commission of the Supreme Court of Iowa found Plumb violated numerous ethical rules and recommended we suspend his license to practice law for a period of twelve months. Plumb filed a notice of appeal from the commission's report. See Iowa Ct. R. 35.11(1). Having given respectful consideration to the commission's findings of fact, conclusions of law, and recommendation, we find the respondent violated numerous ethical rules. We therefore suspend his license to practice law indefinitely with no possibility of reinstatement for eighteen months.

I. Scope and Standards of Review.

We review attorney disciplinary proceedings de novo. Iowa Ct. R. 35.10(1). The board has the burden to prove disciplinary violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Att'y Disciplinary Bd. v. D'Angelo, 710 N.W.2d 226, 230 (Iowa 2006). "This burden is `less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.'" Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)). We give weight to the commission's findings, especially when considering the credibility of witnesses, but we are not bound by those findings. Iowa Supreme Ct. Att'y Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 695 (Iowa 2006). "Once misconduct is proven, we `may impose a lesser or greater sanction than the discipline recommended by the grievance commission.'" Iowa Supreme Ct. Att'y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792 (Iowa 2006) (quoting Lett, 674 N.W.2d at 142).

II. Factual Findings.

The board's complaint alleged Plumb committed ethical violations in the representation of four separate clients. We will address them seriatim in the same order they were addressed in the commission's findings, conclusions of law, and recommendation.

A. McRae Matter. Plumb represented McRae on a domestic abuse charge which was concluded with the entry of a deferred judgment. While subsequently representing a different party in contentious commercial litigation, Plumb deposed McRae who was listed as a witness by a party-opponent. Plumb posed questions during an August 14, 2002 deposition requesting McRae to disclose the nature of the criminal charge and the substance of certain statements made by McRae to Plumb in the course of their attorney-client relationship. Although McRae asserted the attorney-client privilege, Plumb persisted in the line of questioning. The board asserted Plumb's conduct during the deposition violated DR 4-101(B) (revealing confidences or secrets of client), DR 7-102(A)(1) (taking action on behalf of a client when it is obvious such action would serve merely to harass or maliciously injure another), and DR 1-102(A)(1), (5), and (6) (violating a disciplinary rule).¹ The commission found Plumb's conduct during the deposition was properly characterized as overzealous, but not so egregious as to require a sanction. Plumb contends his questions did not reveal any secret or confidence imparted to him by McRae, and claims the questions posed during the deposition inquired only as to matters that were already of public record in McRae's criminal case.

A client's "secrets" includes information gained by an attorney in an attorney-client relationship that "would be embarrassing" or that would "be likely to be detrimental to the client." DR 4-101(A). Even if it was not already apparent to Plumb that McRae considered his domestic abuse history as a distinct embarrassment, this became clear to him when McRae declined to answer because he believed the questions inquired about a matter protected by the attorney-client privilege. Notwithstanding McRae's initial refusal on the ground of privilege to answer the question posed, Plumb persisted and expressly inquired as to the substance of a conversation he claimed to have had with McRae about the consequences of any plea bargain in the criminal case. We find Plumb's conduct during the deposition crossed the line of appropriate zealous representation in the commercial litigation, and constituted a revelation of a former client's secret in violation of DR 4-101(B)(1). We also find Plumb's conduct during the deposition constituted a violation of DR 1-102(A)(1) (violation of a disciplinary rule), DR 1-102(A)(5) (conduct prejudicial to the administration of justice), and DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice law).

B. Babcock Matter. Plumb agreed to represent Babcock, who was incarcerated at the correctional facility in Newton, in a civil action for the sum of $3000. Plumb received the advance fee payment from Babcock, but did not deposit it in a trust account. Babcock later filed a complaint with the board after Plumb failed to respond to several written inquiries between March and October of 2004. Plumb notified Babcock of his intention to withdraw as counsel. Plumb and Babcock thereafter discussed the matter by telephone and reconciled their differences. Plumb drafted a letter for Babcock's signature withdrawing the complaint. The reconciliation was short-lived, however, for soon thereafter Babcock refiled the ethics complaint against Plumb, and requested an accounting and a refund of the unearned attorney fee. Plumb ignored for several months the request for an accounting. When the board requested information from Plumb about the complaint, he did not respond.

The board charged Plumb with neglecting Babcock's case in violation of DR 6-101(A)(3), improperly attempting to influence Babcock to withdraw the ethical complaint in violation of DR 1-102(A), failing to respond to the board's inquiry in violation of DR 1-102(A)(5), (6), failing to deposit unearned fees in a trust account in violation of DR 9-102(B), and failing to refund unearned fees in violation of DR 2-110(A)(3) and DR 9-102(B)(4).

We find the communication problems between Plumb and Babcock were attributable, at least in significant part, to the circumstances of Babcock's incarceration. Plumb communicated with Babcock for a time through a person holding Babcock's power of attorney. When the relationship between Babcock and the person holding that power broke down, Plumb began communicating with Babcock's mother. We find the board failed to prove by a convincing preponderance of the evidence that Plumb breached ethical rules in failing to communicate with Babcock.

Babcock asserted, and the board claimed, that Plumb's neglect of Babcock's case led to the repossession of Babcock's vehicle and tardiness in providing responses to discovery requests propounded to Babcock. Although Plumb did fail to prevent the repossession of Babcock's vehicle, we find this was a consequence of Babcock's failure to make his monthly loan payments, and not the result of neglect on the part of Plumb. The delay of Babcock's responses to discovery was, in significant part, attributable to the uncertainties resulting from the filing of the ethical complaint and Plumb's motion to withdraw as Babcock's counsel. We find the board failed to prove Plumb's conduct in these particulars constituted neglect of Babcock's defense.

Although Plumb's drafting of Babcock's letter to the board requesting dismissal of the ethics complaint is a circumstance that provokes suspicion, we find persuasive Plumb's explanation that the letter to the board was drafted at Babcock's request after the telephonic reconciliation had occurred. Babcock conceded in his testimony that he did not feel pressured by Plumb to withdraw the complaint. Upon our de novo review, we find the board failed to prove Plumb's conduct constituted an improper attempt to dissuade Babcock from maintaining the ethics complaint or an effort to persuade Babcock from cooperating in the board's investigation of the matter.

Plumb concedes he failed to respond to the board's inquiry in this matter. We therefore find he violated DR 1-102(A)(5) (conduct prejudicial to the administration of justice) and DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice law). See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 331 (Iowa 2009).

We have characterized advance fee payments as "special retainers." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Piazza, 756 N.W.2d 690, 697 (Iowa 2008); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 577 N.W.2d 50, 55-57 (Iowa 1998). "`[F]ee advances are not earned when paid, and therefore must be deposited into the trust account.'" Apland, 577 N.W.2d at 55 (citation omitted) (emphasis added). Such "[f]unds remain the property of the client until the attorney earns them." Id.; accord Iowa Supreme Ct. Att'y Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 408 (Iowa 2005) ("all advance fee payments other than general retainer fee payments are refundable and must be placed in a client trust account").² We find Plumb violated DR 9-102(A) when he failed to...