On review of the report of the Grievance Commission of the Supreme Court of Iowa. Review of a report filed by the Grievance Commission of the Supreme Court of Iowa recommending the suspension of an attorney's license.
Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.
Aaron J. Thomas, Anamosa, Pro se.
The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against Aaron J. Thomas, alleging Thomas committed the crime of theft by misappropriation and violated the Iowa Rules of Professional Conduct, an Iowa Court Rule, and Iowa Code section 602.10119 (2011). A division of the Grievance Commission of the Supreme Court of Iowa found Thomas committed the crime of theft by misappropriation and violated the Iowa Rules of Professional Conduct, the Iowa Court Rule, and the Iowa Code. The commission recommended a six-month suspension from the practice of law with conditions.
Thereafter, the Board filed a statement regarding Thomas's sanction and recommended we revoke Thomas's law license. On our de novo review, we find the Board established by a convincing preponderance of the evidence Thomas committed violations of our rules by converting funds for his own use without having a colorable claim to those funds. Accordingly, we revoke Thomas's license.
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Stowe, 830 N.W.2d 737, 739 (Iowa 2013). The Board must prove the attorney's ethical misconduct by a convincing preponderance of the evidence. Id. " A convincing preponderance of the evidence is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt." Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 601 (Iowa 2012). This places a burden on the Board that is higher than the burden in civil cases but lower than the burden in criminal matters. Stowe, 830 N.W.2d at 739. We respectfully consider the commission's recommendations; however, they are not binding upon us. Id.
II. Findings of Fact.
On our de novo review, we make the following findings of fact. Thomas graduated from law school in 2001 and received his law license in 2002. He subsequently joined his father's law practice in Anamosa.
The complaint against Thomas stems from his handling of a legal matter for Emily Street. In February 2009, Street went to Thomas for legal representation for a 2008 car accident. Street received a neck injury in the accident. She and her parents wanted to have the other party involved in the car accident pay for Street's medical bills and her car repair bill. Further, Street and her parents wanted the other party to pay back their insurance carrier, State Farm, for sums it paid because of the accident.
Thomas agreed to represent Street and her parents in the matter. They entered into a contingent fee agreement. The contingent fee agreement provided Thomas would receive thirty percent of the recovery if the parties settled after filing suit but before commencement of trial.
Thomas was successful in this matter. He filed a petition on December 2, 2009, and on April 25, 2011, Street and her parents settled the suit for $23,000. The other party's insurance carrier issued the check for $23,000 payable to the Thomas Law Firm; Street; Street's parents; Street's health insurance provider, Healthcare Recoveries; and State Farm. Thomas had a limited power of attorney to endorse the check on behalf of State Farm. To this point, Street and her parents were satisfied with Thomas's representation.
Thomas's subsequent distribution of the $23,000 is the crux of this grievance proceeding. Street and her parents understood the contingent fee agreement gave Thomas thirty percent of Street's portion of the settlement, or $5400. They understood the agreement also required Thomas to pay any unpaid medical expenses on Street's behalf. Further, they understood the agreement to require Thomas to reimburse Street's health insurance provider and State Farm for sums these companies advanced on Street's account due to the accident. Additionally, Thomas claims Street and her parents agreed for him to keep $500 in his trust account for expenses Thomas might have in pursuing Street's underinsured motorist claim against State Farm. As of April 2011, Street and her parents were entitled to the proceeds of the settlement less the amount he agreed to pay to the third parties, his attorney fees, and the $500 in expenses.
In regards to his obligation to pay any unpaid medical expenses and reimburse the insurance companies, Thomas wrote one check to HealthCare Recoveries for $2824.44 on April 26, 2011, to reimburse Street's health care provider for the sums it advanced. This should have left the $5000 for State Farm, $500 for expenses, and the remaining $9275.56 in his trust account for Street and any unpaid medical bills.
At this point, Thomas's actions became questionable in numerous ways. First, Thomas withheld the full $9275.56 for months, even though the Streets asked Thomas to disburse the funds. Thomas claims he entered into an agreement with Street and her parents to withhold this money to pursue a separate action against Street's insurance carrier, State Farm. Street agreed she wanted to sue State Farm. However, Street did not recall discussing a fee agreement for the State Farm lawsuit, she did not agree that Thomas could retain this money to cover State Farm expenses, and she did not enter into a fee agreement with Thomas to that effect. Thomas acknowledged he would not normally ask for an advance of more than $500 to cover the expenses of a lawsuit. Thomas's trust account records indicated Thomas ...