Iowa Supreme Court Attorney Disciplinary Board v. Thomas F. Ochs , 804 N.W.2d 720 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 11–0636
Filed October 14, 2011
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
THOMAS F. OCHS,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance Commission reports respondent committed ethical
misconduct and recommends that attorney be suspended from the
practice of law for thirty days. LICENSE SUSPENDED.
Charles L. Harrington and Wendell J. Harms, Des Moines, for
complainant.
Thomas F. Ochs, Cedar Rapids, pro se.
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CADY, Chief Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against Thomas F. Ochs, alleging multiple violations of the
Iowa Rules of Professional Conduct based largely on neglect of probate
matters. A division of the Grievance Commission of the Supreme Court
of Iowa found Ochs’ conduct violated the rules and recommended we
suspend his license to practice law for a period of thirty days. On our
de novo review, we find Ochs violated the rules of professional conduct.
We suspend Ochs’ license to practice law for a period of thirty days.
I. Background Facts and Proceedings.
Thomas F. Ochs is an Iowa lawyer. He was admitted to the
profession in 1988 and practices law in Cedar Rapids with an
established law firm. Ochs has served as a bar admissions examiner
during his career and has provided pro bono representation to financially
needy Iowans.
In his practice, Ochs primarily handles domestic-relations cases,
but he also does work in the area of probate, including estates,
conservatorships, and guardianships. Ochs’ conduct in handling seven
estates, two guardianships, and one conservatorship over the past eight
years formed the basis for this disciplinary action. Prior to the events of
this proceeding, Ochs had no history of disciplinary action.
The conduct of Ochs described in the ten cases involved in this
disciplinary action displayed remarkable consistency. In each instance,
Ochs repeatedly missed deadlines established by the law to perform
required legal services. As a result, he needlessly prolonged the
completion of legal tasks necessary to conclude the cases. His inaction
and misconduct spanned many years. Two of the cases were left open
for over seven years, while other estates were open for four and five
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years. In most all of the cases, Ochs repeatedly received inquiries from
the Board regarding his delinquent actions, which he in turn essentially
ignored. In some of the cases, Ochs would perform the work but neglect
to send copies of documents to all essential parties. In one case, the
Board took preemptive action by privately admonishing Ochs for his
delinquent conduct.
At the hearing, Ochs flatly admitted all the allegations against him
in the Board’s ten-count complaint. Each count of the complaint
described the unethical conduct repeatedly engaged in by Ochs over a
period of years. The complaint charged neglect in violation of Iowa Rule
of Professional Conduct 32:1.3 (“A lawyer shall act with reasonable
diligence and promptness in representing a client.”) and 32:3.2 (“A lawyer
shall make reasonable efforts to expedite litigation . . . .”). The Board’s
complaint also alleged Ochs disobeyed duties imposed by the court rules
in violation of Iowa Rule of Professional Conduct 32:3.4(c), failed to
respond to Board inquiries for information in violation of Iowa Rule of
Professional Conduct 32:8.1(b), and engaged in conduct prejudicial to
the administration of justice in violation of Iowa Rule of Professional
Conduct 32:8.4(d).
During the hearing on the complaint, Ochs was honest, contrite,
and apologetic. He offered no excuses and expressed determination to
change his delinquent conduct. Nevertheless, Ochs allowed each case to
linger by ignoring deadlines and failing to responsibly perform the work
necessary to keep the matters moving to completion within a reasonable
time as required by law. See Iowa Code § 633.473 (2011) (requiring final
settlement of estates to generally be made within three years).
The commission found Ochs violated the rules of professional
conduct as charged and recommended he be suspended for a period of
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thirty days. Two members of the five-member commission recommended
Ochs receive a public reprimand.
II. Scope of Review.
We review attorney disciplinary actions de novo. Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Dolezal, 796 N.W.2d 910, 913 (Iowa 2011). We
give respectful consideration to the findings and recommendations by the
commission, but are not bound by them. Id. The Board must prove the
misconduct by a convincing preponderance of the evidence. Id.
