Supreme Court Atty. Disc. Bd. v. D'Angelo, 05-1589.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: Streit
• Citation: 710 N.W.2d 226
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. N. Michael D'ANGELO, Respondent.
• Docket Number: No. 05-1589.,05-1589.
• Decision Date: 24 February 2006

710 N.W.2d 226 IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
N. Michael D'ANGELO, Respondent. No. 05-1589. Supreme Court of Iowa. February 24, 2006.

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Michael J. Carroll of Babich, Goldman, Cashatt and Renzo, P.C., Des Moines, and Roger J. Kuhle of Law Office of Roger J. Kuhle, Indianola, for respondent.

Charles L. Harrington, and Teresa A. Vens, Des Moines, for complainant.

STREIT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board ("Board") filed a complaint against the respondent, N. Michael D'Angelo, alleging he had violated several provisions of the Iowa Code of Professional Responsibility by misappropriating client funds, neglecting client matters, mishandling his trust account, making misrepresentations, and failing to respond to inquiries from the Board. The Grievance Commission found the Board proved the alleged violations and recommended we revoke D'Angelo's license to practice law.

We find the Board proved these ethical violations. Based on the seriousness and number of violations, we believe a revocation is warranted.

I. Background Facts

D'Angelo is a sole practitioner in Oakland, Iowa who was admitted to practice law in 1971. D'Angelo has received numerous sanctions for previous ethical violations.

On November 15, 1996, he was publicly reprimanded for conduct involving dishonesty, fraud, deceit or misrepresentation, conduct prejudicial to the administration of justice, and conduct reflecting adversely on his fitness to practice law for drafting a dissolution decree that varied from the parties' stipulation and obtaining a judge's signature thereon.

On November 16, 2000, we suspended his law license indefinitely, with no possibility of reinstatement for three years, for accepting fees for probate work prior to obtaining a court order authorizing the fees, depositing client funds into his operating account, displaying general neglect and lack of communication with his clients, complying with a court order only upon threat of contempt, and disregarding rules pertaining to the disciplinary process. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. D'Angelo, 619 N.W.2d 333, 337-39 (Iowa 2000) (hereinafter "D'Angelo I").

On October 22, 2002, D'Angelo was again before this court for newly discovered violations which occurred both before and after his 2000 suspension. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. D'Angelo, 652 N.W.2d 213, 215-16 (Iowa 2002) (hereinafter "D'Angelo II"). The violations which occurred prior to his first suspension consisted of client neglect and collection of fees without court authorization. Id. at 215. The violations which occurred after his first suspension consisted of failing to cooperate with the board concerning the new charges against him and failing to comply with the previous suspension order by not refunding unearned fees to his clients. Id. We suspended D'Angelo for one year and prohibited him from handling probate matters unless he associated himself with a competent probate lawyer. Id. at 215-16. Because most of these violations were part of the same pattern of conduct that led to his previous suspension in 2000, we ran the suspensions concurrently. Id. D'Angelo's suspensions ended in November of 2003, but he has not yet applied for reinstatement.

Remarkably, D'Angelo is here before us again for violations which occurred both before and after his 2000 suspension.

II. Standard of Review

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct.

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Attorney Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 405 (Iowa 2005); Iowa Ct. R. 35.10(1). We give respectful consideration to the Commission's findings and recommendations, but are not bound by them. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 650 (Iowa 2002) (revoking license even though Commission recommended five-year suspension). The Board must prove attorney misconduct by a convincing preponderance of the evidence. Kadenge, 706 N.W.2d at 406. This burden is "less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004).

III. Factual Findings

D'Angelo refutes many of the Board's allegations and pits his own testimony, the testimony of his wife, and the testimony of his secretary against the evidence offered by the Board. It is not our custom to attempt to set out the evidence in detail and try to harmonize the testimony of opposing witnesses in our opinions. Benton County Sav. Bank v. First Nat'l Bank, 179 Iowa 993, 996, 162 N.W. 204, 205 (1917). The Commission considered the testimony and evidence from his former clients more credible, and after our de novo review of the record, we do not disturb the Commission's credibility findings. Based upon D'Angelo's admissions and the evidence presented to the Commission concerning the various ethical violations, we find the Board proved the following by a convincing preponderance of the evidence.

