Iowa Supreme Court Attorney Disciplinary Board v. Heather Marie Kingery , 871 N.W.2d 109 ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 15–0673
Filed October 30, 2015
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
HEATHER MARIE KINGERY,
Appellant.
Appeal from the report of the Grievance Commission of the
Supreme Court of Iowa.
An attorney contends the grievance commission’s recommended
sanction for violations of disciplinary rules is excessive and features
improper auxiliary conditions on reinstatement. LICENSE SUSPENDED.
David L. Brown of Hansen, McClintock & Riley, Des Moines, for
appellant.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
appellee.
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HECHT, Justice.
The Iowa Supreme Court Attorney Disciplinary Board (the Board)
charged attorney Heather Marie Kingery with violating multiple rules of
professional conduct after the Board received four separate complaints.
After a hearing, the Iowa Supreme Court Grievance Commission (the
commission) found Kingery committed the alleged violations and
recommended suspension of her license for six months and several
conditions upon any future reinstatement. Kingery appeals, contending
the sanction and conditions recommended by the commission are
excessive. On our de novo review, we agree Kingery’s conduct merits a
suspension, but impose a shorter one with fewer conditions.
I. Background Facts.
Kingery received a bipolar disorder diagnosis while she was in law
school. Since then she has consistently taken prescribed medications to
manage the disorder. Kingery has also struggled with alcoholism and
committed two misdemeanor criminal offenses involving alcohol, one in
1994 and one in 2007.
Kingery was admitted to practice law in Iowa in 2010 and initially
practiced with a law firm in northeast Iowa. After approximately one
year with the firm, Kingery opened her own practice in Decorah. A
majority of Kingery’s cases in her solo practice were criminal defense
matters, including court appointments in Winneshiek County and
adjacent Howard County. In addition to criminal cases, Kingery also
handled a few civil matters.
Kingery was married in September 2013. Her husband lived in
Europe and was not a United States citizen at the time of the marriage.
The couple retained an immigration attorney to work toward securing his
legal immigration to the United States. Kingery testified at the hearing
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before the commission in this case that the immigration issue caused her
significant stress leading up to and immediately following the marriage.
Kingery also testified the immigration issue has not been resolved in the
two years since the marriage, and as a result, she and her husband
communicate almost exclusively by telephone and through webcam
videoconferencing.
While coping with the stress of the immigration issue and the
bipolar disorder, Kingery drank alcohol heavily and frequently in October
2013. Her life very quickly spun out of control, and by December her
daily routine consisted only of buying alcohol, drinking alcohol, and
sleeping. She did not open her mail, and she stopped responding to all
communication from clients, opposing attorneys, court staff and judges,
and the Board.
In January 2014, Kingery sought medical assistance for
detoxification. She received inpatient alcohol treatment in Waterloo and
outpatient treatment in Decorah. In August 2014, Kingery moved to
West Des Moines so that she could be closer to a more robust support
system and live in a bigger market for legal employment. She attends
weekly support group meetings and has become an active church
congregant there. She has also received helpful assistance from the Iowa
Lawyers Assistance Program (ILAP). She has not consumed alcohol in
over a year and has not practiced law since fall 2013. She currently
holds a part-time job in retail customer service, but she hopes to resume
practicing criminal law in the near future as an assistant county
attorney, a private criminal defense attorney, or a public defender.
II. Events Giving Rise to the Board’s Complaint.
A. James Steenhard Matter. Kingery was court appointed to
represent James Steenhard in a criminal appeal. She filed a combined
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certificate and ordered a transcript, but she never filed a proof brief or a
designation of appendix. On July 30, 2013, the clerk of the Iowa
Supreme Court entered a notice of default notifying Kingery she was
obligated to file those documents within fifteen days. See Iowa R. App. P.
6.1202(1)(a). Kingery did not respond to the notice or cure the default.
Rather than dismissing the appeal, on September 24—almost two
months after the default notice—this court removed Kingery as counsel,
directed the district court to appoint new counsel, and referred Kingery
to the Board.
B. Christine Kelly Matter. Christine Kelly hired Kingery in 2011
to represent her in enforcing provisions of Kelly’s marriage dissolution
decree. Kingery filed an application for rule to show cause on Kelly’s
behalf. The matter was delayed, however, when the court granted an
indefinite continuance in July 2012.
In early May 2013, Kingery met with Kelly to discuss and draft
responses to discovery requests opposing counsel had served. On
May 20, Kelly requested a copy of the discovery responses and reciprocal
discovery requests prepared for service on the opposing party. Kingery
did not respond to Kelly’s request until May 29, but she apologized for
the delay and assured Kelly her case was still a priority.
On June 26, Kelly requested an update on the status of the
discovery process. Kingery did not respond, so Kelly sent another
inquiry on July 8. That same day Kingery informed Kelly she had
prepared and mailed the discovery requests. However, after that she did
not communicate with Kelly despite repeated emails and phone calls
from Kelly. For example, on August 8, Kelly emailed Kingery noting that
the time for her adversary’s discovery responses had passed and asking
for copies of any discovery responses Kingery had received. Kingery did
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not respond. On August 16, Kelly sent Kingery an email requesting a
case status update and expressly citing the rule setting forth Kingery’s
obligation to keep Kelly informed about the status of the matter, but
Kingery again did not respond. See Iowa R. Prof’l Conduct 32:1.4(a)(3).
On September 3, Kelly sent Kingery a letter terminating the
attorney–client relationship and requesting Kingery return all paperwork
and case files. Kingery did not respond to the letter. Kelly sent an email
requesting the case file on September 10. Again, Kingery did not
respond. On September 20, Kelly sent Kingery an email proposing to
meet at the Winneshiek County Courthouse to exchange payment and
documents. After Kingery did not respond to this email, Kelly filed a
complaint with the Board.
