Iowa Supreme Court Attorney Disciplinary Board v. Kenneth F. Dolezal , 796 N.W.2d 910 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 11–0157
Filed April 29, 2011
IOWA SUPREME COURT
ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
KENNETH F. DOLEZAL,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission recommends a thirty-day suspension of
attorney’s license to practice law. LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
Kenneth F. Dolezal, Cedar Rapids, pro se.
2
MANSFIELD, Justice.
This attorney disciplinary proceeding comes before us on the
report of a division of the Grievance Commission of the Supreme Court of
Iowa. See Iowa Ct. R. 35.10(1). The Iowa Supreme Court Attorney
Disciplinary Board alleged the respondent, Kenneth F. Dolezal, violated
ethical rules by neglecting three clients’ matters, failing to deposit fees
into a client trust account, failing to provide an accounting, failing to
communicate with a client, making misrepresentations to a client, and
improperly terminating representation of a client.
The commission found Dolezal violated several of the Iowa Rules of
Professional Conduct and recommended Dolezal be suspended from the
practice of law for thirty days. The commission further recommended
Dolezal be required to submit a report from a qualified physician or
mental health professional stating he is presently fit and capable to
practice prior to reinstatement and attend a continuing legal education
class on trust accounting. Upon our consideration of the commission’s
findings of fact, conclusions of law, and recommendation, we find Dolezal
committed several violations of the Iowa Rules of Professional Conduct
and suspend his license for thirty days.
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790 N.W.2d 791, 793 (Iowa
2010). We give respectful consideration to the commission’s findings and
recommendations, but we are not bound by them. Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864 (Iowa 2010). “The
board has the burden of proving attorney misconduct by a convincing
preponderance of the evidence.” Id.
3
II. Ethical Violations.
Dolezal was admitted to the bar in 1983 and maintains a law office
in Linn County. This proceeding is based on Dolezal’s handling of three
separate legal matters between 2008 and 2010. We will set forth our
findings and conclusions with respect to each matter.
A. Conservatorships of Wesley and Lenora Buresh. The first
matter involves Dolezal’s failure, despite repeated warnings, either to
pursue or dismiss two appeals before this court.
In approximately 2007, Dolezal was retained by the daughter of
Wesley and Lenora Buresh to represent her in connection with the
Bureshes’ conservatorships. On March 26, 2008, Dolezal filed a notice of
appeal challenging a district court ruling. He subsequently filed a
combined certificate and paid the docketing fee but did nothing
thereafter. On August 6, 2008, Dolezal was found in default and
personally assessed a $50 penalty for failing to timely file a proof brief
and designation of appendix in this court.
On August 22, 2008, Dolezal paid the penalty and also applied for
an extension of time to file the brief and designation. The extension of
time was granted, but on October 16, 2008, Dolezal was again found in
default for not filing the proof brief and designation and assessed another
$50 fine. Dolezal paid the fine as before but, again, asked for another
extension. On March 17, 2009, an order was entered directing the proof
brief and designation of appendix to be filed within thirty days or the
case would be dismissed. No brief or designation was filed, so on May 5,
2009, a notice of default was issued, and Dolezal was personally
assessed another $50 fine. That default was not cured, and the appeal
was dismissed by our clerk of court on June 5, 2009, over a year after it
had been initiated.
4
On May 26, 2009, Dolezal filed a second notice of appeal. This
appeal related only to the conservatorship of Lenora Buresh, Wesley
Buresh having died. Dolezal, however, did not pay the filing fee for this
appeal. See Iowa R. App. P. 6.102(3). On September 11, 2009, Dolezal
received written notice that the $150 fee needed to be paid within seven
days to avoid penalty. The fee was still not paid. On October 2, 2009, a
notice of default was issued based on failure to pay the filing fee, and
Dolezal was personally assessed a $150 fine. This notice of default, like
the default notice from the previous appeal, specifically stated in bold:
You are advised that if the appeal is dismissed as a
result of counsel’s failure to comply with this default
notice, a copy of the dismissal order will be forwarded to
the Iowa Supreme Court Attorney Disciplinary Board
.... The dismissal may serve as grounds for an
investigation of neglect of a client’s legal matter.