A. O'Rourke Matter

D'Angelo met with Beverly O'Rourke on December 15, 2000, a full month after his license to practice law had been suspended. O'Rourke retained D'Angelo to handle her bankruptcy proceeding and gave him a check for a $450 retainer. When O'Rourke asked how to spell "D'Angelo," he told her to just leave the "payable to" line blank. D'Angelo's wife, serving as the firm's office manager, later wrote the name John Leed on the check and deposited the check in a regular (non-trust) account she had set up in Leed's name. Shortly thereafter, she closed the Leed account and transferred the funds to the office account for her business—D'Angelo Tax Service and Accounting. O'Rourke never met with Leed, never knew of Leed, and was never told any attorney besides D'Angelo would be working on her bankruptcy. Leed was a different attorney that D'Angelo claims was helping with pending cases after his license was suspended. D'Angelo was unable to locate Leed and therefore he did not testify before the Commission.¹

In February and March of 2001, O'Rourke sent checks to D'Angelo for $75 and $325 respectively. These two payments were deposited directly into D'Angelo's office account. O'Rourke spoke with D'Angelo on more than seven different occasions about the status of the bankruptcy proceedings. At no time did D'Angelo tell her that his license had been suspended. O'Rourke eventually learned from another attorney that D'Angelo had been suspended, so she filed a complaint with the Attorney Disciplinary Board. She immediately received a refund of $850 from D'Angelo. D'Angelo responded to the Board's complaint nearly two years later.

B. Kemp Matter

Sherene Kemp went to D'Angelo's law office in June of 2000 to discuss a bankruptcy

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proceeding. She was told by a receptionist that D'Angelo was unavailable, but the receptionist asked her to prepare a list of all bills and financial records. Kemp was told the total fees for the bankruptcy would be $850. Kemp paid $400 cash on June 23, 2000. This money was never deposited in a trust account. On November 16, 2000, D'Angelo was suspended from the practice of law. D'Angelo did not tell Kemp he was suspended. On February 20, 2001, three months after he was suspended, D'Angelo sent Kemp a bill for an additional $450. Kemp paid this bill, but the $450 was never placed in a trust account and the bankruptcy petition was never filed. In September of 2001, after Kemp learned of D'Angelo's suspension and telephoned his office, D'Angelo refunded the entire $850. D'Angelo did not respond to the Board's notice of complaint over this issue for two years.

C. Benson-Blaine Matter

In September of 1999, Susan Benson-Blaine paid D'Angelo a $300 retainer to seek sole custody of her child and to seek termination of the father's visitation and parental rights. The petition was served in February 2000, but D'Angelo stopped returning Benson-Blaine's phone calls. Benson-Blaine eventually sought the advice of another attorney. This attorney wrote D'Angelo a letter, but he never responded. D'Angelo remained Benson-Blaine's counsel of record and did not formally withdraw from her case even after his license had been formally suspended. On January 17, 2002, Benson-Blaine's case was dismissed for failure to prosecute. Benson-Blaine contacted the Client Security Commission and then received a $300 refund from D'Angelo's office. D'Angelo did not respond to the Board's complaints for two years.

D. Knapp Matter

In July of 1999, Julie Knapp was named the administrator of her father's estate. D'Angelo was designated as the attorney for the estate. D'Angelo petitioned the court to sell a piece of estate property. The court set a hearing and issued an order indicating that all interested parties were to receive notice of the hearing and that proof of mailing notice was to be on file before the time of the hearing. D'Angelo then prepared a decree stating that notice had been given to all interested parties, even though D'Angelo had never filed a proof of notice to the interested parties. D'Angelo then secured a judge's signature to a decree approving the sale of the property.

After D'Angelo's license to practice law was suspended in November of 2000, the court appointed a trustee to review the case file. The trustee discovered that D'Angelo took approximately $5426.74 in fees from the estate. The fees included $2500 for services in connection with the sale of the decedent's residence, $2000 for "Estate Legal Fees," and $926.74 for representing Julie Knapp in a dissolution of marriage action. D'Angelo also deposited an additional $2796.65 from the proceeds of the auction of the estate's personal property into his trust account. This money was subsequently withdrawn and D'Angelo is unable to explain where the money is now.

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