IOWA SUPREME COURT BD. v. Sullins

• Decision Date: 17 July 2002
• Docket Number: No. 02-0396.,02-0396.
• Citation: 648 N.W.2d 127
• Parties: IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Ray SULLINS, Respondent.
• Court: Iowa Supreme Court

648 N.W.2d 127

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Ray SULLINS, Respondent.

No. 02-0396.

Supreme Court of Iowa.

July 17, 2002.

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

Ray Sullins, Clive, respondent, pro se.

STREIT, Justice.

An Iowa attorney is charged with neglect of client matters and improprieties concerning the handling of the retainer fees for six different clients. The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint with our Grievance Commission against Ray Sullins, alleging he violated several ethical rules and the Board recommended we revoke Sullins' license to practice law. Our review is required by Iowa Court Rule 35.10 (2002). We agree with the Commission's findings of misconduct and its recommended sanction.

I. Background and Facts

Ray Sullins is again brought before this court on charges of neglect of client matters and improper handling of retainer fees. The Iowa Supreme Court Board of Professional Ethics and Conduct initiated attorney disciplinary proceedings against Sullins based on his unprofessional conduct with six separate clients. All but one complaint alleges neglect of a client's legal matters. All six complaints allege one or more improprieties concerning Sullins' handling of his clients' retainer fees. Two complaints allege Sullins did not inform his clients of his June 1, 2000, suspension from the practice of law. We will address the details of each charged ethical violation below.

II. Scope of Review

We review the findings and recommendations of the Grievance Commission de novo. Iowa Ct. R. 35.10. We give respectful consideration to the Commission's findings and recommendations, but are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 13 (Iowa 2000). The Board has the burden to prove misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 619 N.W.2d 407, 409 (Iowa 2000).

III. The Commission's Findings

The Commission made numerous findings with respect to seven counts of misconduct against Sullins. The first six counts relate to Sullins' handling of each of six clients' cases. The seventh count regards Sullins' mishandling of retainer fees for five of his clients. We will discuss each count in turn.

A. Count I: John Mersch

Sullins agreed to represent John Mersch in his pursuit of a civil and criminal action against the bouncers of a bar with whom Mersch fought. Besides the civil action, Sullins led Mersch to believe Sullins could file criminal charges against the bouncers. Mersch's wife paid Sullins a $500 retainer fee. Sullins did not place this money into a trust account. Sullins never contacted Mersch after the initial contact. After repeated attempts to contact Sullins by telephone, Mersch gave up. Sullins admits he was dilatory in not informing Mersch he could not get criminal charges filed against the bouncers. Based on these facts, the Commission concluded Sullins did neglect Mersch's case in violation of DR 7-101(A)¹ and DR 1-102(A)(1),² (5)³ and (6).⁴ The Commission concluded Sullins earned the $500 retainer and as such was under no obligation to return any of it.

B. Count II: Cason

Shortly after Rebecca Cason married her husband, he was put in jail. Cason contacted Sullins for his help in the dissolution of this marriage. On June 22, 1999, Cason paid Sullins $500 for future services. He did not place this money in a trust account. Sullins did not file the dissolution petition until four months after their initial meeting. He claimed it would make the divorce easier if he waited until after her husband was sentenced. Cason wrote a letter to Sullins firing him and requesting return of her $500. In response, Sullins told Cason he would file the dissolution papers immediately. Sullins filed the petition November 2, 1999, but did not complete the dissolution until February 2, 2002. Based on these circumstances, the Commission concluded Sullins neglected Cason's dissolution and thereby violated DR 7-101(A) (fail to render services to client) and DR 1-102(A)(1) (violate disciplinary rule), (5) (conduct prejudicial to justice), and (6) (conduct adversely reflects on fitness to practice law).

C. Count III: Rolek

On April 15, 1999, Dr. Dennis Rolek retained Sullins to challenge findings of the Department of Human Services (DHS) that Rolek abused his son. Rolek gave Sullins a $1000 retainer fee which Sullins cashed the same day and deposited $700 into a trust account. Rolek had thirty days from April 1, 1999, within which to appeal the final DHS decision. Rolek had great difficulty contacting Sullins to see if Sullins filed the appeal. Sullins sent the petition for judicial review to the clerk on May 3, 1999. It was filed on May 4. The DHS filed a motion to dismiss. Sullins did not file a resistance to the motion and he did not appear at the hearing.

