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Iowa Supreme Court Attorney Disciplinary Board v. Kennedy

Supreme Court of Iowa

September 27, 2013

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
MARY ELLEN KENNEDY, Respondent

On review of the report of the Grievance Commission of the Supreme Court of Iowa.

Grievance commission recommends suspension of attorney's law license for ethical violations.

Charles L. Harrington and David J. Grace, Des Moines, for complainant.

Roger L. Sutton, Sr. of Sutton Law Office, Charles City, for respondent.

MANSFIELD, Justice.

An Iowa attorney neglected several client matters, delayed proceedings, failed to communicate with her clients, failed to respond to disciplinary inquiries, and made groundless allegations that prosecutors had engaged in wrongdoing. Previously, this attorney had received a sixty-day suspension of her license primarily for neglecting client matters, as well as several public reprimands for various ethical violations. This attorney suffers from some health disorders, for which she is being treated, and does not presently practice law.

The Iowa Supreme Court Attorney Disciplinary Board brought charges against this attorney relating to six different clients. After a hearing, a division of the Grievance Commission of the Supreme Court of Iowa found numerous ethical violations and recommended the attorney's license to practice law be suspended indefinitely with no possibility of reinstatement for one year. Upon our de novo review, we concur in most of the findings of rule violations and agree that a one-year suspension is appropriate.

I. Factual Background.

Mary Ellen Kennedy was admitted to practice law in Iowa in 1993. Before practicing law, Kennedy obtained degrees in secondary education and history and served as a high school and college teacher.

This case concerns Kennedy's handling of six client matters as a solo practitioner in Waterloo. The crux of the Board's complaint is neglect of client matters, although the Board also contends Kennedy took certain improper steps when she did act on her clients' behalf. We turn to those matters.

A. Robinson Matter.

Stephanie Robinson retained Kennedy in 2008 to petition for dissolution of her marriage. She paid Kennedy a $700 retainer. Robinson's then-husband, the respondent, lived in Benton County, but Kennedy mistakenly sent papers to the Linn County Sheriff, causing a delay in service.

The dissolution trial was set for October 18, 2010. Both parties appeared, Stephanie Robinson with Kennedy and Stephanie's husband Thomas without an attorney. Kennedy, however, was not prepared for trial, and the district court reset the trial date. The district court explained:

Although Attorney Kennedy stated that the matter was ready for trial, it became apparent, after discussion with Attorney Kennedy and the Respondent that the parties were nowhere near prepared to proceed with trial as scheduled, even though this case has been on file since April 16, 2008.

The parties had not exchanged financial information or ascertained a number of facts needed to calculate child support payments.

Following the rescheduled trial, the district court ordered the marriage dissolved and determined custody, child support, and division of property. The court directed Kennedy to prepare a qualified domestic relations order (QDRO) "which will divide both of the accounts equally awarding [Stephanie Robinson] 50 percent of the balance." Kennedy never prepared the QDRO. Kennedy also acknowledges she neglected the matter, did not adequately communicate with her client, and was not ready for the initial trial date.

The Board asserts that Kennedy violated Iowa Rules of Professional Conduct 32:1.1, 32:1.3, 32:1.4, 32:3.2, and 32:8.4(d), in connection with this matter.

B. Merrill Matter.

In 2009, Kennedy was hired to request reconsideration of Nathan Merrill's prison sentence. She received a $500 retainer from Merrill's stepfather. Kennedy did some work on the matter, and kept the $500, but never filed a motion for reconsideration. Kennedy acknowledges she should have filed the motion, stating:

Judge Fister said he wouldn't entertain any more reconsideration requests until [my client] took some classes, so I repeatedly wrote to him . . . [t]hat . . . he should take those classes because he had some kind of treatment that [his stepfather] would set up for him. However, I should have gone ahead and answered the reconsideration request, whether or not Judge Fister said he would entertain it or not. And I didn't do that.

Although Kennedy insists she earned the $500 through work performed on the case, she did not account to her client or his stepfather for her use of the retainer. In addition, she failed to make a copy of her file and trust account ledger available to the Board for its investigation. The Board summarized its position: "There was no accounting, which we've tried to get that. So the Board suspects that there's some kind of trust account violation here, but we have not dug into it as much as we could have."

The Board alleges that Kennedy violated rules 32:1.1, 32:1.3, 32:1.4, and 32:3.2, arising out of her failure to file the motion. In addition, it asserts she violated rule 32:1.15 and Iowa Court Rule 45.7 in connection with her failure to account for the retainer. Finally, because Kennedy failed to provide the Board with her client file and trust account ledger, the Board contends she violated rule 32:8.1(b).

C. Manning Matter.

In May 2010, Kennedy was appointed to represent Anthony Manning in his pending postconviction relief proceeding, after the district court granted Manning's motion to have his previous attorney removed from the case. That July, the court issued a rule 1.944 notice that the matter would have to be tried by January 1, 2011, or else would be subject to dismissal. Kennedy never filed anything with the court. The matter was dismissed on January 3, 2011. Kennedy did not notify Manning that his case had been dismissed. She explained:

[I]n Mr. Manning's case, I visited Mr. Manning in Fort Madison three times. I worked very hard on his case. But the communication just wasn't there. I just couldn't—I could go visit him, but I couldn't write to him and explain what I was doing.

Manning complained to the Board about Kennedy's failure to act or communicate. In response, the Board requested that Kennedy provide copies of her correspondence with Manning. She received the Board's request, but did not respond to it.

