Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Plumb

• Decision Date: 17 February 1999
• Docket Number: No. 98-1951,98-1951
• Citation: 589 N.W.2d 746
• Parties: . Van M. PLUMB, Respondent. Supreme Court of Iowa
• Court: Iowa Supreme Court

Page 746

589 N.W.2d 746

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Van M. PLUMB, Respondent.

No. 98-1951.

Supreme Court of Iowa.

Feb. 17, 1999.

Norman G. Bastemeyer, David J. Grace, and Charles L. Harrington, Des Moines, for complainant.

Van M. Plumb, West Des Moines, pro se.

Considered by HARRIS, P.J., and LARSON, CARTER, NEUMAN, and TERNUS, JJ.

LARSON, Justice.

West Des Moines attorney Van Plumb is the Site Search respondent in this attorney disciplinary proceeding. The Iowa Supreme Court Board of Professional Ethics and Conduct charged Plumb with multiple violations of the Iowa Code of Professional Responsibility in connection with his representation of two separate clients. We adopt the findings of the grievance commission and suspend Plumb's license for a minimum of two months.

I. Facts.

In 1994 Plumb agreed to represent Margaret Thomas (previously known as Margaret Smith) in a dissolution-of-marriage action. Thomas first became dissatisfied with Plumb's representation when he missed several appointments without notifying her ahead of time. More problems developed when Thomas's former husband could not be served. Plumb had elected to publish notice in a newspaper in Wichita, Kansas, where Thomas's husband was believed to reside. The district court ruled the notice was ineffective, however, due to errors in the publication process and ordered Thomas to republish notice in the Wichita paper or have her husband personally served.

Plumb admitted he did not proceed further with Thomas's divorce after the first publication was deemed ineffective, but he argued it was because Thomas never advanced money for the additional publication. Plumb also argued he thought Thomas committed perjury on an affidavit necessary for notice by publication and felt he could not proceed on the affidavit. The evidence suggesting such perjury was scant. The case was ultimately dismissed pursuant to rule 215.1, but Plumb did not notify Thomas of the dismissal. See Iowa R. Civ. P. 215.1 (requiring dismissal without prejudice of cases filed but not prosecuted for over one year).

After her dissolution petition was filed, Thomas also retained Plumb to terminate her husband's parental rights and to file a personal bankruptcy petition on her behalf. Plumb never commenced either action. Thomas ultimately hired another attorney, Erik Luthens, in June 1996 to complete her legal matters. Both Thomas and Luthens requested Plumb return her file. Plumb never responded to the written requests and never returned Thomas's file. He failed to withdraw from the dissolution case until Luthens filed a motion to compel Plumb's withdrawal three months after Thomas hired Luthens.

Another client, Donald Tuinstra, hired Plumb to file articles of incorporation on his behalf and paid Plumb's flat fee of $300. Plumb did not deposit Tuinstra's check in a trust account as required by DR 9-102(A). Instead, he deposited it in his personal account. Plumb failed to prepare the incorporation papers, and Tuinstra contacted another lawyer to commence the filing. Tuinstra requested Plumb return the $300 fee in December 1995. Plumb had already spent the money, but he eventually returned the payment in the form of a personal check in March 1996.

The board brought a complaint against Plumb for his negligent representation of these two clients. Plumb filed his responses two months after the thirty-day time limit in Iowa Rule of Civil Procedure 127(b). At the grievance commission hearing, Plumb testified he thought he was not required to respond if his answers were potentially self-incriminating. The board requested the allegations be deemed admitted because of the late filing. See Iowa R. Civ. P. 127(b); see also Committee on Prof'l Ethics & Conduct v. Nadler, 445 N.W.2d 358, 360 (Iowa 1989) (holding respondent attorney must notify committee within thirty days of filing of requests for admission if attorney is claiming privilege against self-incrimination under Court Rule 118.6; otherwise, requests for admission are deemed admitted). The commission allowed Plumb's responses to stand, despite finding no evidence that his answers were self-incriminating.

The commission found in favor of Plumb on an alleged violation of DR 1-102(A)(4) (engaging in conduct involving dishonesty, deceit, or intentional misrepresentation) in connection with his representation of Thomas. The commission also found in favor of Plumb regarding alleged violations of DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), (4) (engaging in conduct involving dishonesty, deceit, or intentional misrepresentation), (5) (engaging in conduct prejudicial to the administration of justice), and (6) (engaging in conduct reflecting adversely on fitness to practice law) in connection with Tuinstra's articles of incorporation.

The commission did find violations during Plumb's representation of Thomas, including DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), and (6) (engaging in conduct reflecting adversely on fitness to practice law). The commission also upheld the charge that Plumb violated DR 2-110(A)(2) (avoiding foreseeable prejudice to client by returning all papers and property to which client is entitled) by failing to return Thomas's file upon withdrawing from representation, and held that he violated DR 6-101(A)(1) (prohibiting lawyer from handling legal matter that lawyer knows or should know the lawyer is not competent to handle) and (3) (neglecting a client's legal matter) by failing to act competently in representing Thomas and neglecting her legal matters. Finally, the commission found violations of DR 9-102(B)(3) (failing to maintain records of funds and property of the client) and (4) (failing to promptly deliver to the client funds or property the client is entitled to receive) during Plumb's representation of Thomas.

With respect to Plumb's representation of Tuinstra, the commission found a violation of DR 6-101(A) (failing to act competently, failing to handle legal matter with adequate preparation, and neglecting client's legal matter) by failing to competently and adequately prepare articles of incorporation for Tuinstra. The commission also determined Plumb violated DR 9-102(A) (requiring all client funds, except retainer fees paid on a regular basis, to be deposited in trust account) by not depositing Tuinstra's payment in a separate account, and violated DR 9-102(B)(4) (requiring attorney to promptly deliver to client all funds client is entitled to receive) by not promptly returning...