Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Evans, 95-258

• Court: United States State Supreme Court of Iowa
• Citation: 537 N.W.2d 783
• Docket Number: No. 95-258,95-258
• Parties: . Roger W. EVANS, Appellee. Supreme Court of Iowa
• Decision Date: 20 September 1995

Page 783

537 N.W.2d 783 IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Appellant,
v.
Roger W. EVANS, Appellee. No. 95-258. Supreme Court of Iowa. Sept. 20, 1995.

Page 784

Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for appellant.

Daryl L. Hecht and David R. Crary, Sioux City, for appellee.

Considered by McGIVERIN, C.J., and LARSON, CARTER, LAVORATO, and SNELL, JJ.

LARSON, Justice.

The board of professional ethics and conduct has appealed from a recommendation of the grievance commission concerning charges that the respondent, Roger W. Evans, violated our code of professional conduct. Because we view the conduct as more serious than would call for merely private reprimand, as recommended by the commission, we order the suspension of the respondent's license.

The respondent is a lawyer in Sioux Center, Iowa. His practice has included "quite a bit of probate," but the violations charged here involve his alleged failure to adhere to several of our well-known probate statutes and procedural rules. These violations arise out of two estates in Sioux County. The committee charged that in both estates the respondent took all or part of his attorney fees before the court entered an order authorizing payment of the fees. In addition, he was charged with receiving, in one of the estates, fees of $7300 in excess of the amount to which he was entitled.

The scope of review in lawyer disciplinary proceedings is de novo. Committee on Professional Ethics & Conduct v. Oltrogge, 463 N.W.2d 19, 19 (Iowa 1990); Iowa Sup.Ct.R. 118.11. While we give respectful consideration to the findings and recommendations of our commission, we are not bound by them. Committee on Professional Ethics & Conduct v. Tullar, 466 N.W.2d 912, 913 (Iowa 1991). The burden of proof is on the board to prove the violations by a convincing preponderance of the evidence. Committee on Professional Ethics & Conduct v. Hutcheson, 471 N.W.2d 788, 789 (Iowa 1991). This burden is greater than that required in civil cases, but less than that required in criminal cases. Committee on Professional Ethics & Conduct v. Hurd, 375 N.W.2d 239, 246 (Iowa 1985).

I. The Premature Receipt of Fees.

Under Iowa Code section 633.198 (1995), the court is to determine the amount of fees to be allowed an attorney for the estate. Iowa Rule of Probate Procedure 2(d) elaborates on the timing and procedure for payment of the fees by providing:

One-half of the fees for ordinary services may be paid when the federal estate tax return, if required, and the Iowa inheritance tax return, if required, are prepared. When an inheritance tax return is not required, an inheritance tax clearance must be filed. When a federal estate tax return is not required, the one-half fee may be paid when the Iowa inheritance tax return is prepared, or, when it is not required, when the inheritance tax clearance is filed. The remainder of the fees may be paid when the final report is prepared and the

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costs have been paid. The schedule for...