Supreme Court Atty. Disc. Bd. v. Dull, No. 05-2024.
| Decision Date | 28 April 2006 |
| Docket Number | No. 05-2024. |
| Parties | IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Kay E. DULL, Respondent. |
| Court | Iowa Supreme Court |
Charles L. Harrington and David J. Grace, Des Moines, for complainant.
Kay E. Dull, Spirit Lake, pro se.
The Iowa Supreme Court Board of Professional Ethics and Conduct, now the Iowa Supreme Court Attorney Disciplinary Board, filed a multi-count complaint against attorney Kay E. Dull. The allegations of misconduct fall into four categories: appearing in court while under the influence of alcohol; being convicted of operating a motor vehicle while intoxicated (OWI), third offense; neglecting legal matters entrusted to her; and failing to respond to inquiries from the Board.
Following a hearing, the Grievance Commission of the Iowa Supreme Court found that Dull had violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers. The Board and Dull filed a stipulation with the Commission for a one-year suspension to run concurrently with a temporary suspension we imposed on March 11, 2003. The Commission rejected the stipulation and recommended that Dull's license to practice law be suspended for two years from the date of its hearing, September 29, 2005. We agree with the Commission's findings and recommendation of a two-year suspension but order that such suspension run from the date of this opinion. We rescind the March 11, 2003 temporary suspension order.
We review attorney disciplinary proceedings de novo. Iowa Sup.Ct. Att'y Disciplinary Bd. v. Zenor, 707 N.W.2d 176, 178 (Iowa 2005). The Board must establish the charges by a convincing preponderance of the evidence. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 122 (Iowa 1999). "This quantum of proof is `something less than required in a criminal prosecution, and is something more than is required in a civil proceeding.'" Id. (citation omitted).
On our de novo review, we find the following facts. Dull has been practicing law as a solo practitioner in northwest Iowa since 1991. From 1986 to 1991, Dull was employed by a law firm.
At the disciplinary hearing, Wanda Rae Smith, Aimee Devereaux, Jeffrey Ryan, and Ellen Langseth, Dull's former clients, testified. Dull appeared but did not testify. The Board offered and the Commission received into evidence twenty-eight exhibits.
On January 28, 2002, Dull appeared for a hearing before Judge James D. Scott while under the influence of alcohol. When the judge questioned Dull about it, she denied she had been drinking. Dull admitted these facts in her answer to the Board's complaint.
On December 31, 2002, Dull was convicted of OWI, third offense, in violation of Iowa Code section 321J.2 (2001). The offense occurred on April 25, 2002. A third offense OWI is a class "D" felony. Iowa Code § 321J.2(2)(c). Dull's answer to the Board's complaint did not deny these facts. In evidence is a judgment of conviction of that offense.
1. Wanda Rae Smith. In October 2000 Smith hired Dull to obtain a dissolution of marriage for Smith. Smith gave Dull $500 for the legal services necessary to dissolve her marriage. On November 17, 2000, Dull filed Smith's petition for dissolution of marriage.
Smith began calling Dull about the progress of her case. She called Dull daily for about a month before she was ever able to speak with her. When Smith finally reached Dull, Dull put Smith on hold and never returned to the phone.
Finally, Smith had to hire another attorney to complete the matter for her. The attorney sent Dull a letter requesting Smith's file and an itemized statement of services. Dull never responded. Consequently, the attorney had to copy the court file so the attorney could proceed to obtain the dissolution for Smith.
Once the dissolution was finalized, Smith tried to contact Dull again to recover the money she had paid Dull. Smith talked to Dull once, and Dull told her the bookkeeper would send a check for what was due Smith. Smith never received a check.
2. Aimee Devereaux. In January 2002 Dull agreed to represent Devereaux regarding $26,000 in back child support owed by Devereaux's ex-husband. At the time, Devereaux left several original documents with Dull. The documents included a journal regarding child support issues, a divorce decree, and other court orders concerning child support matters. Dull told Devereaux that she had commitments and other issues she was working on at the time but she would get back to Devereaux in about three weeks.
