Iowa Supreme Court Attorney Disciplinary Board v. Bruce G. Thomas , 794 N.W.2d 290 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 10–0325
Filed February 18, 2011
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
BRUCE G. THOMAS,
Appellant.
Appeal from the report of the Grievance Commission of the
Supreme Court of Iowa.
Appeal by respondent from grievance commission decision finding
respondent committed ethical misconduct and recommending a
suspension. LICENSE SUSPENDED.
Alan E. Fredregill of Heidman Law Firm, Sioux City, for appellant.
Charles L. Harrington and David J. Grace, Des Moines, for
appellee.
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CADY, Chief Justice.
The Iowa Supreme Court Attorney Disciplinary Board charged
Bruce G. Thomas with numerous violations of the Iowa Code of
Professional Responsibility for Lawyers resulting from his representation
of two clients in a civil matter. The Grievance Commission of the
Supreme Court of Iowa found Thomas violated the code of professional
responsibility. It recommended Thomas be suspended from the practice
of law for a period of not less than six months. Upon our review, we find
Thomas violated the code of professional responsibility and suspend his
license to practice law for a period of sixty days.
I. Background Facts and Proceedings.
Bruce G. Thomas is an Iowa lawyer. He was admitted to practice
in Iowa in 1976 after he graduated from the University of Iowa. He has
engaged in the practice of law as a general practitioner in Sioux City,
Iowa, for most of his career, after working as an assistant Woodbury
County Attorney.
The board initiated a disciplinary action against Thomas for his
conduct in representing Richard and Hydee Case in their personal injury
claim arising from an automobile accident in December 2005. The
complaint was submitted to the grievance commission upon stipulated
facts. Thomas met with the Cases about their claim in March 2006 and
timely filed a petition in district court in December 2007. Thomas,
however, failed to serve the defendant with notice until April 15, 2008—
approximately twenty-eight days after the deadline. Consequently, the
district court dismissed the Cases‘ lawsuit for the procedural infirmity on
June 2, 2008. Thomas did not inform the Cases of the dismissal until
November 2008. He did not communicate with his clients about the
dismissal until November because he was embarrassed by his conduct.
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Thomas attempted to delay telling the Cases about the dismissal by
avoiding their telephone calls. He sent them a letter in September 2008
assuring them that he would ―get to the bottom of the matter.‖
Thomas defended his failure to accomplish timely service by
confessing he had been distracted by the poor health of his elderly
mother. As a result of the dismissal, the Cases lost the right to pursue a
direct claim for their injuries against the defendant. Thomas suggested
they pursue a malpractice action against him to hold him accountable
for his mistake. In June 2009, the Cases filed a claim against Thomas
with his insurance carrier. Thomas did not dispute that the lawsuit was
dismissed as a result of his inaction.
The board charged Thomas with several violations of the code of
professional responsibility. The violations broadly pertained to neglect
and failure to adequately communicate. Specifically, the board alleged
violation of rules 32:1.1 (requiring lawyer to provide competent
representation); 32:1.3 (requiring lawyer to act with reasonable diligence
and promptness in representing a client); 32:1.4 (requiring a lawyer to
keep client informed); 32:3.2 (requiring lawyer to make reasonable efforts
to expedite litigation); 32:7.1(a) (finding it misconduct for a lawyer to
engage in false or misleading communication related to lawyer services);
and 32:8.4(a) (finding it misconduct to violate a disciplinary rule), (c)
(finding it misconduct to engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation), and (d) (finding it misconduct to engage in
conduct that is prejudicial to the administration of justice). The parties
stipulated that Thomas violated rules 32:1.1, 32:1.3, 32:1.4, 32:3.2,
32:7.1(a), and 32:8.4(a) and (d). The parties‘ stipulation also identified
aggravating factors and mitigating factors. The mitigating factors
included Thomas‘s cooperation with the board in the current action, his
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efforts to establish office procedures to ensure the same violations will
not persist in the future, and his pro bono and other active service to the
community. The aggravating factors listed in the stipulation included
Thomas‘s substantial experience in the practice of law and his history of
discipline and admonitions. The parties stipulated that Thomas should
be subject to a sixty-day license suspension.
