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Iowa Supreme Court Attorney Disciplinary Board Complainant v. West

Supreme Court of Iowa

September 15, 2017

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
KIM MARLOW WEST, Respondent.

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

         Grievance commission recommends a suspension of an attorney's license to practice law for violations of ethical rules. LICENSE SUSPENDED.

          Tara van Brederode and Susan A. Wendel, Des Moines, for complainant.

          Kim Marlow West, Des Moines, pro se.

          WIGGINS, JUSTICE.

         The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against an attorney alleging multiple violations of the Iowa Rules of Professional Conduct in connection with the probate and closing of an estate. A division of the Iowa Supreme Court Grievance Commission found the respondent's conduct violated the rules. The commission recommended we order the attorney to refund half of the attorney fee he received, personally pay the attorney's fee and court costs to close the estate, and suspend his license to practice law with no possibility of reinstatement for a period of six months. The Board urges us to adopt the recommendation. On our de novo review, we find the attorney violated provisions of our rules, which requires us to impose sanctions. Accordingly, we suspend the attorney's license to practice law for a period of sixty days from the date of filing this decision.

         I. Scope of Review.

         Our review of attorney disciplinary proceedings is de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Vandel, 889 N.W.2d 659, 662 (Iowa 2017). The Board has the burden to prove ethical violations by a convincing preponderance of the evidence. Id. A convincing preponderance of the evidence is more than the typical preponderance standard in a civil case but less than proof beyond a reasonable doubt. Id. "While we respectfully consider the commission's findings and recommendations, they are not binding on us." Id.

         II. Findings of Fact.

         On September 14, 2016, the Board filed a complaint against Kim Marlow West alleging various ethical violations in connection with the estate of Betty Maxine Rumme. The Board amended its complaint twice. West responded to the Board's complaints by admitting all of the Board's allegations. On December 1, the Board and West filed a stipulation pursuant to Iowa Court Rule 36.16, wherein the parties agreed to the facts, rule violations, and mitigating and aggravating circumstances.

         Facts admitted in an answer are "deemed established, " and a stipulation of facts is binding on the parties. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa 2013). We construe a factual stipulation "with reference to its subject matter and in light of the surrounding circumstances and the whole record, including the state of the pleadings and issues involved." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 803-04 (Iowa 2010) (quoting Graen's Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d 295, 300 (Iowa 1983)). However, we are not "bound by a stipulation of a violation or of a sanction in reaching our final decision in a disciplinary case." Id. at 804; accord Iowa Ct. R. 36.16(3). The Iowa Constitution and our court rules solely vest the function of determining violations and sanctions for such violations with our court. See Gailey, 790 N.W.2d at 804.

         Using the stipulation of the parties, together with our de novo review of the record, we make the following findings of fact. West has practiced law in Iowa since 1983. He worked in the Cerro Gordo, Story, and Polk County public defender offices until approximately 2002. In 2004, West began a solo private practice in criminal law, which he continues today at a substantially reduced volume.

         On October 16, 2007, William Rumme hired West to handle a probate matter for the estate of his mother Betty Maxine Rumme. William Rumme paid West an attorney fee of $1000, which he subsequently deposited without court authorization as required by statute. West filed a petition for probate of the will and obtained an order admitting the will of Betty Maxine Rumme to probate. West then failed to file the estate inventory, and on June 1, 2008, he received a notice of delinquency from the district court clerk's office. On August 22, West filed an application for extension of time to file the estate inventory, which the district court granted. On August 29, West filed the estate inventory. On June 2, 2009, West received a notice of delinquency after he failed to file an interlocutory report for the estate. West prepared and filed the interlocutory report on August 13. West subsequently failed to file the second notice of publication and failed to file the final report. The clerk sent several additional delinquency notices to West from 2014 through 2016, but he did nothing to cure the delinquencies. Further, the Board sent numerous notices and requests regarding the probate delinquencies from 2014 through 2015, to which the Board received minimal or no response from West.

         West also failed to communicate with the executor of the estate, causing such frustration that the executor attempted to file a final report and communicate directly with the probate judge. West never contacted the executor of the estate to explain what was going on with the estate or to inform him of how the probate matter was progressing. The executor of the estate attempted to contact West about the delinquency notices. Nevertheless, West failed to keep the executor of the estate informed with respect to the status of the probate matter and failed to respond to the executor's attempt to reach him.

         Prior to undertaking the probate matter that is the subject of this disciplinary action, West had no experience handling estates and did not take any steps to understand that area of the law or follow through in pursuing outside expertise. Because of the lack of proper administration, the estate remains open. Based on West's handling of the estate, the Board alleged and West admitted violations of the Iowa Rules of Professional Conduct related to providing competent representation, acting diligently, failing to respond to a disciplinary authority, engaging in conduct prejudicial to the administration of justice, violating a ...


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