Iowa Supreme Court Attorney Disciplinary Board Vs. William Porter Rickabaugh ( 2007 )

IN THE SUPREME COURT OF IOWA
No. 04 / 05-1467
Filed March 5, 2007
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
WILLIAM PORTER RICKABAUGH,
Respondent.
________________________________________________________________________
On review of the report of the Grievance Commission.
Grievance Commission reports respondent has committed ethical
misconduct and recommends revocation of respondent’s license to
practice law. LICENSE REVOKED.
Charles L. Harrington and Laura M. Roan, Des Moines, for
complainant.
William Porter Rickabaugh, Tabor, respondent, pro se.
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STREIT, Justice.
In this attorney disciplinary action, William P. Rickabaugh is
charged with making false statements, neglecting his clients’ legal
matters, collecting an illegal fee, practicing law while his license is
suspended, and failing to cooperate with the Iowa Supreme Court
Attorney Disciplinary Board (“Board”). We find Rickabaugh violated
numerous provisions of the Iowa Code of Professional Responsibility for
Lawyers. 1 We agree with the Grievance Commission’s recommendation
to revoke Rickabaugh’s license to practice law.
I. Background
Rickabaugh was admitted to the Iowa bar in 1992. He is sixty
years old and lives in Tabor, Iowa. Rickabaugh’s license to practice law
is currently suspended. See In re Rickabaugh, 661 N.W.2d 130 (Iowa
2003). On May 7, 2003, we suspended his license indefinitely with no
possibility of reinstatement for three years. Id. at 133. This suspension
was reciprocal discipline in response to Nebraska’s disbarment of
Rickabaugh. See Nebraska ex rel. Counsel for Discipline v. Rickabaugh,
647 N.W.2d 641 (Neb. 2002). The Nebraska Supreme Court disbarred
Rickabaugh for various ethical violations, including accepting a legal
matter he was not competent to handle, neglect, creating fictitious
pleadings, and forging a judge’s signature. Id. at 642.
The present disciplinary action concerns a four-count complaint
filed against Rickabaugh on March 14, 2006 by the Board. Rickabaugh
did not file an answer. On July 21, 2006, the parties filed a joint
stipulation of facts and waiver of hearing. Rickabaugh recognized his
wrongdoing and stated he has no plans to practice law again. The
1This court adopted the Iowa Rules of Professional Conduct effective July 1,
2005. Because Rickabaugh’s misconduct occurred before July 1, 2005, the Iowa Code
of Professional Responsibility for Lawyers governs.
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Grievance Commission recommends we revoke Rickabaugh’s license to
practice law.
II. Scope of Review
We review the findings of the Grievance Commission de novo. Iowa
Ct. R. 35.10(1). We give weight to the Commission’s findings but we are
not bound by those findings. Iowa Supreme Ct. Attorney Disciplinary Bd.
v. McGrath, 713 N.W.2d 682, 695 (Iowa 2006). The Board has the
burden to prove disciplinary violations by a convincing preponderance of
the evidence. Iowa Supreme Ct. Attorney Disciplinary Bd. v. D’Angelo,
710 N.W.2d 226, 230 (Iowa 2006). This burden is “ ‘less than proof
beyond a reasonable doubt, but more than the preponderance standard
required in the usual civil case.’ ” Id. (quoting Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).
III. Factual Findings
Rickabaugh did not file an answer to the Board’s complaint.
Pursuant to Iowa Court Rule 36.7, the allegations of the complaint are
deemed admitted. In lieu of a hearing, the parties agreed to a stipulation
of facts and admission of exhibits. Thus, we find convincing evidence to
prove the following:
A. Grosse Estate
In early 2001, Glenda Shelton hired Rickabaugh to assist her in
probating the estate of her mother, Maxine Grosse. Grosse’s will
appointed Shelton to serve as executor. On July 30, 2001, Rickabaugh
sent Shelton a report and inventory which listed all of the assets in the
Grosse estate. He requested she sign the report and inventory and
return it to him so he could file it with the probate court. Shortly
thereafter, Shelton wrote to Rickabaugh explaining she would not sign
the report and inventory “because the numbers are not correct.”
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Specifically, she was concerned Rickabaugh had not included the
interest which had accrued on Grosse’s United States savings bonds.
She provided the correct figures and asked Rickabaugh to “[p]lease make
the corrections for me as soon as possible and send them to me to sign.”
