Supreme Court Attorney Disc. Bd. v. Moonen
| Decision Date | 02 December 2005 |
| Docket Number | No. 05-1090.,05-1090. |
| Citation | 706 N.W.2d 391 |
| Parties | IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Donald F. MOONEN, Respondent. |
| Court | Iowa Supreme Court |
Charles L. Harrington and David J. Grace, Des Moines, for complainant.
Nathan C. Moonen, Epworth, for respondent.
The Iowa Supreme Court Attorney Disciplinary Board (Board) filed a complaint alleging Donald F. Moonen violated numerous rules of the Iowa Code of Professional Responsibility in his handling of four different legal matters and for his failure to respond to the Board's notices of complaint. The Grievance Commission (Commission) found the Board had proven many of the alleged violations and recommends we suspend Moonen's license to practice law for sixty days. While we agree with the Commission Moonen's conduct violated numerous rules of the Iowa Code of Professional Responsibility, we conclude the nature of his conduct calls for a longer suspension. We therefore suspend Moonen's license to practice law in this state indefinitely with no possibility of reinstatement for eighteen months.
The Board filed a complaint against Moonen with the Commission. The original complaint contained two counts alleging Moonen violated various disciplinary rules. During the pendency of the proceedings, the Board amended the complaint by adding a third count alleging further violations of the disciplinary rules.
Count I claims Moonen: (1) neglected legal matters as trustee and attorney for the Evelyn M. O'Connell trust created by his aunt, which he handled from 1998 to 2002; (2) failed to maintain complete records of the funds and property of the trust and render appropriate accounts regarding them; (3) failed to pay to the beneficiaries of the trust the assets they were entitled to receive; (4) failed to disclose to the beneficiaries and their attorney information they were entitled to receive; (5) loaned trust funds to himself and his wife without providing promissory notes or loan agreements; (6) used delaying tactics and was uncooperative in litigation brought against him by the beneficiaries in connection with his handling of the trust; and (7) paid himself fees of $20,321.39 from the trust upon his removal as trustee without obtaining court approval or informing the successor trustee.
Count I further alleges Moonen's conduct violated DR 1-102(A)(1) (), DR 1-102(A)(4) (), DR 1-102(A)(5) (), DR 1-102(A)(6) (), DR 6-101(A)(3) (), DR 7-102(A)(3) (), DR 9-102 (providing in DR 9-102(B)(3)-(4) a lawyer shall maintain complete records of client funds, render appropriate accounts, and pay or deliver to the client such funds as the client is entitled to on the client's request), and DR 9-103(A) ().
Count II claims Moonen did not reply to the first, second, and third notices of complaint received by Moonen that were sent by the Board in connection with his work as attorney for the estate of Evelyn Simon. Count II further alleges Moonen's conduct violated EC 1-4 (providing the integrity of the legal profession can be maintained only if a lawyer upon request assists committees and boards having the responsibility for the disciplinary rules), DR 1-102(A)(5) (), and DR 1-102(A)(6) ().
Count III claims Moonen: (1) neglected legal matters as attorney for the executors of the estate of Lucille E. Kuehn; (2) neglected legal matters as attorney for the executor of the estate of Eva Mae Weigel; (3) failed to close those estates after receiving multiple delinquency notices from the clerk of court; and (4) failed to respond to the notices of complaint sent by the Board. Count III further alleges Moonen's conduct violated EC 1-4 (providing the integrity of the legal profession can be maintained only if a lawyer upon request assists committees and boards having the responsibility for the disciplinary rules), DR 1-102(A)(1) (), DR 1-102(A)(5) (), DR 1-102(A)(6) (), and DR 6-101(A)(3) ().
The Board sought discovery from Moonen by filing interrogatories, request for production of documents, and requests for admission. Moonen failed to respond to the Board's discovery. The Board filed a motion to compel Moonen to respond to the Board's interrogatories and request for production of documents. In the motion, the Board stated it had also served requests for admission on Moonen that he did not answer. The motion was unresisted and sustained, with the Commission deeming the matters in the requests for admission admitted by operation of law. The ruling also gave Moonen a deadline to answer the interrogatories and produce the documents requested by the Board or the Commission would impose sanctions.
