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Iowa Supreme Court Attorney Disciplinary Board v. Turner

Supreme Court of Iowa

September 14, 2018

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
ROYCE D. TURNER, Respondent.

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

         The grievance commission found violations of numerous rules and recommended respondent's license be suspended for three months.

          Tara van Brederode and Wendell J. Harms, Des Moines, for complainant.

          Alfredo Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry, Brown & Bergmann LLP, Des Moines (until withdrawal), and then Royce D. Turner, West Des Moines, pro se, for respondent.

          WATERMAN, JUSTICE.

         Royce D. Turner, over a span of twenty months, was repeatedly rebuked by state and federal judges for missing hearings and violating court rules. He was found in contempt several times. Three of his clients were arrested and two were jailed for missing hearings he overlooked. Despite an ongoing audit, Turner continued to flout basic requirements for client trust accounts.

         The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against Turner alleging multiple violations of the Iowa Rules of Professional Conduct. He delayed responding to the Board's inquiries and complaints. Our court imposed a five-month interim suspension to protect the public. We permitted Turner's return to practice with the help of an experienced attorney under stipulated limitations pending resolution of the disciplinary charges.

         The parties submitted a stipulation of facts. A division of the Iowa Supreme Court Grievance Commission found violations of numerous rules. Noting Turner's inexperience and attention deficit hyperactivity disorder (ADHD), the commission recommended a three-month suspension of his license to practice law with conditions on his reinstatement. The Board recommends a suspension of twelve to eighteen months. Based on our de novo review, we now suspend Turner's license to practice law for one year from the date of this opinion with conditions on his reinstatement.

         Inexperienced sole practitioners who lack mentors and take on cases without the requisite experience are at greater risk of making mistakes. Any Iowa lawyer should be concerned about receiving one rebuke from a judge. Attorneys should view a single mistake as a wake-up call to reexamine practices or get help to avoid further missteps. Continuing to make the same mistakes without correcting behavior invariably leads to more trouble, as shown here. According to the adage commonly attributed to Will Rogers, "good judgment comes from experience, and a lot of that comes from bad judgment."[1] We hope Turner gains better judgment from his bad experiences.

         I. Background Facts and Proceedings.

         Turner obtained his Iowa law license in 2013 and began a solo practice in Polk County. He suffers from ADHD and depression. Turner receives treatment and takes medication for those conditions. This case arises from Turner's representation of many clients. We find the following facts as stipulated or otherwise established in the record and review them in the sequence alleged in the Board's second amended complaint.

         A. Untimely Response to Complaint (Count I).

         On January 26, 2015, Turner received from the Board a complete copy of an ethics complaint filed by K.D. regarding Turner's relationship with W.B. After Turner failed to respond, the Board mailed him a second copy by certified mail that the postal service returned after Turner declined to retrieve it. On May 7, at Turner's request, the Board mailed Turner a third copy and extended his deadline to respond to May 29. Turner still did not respond by this extended deadline.

         On July 23, the Board informed Turner by email that it would seek a suspension of his law license due to his failure to respond. The next day, the Board filed a certificate of noncompliance with this court stating that Turner failed to respond and asking the court to issue a notice of possible temporary suspension of Turner's license. Turner replied to the Board's email, stating he had not yet received a complete copy of the complaint. The Board sent Turner a fourth copy. Turner substantively responded to the complaint on July 28-six months after he first received it. Turner admits he knowingly failed to respond to the Board's lawful demand for information. He attributed his lack of responsiveness during this period to his ADHD and depression.

         B. The Philip and Jackson Representations (Count II).

         In September 2014, Agok Philip retained Turner to represent him in four criminal cases in Polk County. Philip made seven payments to Turner totaling $1075, but Turner failed to deposit any of these sums in his client trust account. Turner stipulated that he was "not completely familiar with the trust account process" at that time. Turner initially filed appearances in only two of Philip's four cases, prompting judicial inquiries into his role in the other two. He belatedly filed one appearance only after repeated reminders by the court and even then without the requisite certificate of service.

