Iowa Supreme Court Attorney Disciplinary Board Vs. Andrea Van Beek ( 2008 )


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  •                 IN THE SUPREME COURT OF IOWA
    No. 08–0488
    Filed November 21, 2008
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
    Complainant,
    vs.
    ANDREA VAN BEEK,
    Respondent.
    On review of the report of the Iowa Grievance Commission
    Grievance Commission reports respondent has committed ethical
    misconduct and recommends a suspension from the practice of law.
    LICENSE SUSPENDED.
    Charles L. Harrington and David J. Grace, for complainant.
    Andrea Van Beek, Orange City, pro se.
    2
    CADY, Justice.
    The Iowa Supreme Court Attorney Disciplinary Board (Board) charged
    Andrea Van Beek with numerous violations of the Iowa Code of Professional
    Responsibility for Lawyers.      The Grievance Commission of the Supreme
    Court     of   Iowa   (Commission)   found   Van Beek   violated   the   Code    of
    Professional Responsibility. It recommended Van Beek be suspended from
    the practice of law for two years. On our review, we find Van Beek violated
    the Code of Professional Responsibility, and we suspend her license to
    practice law indefinitely, with no possibility of reinstatement for two years.
    I. Background Facts and Proceedings.
    Andrea Van Beek is an Iowa lawyer. She was admitted to the practice
    of law in 1977 and maintained an office in Orange City.            She has been
    publicly reprimanded for unethical conduct on two occasions during her
    career.    In December 1995, she was reprimanded for neglect in an estate
    proceeding. In August 2002, she was reprimanded for her participation in
    events that caused an elderly woman to deed 160 acres of farmland to her in
    1994 as a gift.
    Van Beek is also an alcoholic. On January 12, 2007, we indefinitely
    suspended her license to practice law after finding she was unable to
    effectively discharge her professional responsibilities due to uncontrolled
    bouts of alcohol consumption. Van Beek has not practiced law since that
    time, and her license remains under disability suspension. Van Beek also
    suffers from severe depression and has faced many personal and family
    tragedies and problems over the last several years, including her own battle
    with cancer.      She has struggled in her efforts to confront and treat her
    depression and alcoholism.
    Prior to Van Beek’s disability suspension, she began to engage in a
    series of unethical conduct while engaged in the practice of law.               The
    3
    unethical conduct resulted in a multiple-count complaint filed by the Board,
    which is the subject of this disciplinary proceeding.     The complaint was
    divided into six counts and covered a period of several years. Some of the
    counts involve similar conduct.
    On one occasion, Van Beek altered a will after it had been signed by
    the testator. For no apparent reason, Van Beek destroyed the first page of
    the original will after she learned the testator had died, and substituted a
    new first page. She then filed the will with the court, together with an oath
    that the will was the “original or exact reproduction.”         There was no
    indication she changed any substantive terms of the will or acted for
    personal gain, but her conduct likely altered the outcome of a subsequent
    will-contest proceeding to the detriment of some of the beneficiaries.
    Van Beek also forged the name of the executor on documents filed
    with the court in probate proceedings on more than one occasion. In one
    estate proceeding, she signed the name of the executor to multiple
    documents filed with the court, notarized the false signatures, and then later
    prepared a false affidavit declaring the forged signatures to be authentic. In
    another estate action, she forged the signature of the executor on the final
    report and on an application for attorney fees. As before, she notarized the
    false signatures.   She then accepted the attorney fees from the executor
    without prior court approval or authorization and prior to the time the fees
    were fully earned. She then failed to deposit the fees into her trust account.
    To compound matters, she failed to perform subsequent legal services in the
    case in a timely manner.
    On another occasion, Van Beek signed the name of a client on a tax
    form without authorization from the client and filed the document with the
    Internal Revenue Service.     In another case, she filed an appeal from a
    decision by the district court in a child custody proceeding without the
    4
    knowledge or consent of the client. The appeal was later dismissed for the
    failure to file a brief, and Van Beek billed the client for pursuing the appeal.