Pursuant to the parties‘ motion to waive hearing, the complaint
was submitted to the commission upon the stipulated facts, ethical
violations, mitigating and aggravating circumstances, and recommended
sanctions. On February 22, 2010, the commission filed its findings of
fact, conclusions of law, and recommendations. It adopted the parties‘
stipulation of facts, including the parties‘ exhibits. It also adopted the
parties‘ stipulation that Thomas violated rules 32:1.1, 32:1.3, 32:1.4,
32:3.2, 32:7.1(a), and 32:8.4(d).
The commission also found that Thomas violated rule 32:8.4(c)
when he told the Cases in September 2008 that he would ―get to the
bottom‖ of the dismissal when he knew the case had been dismissed in
June 2008. It found this conduct constituted ―outright deceit‖ and was
an aggravating circumstance because it represented ―an undesirable
expansion of historically problematic conduct.‖ It recommended a six-
month suspension from the practice of law. It also recommended that,
as a condition to reinstatement, Thomas be required to demonstrate he
had adopted office practices and policies consistent with preventing
further neglect of deadlines and assuring more prompt and direct client
communication.
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II. Standard of Review.
Our review of attorney disciplinary proceedings is de novo.1 Iowa
Ct. R. 35.10(1). We give the commission‘s findings and recommendations
respectful consideration, but we are not bound by them. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Axt, 791 N.W.2d 98, 101 (Iowa 2010). The
board has the burden of proving the allegations of ethical misconduct by
a convincing preponderance of the evidence. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Marzen, 779 N.W.2d 757, 759–60 (Iowa 2010).
III. Ethical Violations.
Neglect exists when an attorney fails to ― ‗attend to matters
entrusted to his care and . . . do so in a reasonably timely manner.‘ ‖
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 307
(Iowa 2009) [hereinafter Earley II] (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Ramey, 746 N.W.2d 50, 54 (Iowa 2008)). It involves
an attorney‘s failure to perform obligations assumed for the client, or a
― ‗conscious disregard for the responsibilities a lawyer owes to a client.‘ ‖
Id. (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kirlin, 741 N.W.2d
813, 817 (Iowa 2007)).
Thomas failed to accomplish service of the original notice of the
Cases‘ claim within the proscribed time period. This conduct constituted
neglect and was compounded by his failure to communicate with his
clients about the missed deadline and dismissal. As a result, the clients
lost their right to proceed with a direct claim for their injuries, and their
confidence in Thomas and the legal profession was undermined by his
neglect and delayed communication. Thomas‘s conduct violated rules
1We consider stipulations of facts in attorney disciplinary proceedings in light of
the entire record. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 801,
803 (Iowa 2010). We are not bound by stipulations on sanctions. Id. at 804.
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32:1.3, 32:1.4, and 32:8.4(d).2 See Earley II, 774 N.W.2d at 307.
Thomas‘s failure to properly attain service also caused an unjustified
delay in the case progress, which ultimately led to an unnecessary
expenditure of court resources in docketing a case that was not diligently
handled. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hoglan, 781
N.W.2d 279, 284 (Iowa 2010) (holding failure to prosecute constituted
violation of rule requiring attorneys to expedite litigation).
The commission also found Thomas deceived his clients when he
told them in a letter he would ―get to the bottom of the matter.‖ Thomas
wrote the letter after he knew the case had been dismissed. Thomas
maintained his conduct could be implied to mean he needed time to
gather an explanation for his conduct leading to the dismissal and collect
information from his malpractice insurance carrier for the Cases‘ benefit.
Generally, misrepresentation requires proof of an attorney‘s intent to
deceive. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Sobel, 779 N.W.2d
782, 787 (Iowa 2010). The surrounding circumstances of the neglect in
this case show Thomas acted dishonestly. His clients were unaware
their case had been dismissed, and Thomas purposely gave them the
2We decline to address the commission‘s conclusion that Thomas violated rule
32:1.1, which requires an attorney to provide competent representation. To establish
an attorney has violated rule 32:1.1, the board must prove the attorney did not possess
the requisite legal knowledge and skill to handle the case or that the attorney did not
make a competent analysis of the factual and legal elements of the matter. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 153 (Iowa 2010); see also
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hoglan, 781 N.W.2d 279, 284–85 (Iowa 2010)
(evidence that attorney‘s handling of a case is neglectful does not also necessarily prove
attorney was incompetent). Although the board demonstrated Thomas neglected the
Cases‘ lawsuit by allowing a personal distraction to cause him to miss a crucial
deadline, there is no evidence that Thomas lacked the necessary legal knowledge to
handle the case or that he failed to properly analyze the substantive elements of the
case. Furthermore, because the board proved other rule violations, we do not address
the board‘s allegation that Thomas violated rule 32:8.4(a), providing that a lawyer shall
not violate a disciplinary rule, as a separate violation. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Ackerman, 786 N.W.2d 491, 496 n.3 (Iowa 2010).
