Iowa Supreme Court Attorney Disciplinary Board Vs. Donna P. Lesyshen ( 2006 )

IN THE SUPREME COURT OF IOWA
No. 45 / 05-1954
Filed April 7, 2006
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
DONNA P. LESYSHEN,
Respondent.
________________________________________________________________________
On review of the report of the Grievance Commission.
Grievance Commission reports that respondent has committed
ethical misconduct and recommends suspension of respondent’s license
to practice law. LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
Donna P. Lesyshen, Waterloo, pro se.
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STREIT, Justice.
An Iowa attorney with a history of ethical problems is here with
more ethical violations. The Iowa Supreme Court Attorney Disciplinary
Board (“Board”) accused Donna Lesyshen of neglecting client matters,
failing to respond to inquiries from the Board, mishandling trust account
funds, and inadequate withdrawal. The Grievance Commission of the
Supreme Court of Iowa (“Commission”), upon reviewing a joint
stipulation of facts from Lesyshen and the Board, found Lesyshen
violated the Iowa Code of Professional Responsibility and recommended a
five-year suspension. Based on the record before us, an indefinite
suspension with no possibility of reinstatement for at least two years is
appropriate.
I. Background
Lesyshen was admitted to practice law in 1982. She served as a
prosecutor in the Black Hawk County Attorney’s office and then as an
assistant city attorney for the City of Waterloo. Following her tenure as
assistant city attorney, she entered private practice. She had a general
practice, which included trial work. Lesyshen no longer wishes to
practice law, and she has found other employment. Lesyshen’s license to
practice law is currently on inactive status.
This is not the first time Lesyshen has been before this court for
disciplinary action. Lesyshen was publicly reprimanded in 1994 for
aiding the unauthorized practice of law contrary to DR 3-101(A).
Additionally, in October 1998, we imposed a six-month suspension for
neglect, forgery, and false notarization. Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Lesyshen, 585 N.W.2d 281, 288 (Iowa 1998).
The Board filed this complaint with the Commission for neglect,
failure to cooperate with the Board, inadequate withdrawal, and a trust
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account violation. Both parties waived the hearing and agreed to submit
the matter to the Commission on the basis of the complaint,
corresponding exhibits, and a joint stipulation that recommended
Lesyshen’s license to practice law be suspended for a period of four
years. Based on the joint stipulation, the Commission found Lesyshen’s
conduct violated the disciplinary rules designated in the complaint, and
recommended Lesyshen’s license be suspended for a period of five years.
II. Standard of Review
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Attorney Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 405
(Iowa 2005); Iowa Ct. R. 35.10(1). The Board has the burden to prove
disciplinary 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). 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). We give respectful
consideration to the Commission’s findings and recommendations, but
we 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). We review this
matter pursuant to Iowa Court Rule 35.10, and depart from the
sanctions recommended by the Commission and the joint stipulation.
III. Factual Findings
Lesyshen admitted all of the factual claims and ethical violations
made against her by the Board. We find convincing evidence to prove the
following:
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A. C.S. Matter
Lesyshen was appointed to represent C.S. in an appeal from a
juvenile court order terminating C.S.’s parental rights. Leyshen filed a
notice of appeal, but she failed to pursue the appeal, resulting in its
dismissal pursuant to Iowa Rule of Appellate Procedure 6.19. Lesyshen
claims she was unable to contact her client. The joint stipulation is
silent as to how Lesyshen was able to initially contact C.S. to sign the
notice of appeal, but could not reach her client shortly thereafter. C.S.
requested that her appeal be reinstated, and the supreme court did so,
and ordered the district court to replace Lesyshen. Lesyshen did not
respond to the Board’s notices of complaint.
B. J.T. Matter
Lesyshen represented J.T. in an appeal to the Iowa Supreme
Court. Lesyshen filed the notice of appeal, but took no further action.
Lesyshen claims she did not follow through with the appeal because her
client changed his mind. Eventually the clerk of the supreme court
dismissed the appeal for want of prosecution. Pursuant to rule 6.19(3) of
the Iowa Rules of Appellate Procedure, the clerk forwarded the notice of
default and order of dismissal to the Board.
