IOWA SUPREME COURT BD. OF PROF. v. Herrera

• Decision Date: 25 April 2001
• Docket Number: No. 01-0016.
• Parties: IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Luis HERRERA, Respondent.
• Court: Iowa Supreme Court

626 N.W.2d 107

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Luis HERRERA, Respondent.

Nos. 01-0016.

Supreme Court of Iowa.

April 25, 2001.

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

Robert G. Tully, Des Moines, for respondent.

Considered en banc.

CADY, Justice.

The Board of Professional Ethics and Conduct charged Luis Herrera with violating numerous provisions of the Code of Professional Responsibility based on a variety of conduct in the course of the representation of a defendant in a criminal case, and for visiting with a defendant in another criminal case who was represented by counsel. The Grievance Commission found Herrera violated the Code of Professional Responsibility by neglecting a client matter, and dismissed the remaining charges. It recommended Herrera receive a public reprimand.

On our review, we agree Herrera neglected a client matter, but we also find Herrera engaged in conduct which was dishonest and reflected adversely on his fitness to practice law. We impose an indefinite suspension of not less than three months.

I. Background Facts and Proceedings.

Luis Herrera was admitted to practice law in Iowa in 1981. He maintains a law office in Des Moines and engages in the general practice of law with an emphasis in criminal defense. He frequently represents defendants in federal drug cases.

Herrera has been publicly reprimanded on three prior occasions. In 1997, he was reprimanded for violating client trust account requirements. In 1998, he was reprimanded for neglect of a probate case and the failure to respond to inquiries by the Board. In 1999, he was reprimanded for neglect of a client matter in a dissolution action. Herrera was also suspended from practice before the United States Court of Appeals for the Eighth Circuit in 1998 for failing to file a brief in an appeal.

The evidence produced at the hearing before the Grievance Commission centered on Herrera's conduct in two criminal cases. We will discuss each case separately.

1. Penuelas Case.

Herrera represented Carlos Penuelas Santos (Penuelas). Penuelas was charged in federal court with various drug offenses and was represented by another lawyer prior to the time Herrera filed his appearance in the case on October 30, 1997. The former attorney had negotiated a plea agreement in the case and Penuelas had entered a plea of guilty and was awaiting sentencing. Following the sentencing hearing on January 9, 1998, Penuelas was sentenced to a five-year prison term. Herrera filed a notice of appeal from the sentence on January 16, 1998.

On February 2, 1998, Penuelas paid Herrera $5000 by endorsing a check to him in that amount. Herrera deposited the check in his personal account. He did not deposit the check in his trust account because he believed he had earned the fee by the time it was received.

Herrera failed to pursue the appeal in a timely manner. He failed to pay the required filing fee and failed to file a brief within the required period of time. The clerk of court for the Eighth Circuit Court of Appeals eventually issued an order for Penuelas to show cause why his appeal should not be dismissed for failure to prosecute. Shortly after this time, Herrera was suspended from practicing before the Eighth Circuit for his dilatory conduct in an appeal in another case. Nevertheless, Herrera had his paralegal and another lawyer write the required brief, which was eventually filed on July 13, 1998, under his signature. The paralegal signed Herrera's name to the brief. The brief was subsequently stricken from the record because Herrera was unauthorized to practice before the court, and Penuelas was given the option of filing another brief on his own or retaining new counsel.

On September 8, 1998, Penuelas wrote Herrera. Penuelas requested the $5000 fee be refunded to him, and he threatened to report Herrera's conduct to the "Bar Association." Herrera responded to the letter by sending Penuelas a check from his office account in the amount of $4300. The check, however, was returned for insufficient funds. Herrera then issued a second check for $4400. This check was also returned for insufficient funds.

The Board subsequently initiated an audit of Herrera's trust account records. The auditor assigned to the case, however, was delayed in his efforts to meet with Herrera for nearly a month due to Herrera's personal and business schedule. Herrera was also slow in producing the records and documents requested by the auditor. At the same time, the auditor was attempting to close the investigation in a prompt manner before he was expecting to leave to spend the winter months in Arizona. Herrera declared on his 1999 client security questionnaire and statement that all retainers had been deposited in his trust account.

