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Iowa Supreme Court Attorney Disciplinary Bd. v. Dolezal

Supreme Court of Iowa

December 20, 2013

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
Kenneth F. DOLEZAL, Respondent.

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

Kenneth F. Dolezal, Cedar Rapids, pro se.

MANSFIELD, Justice.

An Iowa attorney neglected a client's matter, failed to deposit client funds into his trust account, charged a client an unreasonable fee, loaned money to a client without disclosing the terms of the transaction in writing, and failed to turn over client files when ordered to do so. Additionally, the attorney continued to handle two legal matters while suspended, didn't notify one of the clients of his suspension, and made untrue statements about his suspension to the Social Security Administration.

This attorney discipline proceeding comes before us on the report of a division of the Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.11(1). The Iowa Supreme Court Attorney Disciplinary Board alleged the respondent, Kenneth Dolezal, violated a number of rules of professional conduct, with the violations extending to four distinct client matters.

Agreeing with many of the Board's allegations, the commission found that Dolezal violated Iowa Rules of Professional Conduct 32:1.5(a) (prohibiting a lawyer from charging unreasonable fees), 32:1.8(a) (prohibiting a lawyer from entering a business transaction with a client before disclosing the terms in writing), 32:1.8(e) (prohibiting financial assistance to a client in connection with pending or future litigation), 32:1.15 (requiring client funds to be held in a trust account), 32:1.16(d) (requiring a lawyer to turn over client papers and property upon termination of representation), 32:3.3(a)(1) (prohibiting a lawyer from making a false statement to a tribunal), 32:3.4(c) (prohibiting knowing disobedience of an obligation under the rules of a tribunal), 32:5.5(a) (prohibiting the unauthorized practice of law), and 32:8.4(d) (prohibiting conduct prejudicial to the administration of justice), and Iowa Court Rules 35.23(1)(a) (requiring a suspended attorney to notify clients of a suspension within fifteen days), and 45.1 (requiring a lawyer to deposit client funds into a trust account). The commission recommended Dolezal's license be revoked. Upon our consideration of the commission's findings of fact, conclusions of law, and recommendations, we concur in most of its findings and conclusions and order the attorney's license suspended with no possibility of reinstatement for two years.

I. Factual and Procedural Background.

Kenneth Dolezal was admitted to the Iowa bar in 1983. He is sixty-seven years old. He received the Bronze Star in 1970 for heroism in ground combat while serving in the Army in Vietnam.

On April 29, 2011, we suspended Dolezal's license for thirty days because of several violations of our ethical rules, primarily relating to neglect of client matters. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Dolezal, 796 N.W.2d 910, 922-23 (Iowa 2011). Reinstatement, however, was

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conditional on Dolezal's paying the costs of the proceeding. Id. at 923. Dolezal never paid those costs, and thus his license remains suspended to this day. This proceeding concerns, for the most part, events that occurred after Dolezal's April 2011 suspension.

On December 26, 2012, the Board filed a complaint against Dolezal alleging he violated Iowa Rules of Professional Conduct 32:1.3, 32:1.5(a), 32:1.8(a), 32:1.8(e), 32:1.16(d), 32:3.2, 32:3.3(a)(1), 32:3.4(c), 32:5.5(a), 32:8.1(b), 32:8.4(c), and 32:8.4(d), as well as Iowa Court Rule 35.13(3) in his handling of four separate client matters. The Board amended its complaint on March 25, 2013, and further alleged Dolezal violated Iowa Rule of Professional Conduct 32:1.15(1) and Iowa Court Rule 45.1.

A. Steven Carter Estate.

Dolezal's neglect in handling the Carter estate was discussed in our previous disciplinary opinion. Dolezal, 796 N.W.2d at 919-20. Our suspension of Dolezal's license was due in part to his failure to close the Steven Carter estate in a timely fashion despite several delinquency notices. Id. at 920.

After we suspended Dolezal from the practice of law in April 2011, the probate court granted him permission to withdraw as counsel for the administrator. Gene Carter— Steven Carter's son and the estate administrator— was ordered to obtain alternative counsel or file the documents necessary to administer the estate within sixty days. When Carter failed to do so, he was ordered to show cause why he should not be held in contempt. Attorney Thomas Viner was appointed at public expense to defend Carter's interests in that proceeding.

On April 18, 2012, Carter attempted to file a final report, apparently without the assistance of counsel. The court rejected the report as inadequate. It set a further show-cause hearing for June 8, 2012. On that day, Carter and Viner jointly appeared. Viner explained that the finalizing of administration had been complicated by Dolezal's failure to turn over the estate file. The court therefore issued an order, which it caused to be served on Dolezal, directing him to turn over his file within thirty days.

Dolezal did not hand over his file. Instead, several additional contempt hearings had to occur before Dolezal finally made the relevant documents available in February 2013. Dolezal later admitted at the hearing before the commission that he did not provide the documents within the thirty days ordered by the court.

Additionally, on September 14, 2012, Dolezal submitted a claim for payment from the estate. His claim was supported by a billing statement which indicated the estate owed him $22,536.10. The statement showed 5.8 hours of work performed after he was suspended. The postsuspension billed activities included, among others: (1) $60.00 for " Suspension letter to Gene [Carter]," (2) $60.00 for " Supreme Court required Notification to Court," (3) $30.00 for receiving the " clerk Notices regarding delinquent Final report and Interlocutory report," (4) $210.00 for working on the " Iowa Supreme Court Attorney Disciplinary Board— Gene Carter complaint," and (5) $120.00 for a letter to the " Attorney Disciplinary Board regarding complaint of Gene Carter."