The Board alleges that Kennedy's failure to act in Manning's case violated rules 32:1.1, 32:1.3, 32:1.4, and 32:3.2. In addition, the Board alleges that Kennedy's conduct was prejudicial to the administration of justice in violation of rule 32:8.4(d). Finally, the Board claims Kennedy violated rule 32:8.1(b) by failing to respond to its requests for information.

D. Flores Matter.

Kennedy represented David Flores in a postconviction relief proceeding. In December 2009, the Polk County District Court granted relief in that proceeding, overturning Flores's first-degree murder and terrorism convictions and ordering a new trial. See Flores v. State, No. 10–0020, 2011 WL 1376777 (Iowa Ct. App. Apr. 13, 2011). While the State's appeal from that ruling was pending, in January 2010, Kennedy wrote a letter to the Iowa Attorney General, alleging misconduct on the part of the Polk County Attorney's office and to a lesser extent the attorney general's office. Kennedy's letter asserted that an inmate had been offered early release if he would testify against Flores, and when this inmate refused, he "was mistreated and isolated." The letter elaborated that the inmate "[wa]s being forced to take drugs other than those necessary for his health and which render him unable to function effectively. He [wa]s being mentally, emotionally, and physically abused, according to the information [Kennedy] received." The letter alleged that the Polk County Attorney's office was behind the effort to coerce this inmate into testifying against Flores. It also accused the attorney general's office of directing the department of corrections to prevent Kennedy from visiting inmates, including her client.

A lengthy investigation by the Division of Criminal Investigation (DCI) determined that Kennedy's allegations were totally without merit. The inmate in question was taking prescription medication, and the prescription predated the Flores litigation. The inmate had not declined to meet with Kennedy; rather, he had asked only that his counsel be present. When the DCI spoke with Kennedy during its investigation, she was unable to provide any specifics in support of her charges. She "told [the investigator] she had sources, but she refused to tell [the investigator] who her sources were, citing attorney/client privilege."

At the hearing before the commission, Kennedy expressed regret for her course of conduct. She stipulated that her "statements and accusations were false[] and misguided by her misconception related to her mental instability." At the same time, in her hearing testimony, Kennedy stood by her assertion that she had "received information" regarding the substance of her letter. She explained:

I received information that one of the possible witnesses was being I guess you would say drugged. In hindsight, I should have taken another route with that. I can't say too much. I feel I don't want to get into it because [Flores is] going to probably go to trial again.

The commission followed up, asking what Kennedy thought "might have been a more appropriate course of action." She replied:

Possibly to file a Bar Complaint. What I wanted was an investigation. I didn't mean to accuse anybody and that's the way it came out. I wanted—I just wanted it looked into because, of course, I didn't have the capacity to do it. Possibly even checked with some people as to a better route that I could have taken. I was fairly exhausted and I just didn't use good judgment.

The Board maintains that Kennedy violated rules 32:4.1, 32:8.2(a), and 32:8.4(c) in connection with the Flores matter.

E. Williams Matter.

In March 2011, Kennedy was appointed to represent James Williams on his application for postconviction relief. Kennedy never contacted Williams. Williams wrote to the court, explaining he had been unable to reach Kennedy, despite several attempts "via letters and phone calls seeking a response." Williams eventually filed a motion for withdrawal of counsel and appointment of substitute counsel, which stated that "to this day there has been no interaction of any type between counsel and Defendant, neither verbal nor written." The district court granted Williams's motion and appointed a new attorney to represent him in the matter.

The Board asserts that Kennedy violated rules 32:1.3, 32:1.4, and 32:8.4(d) in connection with Williams's postconviction relief matter.

F. Stocks Matter.

In October 2007, Rusty Stocks retained Kennedy to bring a dental malpractice case. Stocks had incurred approximately $46, 000 in medical expenses allegedly due to his dentist's professional negligence. Almost two years later, no petition had been filed against the dentist. On August 3, 2009, Kennedy's office sent Stocks a letter, stating:

I have not heard from you in a while and our time is very short now to file the lawsuit. I have done some research and investigation on this matter and I think we can be successful in getting you a reimbursement for your injury. . . .

On August 28, 2009, Kennedy filed a petition against Stocks's dentist, alleging the dentist had failed to fully disclose certain risks of treatment, and had negligently diagnosed and treated Stocks. The dentist answered on October 1, 2009, denying liability, and simultaneously served a request for production of documents. On January 6, 2010, Kennedy filed a notice of identification of expert witness, giving the name, title, and address of her anticipated expert. The filing contained a certification that it had been served on all parties by mail.

Subsequently, the dentist's attorney complained he had received neither an expert certification nor responses to his discovery. Thus, on May 10, 2010, he wrote Kennedy asking if she would be willing to dismiss the matter "in light of [her] failure to provide discovery responses and provide an expert designation for a standard of care violation." Kennedy responded on May 14, stating that she was "very surprised by [the attorney's] letter of May 10" because she had not received any discovery requests—"no interrogatories, no request for documents— nothing." She asked that opposing counsel send her the discovery requests, which he did on May 17.

Opposing counsel served a second discovery request on Kennedy on June 8. The same day, opposing counsel informed Kennedy that he had just then received notice from the court of Kennedy's January expert certification. He stated that he had never received a copy from her, and in any event, the notice was insufficient under Iowa Code section 668.11 ...


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