C. Robert Wilson Estate Matter
Lesyshen was the attorney for the Estate of Robert Wilson. The
estate was opened so that a parcel of real estate could be sold. Lesyshen
sold the parcel yet neglected to take steps to close the estate. Three
delinquency notices were sent to Lesyshen by the clerk of court.
Eventually, the court removed Lesyshen and the executor, and ordered
the estate closed. Lesyshen did not respond to two complaint notices
from the Board.
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D. Schares Matter
Lesyshen represented Melvin Schares in a dissolution of marriage
action. In May 2002, Lesyshen received a $1200 retainer, but she did
not deposit it in her trust account. Lesyshen claims this was an error by
her secretary. The stipulation does not indicate what was done with the
$1200. In June 2002, Lesyshen took other employment, and stopped
working on Schares’ case. In August, Schares filed a complaint with the
Board. Lesyshen then refunded the unearned portion of the retainer and
formally withdrew from the case.
IV. Ethical Violations
A. Neglect
The record supports the Commission’s finding that Lesyshen
committed professional neglect on numerous occasions. See DR 6-
101(A)(3) (providing a lawyer shall not neglect a client’s legal matter); see
also Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683
N.W.2d 549, 551 (Iowa 2004) (defining professional neglect as
“indifference and a consistent failure to perform those obligations that a
lawyer has assumed, or a conscious disregard for the responsibilities a
lawyer owes to a client”).
In the C.S. and J.T. matters, the appeals were dismissed as a
result of Lesyshen’s neglect. Even though the C.S. case was ultimately
reinstated, the subsequent reinstatement did not cure the prior neglect.
Id. at 552. Regardless of the client’s interest in the case, the onus is on
the attorney to comply with the deadlines provided in the appellate rules.
See Iowa R. App. P. 6.19. Unless the court relieves an attorney of his or
her responsibility to the client on appeal, as an officer of the court, the
attorney is required to file the appropriate documents and briefs.
Anything less may be considered neglect. See Moorman, 683 N.W.2d at
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552-53 (holding attorney’s failure to comply with rules of appellate
procedure, as well as subsequent notices to cure the defaults issued by
the clerk of court, reveals a blatant pattern of neglect and constitutes a
“conscious disregard” for the responsibilities an attorney owes a client
and the court). In regard to the J.T. matter, simply because a client does
not want to pursue the case does not relieve the attorney from taking
steps necessary to end the matter. To simply wait for the court to
dismiss the case for lack of prosecution is neglect, inappropriate, and
unethical. See DR 6-101(A)(3).
Lesyshen also neglected the Robert Wilson Estate matter because
she failed to take steps to close the estate even though she received three
delinquency notices from the court. Further, Lesyshen neglected the
Schares matter when she simply stopped working on the case after she
changed employment. In considering the nature of the violations in
these matters, we note the dilatory handling of client matters is a
disservice not only to the client but also to the judicial system.
Kadenge, 706 N.W.2d at 408-09.
B. Failure to Cooperate with the Board
We have repeatedly emphasized how important it is for an attorney
to cooperate with disciplinary authorities when a complaint has been
filed against the attorney. Id. at 409. Lesyshen was initially
uncooperative with the Board. She ignored two notices of complaint in
the C.S. matter. She also ignored two notices from the Board in the
Robert Wilson Estate matter. While the joint stipulation indicates
Lesyshen eventually cooperated with the Board, her initial lack of
cooperation wasted the Board’s valuable time and limited assets. Id.
Her lack of cooperation also prejudiced the Board’s ability to gather all
pertinent facts regarding the complaints. Id. Such actions clearly violate
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DR 1-102(A)(5) (“A lawyer shall not . . . [e]ngage in conduct that is
prejudicial to the administration of justice.”). Comm. on Prof’l Ethics &
Conduct v. Bromwell, 389 N.W.2d 854, 857 (Iowa 1986) (holding failure to
respond to grievance committee violates the proscription against conduct
prejudicial to administration of justice).
