Iowa Supreme Court Attorney Disciplinary Board v. James A. Schall , 814 N.W.2d 210 ( 2012 )


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  •                IN THE SUPREME COURT OF IOWA
    No. 11–1986
    Filed March 23, 2012
    IOWA SUPREME COURT ATTORNEY
    DISCIPLINARY BOARD,
    Complainant,
    vs.
    JAMES A. SCHALL,
    Respondent.
    On review of the report of the Grievance Commission of the
    Supreme Court of Iowa.
    In an attorney disciplinary proceeding, the Grievance Commission
    recommends a public reprimand. LICENSE SUSPENDED.
    Charles L. Harrington and David J. Grace, Des Moines, for
    complainant.
    Mark McCormick of Belin McCormick, P.C., Des Moines, for
    respondent.
    2
    HECHT, Justice.
    The Iowa Supreme Court Attorney Disciplinary Board brought a
    complaint against the respondent, James A. Schall, alleging violations of
    several ethical rules as a consequence of his failure to file state income
    tax returns and his mishandling of a client’s criminal case. A division of
    this court’s grievance commission held a hearing, found Schall violated
    several rules, and recommended the court impose a public reprimand.1
    Upon our de novo review, we find Schall’s conduct violated ethical rules.
    We suspend his license to practice law indefinitely with no possibility of
    reinstatement for a period of six months.
    I. Scope of Review.
    Our review of this matter is de novo.          Iowa Supreme Ct. Att’y
    Disciplinary Bd. v. Knopf, 
    793 N.W.2d 525
    , 527 (Iowa 2011).           It is the
    Board’s burden to prove ethical violations by a convincing preponderance
    of the evidence. Id. at 528. We may impose a greater or lesser sanction
    than the one recommended by the commission. Id.
    II. Findings of Fact.
    A. Failure to Pay State Income Taxes. Schall graduated from
    law school in 1967. After working as a trust officer for six months, he
    associated in private practice with another attorney in Storm Lake. In
    the mid-1970s, Schall established his own law firm in that community.
    In addition to his private practice of law, Schall served as a part-time
    judicial magistrate for sixteen years in Buena Vista County. Thereafter,
    approximately seventy-five percent of Schall’s practice consisted of
    criminal law cases.
    1Four   panel members voted to recommend a public reprimand and one member
    favored a “short suspension” of Schall’s license to practice law.
    3
    Schall’s wife suffered from multiple sclerosis, and for the five years
    preceding her death in 2003, Schall was her primary caregiver. During a
    significant part of this period, she was bedridden or in a wheelchair.
    After surgery to control MS-related muscle spasms, Mrs. Schall was
    transferred to a nursing home at Newell. During the remainder of her
    life, Schall spent his noon hours, evenings, and weekends at the nursing
    home. His law practice was disrupted, requiring continuances of legal
    matters and resulting in many interruptions during work days to manage
    Mrs. Schall’s all-consuming health problems.                    Schall himself was
    diagnosed with prostate cancer in 2004 and was treated for this illness
    as he continued to deal with his wife’s death. Schall was unable to afford
    health insurance coverage and became uninsured.
    Schall failed to file state income tax returns for 1999, 2000, 2001,
    2002, 2004, and 2005.2             After his failure to file the returns was
    discovered, Schall substantially underreported his income for 2002,
    2004, and 2005. He eventually pled guilty on April 20, 2010, to three
    aggravated misdemeanor counts of fraudulent practice in the third
    degree for failing to timely file the tax returns for 2002, 2004, and 2005.
    The other counts of the criminal information filed against him were
    dismissed consistent with a plea agreement.                   The sentencing court
    deferred judgment, placed Schall on probation for two years, imposed a
    civil penalty of $6250, and ordered him to pay the costs of the action and
    perform one hundred hours of pro bono legal work as community service.
    Schall paid the fine and costs and completed the community service prior
    to the hearing before the commission in this case.
    2The    Board’s complaint alleged ethical violations, however, only for Schall’s
    failure to file returns in 2002, 2004, and 2005. Accordingly, we find violations and
    impose discipline only for ethical misconduct for failing to file returns for those years.
    4
    B. The Tesene Matter. Schall was appointed to represent Justin
    Tesene in a felony theft case filed on March 15, 2010. Schall learned of
    his appointment when he picked up Tesene’s financial affidavit in the
    office of the clerk of district court. Although Tesene, who was at that
    time in prison serving a five-year sentence for another felony crime, had
    indicated in a letter to the clerk of court filed April 12, 2010, that he
    wished a speedy trial, Schall did not receive a copy of the letter when he
    picked up the client’s financial affidavit at the clerk’s office. Phone calls
    from Tesene’s parents informed Schall that Tesene wished a quick
    resolution of the pending matter by a plea to a misdemeanor.