         Russell Jackson retained Turner to represent him in two criminal cases in Polk County scheduled for a plea hearing on December 10. Jackson made fourteen payments to Turner totaling $1880, but none were deposited into Turner's client trust account. On December 9, Turner filed motions to continue but did not bring these motions to the assigned judge's attention. Neither Jackson nor Turner appeared at the scheduled plea hearing the next day. The judge denied the motions to continue and issued warrants for Jackson's arrest. The Polk County Sheriff arrested Jackson for failure to appear.

         On March 9, 2015, Turner received the Board's complaint regarding his representations of Philip and Jackson. Turner failed to respond. On April 7, the Board sent Turner a second notice of the complaint by restricted certified mail. Turner failed to claim this letter. On June 2, the Board again served the complaint by certified mail, and Turner again failed to claim the letter. The Polk County Sheriff personally served Turner with the complaint on July 9. Turner claimed he had already responded to this complaint, and the Board replied that it had not received his response. The Board extended Turner's response deadline to July 21 at his request, but Turner missed the extended deadline. He substantively responded to this complaint only after the Board filed its certificate of noncompliance with this court on July 24, more than four months after first receiving it. Turner concedes he knowingly failed to respond to the Board's lawful demand for information.

         C. Bankruptcy Cases (Count III).

         Turner admits he "was not as familiar as he should have been with bankruptcy cases." On May 5, 2014, he presented paper bankruptcy petitions for seven individuals, even though electronic filing in that forum has been mandatory since 2000. His subsequent rule violations and failure to attend hearings led to a number of rebukes, dismissals, and other sanctions, as follows.

         Turner filed a Chapter 7 bankruptcy case for Steve Cummings. Turner reported that his fee was $875. The U.S. Trustee moved to dismiss the bankruptcy action and to order Turner to refund the fees. The court scheduled a hearing on these motions. Turner failed to attend the hearing, and the court granted both motions. A week later, Turner filed a second bankruptcy petition for Cummings that omitted the required listing of creditors, schedules, and statement of financial affairs. The U.S. Trustee moved for an order to show cause for Turner to "explain his failure to comply with the Order of this Court, the continued deficiencies with his filing[s] . . ., his failure to appear at hearings and his overall practice before the Court." Following a hearing, the court ordered Turner to "supply the bankruptcy schedules bearing his clients' signatures" and to deliver "the original power of attorney documents that were executed involving any" of the clients identified in the order by the next day. The court extended by six days the deadline for Turner to refund the $875 fee to Cummings. Two days after the deadline for refunding Cummings's fee, Turner moved to vacate the refund order. The U.S. Trustee then filed a status report noting Turner's noncompliance.

         Turner filed a separate Chapter 7 bankruptcy case for Laura Cummings without her required signatures, and the court scheduled a hearing after Turner failed to correct these omissions. Neither Turner nor Cummings attended the hearing, and the court dismissed the case. The court ordered Turner to attend training on the court's electronic filing system. Turner moved for relief from the order dismissing the case, stating he missed the hearing due to illness. The U.S. Trustee objected due to other problems in documents submitted by Turner. The court scheduled a hearing on the motion. Turner also filed a motion to reinstate the case. Neither Turner nor Cummings attended the hearing, and the court denied Turner's motions. Turner then filed a second bankruptcy case but omitted the filing fee or application to pay the fee in installments and omitted the requisite schedules, statement of financial affairs, credit counseling certificate, and listing of creditors. The bankruptcy trustee responded with a motion for order to show cause. The court scheduled a hearing, which Turner failed to attend. The court dismissed the second petition. A new lawyer took over Cummings's case.