Moonen did not answer the interrogatories or produce the documents in the time required under the Commission's order. The Board moved for sanctions against Moonen for his failure to comply with the ruling on the motion to compel. The motion for sanctions was unresisted and sustained. In its order, the Commission prohibited Moonen from offering any exhibits or objecting to any of the Board's exhibits. As an additional sanction, the Commission deemed the paragraphs denied by Moonen in counts I and II admitted. Further, the Commission deemed the allegations in count III admitted due to Moonen's failure to file an answer to count III. See Iowa Ct. R. 36.7 (). Finally, because Moonen did not answer the Board's second requests for admission, the Commission deemed those matters admitted as well.
At the hearing, the Board asserted it was not required to set forth proof of the allegations in the complaint because of the matters deemed admitted, but it did so anyway in order to give the Commission context in evaluating Moonen's ability to practice law and the sanctions he may deserve. The testimony presented by the Board at the hearing focused on the allegations of count I, with exhibits supplementing that testimony. The Board also presented other exhibits pertaining to the claims in counts II and III.
In regards to count I, the Commission concluded Moonen had violated DR 6-101(A)(3) by neglecting a client's legal matter, DR 7-102(A)(3) by concealing or knowingly failing to disclose that which a lawyer is required by law to reveal in view of his non-responsiveness to discovery, DR 1-102(A)(1) by admittedly violating a disciplinary rule, DR 1-102(A)(4) by engaging in misrepresentation in regards to not being forthcoming to the court while under oath when asked about fees he took in the O'Connell trust, and DR 1-102(A)(5) by engaging in conduct prejudicial to the administration of justice by his stalling and noncompliance with court orders and discovery in the underlying matter and the disciplinary proceeding. The Commission found the Board failed to prove Moonen violated DR 9-102, DR 9-103(A), and DR 1-102(A)(6).
In regards to count II, the Commission concluded the Board failed to prove count II of the complaint. As for count III, the Commission concluded because Moonen had not answered that count of the complaint all matters alleged were deemed admitted. Thus, the Commission concluded Moonen had violated DR 6-101(A)(3), EC 1-4, DR 1-102(A)(1), DR 1-102(A)(5), and DR 1-102(A)(6).
The Commission filed a report in our court unanimously recommending Moonen's license be suspended for a period not to exceed sixty days pursuant to Iowa Court Rule 35.12. The Commission also recommended Moonen be required as part of his reinstatement to attend a law office management CLE program within 180 days. Finally, the Commission recommended Moonen receive a psychiatric evaluation within the suspension time and undergo any recommended counseling and/or medication.
Our review of the attorney disciplinary proceeding is de novo. Iowa Ct. R. 35.10(1). In deciding the matter, the court considers the findings of fact and disciplinary recommendation of the Commission. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d 812, 815 (Iowa 2004). The Commission must prove "ethical violations by a `convincing preponderance of the evidence.'" Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Williams, 675 N.W.2d 530, 531 (Iowa 2004) (citation omitted).
The Board served Moonen with interrogatories, request for production of documents, and requests for admission. See Iowa Ct. R. 35.6 (). Moonen failed to respond to...
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Iowa Supreme Court Attorney Disciplinary Bd. v. Attorney Doe No. 819, 16–0652.
...(Iowa 2012) ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864 (Iowa 2010) ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 395 (Iowa 2005).A number of reported cases from other states note that the disciplinary authority filed a motion to enforce ......
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Iowa Supreme Court Disciplinary Bd. v. Attorney Doe No. 819
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...Aeilts's conduct was an aggravating, not a mitigating, factor for Aeilts's actions in this case. See Iowa Sup. Ct. Att'y Disciplinary Bd. v. Moonen , 706 N.W.2d 391, 402 (Iowa 2005) (holding that "[h]arm to others" is an aggravating factor). Aeilts also argues his conduct occurred over a sh......
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