Rickabaugh never made the requested changes. Shelton sent letters to
Rickabaugh on March 10, 2002 and January 20, 2003, urging him to
send her the corrected report and inventory so the estate could be closed.
Exasperated, Shelton finally contacted another attorney to help her close
the estate. Unbeknownst to Shelton, Rickabaugh had forged her
signature on the report and inventory and filed it with the court on
January 31, 2002.
Additionally, while Rickabaugh was representing Shelton and the
estate, the clerk of court issued two probate delinquency notices for
failure to file an interlocutory report.
B. Benedict Estate
Rickabaugh was hired by W. Edward Thompson to probate the
estate of Ruth Benedict. Benedict’s will appointed Thompson, a banker,
to be the executor. Rickabaugh opened the estate in September 2000.
In April 2001, Thompson gave Rickabaugh a signed check for $8607
made payable to the Iowa Department of Revenue for inheritance taxes
due. Rickabaugh did not file the inheritance tax return or the fiduciary
return nor did he pay the taxes. As a result, the estate had to pay
$3,104.24 for penalty and interest. 2
The Benedict estate was still open when we suspended
Rickabaugh’s law license on May 7, 2003. Rickabaugh did not notify
Thompson of the suspension nor did he withdraw as counsel.
2Rickabaugh eventually reimbursed the estate for this expense.
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On December 1, 2003, Thompson received a notice of delinquency
from the clerk of court indicating an interlocutory report for the estate
was overdue. Thompson contacted another attorney to look into the
matter and subsequently hired him to finish the administration of the
estate.
On January 29, 2004, Thompson discovered a package in his
bank’s night deposit box. It contained an interlocutory report and an
envelope addressed to the clerk of court. Rickabaugh later called
Thompson and said he dropped off the package so Thompson could sign
the report and file it with the clerk of court.
C. Ross Estate
In March 2002, James Ross hired Rickabaugh to probate the
estate of his mother, Wilma Ross. Although much of the work for the
estate remained to be done, Ross (a co-executor) wrote a check payable
to Rickabaugh for $7386. This amount represented 100% of
Rickabaugh’s fees and expenses. Rickabaugh did not file an application
with the probate court for allowance and payment of fees.
After we suspended Rickabaugh’s license, he did not withdraw as
counsel nor did he notify the executors of his suspension. In a letter
dated June 3, 2004, Rickabaugh informed a co-executor that “[d]ue to
declining health I will not be able to finish the estate.” In the same letter,
Rickabaugh stated he would “make an appropriate refund of the fee
ASAP.” Rickabaugh refunded the estate $5675 in March 2005.
D. Failure to Cooperate
The executor of the Grosse estate filed a complaint against
Rickabaugh on August 4, 2003. The Board personally served
Rickabaugh with notice of the complaint. He did not respond as required
by Iowa Court Rule 34.6(4).
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IV. Ethical Violations
Rickabaugh committed the following ethical violations:
A. Misrepresentations and False Statements
Rickabaugh made at least two misrepresentations. 3 In the Grosse
estate, he forged the executor’s name on the report and inventory and
filed it with the probate court. In the Ross estate, Rickabaugh
misrepresented the basis for his inability to close the estate. Instead of
informing the executor of his recent license suspension, he represented
he could not complete the work due to health problems. In both
incidents, Rickabaugh violated a number of ethical rules, namely DR 1-
102(A)(4) (a lawyer shall not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation); DR 1-102(A)(5) (a lawyer shall not
engage in conduct that is prejudicial to the administration of justice); DR
1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects
on the fitness to practice law); DR 7-102(A)(5) (a lawyer shall not
knowingly make a false statement of law or fact); and DR 1-102(A)(1) (a
lawyer shall not violate a disciplinary rule).
B. Practicing Law While Suspended
We suspended Rickabaugh’s license to practice law on May 7,
2003, and he remains under suspension. Rickabaugh did not notify the
executors of the Benedict and Ross estates of his suspension as required
by Iowa Court Rule 35.21(1)(a). This violated DR 1-102(A)(5) (a lawyer
3The record reveals several other misrepresentations Rickabaugh made to the
court and to his clients. However, the Board in its complaint did not charge
Rickabaugh with these misrepresentations. Consequently, we will not consider them at
this time. See In re Ruffalo, 390 U.S. 544, 550–51, 88 S. Ct. 1222, 1226, 20 L. Ed. 2d
117, 122 (1968) (stating due process requires attorney in disciplinary action be given
notice of the charges and an opportunity to respond); Comm. on Prof’l Ethics & Conduct
v. Wenger, 454 N.W.2d 367, 369 (Iowa 1990) (holding due process requires court to
disregard grievance commission’s findings based on additional charges because
allowing committee to amend complaint at the close of all the evidence deprived
attorney notice and opportunity to respond).
