Iowa Supreme Court Attorney Disciplinary Board v. David Alan Lemanski , 841 N.W.2d 131 ( 2013 )

IN THE SUPREME COURT OF IOWA
No. 13–1331
Filed December 20, 2013
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
DAVID ALAN LEMANSKI,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission reports that respondent committed ethical
misconduct and recommends a suspension. LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
David A. Lemanski, Dubuque, pro se.
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CADY, Chief Justice.
The Iowa Supreme Court Attorney Disciplinary Board charged
David A. Lemanski with numerous violations of the Iowa Rules of
Professional Conduct based primarily on his lack of diligence in
representing a client and his failure to respond to Board inquiries. The
Grievance Commission of the Supreme Court of Iowa found Lemanski
violated the rules of professional conduct and recommended he be
suspended from the practice of law for a period of six months. On our
review, we find Lemanski violated the rules of professional conduct and
impose a suspension of sixty days.
I. Background Facts.
David A. Lemanski was admitted to practice law in Iowa in 1979.
He is sixty-two years old and maintains a law office in Dubuque as a sole
practitioner. Lemanski has been admonished by the Board on two prior
occasions, and his license to practice law was briefly suspended on one
occasion. He was admonished for neglect of a client matter in 1997 and
for lack of diligence in an estate matter in 2007. His license was
suspended for thirty days in 2000 for neglect, failure to promptly
disburse settlement funds, and failure to respond to Board inquiries.
The circumstances responsible for the charges brought by the
Board in this case are strikingly similar to those that resulted in the
2000 suspension. In this case, Lemanski settled a personal injury claim
for a client in June 2011. He received the settlement proceeds the
following month, but was required to resolve a Medicare subrogation
claim before disbursing the settlement proceeds to his client. Lemanski
submitted the information requested by the subrogation contractor to
resolve the subrogation interest. He used the appropriate form provided
to him by the contractor to submit the information. The contractor,
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however, delayed taking action, and Lemanski subsequently experienced
difficulties in contacting the contractor. At the same time, Lemanski
admittedly failed to keep his client informed of the process. Eventually,
this conduct caused the client to file a complaint with the Board.
In December 2012, after the Board received the complaint,
Lemanski resolved the subrogation matter and disbursed the settlement
funds. Yet, when the Board contacted Lemanski and requested a
response to the complaint, Lemanski failed to respond. After this
conduct persisted, the Board filed the complaint that serves as the basis
for this action. The Board charged Lemanski with failure to act with
diligence in representing a client in violation of rule 32:1.3, failure to
communicate with a client in violation of rule 32:1.4, failure to properly
deliver funds to a client in violation of rule 32:1.15, and failure to
respond to a demand for information from the Board in violation of rule
32:8.1(b). The commission found Lemanski violated the rules and
recommended he be suspended from the practice of law for six months.
II. Scope of Review.
We review attorney disciplinary matters de novo. Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa
2002).
III. Violations.
On our de novo review of the record, we conclude by a convincing
preponderance of the evidence that Lemanski violated the rules of
professional conduct. However, we find the Board only established that
Lemanski violated rules 32:1.4 and 32:8.1(b). Lemanski admitted he
failed to keep his client reasonably informed about the progress of the
subrogation matter. See Iowa R. Prof’l Conduct 32:1.4(a)(3). He also
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acknowledged that he failed to respond to Board inquiries. See id.
r. 32:8.1(b).
However, the only evidence in the record to show that Lemanski
failed to act with reasonable diligence in resolving the subrogation issue
was evidence that it took him nearly eighteen months to complete the
task. While this time period seems inordinately long, Lemanski
explained the difficulties he encountered in his attempts to deal with the
contractor. These difficulties were exacerbated by the inability of the
contractor to locate the records following a move of their offices from
Detroit, Michigan, to Oklahoma City, Oklahoma. The Board made no
finding Lemanski was not credible, and there was some evidence in the
record that other attorneys have experienced problems and delays in
dealing with Medicare subrogation contractors. Additionally, we
conclude there was insufficient evidence that Lemanski failed to properly
deliver funds to a client under rule 32:1.15(d). Lemanski did not know
the amount of the settlement proceeds that his client was “entitled to
receive” until the subrogation issue was resolved. See id. r. 32:1:15(d).
IV. Discipline.
In determining the proper sanction to impose, we recognize that
conduct falling under the umbrella of neglect and lack of diligence
normally supports a sanction that falls between a public reprimand and
a suspension up to six months. See Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa 2007). Further, neglect
compounded with other misconduct generally moves the sanction
towards the higher range. See, e.g., Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Casey, 761 N.W.2d 53, 61–62 (Iowa 2009) (suspending lawyer’s
license for three months for neglect, misrepresentations, and
prematurely taking probate fees); Iowa Supreme Ct. Att’y Disciplinary Bd.
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v. Humphrey, 738 N.W.2d 617, 620–21 (Iowa 2007) (suspending lawyer’s
license for six months for severe neglect of six estates, failure to respond
to notices by the board, and making misrepresentations); Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 670 (Iowa 2007)
(publically reprimanding attorney for neglect and failure to respond to
the board’s notices); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Frerichs,
718 N.W.2d 763, 768 (Iowa 2006) (suspending lawyer’s license for three
months for misrepresentation, failure to respond to the board’s inquiries,
and a single act of neglect). However, a public reprimand has been
imposed for neglect even with a prior history of neglect and failure to
respond to Board inquiries. See Tompkins, 733 N.W.2d at 670.
Nevertheless, each case rests on its own unique facts and circumstances.
Iowa Supreme Ct. Disciplinary Bd. v. Kallsen, 814 N.W.2d 233, 239 (Iowa
2012). In determining where this case falls, we primarily focus on
Lemanski’s history of client neglect, including the specific history of
conduct similar to the conduct that occurred in this case. See Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lemanski, 606 N.W.2d 11,
13–14 (Iowa 2000). Unlike Tompkins, this history regrettably reveals the
prior suspension of thirty days has been insufficient to deter Lemanski
and to protect the public. The uncaring attitude exhibited by Lemanski
towards his client in this case has also again been visited on the Board.
Accordingly, we conclude Lemanski should be suspended from the
practice of law for sixty days. See Iowa Ct. R. 35.13(2).
V. Conclusion.
We suspend David A. Lemanski from the practice of law in Iowa for
a period of sixty days from the filing of this opinion, and his license shall
be reinstated on the day after the suspension period has expired, subject
to any applicable exception under Iowa Court Rule 35.13(2). This
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suspension shall apply to all facets of the practice of law. Id. r. 35.13(3).
Costs are taxed to Lemanski pursuant to Iowa Court Rule 35.27(1).
LICENSE SUSPENDED.