         Turner filed a Chapter 7 petition for Kelly Willard. The U.S. Trustee moved to compel the filing of additional and corrected documents and then moved to dismiss because Willard had not obtained the requisite credit counseling. Turner objected to the motion to dismiss, and the court scheduled a hearing. A day before the hearing, Turner filed a motion to withdraw Willard's petition. The court granted the motion to dismiss.

         After filing Chapter 7 bankruptcy cases for Walter Anhorn and Lasandra Kearney, Turner filed reaffirmation agreements between his clients and several creditors. The U.S. Trustee objected to the reaffirmation agreements. Turner then moved to withdraw the agreements. The U.S. Trustee moved to dismiss Anhorn's case because Anhorn had not obtained credit counseling as required. Turner objected to the motion to dismiss and moved to withdraw Anhorn's petition one day before the hearing, which Turner failed to attend. The court dismissed the case. A new lawyer took over Anhorn's matter.

         In Kearney's case, Turner filed a motion to dismiss, stating that Kearney did not qualify under Chapter 7 and planned to file under Chapter 11. After a hearing that Turner failed to attend, Kearney appeared and stated she had not authorized Turner to file the motion to dismiss. The court ordered the motion to dismiss withdrawn and ordered Turner to refund $800 to Kearney that month. The court dismissed Kearney's case after she failed to meet its deadline to obtain new counsel.

         Turner filed Chapter 7 bankruptcy cases for Fred Leaming and Rick Andreas. The U.S. Trustee moved to dismiss both cases and sought refunds of fees paid to Turner and an order directing Turner to pay the fees associated with refiling each case. The court dismissed both cases. Turner then moved to reinstate the cases. He also filed a second bankruptcy petition in each case. Following a hearing, the court ordered Turner to refund $497.50 to Leaming. Turner did not comply, so the U.S. Trustee moved for an order to show cause and to dismiss Leaming's second case. The bankruptcy trustee also moved for order to show cause, in part because Turner failed to appear for the meeting of creditors and provided no verified, justifiable excuse for his absence. After a hearing, which Turner failed to attend, the court dismissed Leaming's second case. The court entered judgment in favor of Leaming and against Turner for $497.50. In Andreas's second case, the court ordered Turner to "address the deficiencies discussed on the record and [to] take all steps necessary to ensure that he is able to represent clients in bankruptcy cases in this forum in a competent fashion." Andreas received his discharge in bankruptcy a few months later.

         On December 5, 2014, the bankruptcy court judge filed an order for Turner to show cause regarding cases he filed for Cummings, Willard, Anhorn, and Kearney. The court identified multiple problems, including that Turner filed documents that violated electronic filing rules, lacked required information and signatures, contained inaccurate information, or lacked his client's authorization. The court also noted Turner failed to appear at four court hearings, failed to abide by court orders to produce records and refund fees, and may have made misrepresentations to the court. The judge determined that Turner's conduct violated Bankruptcy Rule 9011(b), which states,

By presenting to the court (whether by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery[.]

Fed. R. Bankr. P. 9011(b). The judge concluded that sanctions were warranted and ordered Turner to complete four hours of legal ethics education and four hours of legal education on the "operation and management of a law office." The court entered judgments against Turner in favor of these clients. At the time of the commission's hearing, Turner had not satisfied the judgments.

         D. The Lindemann Representation (Count IV).

         Lowell Lindemann retained Turner to represent him in a criminal case in Polk County. Lindemann made nine payments to Turner totaling $2190. Turner failed to deposit any of those payments into his client trust account. Turner admits he "was unaware of the rule that unearned fees had to be deposited into his trust account." Turner failed to appear for the pretrial conference and status hearing. Three days before the next pretrial conference, Turner filed a motion to continue. The court denied the motion. Turner and Lindemann failed to appear at the pretrial conference, and the judge issued a warrant for Lindemann's arrest. Lindemann was arrested and had to post a $5000 cash-only bond to be released from jail. Turner filed a motion to suppress but did not attend the hearing on the motion, so the court deemed the motion withdrawn. The court accepted Lindemann's guilty plea two days later and scheduled his sentencing hearing. Turner failed to attend Lindemann's sentencing hearing. Lindemann waived representation by counsel and proceeded with the sentencing pro se.