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shall not engage in conduct that is prejudicial to the administration of
justice) and DR 1-102(A)(6) (a lawyer shall not engage in conduct that
adversely reflects on the fitness to practice law). While suspended,
Rickabaugh prepared an interlocutory report for the Benedict estate and
delivered it to the executor for his signature. This violated DR 3-101(B)
(a lawyer shall not practice law in a jurisdiction where to do so would be
in violation of the rules in that jurisdiction) and DR 7-106(A) (a lawyer
shall not disregard a court order).
C. Neglect
“Professional neglect involves ‘indifference and a consistent failure
to perform those obligations that a lawyer has assumed, or a conscious
disregard for the responsibilities a lawyer owes a client.’ ” Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Honken, 688 N.W.2d 812, 821 (Iowa
2004) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Kennedy, 684 N.W.2d 256, 259–60 (Iowa 2004)). “Neglect is more than
ordinary negligence and usually involves multiple acts or omissions.”
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d
549, 551–52 (Iowa 2004) (citing Comm. on Prof’l Ethics & Conduct v.
Rogers, 313 N.W.2d 535, 536 (Iowa 1981)).
Rickabaugh committed professional neglect on several occasions.
He received three probate delinquency notices for failure to file an
interlocutory report in two estates. See Iowa Code § 633.32 (2001). In
the Benedict estate, Rickabaugh failed to file the inheritance tax return
after the executor gave him a check for the taxes due. As a result, the
estate accrued over $3000 in penalty and interest. Moreover,
Rickabaugh’s neglect delayed the administration of all three estates and
required the executors of each estate to hire a new attorney. His conduct
violated DR 1-102(A)(5) (a lawyer shall not engage in conduct that is
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prejudicial to the administration of justice); DR 1-102(A)(6) (a lawyer
shall not engage in conduct that adversely reflects on the fitness to
practice law); and DR 6-101(A)(3) (a lawyer shall not neglect a client’s
legal matter). See Iowa Supreme Ct. Attorney Disciplinary Bd. v. Moonen,
706 N.W.2d 391, 399 (Iowa 2005) (“A failure to take the necessary
actions in estate matters in a timely fashion constitutes professional
neglect.”).
D. Excessive/Illegal Fee
Iowa has special rules for payment of attorney fees in probate
matters. Iowa Code section 633.198 requires the attorney to file an
application with the probate court for allowance and payment of fees.
Iowa Court Rule 7.2(4) stipulates when attorney fees are payable. 4 Once
the court order is secured, the attorney may be paid one half of the fee
only after the Iowa inheritance tax return is prepared or an inheritance
tax clearance is filed. Iowa Ct. R. 7.2(4). The attorney may be paid the
balance of his fee only when the final report is filed and court costs have
been paid. Id.
In the Ross estate, Rickabaugh received 100% of his fees and
expenses prematurely and without a court order authorizing the
payment. This illegal fee-taking violates DR 2-106(A) (a lawyer shall not
collect an excessive or illegal fee). See Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Waples, 677 N.W.2d 740, 742 (Iowa 2004).
Moreover, it took Rickabaugh twenty-two months after his license was
suspended to refund the unearned portion of his fee. This was also nine
months after Rickabaugh promised the executor he would return the fee.
His delay violates Iowa Court Rule 35.21(1)(c) (requiring an attorney
4Rule 7.2(4) was amended effective February 1, 2005. Under the current rule, if
an Iowa inheritance tax return is not required, then the attorney may collect half of his
fee when the inventory is filed.
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whose license is suspended to refund within thirty days any part of any
fees paid in advance that have not been earned) and DR 9-102(B)(4)
(requiring an attorney to promptly pay to the client all funds the client is
entitled to receive).
