On review of the report of the Grievance Commission of the Supreme Court of Iowa. Grievance commission recommended one-year suspension of attorney's license.
Charles L. Harrington and Teresa Vens, Des Moines, for complainant.
Vicki Lorraine Ryan, Charter Oak, Pro se.
APPEL, Justice. All justices concur except Wiggins, J., who dissents.
The Iowa Supreme Court Attorney Disciplinary Board charged attorney Vicki Lorraine Ryan with multiple violations of Iowa's disciplinary rules in connection with her representation of one client. These charges include allegations of failing to act
with reasonable diligence and promptness in representing the client, failing to properly communicate with the client, failing to protect the client's interest upon termination of representation, trust account violations, and failing to communicate the scope of the representation and the basis of the fees involved in the representation.
After a hearing, a division of the Grievance Commission of the Supreme Court of Iowa concluded that Ryan committed each of the alleged violations and recommended a one-year suspension. Additionally, the commission recommended that prior to reinstatement, Ryan reimburse the client security trust fund in the amount of $431.06 and provide proof of completion of at least two hours of in-person trust account continuing legal education (CLE) and two hours of in-person ethics CLE. The commission also recommended that before reinstatement Ryan explain what happened in this matter.
Upon de novo review of the record and the commission's findings of fact, conclusions of law, and recommendations, we agree Ryan committed all the violations found by the commission. We also agree with the commission that Ryan should be required to reimburse the client security trust fund in the amount of $431.06. For the reasons expressed below, we modify the length of suspension to an indefinite period of time with no possibility of reinstatement for six months. Prior to the lifting of any suspension, Ryan must demonstrate she has complied with the request of the Client Security Commission to audit her trust accounts. Further, Ryan must provide proof of completion of two hours of ethics CLE and two hours of trust account CLE.
I. Factual and Procedural Background.
The disciplinary trail in this case begins in August and September of 2012 when an auditor employed by the Client Security Commission attempted to contact Ryan to arrange an audit of her trust accounts and investigate a claim against the client security trust fund, pursuant to Iowa Court Rule 39.10(3). The auditor's attempts included multiple telephone calls to each of Ryan's three telephone numbers and a personal visit to Ryan's residence. In November 2012, the Client Security Commission asked Ryan to respond to a request from a client for application of reimbursement from the client security trust fund. Ryan did not respond to these efforts to contact her. As a result, this court entered an order temporarily suspending Ryan's license until the Client Security Commission certified Ryan fully complied with its request, Ryan filed proof of compliance with Iowa Court Rule 39.8(3), and the court entered an order reinstating her license to practice. This order remains in place today.
In March 2013, JoLynn Huffman filed a complaint with the Iowa Supreme Court Attorney Disciplinary Board. In the complaint, Ms. Huffman asserted Ryan had agreed to represent her in a child custody matter, received a retainer, but had then abandoned the representation without further communication.
Ryan failed to respond to the inquiry of the Iowa Supreme Court Attorney Disciplinary Board regarding the complaint. As a result, on January 16, 2014, this court temporarily suspended Ryan's license to practice law pursuant to Iowa Court Rule 34.7(3). This temporary suspension was in addition to the prior temporary suspension of Ryan's license for failure to respond to auditors of the Client Security Commission.
On August 27, 2014, the Board filed a disciplinary complaint against Ryan. In the complaint, the Board alleged that in December
2010, Ryan, a licensed practitioner in Holstein, Iowa, agreed to represent Ms. Huffman in a child custody matter. According to the complaint, Ryan received a retainer of $1000 to provide legal services, but there was no written fee agreement between Ryan and Ms. Huffman. The Board alleged that in January 2011, on Ms. Huffman's behalf, Ryan filed a document entitled " Petition to Establish Custody, Child Support, Visitation, Health Care and Income Tax Deductions" in Woodbury County District Court naming Michael Poppens as the respondent. The Board charged that while Ryan initially communicated with Ms. Huffman about the filing and indicated there would be follow-up with opposing counsel, thereafter, Ryan stopped communicating with Ms. Huffman. Between mid-December of 2011 and September of 2012, the Board alleged Ms. Huffman made numerous phone calls to Ryan's office but her messages went unanswered. According to the Board, Ms. Huffman learned from the City of Holstein that Ryan had left town.
On July 24, 2012, the district court issued a dismissal notice under Iowa Rule of Civil Procedure 1.944. In May of 2013, the district court issued an order allowing counsel for the opposing party to contact Ms. Huffman directly and further ordered that " Ms. Ryan shall be considered to have withdrawn from this case." The Board stated that in July 2013, Ms. Huffman hired a new attorney for the custody matter.
