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Iowa Supreme Court Attorney Disciplinary Board v. Noel

Supreme Court of Iowa

February 15, 2019

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
MATTHEW L. NOEL, Respondent.

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

         The grievance commission recommends we suspend an attorney's license for an indefinite period of at least one year based on the attorney's conduct of charging and collecting excessive fees, conduct reflecting adversely on his fitness to practice law, and conduct involving deceit.

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

          Max E. Kirk, Waterloo, and Dan McClean of McClean & Heavens Law Office, Dyersville, for respondent.

          CHRISTENSEN, JUSTICE.

         An audit by the Iowa State Public Defender (SPD) revealed an Iowa attorney billed the state for services he did not perform and made excessive mileage claims. The attorney pled guilty to two counts of fourth-degree theft for billing for family team meetings he did not attend. The Iowa Supreme Court Attorney Disciplinary Board (Board) subsequently brought a complaint against the attorney alleging he violated numerous Iowa Rules of Professional Conduct while performing legal services for the SPD. The Iowa Supreme Court Grievance Commission (commission) found various violations of our ethical rules and recommended suspending the attorney's license to practice law in Iowa indefinitely for a period of at least one year from the date of our holding in this matter.

         The attorney challenges the commission's recommended sanction and requests a ninety-day suspension instead. Further, he argues the commission should not have relied on the doctrine of issue preclusion in determining he committed a criminal act based on his criminal convictions, nor should it have admitted the minutes of testimony from his criminal theft case as evidence. The attorney also maintains the commission made incorrect factual findings and erroneously concluded he violated certain ethical rules. After our de novo review of the record, we agree with the recommendation of the commission and suspend the attorney's license to practice law in the State of Iowa indefinitely for a period of at least one year.

         I. Background Facts and Proceedings.

         Matthew Noel is an attorney admitted to the Iowa bar in 2008. In November 2008, Noel and the SPD entered into a contract for Noel to provide legal services to indigent adults and juveniles in five judicial districts and in appellate matters. At the time of the alleged conduct, Noel maintained a law office in Dubuque County. He was appointed as a magistrate in Dubuque County in August 2013. Noel's contract with the SPD was renewed in 2010, and the renewed contract expired on January 1, 2014. The terms and conditions of the contract provided that Noel "shall claim fees only for actual time and expenses reasonably necessary to properly represent the client." Pursuant to the contract, Noel was required to submit a claim form to the SPD to receive payment for his services. The contract required him to submit the following or similar language:

I, the undersigned attorney, certify that I have completed my services under the appointment; that I have not received nor have I entered into any agreement to receive compensation for these services, direct or indirect, from any source other than the State Public Defender; and that the above information summarizes the services and expenses for which I am entitled to payment. I further state that an itemized statement of services and expenses is attached hereto and a copy has been provided to my client.

         In a letter dated December 23, 2013, Samuel Langholz of the SPD informed Noel the SPD had concerns about Noel's billing practices related to his claims for mileage expenses. Langholz explained Noel had been reimbursed nearly $15, 000 for traveling more than 40, 000 miles in each of the past two fiscal years, "[a]nd in each of these years, [Noel] claimed and [was] paid more mileage than any other indigent defense contract attorney in the state." Due to billing concerns, Langholz stated the SPD was "not comfortable renewing [Noel's] contract for a full three-year term" and would only agree to a renewal of its contract with Noel for one month "on the condition that several more distant counties [were] removed from [the] contract."

         Noel responded to Langholz and the SPD in a letter dated January 14, 2014, admitting he billed the SPD full trip mileage for each client, even when he made the trip on behalf of multiple clients. Noel claimed he did not learn he was incorrectly billing the mileage until he attended a SPD conference in June 2013. Noel gave two reasons for his incorrect billing. First, he told Langholz that he was an electrician prior to becoming a lawyer and the industry standard for electricians was "to charge all customers mileage for a trip to a single location on one day." Second, he was continuing the billing practice he was taught by his previous law firm's office manager and other attorneys. In a letter dated January 29, Langholz told Noel he had considered Noel's January 14 response and determined the SPD would not continue to contract with Noel to provide indigent defense services. Langholz explained Noel's billing for mileage had resulted in more than $11, 000 of potential overpayments and Noel never contacted the SPD to remedy his billing issues after he claimed he learned he had been incorrectly billing his mileage.