This default also was not cured, so on November 10, 2009, the
second appeal was dismissed by our clerk of court for want of
prosecution.
At the grievance hearing, Dolezal sought to explain his actions. He
testified that he and his client jointly decided it was not necessary to
pursue either appeal. He also explained that he, not his client, paid the
penalties assessed by the clerk. Finally, Dolezal admitted he had
received the default notices and never responded to them. He
acknowledged he should have dismissed the appeals on his own, but
claimed he was unaware that he had to do so instead of relying upon the
clerk.
When an attorney’s failure to comply with appellate deadlines
results in an administrative dismissal, his actions are prejudicial to the
administration of justice. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Wright, 758 N.W.2d 227, 230–31 (Iowa 2008) (finding an attorney’s
5
reliance on a default notice to dismiss an appeal when his client could
not raise funds for the filing of the transcript was conduct prejudicial to
the administration of justice); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Tompkins, 733 N.W.2d 661, 668 (Iowa 2007) (finding an attorney
committed neglect and acted in a manner prejudicial to the
administration of justice when he failed to prosecute or move to dismiss
an appeal he believed to be without merit); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 105 (Iowa 2006) (“To
simply wait for the court to dismiss the case for lack of prosecution is
neglect, inappropriate, and unethical.”); Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Daggett, 653 N.W.2d 377, 380 (Iowa 2002) (failing to
comply with appellate deadlines “not only constitutes neglect, but also
amounts to conduct that is prejudicial to the administration of justice”).
Dolezal conceded he failed to cure the defaults. Instead, he relied
on the clerk to administratively dismiss both appeals. But a client’s
decision not to pursue an appeal does not put an end to the attorney’s
responsibility for that matter. See Tompkins, 733 N.W.2d at 668 (“The
burden is on the attorney to comply with the appellate deadlines
regardless of a client’s instruction or interest in the case.”); Lesyshen,
712 N.W.2d at 105 (“[S]imply because a client does not want to pursue
the case does not relieve the attorney from taking steps necessary to end
the matter.”). Dolezal’s failure to follow through with or dismiss the
appeals and his disregard of the default notices violated ethical rules
32:3.2 (requiring reasonable efforts to expedite litigation) and 32:8.4(d)
(requiring conduct not be prejudicial to the administration of justice).
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793 N.W.2d 525,
530 (Iowa 2011) (holding that “[i]gnoring deadlines and orders, which
results in default notices from the clerk of court, hampers the ‘ “efficient
6
and proper operation of the courts” ’ and therefore is prejudicial to the
administration of justice” (quoting Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa 2005))); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Monroe, 784 N.W.2d 784, 788 (Iowa 2010) (stating that
acts prejudicial to the administration of justice generally have
“ ‘hampered the efficient and proper operation of the courts or of
ancillary systems upon which courts rely’ ” (quoting Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Borth, 728 N.W.2d 205, 211 (Iowa 2007))); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Hoglan, 781 N.W.2d 279, 284 (Iowa
2010) (holding an attorney’s failure to prosecute four appeals violated
rules 32:1.3, 32:3.2, and 32:8.4(d)).
The commission found that Dolezal’s conduct also violated rule
32:1.3 requiring “reasonable diligence and promptness in representing a
client.” In a case decided under the former Iowa Code of Professional
Responsibility for Lawyers, we held that even if a client no longer wants a
matter to be pursued, it is neglect for the attorney to allow the matter to
languish, without terminating it. See Lesyshen, 712 N.W.2d at 105. As
we put it in Lesyshen:
[S]imply because a client does not want to pursue the case
does not relieve the attorney from taking steps necessary to
end the matter. To simply wait for the court to dismiss the
case for lack of prosecution is neglect, inappropriate, and
unethical. See DR 6–101(A)(3).