In February 2014, Kelly filed a small claims action against Kingery
seeking the return of her file plus $1500 in damages. Kingery filed an
answer and counterclaim seeking $800 in allegedly unpaid attorney fees
and costs associated with copying Kelly’s file. After hearing the case, the
court awarded damages to each party and, offsetting the amounts,
ultimately awarded Kingery $38.40. Kelly paid the amount and received
her file.
C. Court Appointed Criminal Defense Matters. Kingery was
court appointed to represent a number of criminal defendants in
Winneshiek County. On July 16, 2013, the district court granted
continuances to three of Kingery’s clients—Lee Holkesvik, Karlie Marlow,
and Scott Swehla—when they appeared for arraignment or other
proceedings but Kingery did not. Another client, Justin Borseth,
requested new counsel after Kingery failed to appear as scheduled for a
hearing on July 30. The court granted Borseth’s request.
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Kingery was also court appointed to represent Dante DeGrazia. In
fall 2013, Kingery twice failed to appear for DeGrazia’s arraignment,
although DeGrazia personally appeared both times. On the second of
these occasions, DeGrazia reported he had been unable to contact
Kingery. On its own motion, the court removed Kingery from the case
and appointed replacement counsel. That same day, it removed Kingery
as counsel for Abbey Lowe in a separate criminal case for the same
reason—Kingery had failed to appear in court as scheduled and had not
communicated with the court or her client.
On October 31, another of Kingery’s clients, James Thorne, filed a
request for new counsel with the district court. Thorne’s request for new
counsel stated Kingery “does not answer or return my phone calls” and
also alleged she had missed a scheduled appointment with Thorne that
day. A magistrate granted Thorne’s request, removed Kingery from
representing Thorne, and appointed replacement counsel. The
magistrate found removal was “necessary to secure defendant’s rights.”
Unfortunately, for two of Kingery’s clients—Scott Geary and Dylan
Carlson—receiving newly appointed counsel was not the only
consequence of Kingery’s missed appearances and proceedings. In late
July 2013, Kingery requested and received a continuance of proceedings
in Geary’s case until August 6. The order granting the continuance
stated Geary was required to appear personally on August 6. Kingery
and Geary both failed to appear on August 6. The court issued a warrant
for Geary’s arrest, and he was arrested and jailed. The court later
released Geary on bond, in part because Geary wrote a letter from his jail
cell asking for a new lawyer and explaining both he and the jail staff had
tried unsuccessfully to reach Kingery.
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Similarly, Carlson sent a handwritten pleading from his jail cell to
the district court after he was arrested for failing to appear. He asked
the district court to consider contacting him personally to discuss
payment options for court fees owed, and he explained he did not appear
in court because Kingery did not respond to his phone calls inquiring
about the scheduled time for hearing. Kingery does not dispute that
both Geary and Carlson served time in jail because she did not apprise
them of the need to appear personally in court.
Local prosecutors and judges noted Kingery’s absence from the
courthouse as it stretched over several months. By mid-December,
Kingery had not retrieved any notices from the clerk’s office for over a
month. The chief judge of the First Judicial District suspended Kingery
from receiving any further court appointments and the Office of the State
Public Defender terminated Kingery’s indigent defense contract. The
Winneshiek County Attorney sent a letter to the Board regarding
Kingery’s serial failures to appear for hearings and court proceedings,
believing he was ethically obligated to report the information. A district
court judge within the First Judicial District also notified the Board of
Kingery’s neglect of clients’ matters.
D. Brookview Farms Matter. Doug Corson, the president of
Brookview Farms LLC, hired Kingery in February 2013 to draft a
conveyance granting to Corson and his two children a life estate in land
the LLC owned. In an email to Kingery, Corson explained he wanted the
deed “to be an iron-clad document that cannot be legally contested.”
Kingery did not complete the work for several months, mentioning health
issues had affected her productivity. Corson accepted the delay at first,
but by August he was growing impatient.
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On September 5, Kingery apologized for her lack of contact and
scheduled a meeting with Corson for the following day. At the meeting,
Kingery presented the deed she had drafted and a bill for $347, and
Corson paid her. Corson was concerned the deed did not accurately
describe the real estate and did not adequately convey a life estate, but
Kingery assured Corson it did. Based on Kingery’s assurances, Corson
signed the deed but instructed Kingery not to record it until he ensured
Kingery had drafted it correctly. Accordingly, Kingery did not record the
deed, although she did cash Corson’s check.
Corson determined the deed’s legal description of the property was
incomplete and therefore incorrect. He asked Kingery to correct the
errors and Kingery agreed to do so. However, Kingery stopped
responding to Corson’s communications. On January 8, 2014, Corson
sent an email demanding a meeting with Kingery. Kingery did not
respond. On March 9, Corson sent an email terminating the attorney–
client relationship. He also filed a complaint with the Board.