The Board asserted Ms. Huffman received two statements from Ryan dated January 27, 2011, and April 8, 2011, for her services totaling $598.44. According to the Board, Ryan's statements did not state an amount of time spent on any task performed or the hourly rate charged. The Board charged that Ms. Huffman did not receive from Ryan an accounting or any reimbursement of unearned fees. According to the Board, Ms. Huffman received a partial reimbursement of her retainer from the client security trust fund.
Based upon the above allegations, the Board charged Ryan with violating the following Iowa Rules of Professional Conduct: 32:1.3 (reasonable diligence), 32:1:4(a)(3) and (4) (keeping clients reasonably informed), 32:1.16(d) (protecting client's interests in declining or terminating representation), and 32:1.15(f) (safekeeping client property and adhering to rules regarding trust accounts). The Board filed an amended complaint alleging a violation of rule 32:1.5(b) (communicating scope of representation and basis for fees and expenses).
On November 21, the commission held a hearing on the matter. Although the Board in its briefing before the commission stated that Ryan participated in a prior scheduling conference and that dates for the proceeding were arranged around Ryan's appointments at Mayo Clinic, Ryan did not appear at the hearing. Because Ryan failed to answer the original complaint, the facts in the original complaint were deemed admitted under Iowa Court Rule 36.7. As a result, the commission hearing was limited to the issue of sanction. At the hearing, the commission heard testimony from Ms. Huffman and received a handful of exhibits.
In her testimony, Ms. Huffman confirmed many of the allegations in the complaint. She also elaborated on the nature of the representation. Ms. Huffman testified that at the time she first contacted Ryan, the father of her daughter was incarcerated in federal prison out of state, but she had heard rumors he could be released for good behavior. If released, Ms. Huffman feared the father would be able to simply pick their daughter up and leave. Ms. Huffman thus wanted a court
order clarifying the custody situation regarding her daughter. At the time she hired Ryan, Ms. Huffman testified she was " scared," " extremely worried," and " freaking out." Among other things, Ms. Huffman stated she restricted contact between her daughter and her daughter's paternal grandmother as a result of her fears of what might happen if her daughter's father were released.
Ms. Huffman further testified she made more than twenty-five phone calls to Ryan's office over a period of several months, first leaving messages with staff, then on voicemail, but Ryan did not return her calls. Eventually, Ms. Huffman testified she could not even leave a message, as Ryan's voicemail box was full. She then stated she visited Ryan's law office, only to find it locked.
Documentary evidence introduced at the hearing provides further details. The documents show the billing statements and trust account balances in Ms. Huffman's matter were inconsistent and that while the balance of the retainer was stated as $431.06, the balance, assuming the billed amounts were earned, should have been $401.56. The documents also showed the client security trust fund paid $431.06 to Ms. Huffman, the amount Ryan's documents stated remained in her trust account.
The commission found the facts as alleged in the complaint. It further found Ms. Huffman's testimony credible and found additional facts as supported by her testimony and admitted exhibits.
The commission recommended a one-year suspension of Ryan's license to practice law. The commission also recommended that Ryan " provide the reason(s) for her failure to complete the client matter at issue here, and her failure to participate in the disciplinary process, and provide proof that any conditions contributing to such failure have been ameliorated" as a condition of reinstatement of her license. Finally, the commission recommended that Ryan reimburse the client security trust fund and complete two hours of in-person trust account CLE and two hours of in-person ethics CLE.
II. Standard of Review.
" We review factual findings of the commission de novo." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Moothart, 860 N.W.2d 598, 602 (Iowa 2015). " We give respectful consideration to the findings of the commission, especially when considering credibility of witnesses, but are not bound by them." Id. ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 101 (Iowa 2012).
The Board's burden for each charge is proof by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). " This burden is higher than the burden in most civil cases, but lower than in a criminal prosecution." Van Ginkel, 809 N.W.2d at 102. It is also less stringent than the clear and convincing evidence standard, which is the highest standard of civil proof. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996) (per curiam).
III. Discussion of Merits.
A. Factual Findings.
Because of Ryan's failure to respond to the allegations in the complaint, the allegations were deemed admitted under Iowa Court Rule 36.7. In addition, the Board found the unchallenged testimony of Ms. Huffman to be credible. We find it credible as well. We thus find the facts as alleged by the Board in its complaint and as elaborated upon in the testimony of Ms. Huffman
before the commission and supported by the exhibits admitted into ...