         E. The Guisinger Representation (Count V).

         In May 2015, Todd Guisinger retained Turner to represent him in a Polk County criminal case (third offense operating while intoxicated (OWI)). Turner's fee agreement with Guisinger stated, "Attorney Appearance fee shall be $600. Payments of $130 shall be paid on 5/30/15, after the receipt of attorney appearance fee, every Friday . . . for the duration of the proceedings." This fee agreement did not set a cap on the fees or establish a flat fee. Guisinger made thirteen payments to Turner totaling $2190, but Turner deposited none of the payments into his client trust account because "he was fully unaware of the rule that unearned fees had to be deposited into his trust account."

         The court rescheduled the pretrial conference three times at Turner's request due to his "scheduling conflicts." The court then appointed a public defender to represent Guisinger, who had terminated Turner as his lawyer. When asked to provide an accounting of the services provided to Guisinger, Turner responded that he "would not be able to provide invoices because [he] rendered services to [Guisinger] on a flat fee as opposed to rendering services on an hourly basis."

         F. The Kemp Representation (Count VI).

         Mark Kemp retained Turner in March 2015 to represent him in a Polk County criminal case. Kemp made twenty-six payments by October totaling $3505. Turner did not deposit any payments from Kemp into his client trust account because he was "unaware of the rules." Turner filed a motion to suppress fifteen days late and a motion for depositions at state expense thirty-eight days late. The state resisted both motions as untimely. The court denied the motion to suppress as untimely, noting Turner "made no argument to justify the late filing." After Turner failed to appear for a change of plea hearing, the court appointed a public defender to represent Kemp.

         G. Contempt in Mahaska County (Count VII).

         Turner tried a case in Mahaska County, which the judge submitted to the jury late afternoon. The next day, the jury reported it was deadlocked. Because the judge was unable to contact Turner, she declared a mistrial and rescheduled the jury trial for a few months later. The judge conducted a hearing in which Turner participated by phone. The judge found Turner in contempt of court and ordered him to complete forty hours of community service in Mahaska County and to pay the costs. At the compliance hearing ten days later, the judge found Turner in contempt of court for not complying with the previous order. The court ordered Turner to serve thirty days in jail with the opportunity to purge this contempt by completing the previously ordered community service within two months. Turner complied by completing the community service, and the judge dismissed the contempt action at his cost. At the time of the commission's hearing, Turner had not paid the costs.

         H. The Robinson and Dean Representations (Count VIII).

         Jordan Robinson retained Turner to represent him in a criminal case in Story County. They failed to attend a pretrial conference, and the court issued a bench warrant for Robinson's arrest. The next day, Turner filed a motion to recall the warrant. The sole reason he gave for filing the motion was "[t]hat the Court submitted a bench warrant." The court found no good cause existed to recall the warrant and denied the motion. The sheriff arrested Robinson, who was then released without bond. Turner failed to appear for the second day of Robinson's jury trial. The court declared a mistrial and rescheduled the trial.

         Jordan Dean retained Turner to represent him in a criminal case in Story County. Turner and Dean failed to attend the arraignment, and Turner neglected to file a written arraignment. The court issued a bench warrant for Dean's arrest. Turner then filed a motion to recall the bench warrant and later filed a written arraignment and plea of not guilty. The court canceled the arrest warrant.

         I. Contempt in Story County (Count IX).

         The district court entered an order, requiring Turner to "show cause, if any, why he should not be found in contempt for having failed to appear" for the second day of Robinson's jury trial in March 2016. Turner moved to continue the hearing, which the court denied. Turner failed to appear, and the court ordered a warrant for Turner's arrest. Turner was arrested and released on bond. Another judge found Turner in contempt. The court ordered Turner to pay the jury costs of $1920.75 and a $500 fine. The order provided that the payments were due immediately and would be considered delinquent if not paid within thirty days. At the time of the commission's hearing, Turner had not yet made these payments.

