IOWA SUPREME COURT ATTY. DISC. v. Hoglan

• Decision Date: 23 April 2010
• Docket Number: No. 09-1074.,09-1074.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Theodore R. HOGLAN, Respondent.
• Court: Iowa Supreme Court

781 N.W.2d 279

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Theodore R. HOGLAN, Respondent.

No. 09-1074.

Supreme Court of Iowa.

April 23, 2010.

COPYRIGHT MATERIAL OMITTED

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

Robert G. Tully, West Des Moines, for respondent.

PER CURIAM.

This matter comes before the court on the report of a division of the Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.10. The Iowa Supreme Court Disciplinary Board alleged the respondent, Theodore R. Hoglan, violated ethical rules by neglecting several client matters resulting in the dismissal of three appeals for failure to prosecute and the dismissal of one claim for failure to perfect an administrative appeal. The grievance commission found Hoglan violated the Iowa Rules of Professional Conduct and recommended a public reprimand. Upon our respectful consideration of the findings of fact, conclusions of law, and recommendation of the commission, we find the respondent committed several ethical violations and suspend his license to practice law for thirty days.

I. Standard of Review.

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 55 (Iowa 2009). The commission's findings and recommendations are given respectful consideration, but we are not bound by them. Id. The board has the burden of proving attorney misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792 (Iowa 2006). As frequently stated, "`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 Profl Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)). Upon proof of misconduct, the court may impose a lesser or greater sanction than that recommended by the commission. Id.

II. Factual Background.

The respondent has been practicing law in Iowa since 1983. During this time, he has engaged in private practice of a general nature. Four separate matters comprise the current disciplinary action. We will consider each charge separately.

A. Viles Appeal. In November 2006, Hoglan filed a notice of appeal on behalf of Joseph M. Viles, as Trustee of the Bear Creek Recreational Trust, in a case involving an administrative search warrant. On January 5, 2007, a notice of default was issued for failure to file and serve the combined certificate. The combined certificate was subsequently filed. On March 20, 2007, Hoglan filed an application for extension of time to file the page proof brief and designation of appendix. The request noted, inter alia, that Hoglan was suffering from serious back problems. On June 7, 2007, after two notices of default and one extension, Viles' appeal was ultimately dismissed for want of prosecution.

As a result of the dismissal, the board alleged Hoglan violated the following provisions of the Iowa Rules of Professional Conduct: 32:1.1 ("A lawyer shall provide competent representation to a client."), 32:1.3 ("A lawyer shall act with reasonable diligence and promptness in representing a client."), 32:1.16(a)(2) ("A lawyer shall. . . withdraw from the representation of a client if . . . the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client."), 32:3.2 ("A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client."), 32:8.4(a) ("It is professional misconduct for a lawyer to . . . violate . . . the Iowa Rules of Professional Conduct."), and 32:8.4(d) ("It is professional misconduct for a lawyer to. . . engage in conduct that is prejudicial to the administration of justice.").

B. Kurth Appeal. In 2006, Hoglan represented plaintiffs James and Peggy Kurth in a personal injury claim. After the jury returned a verdict in favor of the defendant, the respondent advised the Kurths to appeal. Hoglan filed a notice of appeal on October 27, 2006. On November 20, 2006, Hoglan filed the combined certificate in which he certified he had ordered the transcript, although he later stated he asked the court reporter to postpone preparation of the transcript because negotiations were ongoing. Thereafter, as in the Viles' case, the appeal languished. A request for an extension was denied, and on May 23, 2007, the clerk's office issued a notice of default for failure to file and serve the proof brief and to designate the appendix contents. When the default was not corrected, the court dismissed the Kurths' appeal for want of prosecution. As a result of the dismissal, the board alleged further violations of ethical rules 32:1.1, 32:1.3, 32:1.16(a)(2), 32:3.2, and 32:8.4(a) and (d). In addition, because it concluded Hoglan failed to communicate to the Kurths that their appeal had been dismissed, the board alleged Hoglan violated rule 32:1.4(a)(3) ("A lawyer shall . . . keep the client reasonably informed about the status of the matter.") and rule 32:8.4(c) ("It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.").