    Schall believed he might be able to negotiate a plea agreement
    calling for Tesene’s guilty plea to a misdemeanor and a sentence
    concurrent to the one Tesene was then serving.                 Schall prepared and
    mailed a written arraignment and plea of not guilty form to Tesene at his
    prison address.       Schall had filled in certain information on the form
    indicating Tesene wished to waive his right to a speedy trial.                 Schall’s
    cover letter instructed Tesene to review the form, sign it before a notary
    public, and return it to Schall’s office.
    Tesene altered the written arraignment and plea of not guilty form
    by crossing out the provision purporting to waive his right to a speedy
    trial.    He signed the document—but not before a notary public—and
    returned it to Schall with a handwritten cover letter.               The cover letter
    made reference to the fact that Tesene had changed the speedy trial
    portion of the document to delete the waiver provision.3                         Schall
    3Schall’s
    answer to the Board’s disciplinary complaint denied receiving this cover
    letter from Tesene, but Schall subsequently admitted its receipt during testimony before
    the commission. Schall testified he simply “missed” Tesene’s expression of the desire
    for a speedy trial in the cover letter and continued to assume Tesene wished a prompt
    resolution of the matter through a negotiated plea bargain.
    5
    subsequently revised the document in his own handwriting without
    Tesene’s permission by adding back language waiving the right to a
    speedy trial. Before filing the document with the court, Schall notarized
    Tesene’s signature without having witnessed the signing and signed the
    form attesting he had discussed the substance of the form with Tesene
    who “fully understood its contents.”     After Tesene sent Schall another
    handwritten letter dated June 14, 2010, demanding a speedy trial, Schall
    prepared a demand for a speedy trial and filed it a week later.
    Tesene filed a pro se motion on July 22, 2010, requesting
    dismissal of the case on the ground his right to a speedy trial had been
    violated. At the hearing on Tesene’s pro se motion, Schall informed the
    court that he had not received Tesene’s handwritten request for a speedy
    trial sent to the clerk of court in April and further represented to the
    court that he first learned of his client’s desire shortly before filing the
    speedy trial demand on June 21. After Tesene’s pro se motion to dismiss
    on speedy trial grounds was denied on the ground Tesene had filed a
    valid written waiver of his right to a speedy trial, Schall filed a motion to
    reconsider asserting the court had mistakenly found the handwritten
    waiver was on the form when Tesene signed it. This caused the county
    attorney to file another resistance, and the court entered yet another
    ruling on the matter confirming its earlier ruling denying the motion to
    dismiss.
    Schall’s mishandling of the criminal matter resulted in Tesene’s
    request for new counsel. New counsel was appointed for Tesene, and a
    second motion to dismiss on speedy trial grounds was filed—this one
    based on Schall’s June 21 demand for speedy trial. This second motion
    was granted.
    6
    III. Analysis.
    Schall admitted in his answer to the Board’s complaint that he
    failed to file his state income tax returns for the years 2002, 2004, and
    2005.    Under the disciplinary rules in force at the time the 2002 and
    2004 returns were due, Schall’s failure to file the returns constituted
    violations of DR 1–102(A)(3) (illegal conduct involving moral turpitude),
    DR   1–102(A)(4)    (conduct   involving   dishonesty,    fraud,   deceit,   or
    misrepresentation), and DR 1–102(A)(6) (conduct adversely reflecting on
    fitness to practice law). Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct
    v. Runge, 
    588 N.W.2d 116
    , 118 (Iowa 1999).               “The Iowa Rules of
    Professional Conduct became effective July 1, 2005, replacing the Iowa
    Code of Professional Responsibility for Lawyers.” Iowa Supreme Ct. Att’y
    Disciplinary Bd. v. Casey, 
    761 N.W.2d 53
    , 55 n.1 (Iowa 2009). Schall’s
    failure to timely file his 2005 return violated rule 32:8.4(b) (criminal act
    reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness)
    and rule 32:8.4(c) (conduct involving dishonesty, fraud, deceit, or
    misrepresentation).
    Schall’s answer to the Board’s complaint admitted alteration of the
    written arraignment and plea of not guilty form intending to effect an
    unauthorized waiver of Tesene’s right to a speedy trial.           Schall also
    admitted in his answer to the Board’s complaint that he signed the form
    as an attorney falsely representing he had discussed the speedy trial
    matter with his client and as a notary falsely representing Tesene had
    signed the document in Schall’s presence.           These acts of Schall
    constitute violations of Iowa Rules of Professional Conduct 32:1.2(a)
    (failing to abide by a client’s decisions concerning the objectives of
    representation and taking action on behalf of the client that was not
    authorized) and 32:8.4(c) (conduct involving dishonesty, fraud, deceit, or
    7
    misrepresentation).        We have repeatedly held that an attorney’s
    notarization     of    signatures        of       absent    persons   is    “manifestly
    unprofessional.”       Comm. on Prof’l Ethics & Conduct v. Bauerle, 
    460 N.W.2d 452
    , 454 (Iowa 1990). An attorney who, in preparing documents
    for clients, makes false statements of fact as Schall did in the Tesene
    case, commits sanctionable misconduct.                     Comm. on Prof’l Ethics &
    Conduct v O’Donohoe, 
    426 N.W.2d 166
    , 169 (Iowa 1988).                          Schall’s
    conduct caused unnecessary motions, court hearings, and rulings in
    Tesene’s criminal case and constituted a violation of rule 32:8.4(d)
    (conduct prejudicial to the administration of justice).