         J. The Ramsey Representation (Count X).

         In January 2016, Brian Ramsey retained Turner to represent him in a Polk County criminal case. The fee agreement between Turner and Ramsey stated,

Attorney's retainer shall be $1000 and will vest with Turner Law Office immediately upon receipt. The rate for representation shall be $1000. Client shall pay $2, 000 total. $500 of the rate for representation shall vest 2/5/1[6]. The remaining $500 shall vest 2/12/16.

         Ramsey pled guilty to second offense OWI. His plea agreement stated that Ramsey would serve his sentence at the Fort Des Moines Correctional Facility, but noted the court was not bound by the agreement and could impose the maximum sentence. The court sentenced Ramsey to prison for up to two years and set the appeal bond at $2000, cash only. On April 29, 2016, Turner moved for an order "Pro Nunc Tunc," asking the court to strike the sentencing order "due to all parties involved misunderstanding [Ramsey's] eligibility for the Fort[] Des Moines Program." The motion asked that Ramsey be released and "that a new pretrial conference be set to determine the direction of [Ramsey's] proceedings accordingly." The court scheduled a hearing on this motion for May 13. On May 2, Turner filed a notice of appeal.

         On May 13, the district court denied Turner's motion, stating, "After discussing this matter, in the absence of [Turner], the record establishes that the case has been appealed to the Iowa Supreme Court. Since the case is . . . pending appeal, this Court no longer has jurisdiction of this matter." The order noted that Turner arrived at the hearing forty-five minutes late.

         On May 18, Turner and Ramsey entered into a second fee agreement. Turner agreed to "represent [Ramsey's] interests . . . whereby the following will be filed[:] withdraw of appeal, motion to vacate judgment, and motion to suppress." The agreement provided that a flat fee of $500 would "vest with [Turner] immediately upon receipt."

         Because Turner failed to file the combined certificate and to pay the filing fee, the appellate clerk sent Turner a "Notice of Default and Assessment of Penalty" on June 1. Turner did not cure the default, so we dismissed Ramsey's appeal. Turner then filed a motion to reconsider the district court's judgment, and the district court scheduled a hearing for July 18. On that date, the appellate clerk issued procedendo. The district court established a briefing schedule and scheduled a hearing for August 8. Ramsey and Turner then entered into a third fee agreement providing that Turner would represent Ramsey for the sentencing hearing for a flat fee of $750.

         After the hearing on August 8, the district court denied Ramsey's motion to reconsider the sentence, noting "the court is not bound by any determination of counsel by any plea negotiations." The court stated, "I know that I did not promise you that you would be going to the Fort Des Moines facility." The court explained, "I just don't believe that that was an understanding at the time, that you would not be going to prison if you couldn't get into the Fort Des Moines."

         K. The Dondo Representation (Count XI).

         Comfort Dondo retained Turner to represent her in a Polk County criminal case in January 2016. Turner filed three consecutive motions to continue the pretrial conference. The court granted the first two but denied the third. The court ordered Dondo and Turner to personally appear on March 21. Turner failed to appear. After waiting an hour and twenty-five minutes, the court made a record with Dondo and the prosecutor. The court set a hearing on the state's oral motion for sanctions against Turner based on his failure to appear. Turner requested a continuance to retain counsel. The court continued the sanctions hearing. At the rescheduled hearing on sanctions, the court found Turner in contempt, noting,

Turner violated his obligation to appear or to inform the court he would not be appearing. To date, he has not presented any adequate excuse for failing to do so. This dereliction of duty constitutes a willful neglect or violation of duty and a violation of the process of the court. It was a volitional act done by one who should reasonably be aware that his conduct is wrongful. [Turner's] nonappearance resulted in obstruction of the administration ...

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