SUP. CT. BD. OF PROF'L ETH. & CON. v. Freeman

• Decision Date: 22 December 1999
• Docket Number: No. 99-1349.,99-1349.
• Citation: 603 N.W.2d 600
• Parties: IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Richard FREEMAN a/k/a Dick Freeman, Respondent.
• Court: Iowa Supreme Court

603 N.W.2d 600

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Richard FREEMAN a/k/a Dick Freeman, Respondent.

No. 99-1349.

Supreme Court of Iowa.

December 22, 1999.

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

Robert A. Wright, Jr., Des Moines, for respondent.

Considered by McGIVERIN, C.J., and CARTER, LAVORATO, NEUMAN, and TERNUS, JJ.

TERNUS, Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint against the respondent, Richard Freeman, alleging that he had violated several provisions of the Iowa Code of Professional Responsibility by neglecting legal matters entrusted to him, by failing to withdraw from representation and return files upon the request of his client, and by failing to respond to inquiries from the Board. The Grievance Commission found that the Board had proved the alleged violations and recommended that Freeman be publicly reprimanded. Our review is required by Court Rule 118.10.

We find, as did the Grievance Commission, that the Board proved the alleged ethical violations by a convincing preponderance of the evidence. See generally Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mayer, 570 N.W.2d 647, 648 (Iowa 1997) (holding the standard of proof in a disciplinary proceeding is a convincing preponderance of the evidence); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hughes, 557 N.W.2d 890, 892 (Iowa 1996) (stating supreme court's review in disciplinary cases is de novo). We disagree, however, with the recommended discipline. Based on the seriousness of Freeman's neglect of a client's discrimination claim, resulting in the expiration of the statute of limitations prior to suit being filed, we believe a three-month suspension is warranted.

I. Factual Findings.

Freeman was admitted to the practice of law in Iowa in 1979, although most of his career has been spent in government employment in our nation's capital. In 1996 Freeman returned to Iowa to care for his mother, and at that time leased space from a Des Moines law firm. His disciplinary troubles arose during the time he was engaged in the private practice of law in Iowa.

A. The Hodges matter. In December 1996 Freeman undertook the representation of William Hodges in connection with a discrimination claim. The statute of limitations on Hodges' state claims had run before Freeman was retained; the statute of limitations on Hodges' federal claims was about to expire. Freeman was not admitted to practice in the federal court for the northern district of Iowa, where the lawsuit was to be filed. Despite the urgent circumstances, Freeman did not make the necessary arrangements to be admitted in a timely manner; and as a result, the statute of limitations ran on his client's federal claims before he could file suit.

B. The Gibbs estate. In January 1997 James Gibbs contacted Freeman to represent him in connection with the estate of Gibbs' mother. (Gibbs had grown up in the same neighborhood as Freeman's sons.) Although Freeman agreed to handle the estate, he did not perform the necessary work. At least two delinquency notices were sent to Freeman, but he still failed to complete the tasks required to probate the estate.

Gibbs, who was aware of the delinquency notices, attempted to contact Freeman, but was consistently told that he was unavailable. Freeman did not return Gibbs' phone calls. Eventually, Gibbs wrote to Freeman, asking Freeman to forward the "entire case file, along with withdrawal papers." Again, Freeman failed to respond. At the time of the hearing, in July 1999, Freeman had not yet returned Gibbs' file nor had he withdrawn from his representation of the estate.

C. The Gibbs guardianship/conservatorship. Gibbs had a younger brother who was subject to a conservatorship and guardianship. When Gibbs hired Freeman to handle his mother's estate, he also asked Freeman to do the legal work required in the guardianship/conservatorship. As with the estate matter, Freeman did not perform the necessary work, despite receiving two delinquency notices from the clerk of court.

D. Failure to cooperate with the Board. The Board notified Freeman on several occasions that complaints had been filed against him in connection with the Hodges and Gibbs matters. Freeman was asked to respond, but did not do so. Freeman also failed to respond to the Board's request for admissions. He did, at one time, contact the Board by phone and indicate he would provide a response, but he failed to follow through on this representation.