III. Disciplinary Proceedings.
In November 2013, the Board sent Kingery an inquiry about the
Steenhard appeal and requested a response. After several weeks passed
with no response, the Board filed a certificate on December 5 advising
the court that Kingery had failed to respond and requesting a temporary
suspension of Kingery’s license if she did not respond within twenty
days. See Iowa Ct. R. 34.7(3). Kingery did not respond within twenty
days. Accordingly, on January 16, 2014, this court temporarily
suspended Kingery’s license. The Board repeated that process after
sending inquiries to Kingery about her conduct in the Kelly and
Brookview Farms matters, and in the several criminal cases mentioned
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above. Each time the Board sent inquiries, Kingery did not respond, and
we issued a temporary suspension. 1
Eventually, the Board filed a four-count complaint alleging Kingery
violated numerous provisions of the Iowa Rules of Professional Conduct
in her representation of Steenhard, Kelly, Brookview Farms, and the
criminal defendants: neglect (rule 32:1.3); failure to keep a client
informed about the status of their matter (rule 32:1.4(a)(3)); failure to
comply promptly with reasonable requests for information (rule
32:1.4(a)(4)); charging an unreasonable amount for expenses (rule
32:1.5(a)); failure to deliver property the client is entitled to receive (rule
32:1.15(d)); failure to withdraw from representation when required (rule
32:1.16(a)(2)); failure to expedite litigation (rule 32:3.2); knowingly
making a false statement of fact or law to a tribunal (rule 32:3.3(a)(1));
knowingly making a false statement of fact or law to a third person (rule
32:4.1(a)); engaging in dishonesty, fraud, deceit, or misrepresentation
(rule 32:8.4(c)); and engaging in conduct prejudicial to the administration
of justice (rule 32:8.4(d)).
The Board later withdrew its allegations that Kingery violated rules
32:3.3(a)(1) and 32:8.4(c) by making dishonest or false statements. It
also withdrew the allegation that Kingery failed to deliver property a
client was entitled to receive, in violation of rule 32:1.15(d). The
withdrawals left eight alleged ethical violations for disposition. Kingery
filed an answer admitting she committed rule violations in representing
Steenhard, Brookview Farms, and the criminal defendants. She denied
committing rule violations in representing Kelly.
1We lifted the multiple concurrent suspensions in April 2015 after Kingery
retained counsel and answered the Board’s formal complaint. See Iowa Ct. R.
34.7(3)(d).
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The commission held a hearing on March 13, 2015. Kingery
testified, explaining the circumstances of her bipolar disorder and
alcoholism and describing the steps she has taken since 2013 to develop
a support system and prevent relapse. She expressed remorse and
regret, and she took responsibility for “some horrible mistakes.” Kingery
further noted her humbling experience the last few years has caused her
to “see things differently now.”
The commission concluded Kingery committed neglect by delaying
the Brookview Farms matter, failed to keep Corson apprised of the status
of the Brookview Farms matter, and both failed to expedite litigation and
engaged in conduct prejudicial to the administration of justice in the
Steenhard appeal and the appointed criminal defense matters. It also
concluded Kingery failed to comply promptly with a reasonable request
for information from both Kelly and Corson. Most importantly, however,
the commission found Kingery failed to withdraw from each of her cases
when her alcoholism began materially impairing her ability to represent
her clients. 2
The commission found Kingery’s lack of disciplinary history,
alcoholism, and bipolar disorder to be significant mitigating factors. It
also commended her for taking full responsibility and expressing
remorse. The commission recommended an indefinite suspension of
Kingery’s license for no less than six months with several conditions on
any future reinstatement. In particular, the commission recommended
Kingery be required to (1) offer documentation from medical providers
showing her fitness to practice law at the time of reinstatement,
2Although the Board’s complaint alleged Kingery violated rule 32:1.5(a) by
attempting to charge Kelly an unreasonable amount for expenses and violated rule
32:4.1(a) by making false statements to a third person, the Board presented no evidence
as to those alleged violations, and the commission made no findings on them.
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(2) continue to undergo and comply with mental health and substance
abuse treatment and counseling, (3) update the Board continually for
one year with medical records proving compliance, (4) maintain sobriety,
(5) associate with another licensed attorney and not practice on her own,
and (6) cooperate with the ILAP.
Kingery appeals contending the sanction recommended by the
commission is unwarranted. She contends a six-month suspension is
excessive and asserts a public reprimand is a more appropriate sanction
because her violations were all rooted in a single continuous episode of
neglect. Further, she contends the attorney supervision requirement and
the requirement that she provide medical documentation for one year
after reinstatement are inappropriate under the circumstances. The
Board asserts a suspension is necessary because Kingery’s clients
suffered harm and suggests the suspension should last at least three
months. However, it concedes the attorney supervision and
postreinstatement documentation requirements recommended by the
commission are inappropriate.
IV. Scope of Review.
We review appeals from the grievance commission de novo. Iowa
Ct. R. 35.12(4). The Board must prove each rule violation by a
convincing preponderance of the evidence—a standard higher than in
most civil cases but lower than the criminal burden of proof beyond a
reasonable doubt. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Hedgecoth, 862 N.W.2d 354, 360 (Iowa 2015); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Wengert, 790 N.W.2d 94, 97–98 (Iowa 2010).
V. Rule Violations.
Kingery stipulated that she committed certain ethical violations in
her representation of Steenhard, Brookview Farms (Corson), and the
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criminal defendants. However, “[a]n attorney’s stipulation as to a
violation is not binding on us.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Kelsen, 855 N.W.2d 175, 181 (Iowa 2014); accord Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 335 (Iowa 2015); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 804 (Iowa
2010) (“Nowhere in our rules have we given the parties the authority to
determine what conduct constitutes a violation . . . .”). “If a stipulation
concedes a rule violation, we will only find a violation if the facts are
sufficient to support the stipulated violation.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Wright, 857 N.W.2d 510, 514 (Iowa 2014). Thus, we
“address in turn each rule violation alleged by the Board in determining
whether the Board carried its burden of proof.” Hedgecoth, 862 N.W.2d
at 360.
A. Neglect. “A lawyer shall act with reasonable diligence and
promptness in representing a client.” Iowa R. Prof’l Conduct 32:1.3.