Id. We see no reason to interpret rule 32:1.3 differently from former DR
6–101(A)(3) in this respect. The new rule provides that a lawyer “shall
act with reasonable diligence and promptness in representing a client”;
the old rule provided that a lawyer shall not “neglect a legal matter
entrusted to him.” Thus, both rules are broadly worded to require
diligence, or conversely to prohibit neglect, in the course of legal work on
7
a client’s behalf. It is not a defense under either rule that the client may
be indifferent to the attorney’s lack of diligence.
B. Social Security Disability Claim of Michael David. This
attorney disciplinary proceeding also concerns Dolezal’s representation of
a client in a social security disability appeal to federal district court. To
summarize our findings, which we discuss in more detail below, Dolezal
received a retainer from his client and filed the federal court complaint,
but did not have the complaint served (resulting in dismissal of the case),
did not communicate adequately with his client, and did not handle the
retainer funds appropriately.
In March 2006, Dolezal was hired by Michael David to pursue a
social security disability claim. After receiving unfavorable rulings in the
Social Security Administration’s administrative process, Dolezal wrote
David suggesting the matter be appealed to the United States District
Court for the Northern District of Iowa. 1 Dolezal’s letter dated December
27, 2007, stated:
I believe it should be appealed to the U.S. District Court but
there is now a financial cost. You would need to deposit
$1,000.00 in my trust account for payment of filing fees,
brief preparation costs and attorneys fees. This must be
accomplished by February 8, 2008 if you want me to
proceed.
On or about January 17, 2008, David made an initial payment of
$500 to Dolezal by check and agreed to pay an additional $100 monthly
through June 2008 to bring the total to $1000. This payment plan was
memorialized in a writing that further provided, “These funds will be
1On June 29, 2007, while David’s original application for benefits was before the
Social Security Appeals Council, the Social Security Administration granted David’s
subsequent, pro se application for disability benefits. This ruling meant that David
would be entitled to receive benefits beginning August 2007. However, David still had
his original claim, prosecuted by Dolezal, for disability benefits for an earlier time
period.
8
used to pay the court required filing fees, the service of process fees, my
time at the rate of $175 per hour and copy or printing expenses.”
Dolezal testified he put the $500 check in a file and left it there until he
filed the federal court complaint.
On March 13, 2008, Dolezal filed the complaint in federal district
court. 2 At that time, according to Dolezal’s testimony, he cashed the
check and used $350 for the filing fee while keeping the remainder as
attorney fees. David provided additional checks to Dolezal in February
2008 ($100), May 2008 ($200), and October 2008 ($100). Dolezal did not
place any of these payments into a trust account; presumably, they were
also cashed and treated by Dolezal as income. In addition, David claims
he paid $100 in cash to Dolezal, stating, “I thought I dropped it off.”
However, David has no receipt for this alleged cash transaction.
Although Dolezal filed the complaint, he never had it served on the
Commissioner. As a result, on February 25, 2009, the federal district
court issued a notice stating the case would be dismissed unless some
action was taken by March 16, 2009. No action was taken, and the case
was dismissed.
According to Dolezal, shortly after the federal court complaint was
filed in March 2008, David provided a transcript of a deposition he had
given in December 2005 in a workers’ compensation case. Dolezal
testified that after reading the deposition transcript, he concluded David
had made several misrepresentations to him. Dolezal testified that “a
very heated discussion” ensued during which he orally terminated his
2The board maintained that Dolezal’s filing of the complaint was untimely, but
Dolezal testified he would have been able to get a retroactive extension of the filing
deadline if he and his client had decided to pursue the matter. Dolezal claimed that he
did not regularly handle social security appeals and that he and his secretary had some
difficulty mastering the e-filing requirements.
9
representation of David and told David to find new counsel. Dolezal
admitted he did not send a letter to David confirming the termination of
their relationship, nor did he file a motion to withdraw as counsel with
the federal district court. Dolezal further testified that he did not speak
with David again until he came to his office in January 2010.