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impression he was unaware of the reason the case was not moving
forward at a time when he knew the case had been dismissed. The
communication by Thomas violated rule 32:8.4(c).
As the commission noted, violations of rule 32:7.1 typically involve
misrepresentations about a lawyer‘s legal services. See Iowa Ct. R.
32:7.1(a) & cmt. [1] (designating scope of rule ―Communications
concerning a lawyer‘s services‖ and stating the rule governs
communication about a lawyer‘s services). The stipulated facts support a
finding of misrepresentation about the status of the case, but do not
establish misleading information relating to the representation of
services. As a result, we do not find Thomas‘s conduct violated rule
32:7.1(a).
IV. Discipline.
Although there is no standard type of discipline imposed for a
specific type of attorney misconduct, we consider ― ‗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. Att’y Disciplinary Bd. v.
Earley, 729 N.W.2d 437, 443 (Iowa 2007) [hereinafter Earley I] (quoting
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ramey, 639 N.W.2d
243, 245 (Iowa 2002)). We also consider aggravating and mitigating
circumstances. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cohrt, 784
N.W.2d 777, 783 (Iowa 2010).
In general, the sanction imposed when neglect is the principle
violation can range from a public reprimand to a six-month suspension.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d
549, 553 (Iowa 2004). We consider any harm to the client caused by the
neglect in determining the proper sanction. Iowa Supreme Ct. Att’y
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Disciplinary Bd. v. Casey, 761 N.W.2d 53, 61 (Iowa 2009). Additionally,
neglect compounded by misrepresentation will warrant a more severe
sanction because of the critical importance of honesty in our profession.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d
288, 294 (Iowa 2002).
We first consider the mitigating factors in this case. Along with his
admission of responsibility for the dismissal and an apology, Thomas
was forthcoming to his clients about their opportunity to recover from
him in a malpractice suit. After the board initiated an action against
him, Thomas was fully cooperative. He has established new office
procedures with his law partner and staff to ensure missed deadlines do
not occur again. Additionally, Thomas‘s record of service to the
community is exemplary. He has routinely provided free legal advice to
staff and clients of Iowa Legal Aid‘s Sioux City office, often with regard to
the specialized topics of real estate and probate in which he has vast
experience. Thomas has also actively served on the boards of directors
for a local credit union and the Sioux City area Make-a-Wish Foundation
chapter.
The primary aggravating factor in this case is Thomas‘s history of
board inquiries and actions against him. Although Thomas has done
much good in his service to others, he has also had more than thirty-
three years of legal experience tarnished by several delinquencies related
to his probate practice area. He has struggled with deadlines over the
years and has failed to cooperate fully with the board in its investigations
of his conduct on numerous occasions. Thomas has also received a
public reprimand for failing to communicate with his client in a probate
case.
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Considering all the circumstances, we conclude Thomas should be
suspended from the practice of law for a period of sixty days. This
discipline is consistent with the discipline imposed in other similar cases
and is consistent with the goals of imposing discipline in attorney
disciplinary matters.
V. Conclusion.
We suspend Thomas‘s license to practice law with no possibility of
reinstatement for sixty days from the date of the filing of this opinion.
This sanction shall apply to all facets of the practice of law. Iowa Ct. R.
35.12(3).
The costs of this action are assessed against Thomas. Iowa Ct. R.
35.26(1). Thomas‘s license to practice law shall be automatically
reinstated on the day after the sixty-day suspension period expires,
provided that Thomas pays all costs assessed against him. See Iowa Ct.
R. 35.12(2).
LICENSE SUSPENDED.