III. Findings and Conclusions.
We agree with the commission that Ochs violated the rules of
professional conduct as alleged in the complaint. The Board established
these charges by a convincing preponderance of the evidence.
Consequently, we turn to consider the sanction to impose.
The conduct in this case principally involved neglect. The range of
discipline we normally impose for such conduct falls between a public
reprimand and a suspension for up to six months. Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Thomas, 794 N.W.2d 290, 294 (Iowa 2011).
The nature of the neglect in this case and the number of probate
cases involved warrant consideration of discipline within the full
spectrum of sanctions. See Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Winkel, 542 N.W.2d 252, 255 (Iowa 1996) (imposing a six-
month suspension for neglect of fifteen probate matters after reviewing
prior cases involving neglect of probate cases). Yet, most cases of
extensive probate delinquencies that result in sanctions on the high end
of the spectrum are accompanied by various aggravating factors. For
example, while Winkel involved numerous cases of delinquency in
probate matters that resulted in a six-month suspension, there was
evidence the attorney seemed to be in full denial and had a problem
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facing the reality of his conduct. Id. at 254. Other aggravating factors
supporting stiff sanctions for neglect of probate cases involve multiple
instances of neglect, other past disciplinary action, and companion
violations such as dishonesty to clients and the court, failure to
cooperate with the Board’s investigation, and mishandling client funds.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860,
871 (Iowa 2010) (imposing three-month suspension for multiple
instances of neglect in four probate cases coupled with collecting fees
without court order, failing to respond to Board inquiries, and prior
discipline for similar conduct); see also Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) (imposing
thirty-day suspension for neglect and failure to cooperate with Board’s
investigation); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moonen, 706
N.W.2d 391, 402 (Iowa 2005) (imposing eighteen-month suspension for
neglect in multiple cases, self-dealing with trust funds, taking fees
without accounting for time, misrepresentation to the court, failure to
cooperate with the Board, and resulting harm misconduct caused
clients).
This case does not involve aggravating circumstances such as
misrepresentation or violations of court orders found in many neglect
cases in which we have imposed lengthy suspensions. Instead, this case
centers almost entirely on the abject failure of an attorney to comply with
the basic structural rules governing the processing of numerous probate
cases over a prolonged period of time. As such, the conduct is more
similar to that described in Iowa Supreme Court Board of Professional
Ethics & Conduct v. Hovda, 578 N.W.2d 673 (Iowa 1998). In Hovda, the
attorney allowed eighteen probate cases to languish, prompting the
issuance of eighty-two probate delinquency notices over a period of six
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years. 578 N.W.2d at 674. The attorney in Hovda also failed to respond
to Board inquiries. Id. We imposed a suspension of sixty days. Id. at
675.
Considering all the relevant factors in the case, we agree with the
commission that a thirty-day suspension is an appropriate discipline.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lustgraaf, 792 N.W.2d
295, 297 (Iowa 2010) (noting we give respectful consideration to the
commission’s recommendations). This discipline comports with our prior
cases and is consistent with the goals served by the imposition of
attorney discipline. While Hovda involved similar conduct, this
proceeding involved fewer cases of neglect than in Hovda. This
distinguishing factor justifies a less severe sanction for Ochs.
IV. Conclusion.
We suspend Ochs’ license to practice law in the State of Iowa for
thirty days. This suspension applies to all facets of the practice of law.
Iowa Ct. R. 35.12(3). Ochs must comply with Iowa Court Rule 35.22
dealing with notification of clients and counsel. Costs of this action are
taxed to Ochs pursuant to Iowa Court Rule 35.26(1). Absent an
objection by the Board, Ochs shall be reinstated after the thirty-day
suspension period under the condition that all costs have been paid.
Iowa Ct. R. 35.12(2).
LICENSE SUSPENDED.