David, who also testified at the grievance hearing, denied that this
argument had occurred or that the attorney-client relationship had been
terminated. Rather, while acknowledging that he was “not very good
with the dates,” David testified his meeting with Dolezal in January 2010
was his first news about the case since its filing. David characterized
that meeting as follows:
I went to the office and I said, what’s going on? He said, let
me get my laptop, and I’ll look it up. He got his laptop, and
he came back to the desk, and he looked for a while, and he
said, if I recollect – if I recollect right, he said you’ve been
denied. And I said, okay. Why didn’t you get a hold of me so
we could appeal it again, because you said there’s another
appeal process? He really didn’t answer me. He just looked
down, and that was about it. He just didn’t say nothing to
me, why or what happened; it was just that that’s it. You
can’t appeal it no more, or I was denied, one or the other, so
I just left.
David also testified that he referred his brother to Dolezal for
representation in October 2009. Finally, David testified he had retained
an attorney for the potential purpose of filing a malpractice case against
Dolezal.
Upon our de novo review, we are not persuaded by a convincing
preponderance of the evidence that Dolezal misrepresented the status of
the case to David. The commission found, “Mr. David testified that he
would try and call [Dolezal] during 2008 and 2009 regarding the case
and was told it would take awhile, that he had not heard anything, and
[Dolezal] would find out.” David’s actual testimony, however, was that
10
once, in 2008, Dolezal said the case was “going to take a while” and
much later, in December 2009 or January 2010, Dolezal promised to find
out about the case but never got back to David, prompting David to
make the January 2010 trip to Dolezal’s office. Given David’s actual
testimony, and his admissions to being “forgetful” and “forget[ting] a lot
of things,” we are not able to find that Dolezal misled his client. Yet,
Dolezal’s claim that he orally terminated the attorney-client relationship
shortly after March 13, 2008, does not square with events either.
Dolezal did nothing at the time to withdraw from the district court case
or to protect his client’s interests therein. Dolezal also did not send a
letter to David confirming the termination of representation, despite
having previously sent David letters confirming the terms of
representation. In addition, after the alleged termination, David
continued to make installment payments, Dolezal continued to accept
them, and David also referred his brother to Dolezal for representation.
It seems odd that all of these things would have occurred if Dolezal had
actually “fired” David after learning of David’s alleged dishonesty.
Thus, we find Dolezal continued to represent David, but neglected
his case, with the result that it was involuntarily dismissed for failure to
effect timely service. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Thomas,
794 N.W.2d 290, 293–94 (Iowa 2011) (holding that failure to effect
service within the prescribed time period constitutes neglect). David lost
his right of appeal to federal court, and the court was forced to expend
resources unnecessarily before dismissing David’s stale appeal. The
neglect was further compounded by Dolezal’s failure to keep David
informed of the case’s status. By his own admission, Dolezal went
almost two years without speaking to David, and all attempts at
communication after early 2008 were initiated by David. Accordingly, we
11
find sufficient proof that Dolezal violated rules 32:1.3 (requiring
reasonable diligence and promptness), 32:1.4 (requiring reasonable
communication with client), 32:3.2 (requiring reasonable efforts to
expedite litigation consistent with the interests of the client), and
32:8.4(d) (requiring conduct not be prejudicial to the administration of
justice). See Thomas, 794 N.W.2d at 293–94 (finding violations of rules
32:1.3, 32:1.4, and 32:8.4(d)); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Johnson, 792 N.W.2d 674, 681 (Iowa 2010) (finding that an attorney’s
failure to make necessary filings in bankruptcy case—resulting in a
motion to dismiss and a court hearing—and his failure to keep clients
informed violated rules 32:1.3, 32:1.4, 32:3.2, and 32:8.4(d)). As
previously noted, we do not find a clear preponderance of evidence
establishes a misrepresentation by Dolezal to his client in violation of
rule 32:8.4(c). In addition, because we find that Dolezal did not
terminate his representation of David in early 2008, and instead
continued to serve as his counsel in the federal appeal, we do not find a
violation of rule 32:1.16(d) (requiring certain procedures when
terminating client representation). 3
This brings us to Dolezal’s trust account violations. In his initial
December 2007 letter, Dolezal agreed to perform the specific service of
appealing David’s claim to the federal district court for a predetermined
amount of $1000. This was a “flat fee” arrangement. See Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Piazza, 756 N.W.2d 690, 697 (Iowa 2008)
(discussing the concept of a “flat fee”); see also Iowa Ct. R. 45.10(1)
(defining a “flat fee” as “one that embraces all services that a lawyer is to
3Notably, even if Dolezal’s testimony were accepted in its entirety, he still failed
to terminate his representation of David properly. As Dolezal put it, “My problem, as I
see it, with the David case is I did not send him a letter, okay, confirming that I was no
longer representing him.”