On the same day Dolezal submitted his claim for fees, he also filed a request to have Carter removed as the estate administrator. Dolezal maintained, and still maintains, that Carter absconded with money, a car, and a motorcycle that belonged to the estate. He urged the court to replace Carter with another administrator.

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Included in Dolezal's request that Carter be removed was an explanation for a payment Dolezal had received from Carter several years back. According to Dolezal, Carter had repaid him for a personal loan he had made to Carter " for the purposes of establishing his own residence rather than living with relatives which he had been doing at the time of and subsequent to his father's death." Dolezal later testified at the commission hearing that he received $2000 from Carter on December 14, 2006, in repayment of a no-interest loan. Dolezal admitted he had kept no records concerning the loan. At the commission hearing, Dolezal maintained the loan did not violate any ethical rule because he had not charged any interest.

At the time of Dolezal's disciplinary hearing, the contempt charge against Carter was still pending, and the estate had not been closed.

Based upon Dolezal's dealings with the Carter estate, the Board alleged violations of rules 32:1.5(a), 32:1.8(a), 32:1.8(e), 32:1.16(d), 32:3.4(c), 32:5.5(a), and 32:8.4(d).

B. Marie Sadecky Estate.

Dolezal became the attorney for the estate of Marie Sadecky in 2004. At the time of Dolezal's April 2011 suspension, the estate had not been properly closed. Dolezal admitted the matter had been mistakenly marked as closed in his office before all necessary tasks were completed. It later surfaced that there had been no notice published regarding the estate, and no notice had been sent to interested parties. Also, there was no court officer's oath in the file, and letters of appointment had not been issued for the administrator.

On May 9, 2011, the State of Iowa filed a petition to reopen the Sadecky estate. The state's petition noted the administrator's claim to have turned over $13,000 in estate funds to Dolezal. The state questioned the disposition of the funds and noted that nothing had been paid toward the state's medical assistance debt.

On July 1, despite being under suspension, Dolezal presented the probate court with a final report and a proposed order approving the report and closing Marie Sadecky's estate. Both documents were signed by Dolezal. The final report indicated that most of the estate assets had gone toward Sadecky's funeral expenses, and there remained only $4518.68, which Dolezal proposed to be disbursed to the Iowa Estate Recovery Program.

The probate court took no action on Dolezal's filings, pointing out that he was " not authorized to practice law in the State of Iowa due to suspension of his license." Instead, the court appointed Rick Sole as successor attorney in the Sadecky estate. Dolezal was ordered to turn over the estate file to Sole within ten days. Dolezal did not meet this deadline but did deliver the file when Sole provided him with another copy of the court order.

At the time Dolezal turned over the file, he also provided Sole with a cashier's check for the funds remaining in the estate. Dolezal admitted he had kept the estate's cash funds in a vault in his office " [a]t the request of the [e]xecutor" and had not deposited them into his trust account.

After the Board began investigating the Sadecky matter, it requested on July 27, 2011, that Dolezal provide " copies of all documentation, including but not limited to trust account ledgers and other records, showing [his] handling of the estate's funds." The Board further requested that Dolezal explain why the funds were not in his trust account. Dolezal admitted he received the letter, but he failed to respond to it or to a subsequent April 5, 2013 order from the commission directing him to produce documents related to the handling

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of the Sadecky estate. As a result, on April 30, 2013, the commission held the following facts were established as to the Sadecky matter: (1) Dolezal failed to maintain any time records of his activities or time spent, (2) Dolezal did not maintain a client ledger, (3) Dolezal did not maintain a trust account ledger, and (4) Dolezal did not give notice of his suspension.

The Board alleged Dolezal violated Iowa Rules of Professional Conduct 32:1.3, 32:3.2, 32:3.4(c), 32:5.5(a), 32:8.1(b), and 32:8.4(d) and Iowa Court Rule 35.13(3) in his handling of the Sadecky estate.

C. John Dean Matter.

On March 15, 2010, Dolezal began working with John Dean on a social security disability claim. A week later, on March 22, Dolezal filed a signed appointment of representative form with the Social Security Administration (SSA) in which he agreed to act as Dean's representative. The form contained the following statement, " I have been disbarred or suspended from a court or bar to which I was previously admitted to practice as an attorney." Below the statement were boxes to check " yes" or " no." Dolezal checked the " no" box. At the time, Dolezal's license was under suspension, and he had been suspended on one previous occasion.[1] The following statement appeared above Dolezal's signature on the form: " I declare under penalty of perjury that I have examined all the information on this form, and on any accompanying statements or forms, and it is true and correct to the best of my knowledge."

On the same form, Dolezal checked a box that stated, " I am an attorney." (There are separate boxes that nonattorneys may check; SSA permits nonattorney representatives.) Dolezal never submitted a revised appointment of representative form and continued to represent Dean on his disability claim at a December 2011 hearing and thereafter. In correspondence concerning the Dean matter, directly below his letterhead designating himself as an " Attorney at Law," Dolezal inserted the phrase " Currently under suspension."

The Board alleged that Dolezal's statements on the SSA form constituted violations of rules 32:3.3(a)(1) and 32:8.4(c), and his ongoing work for Dean violated rule 32:5.5(a).

D. Jill Hazen Matter.

On July 16, 2010, Dolezal filed an appointment of representative form with SSA to represent Jill Hagen on a disability claim. Dolezal again marked " no" next to the statement, " I have been disbarred or suspended from a court or bar to which I was previously admitted to practice as an attorney." At that time, Dolezal was not under suspension, although he had been suspended in the past.

In the Hazen matter, the Board contended Dolezal made a false representation in violation of rules ...


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