II. Ethical Violations.

Freeman freely admitted at the hearing in this matter that the factual allegations made against him were true and that his actions violated the rules of professional responsibility. Indeed, these violations were established by Freeman's failure to respond to the request for admissions that addressed the factual foundation for the alleged violations, as well as the unethical nature of Freeman's conduct. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Allen, 586 N.W.2d 383, 387 (Iowa 1998). Because Freeman's conduct is relevant to a determination of the appropriate discipline, however, we briefly review the ethical violations he committed.

Freeman's neglect of his clients' legal matters violated Disciplinary Rule [hereinafter DR] 6-101(A)(3) ("A lawyer shall not... [n]eglect a client's legal matter."). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 586 N.W.2d 523, 526 (Iowa 1998); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Winkel, 542 N.W.2d 252, 254 (Iowa 1996). This same conduct also violated DR 1-102(A)(5) ("A lawyer shall not ... [e]ngage in conduct that is prejudicial to the administration of justice."), and DR 1-102(A)(6) ("A lawyer shall not ... [e]ngage in any other conduct that adversely reflects on the fitness to practice law."). See Winkel, 542 N.W.2d at 254.

Freeman's failure to return his client's file upon his client's request violated DR 2-110(A)(2) (requiring delivery to client of all papers and property to which the client is entitled upon withdrawal from employment). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 589 N.W.2d 746, 748 (Iowa 1999). DR 2-110(B)(4) was also violated when Freeman failed to withdraw from the Gibbs estate upon his client's request. See Iowa Code of Professional Responsibility DR 2-110(B)(4) (requiring that a lawyer withdraw from employment when "[t]he lawyer is discharged by the client"); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sprole, 596 N.W.2d 64, 65 (Iowa 1999).

The final ethical violation that occurred is based on Freeman's failure to respond to the Board's inquiries. This conduct violated DR 1-102(A)(5) and (6). See Winkel, 542 N.W.2d at 254. We note that Freeman's appearance at the disciplinary hearing did not mitigate his failure to cooperate in the Board's investigation. See Committee on Prof'l Ethics & Conduct v. Foudree, 477 N.W.2d 384, 388 (Iowa 1991).

We turn now to the more difficult question—the appropriate discipline.

III. Discipline.

Freeman asked the Commission to consider his prior unblemished record of public service and the unusual circumstances surrounding his ethical violations in assessing the need for discipline. It is true that Freeman had no disciplinary record prior to the events giving rise to this proceeding. In addition, he had a long record of successful government employment, as well as substantial community involvement. When he returned to Iowa, his life changed. In a short period of time, Freeman's mother died, as well as his uncle and a favorite aunt. Freeman married during this period, later discovering that his new wife had a gambling problem. They were shortly divorced. As a result of these events, Freeman suffered from depression and was treated by a psychologist. He testified that he recognized he had failed his clients and that he should respond to the Board's inquiries, but he was unable to face up to and deal with these embarrassing situations. To his credit, Freeman stated at the hearing that these circumstances did not excuse his conduct, but he offered them merely to show that his unethical actions during this time period were out of character for him. The appropriate discipline in a particular case turns on "the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the [bar] as a whole, and the respondent's fitness to continue in the practice of law." Committee on Prof'l Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69 (Iowa 1989). In addition, "we consider both aggravating and mitigating circumstances." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mears, 569 N.W.2d 132, 134 (Iowa 1997). Finally, we also weigh the Commission's recommendation, although we are not bound by it. See Hughes, 557 N.W.2d at 892.

Because discipline is not based solely on the nature of the ethical violations, violations similar to those committed by Freeman have warranted discipline ranging from a public reprimand to a six-month suspension. Compare Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kelly, 577 N.W.2d 648, 649 (Iowa 1998) (public reprimand for neglect of modification action); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Erbes, 573 N.W.2d 269, 271 (Iowa 1998) (public reprimand for neglect of legal matter and failure to cooperate with Board); Mears, 569 N.W.2d at 135 (public reprimand for neglect of two postconviction relief matters; attorney had received three prior admonitions); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Scheetz, 568 N.W.2d 663, 665 (Iowa 1997) (public reprimand for two instances of client neglect and failure to cooperate with Board); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Parker, 558 N.W.2d 183, 186 (Iowa 1997) (public reprimand for neglect of two estate matters and attempt to disrupt the disciplinary process); Iowa Supreme Ct. Bd....