E. Failure to Cooperate with Disciplinary Process
Rickabaugh did not file an answer to the Board’s complaint as
required by Iowa Court Rule 34.6(4). We expect and demand attorneys
to cooperate with disciplinary investigations. Honken, 688 N.W.2d at
821 (citing Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Sullins, 556
N.W.2d 456, 457 (Iowa 1996)). A failure to do so is an independent act of
misconduct. Comm. on Prof’l Ethics & Conduct v. Pracht, 505 N.W.2d
196, 199 (Iowa 1993) (citing Comm. on Prof’l Ethics & Conduct v. Van
Etten, 490 N.W.2d 545, 548 (Iowa 1992)). Rickabaugh’s failure to
respond to the Board’s complaint violates DR 1-102(A)(5) (a lawyer shall
not engage in conduct that is prejudicial to the administration of justice)
and DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely
reflects on the fitness to practice law).
V. Sanction
We now turn to the appropriate sanction to address Rickabaugh’s
unethical conduct. We consider “the nature of the violations, protection
of the public, deterrence of similar misconduct by others, the lawyer’s
fitness to practice, and our duty to uphold the integrity of the profession
in the eyes of the public.” Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Fleming, 602 N.W.2d 340, 342 (Iowa 1999) (citing Comm. on
Prof’l Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69 (Iowa 1989)).
We also consider both aggravating and mitigating circumstances. Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth, 656 N.W.2d 93, 99
(Iowa 2002) (citing Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
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Sherman, 637 N.W.2d 183, 187 (Iowa 2001)). Ultimately, the form and
extent of a disciplinary sanction “must be tailored to the specific facts
and circumstances of each individual case.” Rogers, 313 N.W.2d at 537.
We agree with the Commission that disbarment is the appropriate
sanction. Past disciplinary action bears upon an attorney’s character
and is considered an aggravating factor. Comm. on Prof’l Ethics &
Conduct v. Wenger, 469 N.W.2d 678, 680 (Iowa 1991). We suspended
Rickabaugh’s license to practice law in May 2003 as a result of very
serious ethical misconduct, most notably the fabrication of documents
and the forgery of a judge’s signature in an attempt to persuade a client
he had filed a lawsuit and obtained a judgment. In the present action,
Rickabaugh forged the Grosse estate’s executor’s signature on a court
document. Additionally, Rickabaugh lied to the co-executor of the Ross
estate about why he could not close the estate instead of admitting his
license was suspended.
We consider misrepresentation to be a “grave and serious breach of
professional ethics.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Stein, 603 N.W.2d 574, 576 (Iowa 1999); accord Moonen, 706 N.W.2d at
399. As we have said in the past:
Fundamental honesty is the base line and mandatory
requirement to serve in the legal profession. The whole
structure of ethical standards is derived from the paramount
need for lawyers to be trustworthy. The court system and the
public we serve are damaged when our officers play fast and
loose with the truth.
Comm. on Prof’l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa
1990).
Rickabaugh has demonstrated a blatant disregard for his duty as
an attorney to be honest and truthful. The legal profession is “ ‘no place
for persons who demonstrate a penchant for distorting the truth.’ ”
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Wenger, 469 N.W.2d at 679 (quoting Comm. on Prof’l Ethics & Conduct v.
Postma, 430 N.W.2d 387, 392 (Iowa 1988)). Rickabaugh’s pattern of
deceit reveals a serious character flaw which makes him unfit to practice
law.
Moreover, Rickabaugh committed other serious ethical infractions.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Humphrey, 551 N.W.2d
306, 308 (Iowa 1996) (“Multiple violations of our disciplinary rules
support enhanced sanctions.”). He neglected several cases, which
caused considerable expense and delay for his clients. He accepted his
fee in a probate matter prematurely; he failed to notify his clients of his
suspension; and in at least one instance he practiced law while
suspended. Finally, he did not cooperate with the Board’s investigation.
Although each individual act of misconduct, viewed in isolation, may not
warrant revocation, we must consider the combination of the current
charges and Rickabaugh’s past discipline. Taken all together, it is
obvious Rickabaugh does not respect the awesome responsibilities of an
attorney. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Beckman,
674 N.W.2d 129, 139 (Iowa 2004) (finding attorney’s “pattern of
misconduct and dishonesty demonstrates that he has no intention of
complying with his legal and ethical obligations unless forced to do so”).
We find the public in general and the legal profession in particular will
best be served if Rickabaugh is disbarred.
VI. Conclusion
We revoke Rickabaugh’s license to practice law in the State of
Iowa. Costs are taxed to Rickabaugh pursuant to Iowa Court Rule
35.25(1).
LICENSE REVOKED.