12
perform, whether the work be relatively simple or complex”). “A flat fee is
‘nothing more than an advance fee payment which . . . must be deposited
in a client trust account.’ ” Piazza, 756 N.W.2d at 697 (quoting Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Apland, 577 N.W.2d 50, 56
(Iowa 1998)); accord Iowa Ct. R. 45.10(2). “[A] flat fee . . . is earned when
the services are completed and therefore requires deposit in a client trust
account coupled with a contemporaneous accounting to the client prior
to withdrawal of such fees from the trust account.” Piazza, 756 N.W.2d
at 698. This is because, “[u]ntil services are complete, it is possible that
at least a portion of the fee ‘would need to be refunded to the client in the
event the attorney-client relationship is terminated before the services
were rendered.’ ” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Kennedy, 684 N.W.2d 256, 260 (Iowa 2004) (quoting Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Frerichs, 671 N.W.2d 470, 476 (Iowa
2003)). Arguably, in his second letter of January 2008, Dolezal qualified
his earlier description of the fee arrangement by stating that he would
bill for his time at $175 per hour. Still, we believe the only reasonable
interpretation of the two letters would leave the overall amount paid by
David subject to a $1000 cap. (The second letter reiterates that $1000 is
the amount “required to pursue the appeal of your case to the U.S.
District Court.”) And if anything, the second letter confirms that Dolezal
would only earn fees as he performed work on the case.
It is undisputed that Dolezal received a $500 check from David
before performing any services. Dolezal testified he did not cash the
check, but kept it in a file until he had prepared and filed the four-page
federal appeal and incurred the $350 filing fee. At that time, he treated
the remaining $150 as income he had earned through his work on the
federal appeal. He took the same position with respect to the subsequent
13
installment payments totaling $400, which he also took as income.
Neither the board nor the commission questioned Dolezal’s contentions
that he had earned these funds; however, they faulted Dolezal for not
opening a trust account, for not initially depositing the payments into a
trust account, and for not providing an accounting and notice to his
client of how the client’s funds were being used. 4
We agree that Dolezal should have deposited the funds in a trust
account, as he said he would do in his December 2007 letter to David,
and should have provided an accounting to David for the use of the
funds. These actions were required by rule 32:1.15 and rule 45.7. See
Iowa Ct. R. 32:1.15(a), (c) (requiring complete records of trust account
funds to be kept and requiring advance payments of fees and expenses to
be deposited into a client trust account); Iowa Ct. R. 45.7(4) (requiring
the lawyer to provide an accounting and notice to the client when
withdrawing advance fee or expense payments); Iowa Ct. R. 32:1.15(f)
(incorporating chapter 45 of the Iowa Court Rules); see also Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 152–53
(Iowa 2010) (finding violations of rules 32:1.15 and 45.7 when a lawyer
did not properly maintain trust records justifying withdrawals of
payments to himself and did not provide an accurate accounting to his
client); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carpenter, 781 N.W.2d
263, 269 (Iowa 2010) (finding violations of rules 32:1.15 and 45.7 when a
lawyer received advance fee retainers, failed to deposit them in a client
trust account, and failed to properly account for them).
4Dolezaltestified that, after his client complained to the board, he prepared a
statement recreating his time and showing that he had earned his fees.
