Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Lesyshen, 98-869

• Decision Date: 21 October 1998
• Docket Number: No. 98-869,98-869
• Parties: . Donna LESYSHEN, Appellant. Supreme Court of Iowa
• Court: Iowa Supreme Court

Page 281

585 N.W.2d 281

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Appellee, v. Donna LESYSHEN, Appellant.

No. 98-869.

Supreme Court of Iowa.

Oct. 21, 1998.

Donna Lesyshen, pro se, for appellant.

Norman G. Bastemeyer and David J. Grace, Des Moines, for appellee.

Considered by HARRIS, P.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN, ^* JJ.

LAVORATO, Justice.

This matter is before us on the appeal of attorney Donna Lesyshen from the findings of the Grievance Commission of the Iowa Supreme Court that her license to practice law should be suspended. Iowa Supreme Court Rule 118.11 permits this appeal. The Iowa Supreme Court Board of Professional Ethics and Conduct cross-appeals from the commission's findings. Iowa Supreme Court Rule 118.11 likewise permits the cross-appeal and authorizes this court to "grant such appeal in a manner similar to the granting of interlocutory appeals in civil cases under the Iowa Rules of Appellate Procedure."

The board filed a three-count complaint against Lesyshen. Count I alleged she neglected a personal injury lawsuit of her client, Charlene Hepler. Count II alleged she signed Hepler's name in that case to answers to interrogatories and falsely notarized the signature. Count III, concerning another client, Shawn Burt, alleged she improperly obtained an ex parte order placing temporary custody of a child with Burt.

The commission found no ethical violations regarding Count I; however, it did find ethical violations regarding Counts II and III. The commission recommended we suspend Lesyshen's license to practice law for sixty days. Lesyshen appealed. The board cross-appealed from the commission's findings on Count I and from the commission's recommendation regarding the length of the suspension.

We conclude Lesyshen's misconduct calls for a more severe sanction. We therefore suspend her license to practice law in Iowa indefinitely with no possibility of reinstatement for six months from the date of this opinion.

Our review under Rule 118.11 is de novo. Iowa Sup.Ct. R. 118.11. The commission's findings are not binding, but we accord them respectful consideration. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 557 N.W.2d 94, 95 (Iowa 1996). We ultimately decide what discipline is appropriate under the unique facts of each case. Id. We give weight to the commission's findings, particularly when considering the credibility of witnesses. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hughes, 557 N.W.2d 890, 892 (Iowa 1997). The board must prove its allegations of lawyer misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mayer, 570 N.W.2d 647, 648 (Iowa 1997). This burden of proof is greater than that in a civil case but less than that in a criminal case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Postma, 555 N.W.2d 680, 681 (Iowa 1996).

Lesyshen graduated from law school in 1982. She has served as a prosecutor in the Black Hawk County Attorney's office and as assistant city attorney for the city of Waterloo. Following her tenure as assistant city attorney, she entered private practice. She has a general practice, which includes trial work.

I. The Hepler Matter.

A. The neglect charge. On December 10, 1991, Hepler was injured in an auto collision. Hepler was a back seat passenger in a vehicle driven by Lynn Schares. Schares lost control of the vehicle on a curve.

Hepler hired Lesyshen to represent her on her claim against Schares. Lesyshen had previously represented Hepler in Hepler's divorce action.

In November 1992, Lesyshen made a $200,000 demand on Schares' insurer to settle Hepler's claim. The claim was not settled. On February 4, 1993, Lesyshen filed suit against Schares on Hepler's behalf, seeking past and future medical expenses, past and future lost wages, and past and future pain and suffering.

John T. McCoy represented Schares in the lawsuit. From the beginning, Lesyshen was dilatory. On March 1, 1993, McCoy served interrogatories to be answered by Hepler's medical experts. Despite numerous letters from McCoy, two motions to compel, and two court orders compelling the answers, Lesyshen never did provide the answers. Because of this failure, the trial court sustained McCoy's motion in limine to preclude expert testimony of matters beyond those revealed in the medical records. As a result, McCoy was able to successfully argue that there was a lack of proper foundation to connect to the accident most of the medical bills and future damages.

More specifically, the ruling precluded the recovery of medical bills other than those of a treating chiropractor and radiologist. At trial, Lesyshen tried to introduce medical expenses totaling $15,339.14, but the court only allowed her to introduce $3,086.33. The ruling also precluded any chance for recovery for future damages such as future pain and suffering, future medicals, and loss of earning capacity.