Although the word “neglect” does not appear in rule 32:1.3, cases
sanctioning neglect under a predecessor to the rules are relevant to our
analysis here. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel,
809 N.W.2d 96, 102 (Iowa 2012).
“Neglect involves an attorney’s consistent failure to perform his or
her obligations . . . .” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conroy,
845 N.W.2d 59, 63 (Iowa 2014). An attorney violates rule 32:1.3 when he
or she “fails to appear at scheduled court proceedings, does not make the
proper filings, or is slow to act on matters.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 537 (Iowa 2013). An
attorney who ignores appellate deadlines, does not cure default notices,
and fails to file required documents violates rule 32:1.3. See, e.g.,
Hedgecoth, 862 N.W.2d at 357–58, 361; Wengert, 790 N.W.2d at 101;
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Adams, 749 N.W.2d 666, 669
(Iowa 2008). We have also concluded an attorney violated rule 32:1.3
when he “failed to appear at a pretrial conference and a hearing.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 606
(Iowa 2012); see also Nelson, 838 N.W.2d at 537 (finding an attorney
violated rule 32:1.3 when he “did not attend three pretrial hearings”);
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 150,
152 (Iowa 2010) (finding an attorney committed neglect when he failed to
appear for his client’s civil trial); Adams, 749 N.W.2d at 669 (finding an
attorney violated rule 32:1.3 when he failed to appear at his client’s
arraignment).
In this case, Kingery engaged in the same type of neglectful
conduct. In the Steenhard appeal, she did not file required documents
on time and subsequently ignored a default notice. The clerk of court did
not dismiss Steenhard’s appeal, but “only because this court intervened
and ordered [Kingery] removed.” Conroy, 845 N.W.2d at 65. Although
she missed deadlines in just one appeal, the missed deadlines were part
of a larger “pattern of rule violations” affecting multiple clients. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Eslick, 859 N.W.2d 198, 203 (Iowa
2015); cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d
431, 442 (Iowa 2012) (noting an attorney’s ethical shortcomings “were
not isolated” and caused “extensive problems” with multiple clients).
This pattern is patently clear because Kingery repeatedly failed to appear
for court proceedings in her court-appointed criminal cases, affecting at
least eight clients. We find Kingery violated rule 32:1.3.
B. Attorney–Client Communication. “A lawyer shall . . . keep
the client reasonably informed about the status of the matter.” Iowa R.
Prof’l Conduct 32:1.4(a)(3). Further, a lawyer must “promptly comply
14
with reasonable requests for information.” Id. r. 32:1.4(a)(4).
Compliance with requests for information includes responding to or at
least acknowledging a client’s attempts to communicate. Id. cmt. [4].
These two rules are interrelated because “regular communication with
clients will minimize the occasions on which a client will need to request
information concerning the representation.” Id.
“[W]hen an attorney neglects to keep a client informed about the
status of the case or does not respond to a client’s attempts to contact
the attorney about the case,” the attorney violates rule 32:1.4. Nelson,
838 N.W.2d at 537. In Nelson, we concluded an attorney violated this
rule when he “neither initiated nor returned client phone calls, despite
requests by clients that he do so.” Id. We have also found an attorney
violated both subsection (a)(3) and subsection (a)(4) when she “did not
attempt to inform her client about the status of the client’s case . . . and
failed to respond to the client’s multiple phone calls and visits.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Ryan, 863 N.W.2d 20, 26 (Iowa
2015); see also McCarthy, 814 N.W.2d at 606 (finding a violation when
the attorney’s “failure to answer his telephone and respond to telephone
and e-mail messages” caused “[n]early all of [his] clients” to have
difficulty contacting him); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Cunningham, 812 N.W.2d 541, 547 (Iowa 2012) (finding a violation when
an attorney did not inform a client the court had ordered sanctions and
did not respond to the client’s attempts to contact him); Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 678 (Iowa 2010)
(concluding the attorney’s “failure to respond to [the client]’s phone calls
and requests for information” constituted a violation of rule 32:1.4).
Here, we find Kingery failed to update Kelly about the status of
discovery in her dissolution matter in response to the client’s multiple
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inquiries requesting information. Similarly, Corson sent Kingery
multiple inquiries about his real estate matter before receiving a
response. In both the Kelly and Corson matters, Kingery eventually
stopped responding to emails and phone calls altogether. Finally, in the
several criminal defense matters discussed above, multiple clients
reported to the court that they had been unable to contact Kingery and
that she would not answer or return their calls. We find Kingery violated
rule 32:1.4(a)(3) and (4) in each of these instances.
C. Unreasonable Expenses. “A lawyer may seek reimbursement
for the cost of services performed in-house, such as copying . . . .” Iowa
R. Prof’l Conduct 32:1.5 cmt. [1]. However, the amount the lawyer seeks
must be reasonable. See id. r. 32:1.5(a) (“A lawyer shall not make an
agreement for, charge, or collect an unreasonable fee or an unreasonable
amount for expenses . . . .”). If it is not, the attorney is subject to
discipline. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Baldwin, 857
N.W.2d 195, 215 (Iowa 2014) (noting an attorney had previously been
admonished for “charging his client an excessive fee to copy his file”).
When Kelly sued Kingery in small claims court to obtain her file,
Kingery counterclaimed for damages that included allegedly unpaid
hourly fees and $500 for costs to reproduce the file. The Board’s
complaint alleged Kingery violated rule 32:1.5(a) by counterclaiming for
$500 to copy Kelly’s file. However, the Board’s trial brief before the
commission did not mention rule 32:1.5(a) at all, and the Board
presented no evidence regarding that alleged violation. Thus, on our
de novo review, we find the Board has failed to prove by a convincing
preponderance of the evidence that Kingery violated rule 32:1.5(a).