Sullins later filed a written resistance to the motion and appeared at a later hearing. The court dismissed the case as it lacked jurisdiction because the petition was not timely filed (thirty days after the April 1 letter). Sullins admitted there was no excuse for his failure to appear at the original hearing. Sullins attempts to skirt responsibility for the dismissal of Rolek's petition claiming Rolek's time to appeal expired before Rolek even sought Sullins' assistance. This is simply not true. With regard to the $1000 retainer fee, Sullins acknowledged he should have refunded the money to Rolek. The Commission found Sullins neglected Rolek's case. Though the initial $1000 retainer fee was not excessive, the Commission concluded Sullins effectively collected an unreasonable fee by not refunding the money Sullins admittedly owed Rolek. The Commission concluded Sullins violated DR 6-101(A)(3) (neglect of client's matter), 7-101(A) (fail to render services to client), 2-106 (collect clearly excessive fee), and 1-102(A)(1)(violate disciplinary rule), (5) (conduct prejudicial to justice), and (6) (conduct adversely reflects on fitness to practice law).

D. Count IV: Olson

Aaron Olson hired Sullins as counsel on a domestic relations matter being handled by another attorney whom Olson later terminated. The fee agreement consisted of an initial payment of $500 with another $500 when Olson was able to pay. In receipt of two checks totaling $1000, Sullins deposited neither into a trust account. Sullins claimed they agreed the money could be immediately distributed.

On the day of trial, Sullins did not appear. Sullins did not tell Olson of his suspension that began only two weeks before trial. Olson, left to represent himself, attempted to offer several documents into evidence. However, opposing counsel objected because the documents were not provided ten days before trial. The court sustained the objection and Olson could not offer these papers.

Olson claimed he retained Sullins to represent him at mediation on the matter and at trial. Sullins told Olson he might not be available for the trial because of an upcoming vacation or other commitment. Sullins told Olson in the event he could not appear, he would make sure another attorney would represent Olson at trial. Sullins, however, asserts he never promised Olson he would appear in court, represent him in mediation, or file any documents with the court or opposing counsel. The Commission found Sullins' testimony more credible than Olson's. The Commission did not articulate on which issues it found Sullins' testimony more credible. Despite a credibility finding in favor of Sullins, the Commission still found he violated Iowa Court Rule 35.21 for failing to tell Olson of his suspension and its effect on Sullins' ability to represent Olson. Knowing he would be unable to represent his client at trial because of the suspension, Sullins should have found another attorney to handle Olson's case. The Commission concluded Sullins violated DR 6-101(A)(1) (handle a legal matter the lawyer knows that the lawyer is not competent to handle without associating with a lawyer who is competent to handle it) and DR 1-102(A)(1) (violate disciplinary rule), (4) (conduct involving dishonesty), (5) (conduct prejudicial to justice), and (6) (conduct adversely reflects on fitness to practice law).

E. Count V: Brown

In April 1995, Larry Brown hired Sullins asking him to: (1) file a contempt action against his ex-wife; (2) file an action to modify child custody provisions of a Texas marriage dissolution decree entered six months earlier; and (3) file a slander action against his ex-wife and her mother. Sullins contends the fee agreement provided $5000 for services already rendered. On April 7, 1995, Brown signed the fee agreement and gave Sullins two money orders for $5000 each. Sullins did not deposit any of this money into a trust account. The court dismissed the contempt action on jurisdictional grounds and Sullins never refiled it. Sullins did not initiate slander proceedings against the ex-wife and her mother. He did file a petition in Iowa to modify the Texas dissolution. Because Sullins did not respond to the ex-wife's discovery requests, the court entered a $250 sanction judgment against Sullins personally. At the time of the hearing, Sullins had not yet paid this money.

The Commission found Sullins neglected his client's matter by failing to respond to the discovery requests. However, the Commission concluded Sullins did not violate any disciplinary rules regarding the fee arrangement. The fee arrangement issue was disputed, and it appeared to the Commission Sullins may have earned the first $5000 check Brown gave him at the time Sullins received the money. As to the other $5000 check, the Commission found Sullins did not perform significant work. Sullins failed to file a statement with the board in response to Brown's complaint. The Commission found Sullins violated DR 6-101(...