McCoy also submitted an interrogatory regarding lay witnesses. In response, Lesyshen listed ten witnesses. When Lesyshen supplemented this answer shortly before trial, she listed only four: Hepler's mother, sister, husband (Hepler married shortly before trial), and son. Lesyshen had listed none of these witnesses on the initial list of witnesses.

McCoy argued that listing these new witnesses close to trial prejudiced his case. The court agreed and sustained McCoy's motion in limine to exclude three of the four witnesses in Hepler's case in chief. In Hepler's case in chief, only Hepler, her husband, and her chiropractor testified. The court, however, did allow the excluded witnesses to testify on rebuttal.

Another instance of Lesyshen's dilatory conduct occurred while Hepler's case against Schares was pending. The case was automatically dismissed pursuant to Iowa Rule of Civil Procedure 215.1. Fortunately, Lesyshen was able to have the case reinstated.

Lesyshen conducted no discovery. McCoy was thus able to catch Hepler off-guard. McCoy offered a series of photographs showing Hepler smiling and enjoying herself after the accident. This was in stark contrast to Hepler's continuing complaints of pain and suffering. Hepler insisted the photographs were taken before the accident. McCoy produced four witnesses who said they were taken after the accident. Had Lesyshen requested production of exhibits McCoy intended to introduce, Hepler might have been in a better position to respond to McCoy's questioning.

Lesyshen's passive attitude toward discovery allowed McCoy to catch Hepler off-guard on several other important points. McCoy took Hepler's deposition more than a year-and-a-half before trial. Lesyshen chose not to order a copy of the deposition, supposedly because it was cost-prohibitive for her client. Consequently, Hepler had no opportunity to review her deposition testimony before testifying. Not surprising, Hepler's testimony contained several damaging inconsistencies between her deposition and trial testimony.

Lesyshen's dilatory behavior continued right into trial. Hepler's treating chiropractor was the only medical witness to testify for Hepler. Lesyshen had her secretary notify the chiropractor the day before trial that he was to testify. The chiropractor had to reschedule patients to comply with the subpoena Lesyshen had served upon him. Lesyshen had not been in recent contact with the chiropractor and had to go over his testimony with him at the courthouse.

The jury found that Hepler was 45% at fault for her injuries and Schares was 55% at fault, and it awarded Hepler $12,186.33. The award included $3,086.33 for past medical expenses, $5100 for loss of past wages, and $4000 for past pain and suffering. After the court reduced the award because of Hepler's comparative fault and because of a credit for medical expenses paid by Schares' insurer, Hepler was left with an award of $2,041.69.

The credit for medical expenses raises a final question about Lesyshen's conduct in representing Hepler. In Schares' answer, McCoy asserted a claim for a setoff for medical expenses paid by Schares' insurer. The insurer paid $5000 of Hepler's medical expenses and obtained a subrogation receipt from Hepler for this amount. The subrogation receipt entitled the insurer to a setoff for medical expenses paid against any recovery Hepler might obtain against Schares.

Lesyshen failed to offer into evidence the $5000 of paid medical expenses; she only attempted to offer the amount of unpaid medical expenses. She failed to make this offer despite McCoy's pretrial inquiry about how she was going to prove the $5000 of medical expenses paid by Schares' insurer. In a posttrial motion, McCoy raised the setoff question and was able to further reduce Hepler's recovery by the $5000 setoff. Left with unpaid medical expenses of $15,000, Hepler--at Lesyshen's suggestion--sought bankruptcy.

1. The charge and the commission's findings. Count I of the complaint charged that Lesyshen's neglect in handling Hepler's lawsuit violated DR 6-101(A) and DR 1-102(A)(6) of the Iowa Code of Professional Responsibility for lawyers. DR 6-101(A) provides that a lawyer shall not

(1) Handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle....

(2) Handle a legal matter without preparation adequate in the circumstances.

(3) Neglect a client's legal matter.

DR 1-102(A)(6) prohibits a lawyer from engaging in conduct adversely reflecting on the lawyer's fitness to practice law.

The commission concluded that while Lesyshen was negligent in her handling of Hepler's case, it could not say that Lesyshen committed an ethical violation by "handling a legal matter without adequate preparation in the circumstances." In reaching this conclusion, the commission believed Hepler's small jury award was self-inflicted because the jury apparently did not believe she had taken sufficient action to improve her own health by...