D. Mandatory Withdrawal. Lawyers are required to withdraw
from representing a client if “the lawyer’s physical or mental condition
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materially impairs the lawyer’s ability to represent the client.” Iowa R.
Prof’l Conduct 32:1.16(a)(2). To find a violation, a convincing
preponderance of the evidence must show (1) the attorney was suffering
from a physical or mental condition, (2) the condition materially impaired
the attorney’s ability to represent clients, and (3) the attorney failed to
withdraw. See Cunningham, 812 N.W.2d at 549.
“There is very little case law interpreting this rule or its
predecessor” to guide our determination of what constitutes a violation.
Id. at 548. In Cunningham, we found the Board had not proven a
violation because the only evidence of the lawyer’s physical or mental
condition was a motion another attorney made that referred to general
“health reasons.” See id. at 548–49. Similarly, in McCarthy, we found an
attorney who suffered a heart attack and underwent open-heart surgery
did not violate the rule because there was no indication the delay in legal
proceedings attributable to his physical condition caused the client any
material disadvantage. McCarthy, 814 N.W.2d at 608–09. On the other
hand, we have found an attorney violated this rule when he neglected
multiple appeals—causing them to be dismissed for lack of prosecution—
while undergoing and recovering from three serious, but nonemergency,
back surgeries. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hoglan,
781 N.W.2d 279, 283–84 (Iowa 2010) (per curiam).
Our professional conduct rule requiring withdrawal in certain
circumstances is materially identical to rules in place in Kansas and
Maryland. Compare Iowa R. Prof’l Conduct 32:1.16(a)(2), with Kan. R.
Prof’l Conduct 1.16(a)(2), and Md. Lawyers’ R. Prof’l Conduct 1.16(a)(2).
The Kansas Supreme Court concluded an attorney with severe
depression violated the rule when he did not withdraw from representing
multiple clients after having suicidal thoughts and taking medical leave
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from his practice. In re Murrow, 336 P.3d 859, 861, 866, 869 (Kan.
2014) (per curiam). Similarly, Maryland’s highest court adopted a
disciplinary hearing judge’s finding that an attorney violated the rule
when he was so dependent on narcotics and tranquilizers that he
“regularly did not show up in court when he was scheduled to appear on
behalf of clients” and “ignored communications from judges as well as
clients.” See Att’y Grievance Comm’n v. Patton, 69 A.3d 11, 20 (Md.
2013). Several other courts have concluded an attorney battling
substance abuse or mental health issues can violate similar rules if they
do not withdraw when their physical or mental condition materially
impairs their ability to represent clients. See, e.g., In re Kelly, 917
N.E.2d 658, 658–59 (Ind. 2009) (depression and substance abuse);
Disciplinary Counsel v. Wickerham, 970 N.E.2d 932, 934–35 (Ohio 2012)
(per curiam) (prescription drug addiction); In re Roberts, 725 S.E.2d 925,
925–26 (S.C. 2012) (per curiam) (depression and alcoholism); In re
Disciplinary Proceedings Against Cotten, 650 N.W.2d 551, 555–57 (Wis.
2002) (per curiam) (depression).
Unlike Cunningham, here we have clear evidence—including
medical records—tending to show Kingery suffers from bipolar disorder
and alcoholism. See Cunningham, 812 N.W.2d at 548–49. Thus,
because we have undisputed evidence of Kingery’s health status and we
know she did not withdraw from her cases during an extended period of
professional dysfunction, we must decide whether rule 32:1.16(a)(2)
required her to withdraw. The framework set forth in McCarthy and
Hoglan instructs that, regardless whether the attorney’s physical or
mental condition was within his or her control, we should evaluate what
actually happened in determining if Kingery’s ability to represent her
clients was materially impaired. See McCarthy, 814 N.W.2d at 608–09;
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Hoglan, 781 N.W.2d at 283–84. Kingery’s own description of her
dysfunction, the resulting delays in court proceedings, and the total
absence of contact with clients over an extended period leads us to find
by a convincing preponderance of the evidence that it was. See Patton,
69 A.3d at 20. Thus, we conclude Kingery violated rule 32:1.16(a)(2).
E. Failing to Expedite Litigation. “Dilatory practices bring the
administration of justice into disrepute.” Iowa R. Prof’l Conduct 32:3.2
cmt. [1]. Accordingly, the rules of professional conduct discourage
dilatory practices and require lawyers to “make reasonable efforts to
expedite litigation consistent with the interests of the client.” Id. r.
32:3.2.
“An attorney violates this rule by failing to appear for status
conferences and respond to court inquiries.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Kieffer-Garrison, 847 N.W.2d 489, 492 (Iowa 2014).
We have also found a violation when an attorney “failed to follow court
rules governing timely presentation and progression of appeals.”
Hedgecoth, 862 N.W.2d at 362. In this case, Kingery repeatedly failed to
appear for status conferences, arraignments, and other court
proceedings, causing multiple delays and continuances. Similarly, she
did not file required appellate documents and caused the clerk to issue a
default notice in the Steenhard matter. We conclude Kingery violated
rule 32:3.2.
F. Duty to Avoid Making False Statements. Our ethical rules
prohibit lawyers from knowingly making “a false statement of material
fact or law to a third person.” Iowa R. Prof’l Conduct 32:4.1(a). The
Board charged Kingery with violating this rule. However, the Board
presented no evidence to the commission supporting the charge, and the
Board’s appellate brief does not mention it. Further, the Board withdrew
19
both of the other claimed rule violations based upon allegedly false
statements. We find no violation of rule 32:4.1(a) on this record.