After four or five weeks of no word from Dull, Devereaux tried to call her with no success. Devereaux left messages with a secretary and then with an answering machine. At first, Devereaux called to get a progress report on her case. When Dull did not return Devereaux's calls, Devereaux left messages in an attempt to get her file back so she could engage another lawyer to pursue her case.
Eventually, with the help of the Dickinson County Attorney, Devereaux was able to get her file back in October 2002. Devereaux had not paid Dull any retainer.
3. L.M. Dull undertook to represent L.M., a mother in a termination of parental rights appeal. On August 2, 2002, this court dismissed L.M.'s appeal for failure to prosecute the appeal. The dismissal order, which is in evidence, stated that there had been three motions to dismiss filed and each related to Dull's failure to prosecute the appeal. The order further stated, "The appeal has been marked by delay and neglect resulting from appellate counsel's failure to comply with the applicable rules of appellate procedure."
4. Jeffrey D. Ryan. In late 2000 Dull began representing Ryan in a modification of a dissolution-of-marriage decree. Ryan sought to modify the decree so that he could have custody of his son. At their first meeting, Ryan gave Dull a $200 retainer. At their second and third meetings, Ryan gave Dull $500 and $300, respectively.
On February 19, 2002, Dull filed a motion to modify the decree. On April 18 trial was set for May 30. In the meantime, Ryan tried to get information from Dull about the action. Ryan asked about approaching court dates, and Dull never responded to those inquiries. Ryan learned of the May 30 trial date from his ex-wife. To make matters worse, Dull did not appear for trial on May 30. Fortunately for Ryan, the court gave him a continuance. Through the efforts of another attorney, Ryan was able to win custody of his son, which cost him $7500 in attorney fees to the new attorney and $5000 to Ryan's ex-wife to induce her to settle.
Ryan filed a claim with the Client Security Commission for the fees he had paid Dull. Ryan was unable to recall how much the Client Security Commission had paid him, but whatever they paid him did not fully compensate him.
5. Ellen Langseth. In April 2002 Langseth's husband filed a petition for dissolution of marriage. Langseth tried to represent herself but then sought Dull's help in August at which time she gave Dull a $500 retainer. Dull was able to get a continuance, and as a result trial was set for October 1.
In the meantime, Langseth's accountant tried several times to fax Dull Langseth's financial information; the accountant was unsuccessful because Dull's fax machine was turned off. Consequently, Dull never prepared and filed an affidavit of financial status on Langseth's behalf as required by a pretrial order.
On the day of trial, Dull did not have the financial information the accountant was trying to fax to her. Concerned about losing her Iowa Public Employees' Retirement System (IPERS) pension because she had no financial statement as required by the pretrial order, Langseth felt compelled to reach a settlement with her husband on her own. She settled with her husband by paying him $2700 in return for her keeping her IPERS pension and some burial plots.
6. Other cases. The Board filed two other counts alleging neglect of a client's legal matter. Like the Commission, we find the Board failed in its proof on those allegations.
C. Failing to respond to Board inquiries.
Dull failed to give any response to notices of inquiry in four of the counts. As to some of the counts, she admitted she received more than one notice of inquiry and that she did not respond. Dull failed to respond in a timely manner to the notices of inquiry from the Board in one of the counts.
A. Appearing in court while under the influence of alcohol. The Commission found that Dull violated several disciplinary rules by appearing in court while under the influence of alcohol and in denying she had been drinking. These include DR 7-106(C)(6) (), DR 1-102(A)(1) (), (4) (lawyer shall not engage in conduct involving dishonesty or misrepresentation), (5) (lawyer shall not engage in conduct that is prejudicial to the administration of justice), and (6) (lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law).
We have found a violation of DR 7-106(C)(6) when counsel made "outrageously unprofessional" comments in a brief, Sonksen v. Legal Servs. Corp., 389 N.W.2d 386, 388-89 (Iowa 1986), and when counsel lost his temper in chambers, slammed a book on the floor, and used obscene language to criticize the judge's refusal to grant a continuance, Comm. on Prof'l Ethics & Conduct v. Rauch, 486 N.W.2d 39, 39-40 (Iowa 1992) (per curiam). We find that Dull's appearance in court while under the influence of alcohol and denial of such condition qualify as a display of undignified or discourteous conduct toward a tribunal in...
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