Sup. Ct. Bd. of Prof. Ethics v. Grotewold

• Decision Date: 27 February 2002
• Docket Number: No. 01-1430.,01-1430.
• Citation: 642 N.W.2d 288
• Parties: IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Lance GROTEWOLD, Respondent.
• Court: Iowa Supreme Court

642 N.W.2d 288

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Lance GROTEWOLD, Respondent.

No. 01-1430.

Supreme Court of Iowa.

February 27, 2002.

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

John J. Scieszinski, Des Moines, for respondent.

CADY, Justice.

This case is before us on the report of a division of the Iowa Supreme Court Grievance Commission. The Commission found Lance Grotewold violated the Iowa Code of Professional Responsibility by neglecting client matters, making misrepresentations to the district court, and failing to timely respond to the Iowa Supreme Court Board of Professional Ethics and Conduct. The Commission recommended a public reprimand. On our consideration of the matter, we find Grotewold violated the Code of Professional Responsibility as alleged, and we suspend his license to practice law for sixty days.

I. Commission Report.

Lance Grotewold was licensed to practice law in Iowa in 1986, and he has practiced in Oskaloosa since that time. He is married and has two daughters. One daughter is in college and the other daughter is in high school. Grotewold has generally enjoyed a good reputation as a lawyer, although he is known to be slow in meeting deadlines. He is both affable and casual in the manner he practices his profession. He has never been publicly disciplined in the past for unethical conduct.

The complaint against Grotewold centered on his conduct in two separate cases. The first case dates back to 1991, when Grotewold represented the administrator of the estate of Annie Vande Geest Hulbert, who was murdered by her husband. The decedent was twenty-three years old, and was survived by a young daughter. The administrator of the estate was the father of the decedent, who was also the guardian and conservator of the surviving daughter. Annie's husband was sentenced to serve a life term of imprisonment for the murder.

Grotewold opened the estate in December 1991. The estate remained open for nearly nine years, with little work done during the first eight and one-half years to bring the matter to a conclusion. The estate was closed in April 2000, after the district court appointed an attorney to serve as guardian ad litem for Annie's daughter, the sole heir, to assist Grotewold in completing the work necessary to close the estate.

Grotewold neglected a variety of matters during the probate proceedings. He failed to take the necessary steps to publish a notice to creditors. He delayed payment of an uncontested claim filed in the estate for over five years, and failed to obtain a receipt or satisfaction of the claim after it was finally paid. He did not file the final report until October 1999 and failed to include an accounting in the report. He also failed to file the inheritance tax return until January 2000. The final settlement to the sole heir was not made until April 2000. Grotewold also filed incomplete interlocutory reports for several years while the estate was open.

In addition to the neglect, Grotewold misrepresented the status of the estate to the district court. In a report filed with the district court on October 15, 1999, Grotewold falsely stated that the Iowa Department of Revenue acquittance was on file. At the time Grotewold made the representation, he had not filed the tax return. When questioned by the district court about the absence of the acquittance in the court file, Grotewold acknowledged he never received an acquittance, and he told the district court that the Department of Revenue must have never received the tax return. Grotewold also told the district court he had prepared and filed new returns. However, the tax returns were not filed until January 2000.

The second case involved a small claims action. In that matter, Grotewold met with an individual named Jerry Fowler in his law office on December 4, 2000. Fowler and his wife had been sued by their former landlord for unpaid rent, and an answer to the petition was due by December 10, 2000. Fowler sought Grotewold to represent him in the case. An answer was not timely filed and a default judgment was entered against the Fowlers. Grotewold subsequently filed an answer and counterclaim on behalf of the Fowlers on January 17, 2001, but took no further action to set aside the default. When confronted with his failure to file a timely answer, Grotewold maintained that he had not agreed to represent the Fowlers until they paid a $150 retainer to him. Fowler disputed such a condition, and Grotewold failed to satisfactorily explain the reason for filing a late answer on behalf of the Fowlers without receipt of the retainer or any other communication from the Fowlers following the December 4 meeting.