G. Conduct Prejudicial to the Administration of Justice. Rule
32:8.4(d) prohibits “conduct that is prejudicial to the administration of
justice.” Id. r. 32:8.4(d). “[T]here is no typical form of conduct” that
violates this rule. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Steffes, 588 N.W.2d 121, 123 (Iowa 1999). Instead, the dispositive
inquiry is whether “the attorney’s act[s] hampered the efficient and
proper operation of the courts or of ancillary systems upon which the
courts rely.” Id.
We have concluded an attorney hampered the courts’ efficiency
when he neglected multiple matters, causing delayed proceedings and
“requir[ing] otherwise unnecessary administrative oversight by the clerk
of court and judicial officers.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Lickiss, 786 N.W.2d 860, 867 (Iowa 2010); see also Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 180 (Iowa 2013)
(“[A]n attorney . . . violates rule 32:8.4(d) when his [or her] misconduct
results in additional court proceedings or causes court proceedings to be
delayed or dismissed.”). Similarly, an attorney hampers proper court
operations by “[i]gnoring deadlines and orders, which results in default
notices from the clerk of court.” Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Knopf, 793 N.W.2d 525, 530 (Iowa 2011); see also Hedgecoth, 862
N.W.2d at 363. We think it evident that repeated delays and missed
appearances impede court efficiency because the delays cause
protraction in even the simplest of legal matters. Accordingly, because
the evidence establishes by a convincing preponderance that Kingery’s
neglect of her criminal matters caused numerous delays in the judicial
process, we conclude she violated rule 32:8.4(d).
20
VI. Sanction.
We now turn to the principal source of the parties’ disagreement in
this case: the appropriate sanction. Kingery asserts she deserves no
more than a public reprimand due to mitigating factors, while the Board
contends a suspension is necessary.
A. General Principles. When we review attorney disciplinary
matters, the commission’s recommended sanction does not bind us,
although we give it respectful consideration. Baldwin, 857 N.W.2d at
213; see Iowa Ct. R. 35.11(1). To arrive at an appropriate sanction,
we consider the nature of the violations, the need for
deterrence, the need to protect the public, the need to
preserve the legal profession’s reputation, and the lawyer’s
fitness to practice law. We also consider mitigating and
aggravating circumstances, including companion violations,
repeated neglect, and the attorney’s disciplinary history.
Conroy, 845 N.W.2d at 66 (citation omitted). “When determining what
sanctions to impose, we consider those imposed in similar cases while
remaining aware of the different circumstances in each case.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Said, 869 N.W.2d 185, 193 (Iowa
2015); see also Eslick, 859 N.W.2d at 202 (“[W]e evaluate each case
individually but still consider prior cases instructive.”).
B. Aggravating and Mitigating Circumstances. The record in
this case reveals aggravating circumstances affecting our determination
of the appropriate sanction.
Because of Kingery’s failure to communicate with her criminal
defense clients or appear for scheduled proceedings in those cases, the
court issued arrest warrants for some of the clients and at least two of
them spent time in jail for failure to appear. Arrests and jail time
certainly constitute harm, and harm to clients is an aggravating factor
warranting more severe discipline. Nelson, 838 N.W.2d at 544 (“[A]t least
21
four clients . . . were arrested as a direct result of [the attorney’s
misconduct].”); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clarity,
838 N.W.2d 648, 662 (Iowa 2013) (noting the attorney’s neglect caused
three clients to be jailed); Adams, 749 N.W.2d at 669–70 (noting the
attorney’s conduct “resulted in the arrest and incarceration of the
client”); cf. Hedgecoth, 862 N.W.2d at 364–66 (noting the attorney’s
neglect “did not cause any demonstrable financial or other harm” and
considering lack of harm a mitigating factor (emphasis added)).
Additionally, the sheer number of clients affected by Kingery’s
conduct—more than a dozen—is an aggravating factor. See Kieffer-
Garrison, 847 N.W.2d at 496 (concluding when an attorney neglected
nine matters, the evidence showed “serial acts of misconduct, rather
than an isolated misadventure”); Conroy, 845 N.W.2d at 67 (selecting a
more severe sanction in part because the attorney neglected seven
matters).
However, we also consider several mitigating circumstances in this
case. For example, although Kingery ignored the Board’s initial
inquiries, she answered the formal complaint, testified at the hearing,
and admitted the violations. See Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Humphrey, 812 N.W.2d 659, 669 (Iowa 2012); see also Hedgecoth, 862
N.W.2d at 366. The Board credited Kingery’s testimony, finding her
genuinely remorseful. We do as well, and we consider her sincere
acceptance of responsibility as a mitigating factor. See Eslick, 859
N.W.2d at 202 (“[R]emorse and cooperation generally mitigate our
sanction.”); In re Glenn, 256 Iowa 1233, 1242, 130 N.W.2d 672, 678
(1964) (“Repentance is ordinarily a commendable if not a necessary
attribute for one who expects leniency.”).
22
Additionally, until today, Kingery had an unblemished disciplinary
record. See Bartley, 860 N.W.2d at 339 (considering lack of prior
discipline a mitigating factor); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Bieber, 824 N.W.2d 514, 527 (Iowa 2012) (same). She received a private
reprimand in May 2014 for conduct unrelated to neglect, but “[p]rivate
reprimands are not discipline.” Van Ginkel, 809 N.W.2d at 110; accord
Said, 869 N.W.2d at 194. When we have considered prior reprimands to
be aggravating factors, they were either public reprimands, see Eslick,
859 N.W.2d at 202, or private reprimands for related conduct, see Said,
869 N.W.2d at 194.
However, the most significant mitigating factor is Kingery’s
alcoholism and her robust rehabilitative efforts to control or eliminate it.