14
C. Estate of Steven M. Carter. The final subject of this
proceeding is a probate proceeding in which Dolezal failed to file required
reports or explain to the court why he was unable to do so.
In October 2006, Dolezal was retained by Gene Carter, the
administrator of the estate of Steven Carter (Gene’s father). No question
has been raised about Dolezal’s initial work on the case, including his
successful defense of an appeal. See In re Estate of Carter, No. 08–0344,
2008 WL 5235574 (Iowa Ct. App. Dec. 17, 2008). However, following the
issuance of procedendo by the appellate court on January 16, 2009,
Dolezal took no further action in the still pending case in the district
court. Dolezal received notices of delinquency from that court on or
about June 1, 2009, and December 1, 2009. Each notice specified the
failure to file the interlocutory report within sixty days could result in a
report being made to the Iowa Supreme Court Attorney Disciplinary
Board. See Iowa Ct. R. 7.6. Nonetheless, Dolezal took no action.
On or about March 11, 2010, Dolezal received a notice directing
both him and Gene Carter to appear in person at a show-cause hearing
on April 27, 2010. Dolezal came to the hearing, but his client did not.
As a result of that hearing, the district court again ordered an
interlocutory report to be filed within sixty days. However, to date, no
interlocutory or final reports have been filed with the district court, and
the estate has not been closed.
Dolezal testified that the estate is still open because Gene Carter
absconded with funds from the estate and he has been unable to locate
him. However, Dolezal admitted that he has never raised this issue with
the district court in writing nor sought to withdraw from representation
due to a lack of cooperation. In addition, although the notices of
delinquency mailed to Carter were returned to sender, Carter filed an
15
address change with the district court in September 2010. Despite this
filing, Dolezal has still not made any attempts to contact Carter at the
new address.
The failure to close an estate in a timely fashion, despite repeated
delinquency notices, constitutes neglect. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Marks, 759 N.W.2d 328, 331 (Iowa 2009) (finding that
an attorney committed professional neglect under the prior DR 6–
101(A)(3) when he did not sell a piece of real estate or close the estate
allegedly because he could not locate the administrator). In addition,
such inaction results in unnecessary oversight by the clerk of court and
judicial officers that is prejudicial to the administration of justice. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 701 (Iowa
2008). Based on the foregoing, we find a convincing preponderance of
the evidence shows violations of rules 32:1.3 (requiring reasonable
diligence and promptness), 32:3.2 (requiring reasonable efforts to
expedite litigation), and 32:8.4(d) (requiring conduct not be prejudicial to
the administration of justice). See Lickiss, 786 N.W.2d at 867 (dilatory
handling of four estates violated rules 32:1.3, 32:3.2, and 32:8.4(d));
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ackerman, 786 N.W.2d 491,
495–96 (Iowa 2010) (dilatory handling of two estates violated rules 32:1.3
and 32:8.4(d)).
III. Discipline.
“There is no standard sanction for a particular type of misconduct,
and though prior cases can be instructive, we ultimately determine an
appropriate sanction based on the particular circumstances of each
case.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d
437, 443 (Iowa 2007). In determining an appropriate sanction, we
consider
16
the nature of the violations, the attorney’s fitness to continue
in the practice of law, the protection of society from those
unfit to practice law, the need to uphold public confidence in
the justice system, deterrence, maintenance of the
reputation of the bar as a whole, and any aggravating or
mitigating circumstances.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502
(Iowa 2008).
As discussed above, this case involves primarily neglect and
related conduct prejudicial to the administration of justice. “In general,
the sanction imposed when neglect is the principal violation can range
from a public reprimand to a six-month suspension.” Thomas, 794
N.W.2d at 294. The sanction imposed in a particular instance often
depends upon whether there are multiple instances of neglect, a history
of past disciplinary problems, and other companion violations. Fields,
790 N.W.2d at 798. Another important consideration is the harm caused
by the neglect. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761
N.W.2d 53, 61 (Iowa 2009).