C. Keeler Appeal. On December 29, 2006, the respondent filed a notice of appeal on behalf of his client, Kent Keeler. Keeler's employment-discrimination claim against his former employer had been dismissed by the trial court on summary judgment. After a series of continuances, on October 9, 2007, the appeal was ultimately dismissed for want of prosecution. Based on Hoglan's failure to prosecute his client's appeal, the board alleged he violated the same ethical rules enumerated in relation to the Viles' appeal.

D. Stanley Disability Administrative Appeal. In September 2003, Patrick Stanley hired the respondent to represent him with regards to his social security disability claim. After a series of denials of the claim, on October 18, 2006, Hoglan prepared a request for a review of the latest hearing decision. Although Hoglan asserted the document was delivered to the local social security office in Marshalltown, he was unable to produce any evidence the appeal had been perfected with the Appeals Council of the Office of Disability Adjudication and Review. Moreover, Hoglan did not look at the client file again until January 2008 when Stanley filed his complaint. The board concluded Hoglan's failure to timely file Stanley's appeal and his failure to respond to his client's subsequent inquiries violated ethical rules 32:1.1, 32:1.3, 32:1.4(a)(3), 32:1.4(a)(4) ("A lawyer shall . . . promptly comply with reasonable requests for information."), 32:1.16(a)(2), 32:3.2, and 32:8.4(a) and (d).

III. Prior Proceedings.

A hearing before a division of the grievance commission was held on February 20, 2009. The respondent testified on his own behalf about each of the four claims.

Hoglan testified he believed all four appeals to be meritorious. With regards to the three appellate cases dismissed for want of prosecution, Hoglan acknowledged that he failed to perfect the appeals. He also testified that he did not attempt to get the appeals reinstated because he did not believe, based upon his prior experience, that reinstatement would be successful. Hoglan disputed, however, that he failed to timely appeal Stanley's social security claim, asserting he believed the appeal documentation requesting the required transcript had been timely submitted to the social security office. Nevertheless, he acknowledged the appeal had not been processed. Because Stanley had obtained new legal representation, Hoglan did not take any further action. Hoglan also disputed assertions that he failed to adequately communicate with his client, stating that, while he may not have returned every single phone call, he returned calls when it was appropriate to do so. He further disputed that he failed to appropriately pursue his client's claim, noting the transcript request, a necessary preliminary to the appeal, often takes more than a year. Because he believed he had made this request, he could take no further action until the transcript was received.

In an effort to explain his dilatory handling of these cases, Hoglan testified to his chronic back problems and the effect these conditions had on his legal practice. In 1973, while still in high school, Hoglan was diagnosed with Scheuermann's disease, a degenerative bone condition. This disease affected his thoracic spine, causing spinal deformity and chronic pain. In 1997, Hoglan was diagnosed with a herniated disk of the lower lumbar spine. Since then, Hoglan testified, he has undergone a series of back surgeries, unrelated to the Scheuermann's disease. From February 2007 through the summer of 2007, Hoglan underwent three back surgeries. It was during this period of time that all four cases ultimately dismissed were pending.

Hoglan also acknowledged that on January 2, 2007, he was publically reprimanded for neglecting two client matters resulting in the dismissal of an appeal to this court and the dismissal of an administrative appeal. Both dismissals occurred in May 2006.

In addition to Hoglan's testimony, the depositions of Joseph Viles, James Kurth, Peggy Kurth, Kent Keeler, and Patrick Stanley were entered into evidence. In pertinent part, Viles testified: (1) that he was not disappointed in Hoglan's representation, (2) that Hoglan notified him verbally of the dismissal prior to the board's letter to Viles informing Viles of the board's investigation,¹ and (3) that he — Viles — continues to use Hoglan's services. The Kurths' testimonies were similar. Although James Kurth could not be sure when Hoglan notified them that their appeal had been dismissed, Peggy Kurth testified it was before they received the board's letter. Both testified they were not angry with Hoglan and that they continue to use his services. Keeler's testimony was also favorable to...