Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Apland
| Decision Date | 22 April 1998 |
| Docket Number | No. 97-2297,97-2297 |
| Citation | 577 N.W.2d 50 |
| Parties | . G. Richard APLAND, Respondent. Supreme Court of Iowa |
| Court | Iowa Supreme Court |
Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
G. Richard Apland, Ankeny, pro se.
Considered by HARRIS, P.J., and LARSON, CARTER, LAVORATO, and ANDREASEN, JJ.
This attorney disciplinary proceeding arises out of G. Richard Apland's representation of Dennis Vonnahme who was charged with operating while intoxicated (OWI). The Iowa Supreme Court Board of Professional Ethics and Conduct alleged Apland committed numerous ethical violations. The Grievance Commission concluded Apland committed only one of those violations and recommended a public reprimand. Although we conclude Apland committed more ethical violations than the commission found, we nevertheless agree with the commission's recommendation of a public reprimand.
Apland has not appealed from the commission's recommendation under Iowa Supreme Court Rule 118.11. Nevertheless, we review the record de novo. Iowa Sup.Ct. R. 118.10. We give respectful consideration to the commission's recommendations. We, however, ultimately decide what discipline is appropriate under the unique facts of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 557 N.W.2d 94, 95 (Iowa 1996).
The board must prove its allegations of lawyer misconduct by a convincing preponderance of the evidence. Id. This burden of proof is greater than in a civil case but less than in a criminal case. Id.
In April 1994, Vonnahme's wife contacted Apland to represent her husband on an OWI charge. Mrs. Vonnahme made the contact because Mr. Vonnahme is an over-the-road truck driver and was on the road at the time. Apland agreed to represent Mr. Vonnahme for a flat $5000 fee. Mrs. Vonnahme delivered the entire fee in cash to Apland. Rather than deposit the fee, Apland merely put the cash in what he described as a "portfolio." Apland agreed to pay all expenses out of the fee.
Several days later, Mr. Vonnahme and Apland met and discussed what Apland was to do. Vonnahme made it clear that he wanted Apland to pursue the OWI charge vigorously, through trial and appeal, if necessary. Apland was also to take steps to protect Vonnahme's driver's license. In addition, there was some talk of pursuing a civil rights action against the city of Boone in connection with Vonnahme's arrest for the OWI charge. (Mrs. Vonnahme had worked as a dispatcher at one time for the city's police department, and the couple thought there was a conspiracy among law enforcement officers to harass them.) There was also some talk about a workers' compensation claim and a tax matter. The precise contours of the arrangement are difficult to tie down because Apland and Vonnahme never signed a fee agreement and Apland kept virtually no record of the arrangement.
Apland began working on Vonnahme's case. He did legal research, had various conferences in person and on the phone with the Vonnahmes, deposed four people involved in the OWI case, made several out-of-town trips for interviews and investigations, and argued Vonnahme's case in a telephone hearing with the Iowa Department of Transportation (DOT) in an attempt to save Vonnahme's driver's license.
Apland's early work focused on an initially fertile ground for defense involving the arresting officer's jurisdiction. The grounds later proved barren when we handed down a decision deciding the issue unfavorably in an unrelated case.
Apland found success in the DOT hearing. He was able to convince the DOT to grant Vonnahme a work permit. This allowed Vonnahme to continue his over-the-road trucking, despite the facts of the OWI charge and a corresponding 180-day driver's license suspension.
Vonnahme's resolve to press the OWI charge through trial later flagged. Although Apland was fully prepared to try the OWI case, Vonnahme wanted to plead guilty. (Apparently an acquaintance's conviction under similar circumstances convinced Vonnahme he would lose.) Apland proceeded to negotiate a favorable plea agreement with the prosecutor: a deferred judgment, one year's probation, and ten hours of community service.