See Nelson, 838 N.W.2d at 542. Alcoholism does not justify or excuse
ethical misconduct, but it can be a mitigating factor in determining the
proper sanction. See Clarity, 838 N.W.2d at 660–61; Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 15 (Iowa 2012). “To be
considered in mitigation, the alcoholism must have contributed to the
ethical misconduct, and the lawyer must undertake rehabilitative efforts
to control his [or her] addiction.” Clarity, 838 N.W.2d at 661; see
Hauser, 782 N.W.2d at 154 (“To the extent [the attorney] acknowledges
his alcoholism and has taken steps to address it . . . , we consider these
acts in fashioning an appropriate sanction.”).
We conclude the facts of this case satisfy the framework set forth
in Clarity. See Clarity, 838 N.W.2d at 661. Kingery’s alcoholism
contributed to her ethical misconduct, but she has since undertaken
necessary and prudent rehabilitative efforts. Kingery’s detoxification,
outpatient treatment, and subsequent efforts to cultivate a support
system and abstain from alcohol are important and commendable. See
23
id. (“Clarity has repeatedly undergone weeks of inpatient treatment and
ongoing outpatient treatment to cope with his alcoholism . . . . We
consider his efforts to be a mitigating factor.”); Nelson, 838 N.W.2d at
542 (crediting an attorney’s abstention from alcohol and his testimony
that he would not drink again because he feared “losing everything”);
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Axt, 791 N.W.2d 98, 103 (Iowa
2010) (acknowledging the attorney’s “rehabilitative efforts in actively
attempting to control his addiction to alcohol”); Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Ruth (Ruth I), 636 N.W.2d 86, 89 (Iowa 2001)
(“In mitigation of sanctions in this case, we consider that [the attorney]
has made great strides in his battle with alcoholism.”). We therefore
consider Kingery’s alcoholism and her rehabilitative efforts mitigating
factors. 3
C. Cases Involving Similar Conduct. Kingery’s principal
violation was her lack of diligence. “Discipline for these types of
violations ‘generally ranges from a public reprimand to a six-month
suspension.’ ” Hedgecoth, 862 N.W.2d at 365 (quoting Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa
2001)); see also Conroy, 845 N.W.2d at 66. “A lengthy suspension may
be appropriate if the neglect is one violation among many much more
serious ones or occurs amidst aggravating circumstances.” Hedgecoth,
862 N.W.2d at 365.
3We note, however, that the timing of Kingery’s neglect somewhat weakens the
mitigating power of her addiction to alcohol. Kingery testified the depths of the alcohol
addiction began in October 2013 and continued until January 2014, and many
instances of delays or missed appearances occurred in those months. Yet several
others occurred well before that. For example, Geary was arrested and jailed in August
2013, months before Kingery testified alcohol started to consume her life and even
before Kingery’s September wedding. Thus, we consider alcoholism a mitigating factor
for some, but not all, of Kingery’s violations.
24
Although the typical sanction for neglect ranges from a public
reprimand to a six-month suspension, we have infrequently imposed
sanctions at the lowest boundary of that range. We generally consider a
public reprimand appropriate only when the case involves a single
instance of misconduct. See Van Ginkel, 809 N.W.2d at 110; Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 796 N.W.2d 910, 922 (Iowa
2011); Hoglan, 781 N.W.2d at 286. For example, in Dolezal, we noted a
public reprimand was not appropriate because the attorney’s behavior
affected multiple clients and harmed one. Dolezal, 796 N.W.2d at 922.
Accordingly, we imposed a suspension. Id. at 922–23. Similarly, in
Hoglan, we acknowledged the lawyer’s health problems in mitigation but
suspended his license because he neglected four matters and his neglect
harmed all four clients. Hoglan, 781 N.W.2d at 286–87.
After considering the circumstances of this case, including the
mitigating factors discussed above, we agree with the Board that
Kingery’s conduct merits a suspension. See Clarity, 838 N.W.2d at 662
(“[The attorney]’s neglect resulted in the dismissal with prejudice of [an]
appeal and the jailing of three . . . clients. We have imposed suspension
of one to six months when the attorney’s neglect caused harm to
clients.”); see also Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth
(Ruth II), 656 N.W.2d 93, 99 (Iowa 2002) (“Although we commend Ruth
for [his] progress [in overcoming alcoholism], his efforts toward
rehabilitation do not eliminate the need for a sanction . . . .”). We have
imposed public reprimands for neglect when the misconduct has affected
few clients and caused no client harm. See, e.g., Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 669–70 (Iowa 2007)
(reprimanding an attorney who neglected two matters because “little
prejudice was caused to either [client]”); Iowa Supreme Ct. Bd. of Prof’l
25
Ethics & Conduct v. Mears, 569 N.W.2d 132, 134–35 (Iowa 1997)
(reprimanding an attorney who neglected two matters because the
attorney’s neglect “did not . . . result in ultimate harm to a client”); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Sather, 534 N.W.2d 428,
431 (Iowa 1995) (reprimanding an attorney for neglecting one matter
after considering mitigating circumstances, “including that no party ha[d]
been prejudiced by [the attorney]’s conduct”). Kingery’s neglect affected
numerous clients and clearly caused harm to some. Accordingly, we
conclude her conduct merits a suspension.
