review of the report of the Iowa Supreme Court Grievance
commission recommends a suspension of an attorney's
license to practice law for violations of ethical rules.
van Brederode and Susan A. Wendel, Des Moines, for
Marlow West, Des Moines, pro se.
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.
Scope of Review.
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."
Findings of Fact.
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
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.
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.
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.
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
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 ...