Professional Ethics and Conduct v. Irwin

• Decision Date: 12 May 2004
• Docket Number: No. 03-2027.,03-2027.
• Citation: 679 N.W.2d 641
• Parties: IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Lynn Jay IRWIN III, Respondent.
• Court: Iowa Supreme Court

679 N.W.2d 641

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Lynn Jay IRWIN III, Respondent.

No. 03-2027.

Supreme Court of Iowa.

May 12, 2004.

Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.

Brent B. Green of Duncan Green Brown Langeness & Eckley, P.C., Des Moines, for respondent.

CARTER, Justice.

This matter is before us for a review of the findings and recommendation of the Grievance Commission pursuant to Iowa Court Rule 35.10. The matter was submitted to that commission on a lengthy and detailed stipulation of the facts involving the allegations of the complaint filed against respondent, Lynn Jay Irwin III, by the Iowa Supreme Court Board of Professional Ethics and Conduct.

Included in that stipulation was a recommendation for sanction approved by the board. The general nature of the complaints against respondent involved allegations that, while employed as a salaried attorney for a Des Moines law firm, he failed to remit fees he collected to the firm, as required by the conditions of his employment. The stipulation recited that respondent and the law firm at which he is employed had a verbal agreement that he would receive a monthly salary of $4000 and additional compensation in the amount of fifty percent of all legal fees collected for his work in excess of $100,000 annually. It states that:

Although Respondent denies certain allegations of the complaint, he acknowledges that if the matter were to proceed to evidentiary hearing before the Grievance Commission, he could not successfully defend the charges.

If the complaint herein proceeded to hearing, the testimony and evidence could establish by a convincing preponderance of the evidence that the respondent, Lynn Jay Irwin III, committed the ethical violations charged in each count of the complaint.

The stipulation states that the following factual scenarios occurred, each of which is the subject of an alleged ethical violation in the board's complaint:

1. Sometime in 1998 respondent, while employed at the law firm, settled a personal injury case for Jennifer Dennis. He retained approximately $73,000 of the fee received from the client and deposited it in a trust account at the Iowa State Bank that had been opened in his own name. He did not inform the bookkeeper at the firm about this transaction and he did not list the trust account on his Combined Statement and Questionnaire filed with the Client Security and Attorney Disciplinary Commission pursuant to Iowa Supreme Court Rule 39.11.

2. Sometime in 1997 respondent, while employed at the law firm, settled a personal injury action for Patricia Brittain and ultimately received a one-third contingency fee of $16,666.67, which was deposited in his personal bank account.

3. In November 1998 respondent, while employed at the law firm, represented Scott Warner in defending a criminal charge. He received a fee of $3000, which he retained for his own use. Although the fee was not completely earned when received, it was not deposited in a client trust account.

4. In March 1999, while employed at the law firm, respondent represented Linda Hoover on an OWI charge and received a fee of $500. He deposited that fee in his personal account and did not advise the firm.

5. In February 1999 respondent, while employed at the law firm, represented John Withers on an OWI charge and received a flat fee of $750. Respondent retained this fee for his personal use without the knowledge of the firm.

6. In April 1999 respondent, while employed at the law firm, represented Bradley Moore on an OWI charge and was paid a fee of $500. He retained all of that fee for his own use without the knowledge of the firm.

7. In October 1997, while employed at the law firm, respondent represented John Stokka in a stock-foreclosure and bankruptcy-related matter. He received three checks, each in the amount of $600. One of the checks was payable to the law firm and was credited to its trust account. The other two checks were negotiated by respondent for his own use.

8. In August 1997, while employed at the law firm, respondent represented Donna Mills on a criminal charge in Woodbury County. Mills was an employee of the Watson Law Firm. She and respondent agreed that others at the law firm would not be advised concerning this transaction. Respondent received a fee from Mills in the sum of $1000 and retained the proceeds for his own use without the knowledge of the law firm.

9. Sometime in 1998 respondent, while employed at the law firm, negotiated a settlement of a personal-injury claim for Katie Helt. He received a contingent fee of $2500, which he retained for his own use without informing the firm.

10. During the time that respondent worked at the law firm, he performed legal services for the owner of an optical company to whom respondent owed money. These services were accepted in payment of respondent's personal obligation in a barter transaction carried on without the knowledge of the law firm.

With respect to each of these transactions, the stipulation recites that respondent believed that he could "moonlight" and earn extra money on his own time as long as he met his minimum obligation to the firm.

The stipulation refers to the following facts as mitigating circumstances. Respondent eventually returned the $16,666.67 fee on the Brittain matter to the law firm. Later, in response to an action brought against him by the law firm, he settled all existing claims of the firm based on the foregoing conduct. Respondent had no record of ethical violations prior to the transactions involved in the present complaint and has been active in bar activities seeking to promote the administration of justice. Several lawyers submitted affidavits to the commission attesting to respondent's reputation for truth, veracity, and general moral character. His former wife submitted a similar affidavit.

At the conclusion of the stipulation, it is recited:

The parties recommend that the conduct of Respondent would warrant indefinite suspension of his license to practice law in the State of Iowa, with no

...