    IV. Sanction.
    In determining the appropriate sanction for violation of ethical
    rules, we consider a plethora of factors, including the nature of the
    violations, the goal of protecting the public from unethical conduct by
    attorneys,     the    deterrence    of    similar     misconduct      by   others,   the
    respondent’s fitness to practice law, the court’s duty to uphold the
    integrity of the profession in the eyes of the public, and the sanctions
    imposed for similar conduct in prior cases.                  Iowa Supreme Ct. Att’y
    Disciplinary Bd. v. Iversen, 
    723 N.W.2d 806
    , 812 (Iowa 2006).                        Our
    determination of the sanction is also affected by aggravating and
    mitigating circumstances. Id. at 810.
    In Knopf, we surveyed the range of discipline imposed by this court
    in other cases against attorneys who failed to file tax returns.                     793
    N.W.2d at 531. We noted that we have “imposed a sanction of license
    suspension from sixty days to three years” for such misconduct. Id. The
    failure to file tax returns for an extended period has been deemed an
    aggravating factor. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields,
    
    790 N.W.2d 791
    , 799 (Iowa 2010).
    8
    In Knopf, the parties stipulated that the respondent failed to file
    returns for two years.4       793 N.W.2d at 529.           We suspended Knopf’s
    license indefinitely with no possibility of reinstatement for three months.
    Id. at 532. We find Schall’s conduct in failing to file tax returns is similar
    to that of the respondent in Knopf. Schall failed to timely file returns for
    six years, but the Board’s complaint alleged, and therefore we have
    found, violations for only three years. Similarly, in Iowa Supreme Court
    Board of Professional Ethics & Conduct v. Neuwoehner, we suspended the
    respondent’s license indefinitely with no possibility of reinstatement for
    three months for failing to file state income tax returns for three
    consecutive years. 
    595 N.W.2d 797
    , 798 (Iowa 1999).
    We conclude a suspension of more than three months is required
    in this case, however, because of Schall’s ethical violations in his
    representation of Tesene. In Bauerle, an attorney with no history of prior
    misconduct made false statements in documents prepared for his client
    and notarized a signature he had not witnessed. 460 N.W.2d at 453. We
    suspended      Bauerle’s    license   to       practice   with   no   possibility   of
    reinstatement for six months. Id. at 454. In determining the appropriate
    sanction, we consider as an aggravating circumstance the respondent’s
    history of prior misconduct and professional discipline. Iowa Supreme
    Ct. Bd. of Prof’l Ethics & Conduct v. McKittrick, 
    683 N.W.2d 554
    , 563
    (Iowa 2004). The record reveals Schall was publicly reprimanded in 2001
    for failing to deposit a fee in a trust account and was privately
    admonished on two other occasions.
    4Although the parties stipulated that Knopf failed to file tax returns for two
    years, the Board’s complaint alleged he had failed to file returns for eleven years.
    Knopf, 793 N.W.2d at 529.
    9
    Mitigating circumstances, while not excusing the disciplinary
    violations, may be considered in determining the severity of the
    appropriate sanction. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
    Hohenadel, 
    634 N.W.2d 652
    , 656–57 (Iowa 2001) (alcoholism); Iowa
    Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 
    642 N.W.2d 288
    ,
    294–96 (Iowa 2002) (major depression).          We consider as mitigating
    factors in this case that during the years when Schall failed to pay state
    taxes he was coping with his own serious health problems and acting as
    primary caretaker for his wife during her lengthy terminal illness. Other
    mitigating   factors   include   Schall’s   cooperation   with   the   Board’s
    investigation, his eight years of service as a school board member, and
    his participation in many other significant local and state civic activities.
    See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Boles, 
    808 N.W.2d 431
    ,
    442 (Iowa 2012).
    Having considered all of the factors mentioned above, we conclude
    Schall’s conduct warrants an indefinite suspension of his license without
    possibility of reinstatement for six months.
    V. Conclusion.
    We suspend Schall’s license to practice law in Iowa indefinitely
    with no possibility of reinstatement for six months.        This suspension
    applies to all facets of the practice of law. See Iowa Court Rule 35.12(3).
    Prior to reinstatement, Schall shall establish that he has not practiced
    law during the period of suspension and that he has complied with all of
    the requirements of rule 35.13 and the notification provisions of rule
    35.22. The costs of this action are taxed to Schall under rule 35.26.
    LICENSE SUSPENDED.
    All justices concur except Mansfield, J., who takes no part.