In this case, Dolezal has neglected three client matters—Buresh,
David, and Carter. Moreover, Buresh could be considered two separate
matters because it involved two different appeals approximately a year
apart from each other. Although Dolezal’s conduct in the Buresh and
Carter proceedings did not result in harm to his clients, the neglect in
the David matter led to the dismissal of David’s appeal. Dolezal’s neglect
in the David matter was coupled with trust account violations. The
violations involved a relatively small amount of money ($900), and the
record does not establish that Dolezal failed to earn the fees, just that he
did not handle the funds properly.
Dolezal also has a history of past disciplinary problems. He was
privately admonished in October 2009 for failing to respond to
17
delinquency notices in another guardianship/conservatorship. In
addition, Dolezal was privately admonished in the early 1990s for an
advertising violation and for acquiring a security interest in the property
of a client that was part of the subject matter of his representation. The
latter two ethical violations occurred many years ago and do not appear
to be similar to Dolezal’s more recent ethical lapses.
Dolezal’s right to practice also was suspended in 1991 for
noncompliance with both continuing legal education requirements and
client security requirements. This conduct, although it occurred some
time ago, is more similar in nature to Dolezal’s recent pattern of
inattention to court requirements.
Dolezal was temporarily suspended from the practice of law in
March 2010 for failing to respond to inquiry notices from the board
relating to a complaint. However, we conclude the temporary suspension
was adequate discipline for failing to respond to the board’s inquiry, and
will not consider his failure to respond to the board in fashioning any
additional discipline. Lickiss, 786 N.W.2d at 870.
We also consider any mitigating circumstances. Since the late-
1980s, Dolezal has undergone periodic counseling for depression
stemming from his combat service in the Vietnam War. Dolezal
participates in the counseling voluntarily and is currently taking three
medications for depression and anxiety. While depression and other
illnesses do not excuse an attorney’s misconduct, they can be mitigating
factors that influence our approach to discipline. Carpenter, 781 N.W.2d
at 271. To the extent Dolezal acknowledges his depression and has
sought appropriate treatment, we should take this into account in
fashioning an appropriate sanction. Fields, 790 N.W.2d at 799–800.
18
Dolezal also testified that he underwent back surgery in September 2009
and was catheterized for three weeks.
Yet Dolezal’s own testimony limits our ability to rely on these
mitigating circumstances. In general, Dolezal did not attribute his
specific ethical violations, as described above, to his medical conditions.5
Rather, he essentially described his failure to take required court action
in the Buresh, David, and Carter matters as decisions he made with full
command of his faculties. Dolezal’s attempts to justify his own conduct
reveal some misunderstanding of ethical duties:
A. . . . I believe my duty is to the client.
Q. Do you believe you have a duty to the court, the courts in
which you are licensed to practice, as well? A. I have – I see
that as a secondary duty, yes. I have a duty to the court,
but I believe my duty to the client exceeds or precedes my
duty to the court.
See Knopf, 793 N.W.2d at 532 (refusing to consider personal illness as a
mitigating factor when it was not shown to have affected the attorney’s
fitness to practice law).
In determining an appropriate sanction, we are guided not only by
the factors listed above, but also by prior cases. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Conroy, 795 N.W.2d 502, 506, (Iowa 2011). We find
several prior neglect cases instructive to the present situation.
5For example, on the Buresh and David matters Dolezal testified:
Q. Now, do you claim that problems with depression that you’ve had had
anything to do with not getting the work done in the Buresh appeals? A.
No.
....
Q. And do you claim that your problems with depression had anything
to do with the David matter, with not following through on the federal
court case? A. Well, maybe not the following through . . . .
On the Carter matter, Dolezal claimed that he did not go back to court because
he was “depressed” and “frustrated” about being owed several thousand dollars
and the estate not having been resolved.
19
In Conroy, we found an attorney neglected two matters, did not
comply with trust account requirements, failed to forward proceeds to a
client, failed to furnish a timely and complete accounting regarding
earned fees, failed to communicate with a client, and failed to respond to
the board’s inquiries and request for documents. Id. at 504–05. As
mitigating circumstances, we found the attorney voluntarily ceased the
practice of law and had no prior discipline. Id. at 506. Under these
circumstances, we determined a sixty-day suspension was appropriate.