We now turn to the length of the required suspension. In
Van Ginkel, we imposed a sixty-day suspension for neglect because while
the attorney caused no client harm, he engaged in other serious
misconduct including “[a] knowing misrepresentation to the court” and
an “effort to shift the blame to an assistant.” Van Ginkel, 809 N.W.2d at
110–11. Here, Kingery caused some client harm but did not commit
other serious misconduct and has accepted full responsibility for her
inaction. Therefore, we find Van Ginkel to be a useful comparator.
In two other neglect cases, we have imposed a suspension of three
months when the neglect affected multiple clients’ matters. For example,
in Hedgecoth, the attorney’s explanation for his neglect was not a
mitigating factor, but his neglect was relatively limited in scope and
caused no demonstrable harm to clients. Hedgecoth, 862 N.W.2d at 357,
366. Similarly, in a 1989 case, we imposed a three-month suspension
when an attorney struggling with alcoholism “virtually abandoned his
law practice” and utterly disregarded all communication “from the clerk,
court and [ethics] committee,” but soon sought detoxification and
“devoted himself to rebuilding his life personally and professionally.”
26
Comm. on Prof’l Ethics & Conduct v. Haney, 435 N.W.2d 742, 743–44
(Iowa 1989).
Although Haney and Hedgecoth contain several similarities to
Kingery’s case, we conclude a sixty-day suspension is appropriate here.
Most significantly, we credit Kingery’s treatment efforts, her genuine
remorse, and the fact she did not commit more troubling companion
violations along with her neglect. Additionally, we acknowledge Kingery
voluntarily ceased practicing law—even after we lifted her temporary
suspension—while she pursued treatment and rehabilitation. “The
voluntary cessation of the practice of law is not considered a credit
against any suspension subsequently imposed.” Ruth I, 636 N.W.2d at
89; accord Nelson, 838 N.W.2d at 544. A period of voluntary cessation
from practice does not justify a pro tanto credit against a suspension
imposed because “[a]bsence[s] due to rehabilitation and disciplinary
sanctions serve overlapping, but distinct, purposes.” In re Dean, 855
N.W.2d 186, 193 (Iowa 2014). However, we can consider voluntary
cessation when evaluating whether our sanction will serve its purposes
of deterring future misconduct and protecting the public. Cf. Hedgecoth,
862 N.W.2d at 367 (accepting an attorney’s voluntary commitment not to
undertake appellate cases in lieu of an express practice limitation); Dean,
855 N.W.2d at 194 (“[A]bsence for the purpose of rehabilitation . . . may
be considered a mitigating factor in determining the length and adequacy
of a disciplinary suspension.”). After considering all the circumstances of
this case, we conclude a sixty-day suspension is appropriate for
Kingery’s violations.
D. Conditions of Reinstatement. The commission
recommended several conditions on Kingery’s reinstatement. Because
the court lacks the infrastructure for supervising conditional
27
reinstatement regimes, we impose some but not all of the conditions on
reinstatement recommended by the commission.
First, we conclude Kingery must, as a condition of any
reinstatement, provide the Board with documentation showing her
compliance with treatment providers’ recommendations and her fitness
to practice law. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Roush, 827 N.W.2d 711, 720 (Iowa 2013) (“We . . . condition Roush’s
reinstatement—per the commission’s recommendation—on his seeking,
and complying with, mental health and substance abuse evaluations.”);
Weaver, 812 N.W.2d at 16 (requiring an attorney to provide medical
documentation showing he had maintained sobriety); Comm. on Prof’l
Ethics & Conduct v. Jackson, 429 N.W.2d 122, 123 (Iowa 1988) (“Any
request for reinstatement shall be accompanied by proof that respondent
has his alcoholism under control.”).
At the hearing before the commission, Kingery stated she was
“agreeable” to reimbursing Corson “to make things right.” In disciplinary
matters, “[w]illingness to reimburse a client . . . is a proper
consideration” in deciding the appropriate sanction, including any
conditions on reinstatement. Comm. on Prof’l Ethics & Conduct v. Martin,
375 N.W.2d 235, 238–39 (Iowa 1985). Accordingly, as a further
condition of reinstatement, Kingery must reimburse Corson $347 and
provide proof to the Board that she has done so. She must satisfy both
conditions no later than fifteen days before any reinstatement. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 590 (Iowa
2011) (requiring a disciplined attorney to provide proof he had
reimbursed clients prior to reinstatement); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Conroy, 795 N.W.2d 502, 507 (Iowa 2011) (requiring a
health care professional’s evaluation no later than forty days after a
28
sixty-day suspension began); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Marks, 759 N.W.2d 328, 333 (Iowa 2009) (requiring a health care
professional’s evaluation no later than fifteen days after a thirty-day
suspension began).
Additionally, we urge Kingery to continue her relationship with the
ILAP during the suspension and beyond in furtherance of her continuing
rehabilitation. Cf. Dean, 855 N.W.2d at 194 (commending a disciplined
judicial officer for her compliance with an ILAP monitoring agreement but
not regarding it as a formal sanction).
VII. Conclusion.
We suspend Kingery’s license to practice law in this state
indefinitely with no possibility of reinstatement for sixty days from the
date this opinion is filed. The suspension applies to “all facets of the
ordinary law practice.” Iowa Ct. R. 35.13(3). Unless the Board files an
objection, Kingery will be automatically reinstated after the suspension
period on condition that she has paid all costs, see id. rs. 35.13(2), .27,
and has met the other “reasonable conditions for reinstatement,” see id.
r. 35.13(1), imposed in this opinion. We tax the costs of this action to
Kingery. Id. r. 35.27(1).
LICENSE SUSPENDED.