On review of the report of the Grievance Commission of the Supreme Court of Iowa.
Grievance Commission found that respondent committed ethical violations and recommended a license suspension of six months.
Charles L. Harrington and Patrick W. O'Bryan, Des Moines, for complainant.
Samuel Z. Marks, pro se.
This matter 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. The Iowa Supreme Court Attorney Disciplinary Board (Board) alleged the respondent, Samuel Zachary Marks, violated four ethical rules in handling a probate matter by providing representation that was not competent, failing to act with reasonable diligence, failing to expedite litigation, and engaging in conduct prejudicial to the administration of justice. The grievance commission found Marks violated the Iowa Rules of Professional Conduct and recommended a six-month suspension. Upon our de novo review of the findings of fact, conclusions of law, and recommendation of the commission, we find Marks committed ethical violations and suspend his license to practice law indefinitely with no possibility of reinstatement for three months.
I. Background Facts and Proceedings.
The Board filed its complaint against Marks on August 2, 2012. Marks did not file an answer, and the Board's motion to invoke Iowa Court Rule 36.7 was granted by the commission on November 20, 2012. Under that rule, the Board's allegations are deemed admitted. Iowa Ct. R. 36.7; see also Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cunningham, 812 N.W.2d 541, 544 (Iowa 2012). Based on the admitted allegations, and upon our de novo review of the record, we find the following facts.
Marks opened the estate of William General Rumley on November 14, 2003, and became the attorney of record for the administrator of the estate. Since the opening of the estate, the estate has been subject to nine notices of delinquency. On December 1, 2009, Marks was issued a notice of delinquency for failing to file a final report in the estate. Marks was given sixty days to cure the delinquency. When he failed to cure the delinquency by December 1, 2010, the Polk County District Court filed a certification with respect to this delinquent probate matter with the court administrator, who then forwarded it to the Board.
The Board sent four separate communications regarding the matter to Marks over a period of eight months. Marks did not respond until two months after the fourth communication, promising to follow up within two weeks of that communication. He failed to follow up.
Marks has appeared before this Court in both 2009 and 2012 for disciplinary issues. In the 2009 case, we found Marks had neglected his responsibilities in probating two estates—one of which was the Rumley estate that is the subject of this disciplinary matter. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marks (Marks I), 759 N.W.2d 328, 330–31 (Iowa 2009). In that case, we suspended Marks's license for a period of thirty days. Id. at 333. In the 2012 case, we concluded Marks had violated ethics rules in a transaction that had occurred in 2005, prior to the date in 2009 when we suspended Marks's license. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marks (Marks II), 814 N.W.2d 532, 536, 542 (Iowa 2012). Ultimately, we determined that "[h]ad we been aware in 2009 of the conduct that is the subject of the present disciplinary proceeding, it is unlikely that we would have suspended Marks'[s] license for more than thirty days." Id. As a result, we issued only a public reprimand. Id.
Marks has also been the subject of prior discipline for failure to cooperate with the Board, which we detailed in both the 2009 and 2012 cases. Id. at 536 ("We temporarily suspended his license in 2006 and 2008 for failure to cooperate with the Board. Further, in 2007, the Board publicly reprimanded him for lack of diligence, incompetence, and failing to cooperate timely and fully with the Board."); Marks I, 759 N.W.2d at 332 ("In the present case, Marks neglected two probate matters and failed to cooperate with the Board's investigation. . . . Marks had been publicly reprimanded in 2007, and his license was temporarily suspended for failure to cooperate with the Board in 2006." (Citations omitted.)).
In the current case, Marks failed to answer the Board's complaint, and the commission thus deemed the allegations admitted. The commission found that Marks's conduct in the handling of the Rumley estate violated four ethics rules and recommended he be suspended for six months. Further, as a condition of reinstatement, the commission recommended we require Marks to obtain a medical evaluation from a qualified physical or mental health professional who specializes in the treatment of professionals such as lawyers, certifying that Marks is fit to practice law.
II. Standard and Scope of Review.
We have previously articulated our standard of review in attorney disciplinary cases as follows:
Attorney disciplinary proceedings are reviewed de novo. The Board bears the burden of proving misconduct by a convincing preponderance of the evidence, which is a lesser burden than proof beyond a reasonable doubt but a greater burden than is imposed in the usual civil case. If we determine the Board has met its burden and proven misconduct, we may impose a greater or lesser sanction than the sanction recommended by the commission.
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cannon, 821 N.W.2d 873, 876– 77 (Iowa 2012) (citation and ...