Id. at 507.
Likewise, in Thomas, we found an attorney failed to serve original
notice on a defendant in a personal injury action resulting in the case
being dismissed. 794 N.W.2d at 292. The attorney compounded his
neglect by avoiding his clients and then misrepresenting to his clients
the cause of the dismissal. Id. Taking into account the attorney’s
history of prior disciplinary problems and several mitigating
circumstances, we determined the attorney should be suspended from
the practice of law for sixty days. Id. at 295.
In Hoglan, an attorney failed to prosecute four appeals resulting in
their dismissal. 781 N.W.2d at 282–83. We decided the proper sanction
was a suspension of thirty days, noting that each dismissal had harmed
the client (although three of the clients did not hold this against Hoglan),
the multiple incidents of neglect covered a two-and-a-half-year span, and
the attorney had already been publicly reprimanded for the dismissal of
two other appeals due to neglect. Id. at 286–87.
We do not believe this case warrants a sanction as severe as that
in Conroy and Thomas. In Conroy, the attorney’s neglect was coupled
with two trust account violations that appear to be more serious than the
trust account violation in this case. In Thomas, the attorney also made
20
misrepresentations to his clients, a factor we have not found here.
Furthermore, while Dolezal’s behavior has inconvenienced the court
system, in two out of three instances it has not harmed his clients. We
thus believe a sanction comparable to that in the Hoglan case is
appropriate. As in Hoglan, we have a pattern of “dilatory handling” of
litigated matters. See 781 N.W.2d at 287. Also, as in Hoglan, the
attorney was recently involved with the board due to similar misconduct,
although in this case Dolezal received a private admonishment, rather
than a public reprimand. Although we have a trust account violation in
this case, unlike in Hoglan, this consideration is counterbalanced to
some extent by the fact that only one of Dolezal’s acts of neglect caused
harm to the client.
In our view, a public reprimand here would not be adequate. Such
a sanction might have been appropriate had this case involved only a
single instance of misconduct. See Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Sobel, 779 N.W.2d 782, 789–90 (Iowa 2010) (attorney received
public reprimand for failing to provide accounting for an advance fee
payment); Wright, 758 N.W.2d at 231 (finding an attorney who failed to
dismiss an appeal after his client was unable to raise enough funds
warranted a public reprimand); Piazza, 756 N.W.2d at 700 (attorney
received public reprimand for failing to place advance fee payment in
trust account and to provide an accounting); Tompkins, 733 N.W.2d at
670 (finding an attorney who failed to dismiss appeal after he determined
it to be without merit warranted a public reprimand); Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Dunahoo, 730 N.W.2d 202, 207–08 (Iowa 2007)
(attorney was publicly reprimanded for failing to provide an accounting
and neglect in timely closing an estate). The recurring pattern of conduct
in this case warrants a stiffer sanction—namely, a suspension. See
21
Marks, 759 N.W.2d at 333 (“Although it is unlikely we would suspend
Marks’ license for these instances of neglect alone, Marks’ pattern of
refusing to cooperate with the Board’s investigation tips the scale in favor
of a short suspension.”). Taking into account all the circumstances of
this case, for the reasons we have already discussed, we agree with the
commission’s recommendation of a thirty-day suspension.
IV. Conclusion.
Accordingly, we suspend Dolezal’s license to practice law in the
State of Iowa for thirty days. This suspension applies to all facets of the
practice of law. See Iowa Ct. R. 35.12(3). Dolezal must comply with Iowa
Court Rule 35.22 dealing with notification of clients and counsel. Costs
of this action are taxed to Dolezal pursuant to Iowa Court Rule 35.26.
Absent an objection by the board and under the condition that Dolezal
has paid all costs assessed under rule 35.26, we shall reinstate Dolezal’s
license to practice law on the day after the thirty-day suspension period
expires. See Iowa Ct. R. 35.12(2).
LICENSE SUSPENDED.