Separate complaints were filed against Grotewold for his conduct in both cases. The Board first notified Grotewold of the complaint concerning his activities in the estate proceedings on May 2, 2000, and requested a response. Grotewold failed to respond to the notice as well as two follow-up notices from the Board.

Grotewold was notified of the small claims complaint on March 26, 2001. He failed to respond to the notice, as well as a second notice.

Grotewold suffers from depression that began to reveal itself in 1998, but probably began much earlier in more subtle ways. The depression experienced by Grotewold immobilized and overwhelmed him at times, and he literally was unable to perform his work for weeks at a time. He was also overcome by feelings of hopelessness. At times, he looked gaunt and disheveled. In October 1998, Grotewold discovered his secretary embezzled approximately $190,000 from his trust account. The embezzlement only deepened his depression, as did the filing of the complaint against him in the estate case.

In February 2001, Grotewold returned from a vacation and found himself unable to muster the strength to go to his law office to work. He called the Board to turn in his license to practice law, and was referred to the director of the Lawyers Helping Lawyers program. Grotewold promptly sought the assistance of a mental health professional who began to treat Grotewold for his mental illness. Grotewold was diagnosed with major depression.

Medication and counseling have helped Grotewold control his depression. He also has friends and family members who support and help him. His treating physician believes he has "almost returned to normal." Grotewold attributes some of his conduct that resulted in the complaints to his untreated depression. Grotewold believes in retrospect that he suffered from deep depression long before the embezzlement but was unaware of it. Additionally, there was some evidence to suggest that the secretary who embezzled from Grotewold's trust account may have purposely failed to mail the estate tax returns prepared by Grotewold.

The Commission found Grotewold committed misconduct in the estate and small claims cases. See DR 1-102(A)(5), (6) (conduct that adversely reflects on fitness to practice law and conduct prejudicial to administration of justice); DR 6-101(A)(3) (neglect of client's legal matters); DR 7-101(A) (failure to represent client zealously). It also found Grotewold made misrepresentations to the district court in the estate case, although it found that the misrepresentations resulted from sloppy, casual conduct, not an intent to deceive. See DR 1-102(A)(4) (conduct involving misrepresentation). Finally, the Commission found Grotewold committed misconduct by failing to respond to the inquiries of the Board. See DR 1-102(A)(5), (6). The Commission recommended Grotewold receive a public reprimand.

II. Scope of Review.

Our scope of review is well established. We review an attorney disciplinary proceeding de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 679 (Iowa 2001). We are not bound by the findings of the Commission, although we give them weight. Id. "We also respectfully consider the discipline recommended by the Commission, but we are not bound by [it]." Id. The Board has the burden to prove "disciplinary violations by a `convincing preponderance of the evidence.'" Id. (citation omitted).

III. Violations.

We agree Grotewold violated the Iowa Code of Professional Responsibility as determined by the Commission. First, Grotewold neglected a client matter by the manner in which he served as attorney for the executor. See DR 6-101(A)(3). He repeatedly failed to perform required functions as attorney for the executor, repeatedly failed to meet deadlines, and failed to close the estate within a reasonable period of time. Our law contemplates that an estate proceeding should be closed within three years following notice to creditors. See Iowa Code § 633.473 (2001) (estate must be closed within three years of second notice to creditors unless the court orders otherwise); Iowa R. Prob. P. 6 (personal representative must file interlocutory report identifying work remaining to be done in the estate and the estimated time to complete the work if the final report is not filed within eighteen months after the second notice to creditors). His dilatory conduct was a disservice to his client and others, as well as to the administration of justice. See DR 1-102(A)(5), (6).

Grotewold also neglected a client matter by failing to file a timely answer in the Fowler case and failing to move to set aside the default judgment. See DR 6-101(A)(3); DR 7-101(A). Grotewold failed to perform these important tasks after assuming the responsibility to represent the Fowlers.

Grotewold also misrepresented the status of the estate to the district court in violation of DR 1-102(A)(4). Although his conduct may have related to his casual, lax mannerism, and perhaps his state of depression, it still constituted misrepresentation. See Hyler v. Garner, 548 N.W.2d 864, 871 (Iowa 1996)

(intent to deceive may be shown when the speaker either has actual knowledge of the falsity...