    II. Board Complaint.
    The Board charged Van Beek with multiple violations of the rules of
    professional responsibility.    Count I involved the alteration of the will by
    substituting a page of the will with another page and then presenting the will
    to the court without disclosing her actions.         This count also charged
    Van Beek with falsely attesting that the will filed in probate was “the original
    or exact reproduction.” This count alleged violations of numerous provisions
    of the Code of Professional Responsibility, including DR 1–102(A)(5) (conduct
    prejudicial to the administration of justice), DR 1–102(A)(6) (fitness to
    practice law), DR 1–102(A)(4) (dishonesty and misrepresentation), and DR 7–
    102(A)(5) (false statement of fact). Count II involved the alteration of a will
    by completing the signature of an elderly testator outside the presence of the
    testator and the witnesses to the will, in violation of DR 1–102(A)(4), DR 1–
    102(A)(5), and DR 1–102(A)(6). Count III involved signing the name of the
    executor to court documents and falsely attesting that the signatures were
    authentic, in violation of DR 1–102(A)(4), DR 1–102(A)(5), DR 1–102(A)(6),
    and DR 9–102(B)(1) (signing document in representative capacity). Count IV
    involved forgery of the executor’s signature on court documents, accepting
    fees without court authorization, failing to deposit unearned fees into a trust
    account, and neglect, in violation of DR 9–102(B)(1), DR 1–102(A)(4), DR 1–
    102(A)(5), DR 1–102(A)(6), DR 1–106(A) (illegal fees), DR 9–102(A) (trust
    fund), and DR 6–101(A)(3) (neglect of client matters).        Count V involved
    signing a client’s name to a tax form, in violation of DR 9–102(B)(1), and
    DR 1–102(A)(4), (5), and (6).    Finally, Count VI involved filing the appeal
    without the consent of the client, in violation of DR 7–101(A) (failed to seek
    lawful objectives) and DR 1–102(A)(5), DR 1–102(A)(6), and DR 6–101(A).
    5
    The Commission found the Board established violations under Counts
    I, III, IV, V, and VI. It found the Board did not establish Count II and further
    did not establish the false attestation portion of Count I. It recommended
    Van Beek be suspended from the practice of law for two years. It further
    recommended that reinstatement be conditioned upon a mental health
    evaluation that establishes her competency to practice law and the
    successful completion of the multistate professional responsibility portion of
    the Iowa bar examination. It also recognized Van Beek would need to take
    the appropriate action to lift the disability suspension as a condition to
    reinstatement.
    III. Scope of Review.
    We review attorney disciplinary proceedings de novo.       Iowa Supreme
    Ct. Bd. of Prof’l Ethics & Conduct v. Bernard, 
    653 N.W.2d 373
    , 375 (Iowa
    2002). We give weight to the findings of the commission, but are not bound
    by them. Id.
    IV. Violations.
    We concur with the findings and conclusions made by the Commission
    in its detailed and thoughtful report. We find Van Beek violated the Code of
    Professional Responsibility as found by the Commission. In particular, she
    altered a will, forged the names of clients and executors to documents,
    falsely declared documents and signatures to be authentic, received attorney
    fees in an estate proceeding without a court order, failed to deposit unearned
    fees into her trust account, neglected client matters, and failed to seek the
    lawful objectives of a client.
    V. Discipline.
    We decide the appropriate level of discipline in an attorney disciplinary
    action by considering “ ‘the nature of the alleged violations, the need for
    deterrence, the protection of the public, maintenance of the reputation of the
    6
    [bar] as a whole, and the respondent’s fitness to continue’ to practice law.”
    Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Walters, 
    646 N.W.2d 111
    ,
    113–14 (Iowa 2002) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct
    v. Hohenadel, 
    634 N.W.2d 652
    , 655 (Iowa 2001)).            We consider both
    mitigating and aggravating circumstances.      Id.   In the end, we strive to
    impose discipline based on the particular facts of each case. Iowa Supreme
    Ct. Bd. of Prof’l Ethics & Conduct v. McKittrick, 
    683 N.W.2d 554
    , 563 (Iowa
    2004).
    Van Beek engaged in numerous acts of misrepresentation and
    dishonesty in several cases over several years. She improperly signed client
    names to documents and misrepresented the authenticity of these
    signatures. She also altered a will and misrepresented its authenticity.
