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Iowa Supreme Court Attorney Disciplinary Board v. Kowalke

Supreme Court of Iowa

September 14, 2018

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
TODD W. KOWALKE, Respondent.

          On review from the Iowa Supreme Court Grievance Commission.

         Grievance commission recommends the revocation of an attorney's license to practice law for violations of ethical rules.

          Tara van Brederode, for complainant.

          Todd W. Kowalke, Cresco, pro se.

          CADY, CHIEF JUSTICE.

         The Iowa Supreme Court Attorney Disciplinary Board charged attorney Todd Kowalke with violating the rules of professional conduct during his representation of the executors of an estate. The Iowa Supreme Court Grievance Commission found Kowalke violated several rules of professional conduct and recommended revocation of his license to practice law. Upon our de novo review, we find Kowalke converted client funds for his personal use, and we revoke his license to practice law in the State of Iowa.

         I. Background Facts and Proceedings.

         Todd Kowalke practices law in Cresco, Iowa. He was admitted to the Iowa bar in 1994. He is also a certified public accountant.

         In 2009, Kowalke agreed to serve as the attorney for the coexecutors of the estate of Violet B. Brokken. The parties entered into a fee agreement, which provided that Kowalke would accept a fee "equal to the amount set forth in Iowa Code section 633.197."[1] He prepared and filed a petition for probate of her last will and testament. He obtained an order from the district court that appointed the coexecutors and admitted the will to probate.

         Almost from the beginning, Kowalke neglected essential duties and responsibilities as the attorney for the executors. He failed to respond to an email from a great-nephew of the decedent and was late in filing the probate inventory and the initial interlocutory report. In 2011, the interlocutory report indicated the fiduciary income tax returns and the final report had not been completed. The 2012 interlocutory report indicated the remaining work on the estate included filing the income tax returns, locating several great-nephews and nieces, and completing the final report. Kowalke reported the same remaining work in the interlocutory reports filed in 2013, 2014, and 2015. Beginning in 2013, the district court responded to the reports by ordering Kowalke to complete the tasks necessary to close the estate. Although Kowalke represented to the court in each report that the estate was near completion, he failed to meet his projected deadline each time.

         During the pendency of the estate, the coexecutors deposited estate funds into Kowalke's law firm trust account. In 2011, they deposited $132, 707.89 into the account. In 2015, the coexecutors deposited $38, 809.06 into the account.

         Kowalke withdrew estate funds from the trust account on several occasions. In 2011, he withdrew $3692.18. The client ledger for the trust account reflected this sum represented attorney fees for his services, but the district court had not authorized the fees before Kowalke withdrew them from the trust account. In 2015, he withdrew $2500 from the trust account and deposited the funds into his firm business account. The memo line on the trust account check designated the funds as "Brokken Estate Fees," but the transaction again occurred without court authorization. After making some distributions to heirs, Kowalke's client ledger reflected a balance of $35, 470.06 held in trust for the estate.

         In January 2016, Kowalke withdrew $10, 000 of estate funds from the trust account for his personal use. He also withdrew approximately $23, 000 of estate funds to cover expenses relating to other client matters.

         In May 2016, Kowalke filed an application with the district court for fiduciary and attorney fees in the estate. He computed the attorney fees to be $3692.18, the same amount he withdrew as fees in ...


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