IOWA SUPREME COURT BD. OF ETHICS v. Winkel, 99-626.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: NEUMAN, Justice.
• Citation: 599 N.W.2d 456
• Parties: IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Eldon J. WINKEL, Respondent.
• Docket Number: No. 99-626.,99-626.
• Decision Date: 09 September 1999

599 N.W.2d 456

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant,
v.
Eldon J. WINKEL, Respondent

No. 99-626.

Supreme Court of Iowa.

September 9, 1999.

Norman Bastemeyer and David J. Grace, Des Moines, for complainant.

Eldon J. Winkel, Algona, pro se.

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

NEUMAN, Justice.

This is the third time respondent, Eldon J. Winkel, has been before this court for violating the Iowa Code of Professional

599 N.W.2d 457

Responsibility for Lawyers. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Winkel, 541 N.W.2d 862 (Iowa 1995); Committee on Prof'l Ethics & Conduct v. Winkel, 415 N.W.2d 601 (Iowa 1987). In the case now before us, the grievance commission found Winkel guilty of conduct violating DR 5-105(B) (failing to refuse proffered employment conflicting with representation of another client), DR 2-110 (withdrawal from representation without completing work, to prejudice of client), and DR 9-102 (failure to deposit advance for fees in trust account). Complainant, the Iowa Supreme Court Board of Professional Ethics and Conduct (board), contests only the commission's recommended sanction of public reprimand. Given Winkel's prior history, it urges us to impose a stiffer penalty

The matter is before us for review in accordance with Iowa Supreme Court Rule 118.10. Our review is de novo. Committee on Prof'l Ethics & Conduct v. Leed, 477 N.W.2d 390, 392 (Iowa 1991). We agree with the board's view that issuing yet another reprimand would do little to strengthen the public's confidence in the disciplinary system or deter Winkel, and others, from like conduct in the future. We therefore order a two-month suspension of Winkel's license to practice law.

I. Background Facts and Proceedings.

The board's complaint centers on Winkel's relationship with a client named Michael Reimers.¹ In December 1996, Reimers and his wife, Dawn, retained Winkel to represent them in a chapter 7 bankruptcy proceeding. The Reimers paid Winkel a $600 fee, plus a $175 filing fee, when the bankruptcy petition and schedules were signed. Winkel promptly deposited the entire sum in his office operating account. He attended the first (and only) meeting of creditors in late January. Winkel negotiated reaffirmation agreements with some of Reimers' creditors. According to Michael Reimers, Winkel's secretary advised that if any of his creditors had questions, they should be told to call Winkel's office directly.

These negotiations were still in process on February 12, 1997, when Michael Reimers was involved in an auto collision with Jake Sweers. Sweers was evidently at fault in the accident, having run a stop sign. Reimers suffered substantial injuries including a shattered right pelvis, broken ribs, and extensive facial lacerations. He was hospitalized nine days and accumulated $30,000 in medical bills.

Sweers, meanwhile, anticipated a lawsuit and contacted Winkel about defending him. Winkel agreed and met with Sweers a week later to help complete the state-required accident report. He entered a not-guilty plea on Sweers' behalf in connection with the traffic charge. He also engaged an accident reconstruction expert, concerned that Sweers—who was uninsured but owned substantial assets—would be exposed to substantial liability for his role in the accident.

Winkel maintains he had no clue that Michael Reimers was the person Sweers had injured until late February 1997, when Sweers gave Winkel a letter he received from James Fitzsimmons, Reimers' personal injury lawyer. Winkel replied on Sweers' behalf, confirming that he would be representing him in any litigation and suggesting that Fitzsimmons or his partner

599 N.W.2d 458

could finish up the remaining details of Reimers' bankruptcy. In his response, Fitzsimmons' partner, James McGuire, declined to get involved in the bankruptcy and observed that Winkel's concurrent representation of these opposing parties appeared to him an obvious conflict of interest

Winkel's and Reimers' reactions to this state of affairs is telling. Winkel recognized the conflict of interest but maintained the mixup was "totally innocent" on his part. In his words, he "had to get out of the situation the best I could." Believing Reimers had been demanding more in the way of services in the bankruptcy than Winkel had agreed to, and having already spent several hours representing Sweers, he decided to unilaterally withdraw as counsel in the bankruptcy proceeding. He believed Reimers could negotiate the unresolved reaffirmation issues himself.

Reimers, who ultimately lodged a complaint with the board, described his reaction this way:

My initial reaction was anger. Then I felt very betrayed and let down. I didn't know what to do anymore about the bankruptcy. I had a lot going on. I was out of work. I had just gotten out of the hospital. I was in an accident. Mr. Sweers didn't have any insurance. So it was just a lot more stress on me than I needed right then.

Despite these misgivings, Reimers successfully concluded the bankruptcy on his own. His debts were discharged shortly after Winkel withdrew. Winkel, meanwhile, returned $100 of the original fee. Three months later, however, he deposed Reimers in the personal injury litigation. Inquiring about the extent of Reimers' injuries, Winkel asked if he had driven his motorcycle to the deposition. This line of questioning disturbed Reimers greatly. Reaffirmation...