    We have said “[d]ishonesty, deceit, and misrepresentation by a lawyer
    are abhorrent concepts to the legal profession, and can give rise to the full
    spectrum of sanctions, including revocation.”        Iowa Supreme Ct. Att’y
    Disciplinary Bd. v. Hall, 
    728 N.W.2d 383
    , 387 (Iowa 2007). In Iowa Supreme
    Court Board of Professional Ethics & Conduct v. Rylaarsdam, 
    636 N.W.2d 90
    (Iowa 2002), we imposed a six-month suspension for neglect, forging clients’
    signatures, and falsifying court documents. Yet, we have disbarred lawyers
    who have repeatedly violated their professional obligation to be honest and
    truthful.   See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rickabaugh, 
    728 N.W.2d 375
     (Iowa 2007). Honesty is mandatory in the legal profession. Hall,
    728 N.W.2d at 387.
    Van Beek also collected a probate fee without court approval and
    violated the trust account provisions with regard to the fee. A lawyer who
    receives a fee in a probate action without prior court authorization merits
    discipline. Iowa Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 
    710 N.W.2d 226
    , 235 (Iowa 2006). Additionally, the seriousness of this type of conduct is
    7
    compounded when the fee is not fully earned and is not deposited into a
    trust account. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Sullins,
    
    648 N.W.2d 127
    , 135 (Iowa 2002).
    Van Beek also neglected client matters.     The range of discipline for
    neglect of a client matter generally falls between a public reprimand and a
    six-month suspension. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Joy, 
    728 N.W.2d 806
    , 815 (Iowa 2007).      The appropriate discipline depends on the
    particular facts and circumstances. Id.
    Our cases generally indicate that the scope and type of misconduct
    engaged in by Van Beek supports a suspension from the practice of law for a
    period up to three years. See id. at 816 (citing cases); Hall, 728 N.W.2d at
    388.   For example, in Iowa Supreme Court Attorney Disciplinary Board v.
    McCann, 
    712 N.W.2d 89
    , 97 (Iowa 2006), we imposed a two-year suspension
    for multiple acts of neglect, misrepresentation to the court, misuse of client
    funds, and accounting failures. In Iowa Supreme Court Attorney Disciplinary
    Board v. Moonen, 
    706 N.W.2d 391
    , 402–03 (Iowa 2005), we imposed an
    eighteen-month suspension for violations that included neglect of probate
    matters and taking fees without a proper accounting.         In Iowa Supreme
    Court Board of Professional Ethics & Conduct v. D’Angelo, 
    619 N.W.2d 333
    ,
    339 (Iowa 2000), we imposed a three-year suspension for misconduct that
    included   neglect,   accepting   fees   without   court   authorization,   and
    misrepresentation.
    Additionally, we consider a prior public reprimand to be an
    aggravating factor in the imposition of discipline. Iowa Supreme Ct. Bd. of
    Prof’l Ethics & Conduct v. Pracht, 
    656 N.W.2d 123
    , 126 (Iowa 2003). Harm to
    a client is also an aggravating factor. Hohenadel, 634 N.W.2d at 656. On
    the other hand, we recognize Van Beek was fighting depression and
    alcoholism during the time period of her unethical conduct. The depression
    8
    and alcoholism likely contributed to her misconduct and are considered in
    mitigation of sanctions. See Sullins, 648 N.W.2d at 135.
    We observe Van Beek has also been under a disability suspension and
    has not practiced law for nearly two years. Yet, this type of suspension is
    not a sanction.    Iowa Supreme Ct. Att’y Disciplinary Bd. v. Maxwell, 
    705 N.W.2d 477
    , 480–81 (Iowa 2005).           Notwithstanding the existence of a
    disability suspension, it is necessary to discipline Van Beek for her unethical
    conduct independent of a previous finding of her unfitness to practice law.
    Id.
    Considering all the circumstances, we conclude Van Beek should be
    suspended from the practice of law with no possibility of reinstatement for
    two years. This disposition fits the multiple instances of serious misconduct
    and properly considers Van Beek’s struggle with depression and alcoholism
    that contributed to her misconduct. The conditions of reinstatement urged
    by the Commission are reasonable and will be considered by us upon any
    application for reinstatement by Van Beek.
    VI. Conclusion.
    We suspend Van Beek’s license to practice law in Iowa indefinitely,
    with no possibility of reinstatement for a period of two years from the date of
    filing of this opinion. The suspension imposed applies to all facets of the
    practice of law as provided by Iowa Court Rule 35.12(3) and requires
    notification to clients as provided by Iowa Court Rule 35.21. The costs of
    this proceeding are taxed against Van Beek pursuant to Iowa Court Rule
    35.25(1).
    LICENSE SUSPENDED.
    All justices concur except Ternus, C.J., and Wiggins, J., who take no
    part.