2. Lopez-Santos Case.

On November 16, 1998, four defendants were indicted in federal court on drug charges. Each was represented by an attorney. The government had targeted one of the defendants, Fernando Lopez-Rayo (Lopez), as the ringleader, and another of the defendants, Francisco Santos-Vizcaino (Santos), was considering a plea bargain.

On December 2, 1998, Herrera was asked by a third person to meet with Lopez, who was in jail. Following the meeting, Herrera notified Lopez's attorney and the United States Attorney that he believed he would be representing Lopez, and requested certain documents from the United States Attorney. On December 5, Herrera returned to the jail and again met with Lopez. During this meeting, Lopez told Herrera that Santos also wanted to talk to him. Herrera then met with Santos. Herrera indicated both men wanted to hire him to represent them, and the conversation was limited to the subject of employment and the payment of a fee. However, no arrangements were subsequently finalized and Herrera never entered an appearance in either case. Nevertheless, the attorneys representing the two defendants were upset once they learned Herrera had met with their clients.

II. Board Complaint.

The Board charged Herrera with a variety of violations of the rules of professional responsibility. It claimed Herrera neglected the appeal in the Penuelas case in violation of DR 6-101(A)(3) (neglect of a client matter) and failed to supervise his paralegal in the preparation and filing of the brief in violation of DR 3-104(D) (supervision of work by nonlawyer personnel). It further claimed that the $5000 paid to Herrera by Penuelas was a retainer which Herrera failed to place in his trust account and maintain appropriate records, all in violation of DR 9-102(A) (trust accounts) and DR 9-103(A) (record keeping). It claimed the insufficient funds checks issued by Herrera violated DR 9-102(B)(4) (failure to deliver client funds) and DR 1-102(A)(4), (5), and (6) (conduct which is dishonest, prejudicial, and adversely reflects on fitness to practice law). The Board also claimed Herrera failed to cooperate with the Client Security Commission investigator in violation of Court Rule 121.4(a)(3). It also claimed Herrera submitted false answers to the trust account questions on his client security questionnaire in violation of DR 1-102(A)(4) (conduct involving misrepresentation). Finally, it claimed Herrera violated DR 7-104(A)(1) (communicating with another's client) when he visited with Santos after he visited with Lopez.

III. Commission Decision.

The commission found Herrera neglected the appeal in the Penuelas case in violation of DR 3-104(D) and DR 6-101(A)(3), but dismissed the remaining counts of the complaint. It found the $5000 paid to Herrera by Penuelas was not a retainer, but a fee which had been fully earned by the time Herrera received it. Accordingly, the Board found Herrera had no obligation to place the check in his trust account. The commission also dismissed the charges relating to the insufficient funds checks. It found the issue was not adequately pled in the complaint. The commission also dismissed the failure to cooperate complaint. It found the Client Security Commission did not cooperate with Herrera to accommodate his busy schedule. Finally, the commission found Herrera did not violate DR 7-104(A)(1) by visiting with Santos because Herrera was not representing Lopez at the time.

The commission recommended Herrera be publicly reprimanded for neglect of a client matter. It recommended dismissal of the remaining counts.

IV. Scope of Review.

Our review is de novo. Ct. R. 118.10. We give respectful consideration to the recommendations of the commission, but ultimately decide the appropriate discipline under the specific facts of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 557 N.W.2d 94, 95 (Iowa 1996). The conduct must be proven by a convincing preponderance of the evidence. Id.

V. Violations.

1. Neglect.

We agree with the commission that the actions and inactions by Herrera following the filing of the notice of appeal in the Penuelas criminal case support a finding of neglect of a client matter in violation of DR 6-101(A). Herrera ignored several deadlines and failed to properly respond to the notices from the clerk of court. Furthermore, after he was prohibited from filing pleadings and briefs with the Eighth Circuit Court of Appeals, he neglected to make all the necessary arrangements for another attorney to file the required brief. He also utilized his paralegal to assist in the preparation and filing of the brief, but failed to supervise the work performed by the paralegal in violation of DR 3-104(D). It is uncertain if his neglect and lack of supervision resulted in any prejudice to his client, but such a result is unnecessary. See Comm. on Prof'l Ethics & Conduct v. Gill, 479 N.W.2d 303, 306 (Iowa 1991)

. The procrastination and sloppy behavior engaged in by Herrera adversely affects the public's confidence in the profession. See id.; see also ABA/BNA Lawyers' Manual on Professional Conduct 31:402-403...