Vonnahme's interest in the civil rights claim also flagged once Apland determined the suit was baseless. As to the workers' compensation claim and the tax matter, Apland testified he told Vonnahme in the beginning that he had no expertise in these matters and would refer him to another attorney.
About six months following the guilty plea, Vonnahme demanded a return of a part of the fee. Apland testified at the commission hearing he believed the $5000 was a "flat fee" for taking Vonnahme's OWI case through trial. Vonnahme testified Apland told him his "fee would be $1000," and then it would be "$2500 if we went to a jury trial and five grand to appeal to the Supreme Court." Because the case did not "go to trial," Vonnahme believed he was owed something.
Vonnahme then asked for an accounting to determine what that "something" was. In response, Apland told Vonnahme that if he were to charge Vonnahme his hourly rate, the fees would range from $5200 to $6000 based on $150 per hour and his estimate of thirty-five to forty hours spent working on the case. In addition, Apland explained that he had already paid for the four depositions he had taken in the case. Vonnahme, however, stated he was owed at least $3000.
Later, Apland did return $2000 of the fee to Vonnahme. The payment was by way of three checks: one check for $1000, and two checks for $500 each.
Unhappy, Vonnahme complained to the Polk County Bar Grievance Commission. This entity sought information from Apland, who never responded. Vonnahme later testified in these proceedings that Apland offered to return another $1000 if Vonnahme would tell the Polk County Bar Grievance Commission the complaint had been a "mistake."
Later, after the matter came to the attention of the board, it instituted these proceedings. The board charged Apland with
1. failing to put the fee in a client's trust account in violation of DR 9-102(A) ();
2. failing to promptly and fully refund the unearned portion of the fee in violation of DR 9-102(B)(4) ();
3. misappropriating the client's funds in violation of DR 1-102(A)(3) (), (4) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), (5) (lawyer shall not engage in conduct that is prejudicial to the administration of justice), (6) (lawyer shall not engage in any other conduct adversely reflecting on the fitness to practice law);
4. charging the client an excessive fee in violation of DR 2-106(A) ();
5. failing to provide the client with an accounting of the fee in violation of DR 9-102(B)(3) ();
6. attempting to obstruct the disciplinary process; DR 1-102(A)(5) (); and
7. failing to respond to inquiries from disciplinary authorities about the complaint from the client in violation of DR 1-102(A)(5) ().
Following a hearing at which Vonnahme, Apland, and Apland's fiancee testified, the commission rendered a decision in which it found that Apland had charged a flat fee that belonged to him as soon as he received it. For this reason, the board concluded, Apland did not misappropriate his client's funds and had no ethical obligation to deposit the fee in a client trust account, to return any portion of it to the client, or to render the client an accounting of it. The commission also found the fee was not excessive and Apland did not ask Vonnahme to drop the complaint. The commission did find that Apland failed to respond to inquiries from disciplinary authorities in violation of DR 1-102(A)(5) and for this recommended a reprimand.
A dissenting member thought that "flat fees" should be deposited in a client trust account. Thus, the dissenter concluded the board did establish that Apland had violated DR 9-102(A) when he did not deposit the $5000 fee in a client trust account and did not make an accounting for the funds. The dissenter, however, agreed with the reprimand recommendation because he believed Apland did provide the services agreed to in exchange for the money he received.
DR 9-102(A) pertinently provides:
All funds of clients paid to a lawyer ... including advances for costs and expenses, except retainer fees paid on a regular and continuing basis, shall be deposited in one or more identifiable interest-bearing trust accounts.... No funds belonging to the lawyer ... shall be deposited in trust accounts except as follows:
....
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer....
Read literally, lawyers are required to deposit all advance payment of fees in a client trust account. The only exception are retainer fees paid on a regular and continuing basis. Such a fee is commonly referred to as a "general retainer," which
is a fee for agreeing to make legal services available when needed during a specified time period. In form it is an option contract; the fee is earned by the attorney when paid since the attorney is entitled to the money regardless of whether he actually performs any services for the client.
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