C. Trust Account Violation
Client funds paid to an attorney must be deposited into an
interest-bearing trust account, rather than the firm’s operating account,
until they are earned. Kadenge, 706 N.W.2d at 408. Lesyshen’s failure
to deposit Schares’ retainer of $1200 in a trust account violated DR 9-
102 (failure to deposit advance for fees in trust account). The fact that
Lesyshen paid the money back to Schares after he filed a complaint is
not a valid defense or excuse for this ethical violation. Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Stowers, 626 N.W.2d 130, 133 (Iowa
2001).
D. Inadequate Withdrawal
Lesyshen clearly violated DR 2-110 (withdrawal from
representation without completing work, to prejudice of client) in the
Schares matter. She found other employment, stopped working on
Schares’ case, and failed to withdraw properly or notify Schares. See
Comm. on Prof'l Ethics & Conduct v. Freed, 341 N.W.2d 757, 759 (Iowa
1983) (stating neglect of duties to client is like “a surgeon who, without
transferring responsibility, drops his scalpel and abandons his patient in
the course of an operation”). Lesyshen’s conduct also violated DR 7-
101(A)(1) (failure to seek objectives of a client), DR 7-101(A)(2) (failure to
carry out employment contract with a client), and DR 7-101(A)(3)
(prejudice or damage to a client).
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V. Sanction
In the joint stipulation, Lesyshen agreed to a four-year
recommended sanction saying she had found other employment and no
longer wished to practice law. The Commission recommended Lesyshen
be suspended for a period of five years given the violations that had
occurred. However, we find, based on the joint stipulation, findings of
fact, conclusions of law and recommendation, with its limited
explanation of events, a sanction of two years is appropriate.
When we impose sanctions, we only do so on the evidence before
us. We give respectful consideration to the recommendations of the
Commission, but are not bound by them. Comm. on Prof’l Ethics &
Conduct v. Nadler, 467 N.W.2d 250, 254 (Iowa 1991). Factors that help
guide our determination include “the nature of the violations, the need
for deterrence, protection of the public, maintenance of the reputation of
the Bar as a whole, and the violator’s fitness to continue to practice law.”
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ramey, 639 N.W.2d
243, 245 (Iowa 2002). Often, the distinction between the punishment
imposed depends upon the existence of multiple instances of neglect,
past disciplinary problems, and other companion violations, including
uncooperativeness in the disciplinary investigation. Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Sprole, 596 N.W.2d 64, 66 (Iowa 1999).
Subsequent to Lesyshen’s two prior ethical violations, Lesyshen
engaged in client neglect, a trust account violation, and inappropriate
withdrawal from a client’s case, which caused potential harm to her
clients. Further, she initially failed to cooperate with the Board, which is
an additional factor in imposing discipline. Moorman, 683 N.W.2d at
553-54. Based only on the limited facts in the record before us, we find
a suspension for a minimum of two years is appropriate. See Iowa
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Supreme Ct. Attorney Disciplinary Bd. v. McCann, 712 N.W.2d 89, 91
(Iowa 2006) (imposing a two-year suspension for trust account violations
and aggravating factors of neglect); Iowa Supreme Ct. Attorney
Disciplinary Bd. v. Sotak, 706 N.W.2d 385, 386 (Iowa 2005) (imposing an
indefinite suspension of two years where conduct involved professional
neglect, misrepresentations, failure to notify clients of attorney’s transfer
to new law firm, and failure to promptly give settlement check to client);
Iowa Supreme Ct. Attorney Disciplinary Bd. v. Maxwell, 705 N.W.2d 477,
478 (Iowa 2005) (imposing a one-year suspension for violations stemming
from neglect and inattention in the representation of three clients, where
attorney had prior ethical violations).
VI. Conclusion
Lesyshen is suspended indefinitely from the practice of law with no
possibility of reinstatement for at least two years. This suspension shall
apply to all facets of the practice of law as provided in Iowa Court Rule
35.12(3) and requires notification of clients as outlined in Iowa Court
Rule 35.21. Costs are taxed to Lesyshen pursuant to Iowa Court Rule
35.25(1).
LICENSE SUSPENDED.