         In September 2014, the state auditor (auditor) issued her report on a special investigation of the SPD's office that spanned from July 2009 through August 2013. The auditor's report found the SPD overpaid Noel at least $5070 for legal services, including $2364 for family team meetings in juvenile cases Noel did not attend. The auditor's report also found the SPD overpaid Noel at least $12, 333.45 in mileage expenses, which represented payment for more than 35, 328 miles at thirty-five cents per mile. The state subsequently filed a trial information against Noel, charging him with second-degree theft, a class "D" felony, in violation of Iowa Code sections 714.1(3), 714.2(2), and 714.3 (2013). The state later amended the trial information to charge Noel instead with two counts of fourth-degree theft, serious misdemeanors, in violation of Iowa Code sections 714.1(3), 714.2(4), and 714.3. The charges alleged Noel obtained "a transfer of possession, control, or ownership of the property of another by deception, where the amount of money involved exceeds $200, by billing the State Public Defender's Office for work not actually performed" from July 2009 through August 2013.

         Noel filed a written guilty plea to the two counts of fourth-degree theft on June 22, 2017. In this plea, Noel proclaimed,

In order to establish a factual basis I ask the court to accept as true the minutes of testimony, the date[] of the offense is July 2009 through August 2013 and I admit that I did the following: The Defendant admits that there is a factual basis for both Count I and Count II related to billings for Family Team Meetings. Defendant does not contest paying restitution for allegations of over billing mil[e]age.

         The district court accepted Noel's guilty plea, and he was sentenced to a mandatory minimum fine of $315 on each count; a $125 law enforcement initiative surcharge on each count; the applicable surcharges and court costs on each count; and restitution in the amount of $14, 697.45- $12, 333.45 for Noel's mileage claims and $2364 for his fee claims for family team meetings he did not attend. Noel also received a thirty-day fully suspended jail sentence on count I and unsupervised probation to be served concurrently with a one-year fully suspended jail sentence and unsupervised probation on count II. Noel did not appeal this judgment.

         On October 30, the Board filed a complaint against Noel, alleging numerous violations of the Iowa Rules of Professional Conduct. On January 26, 2018, the Board filed a motion for leave to substitute an amended complaint, which the commission approved, and the amended complaint was filed on March 5, separating the matter into two counts. Count I alleged Noel violated Iowa Rules of Professional Conduct 32:1.5(a) (unreasonable fees or expenses), 32:8.4(b) (criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects"), and 32:8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation") in his billings for family team meetings he did not attend. Count II alleged Noel violated the same three rules in his billings to the SPD for mileage claims. On March 5, the Board filed a notice of issue preclusion pursuant to Iowa Court Rule 36.17(4), stating it intended to invoke issue preclusion regarding all matters resolved in Noel's criminal proceedings for his fourth-degree theft convictions.

         The Board held a hearing to present evidence on March 27 and March 28. The Board presented nineteen exhibits at the hearing. Noel objected to exhibit 2, which contained the confidential minutes of testimony in Noel's criminal theft case, and exhibit 5, which contained additional minutes of testimony in Noel's criminal theft case. The commission admitted exhibits 2 and 5 after listening to arguments on the objections. Additionally, Noel presented twenty-two exhibits of his own. Pursuant to rule 36.17(2), Noel also submitted affidavits from an Iowa district court judge and an Iowa district associate judge in lieu of character testimony.

         On July 18, the commission issued its findings and recommendation. In its factual findings, the commission declared,

34. The issue of Noel's conduct raised in Count I of the Board's Complaint as to the billings for Family Team Meetings is identical to the issue raised in his criminal case. The mileage reimbursement was not at issue in the criminal proceeding, although the Court ordered restitution for the mileage reimbursement as part of the criminal proceeding. . . .
35. The issue of Noel's conduct as to his billings for Family Team Meetings was material and relevant to the disposition of the criminal case. . . .
36. The determination of the issue of Noel's conduct in the criminal case as to his billings for Family Team Meetings was necessary and essential to the resulting judgment. Noel accepted responsibility for his actions and admitted he was overpaid for billing Family Team Meetings he did not attend. . . .
37. In the criminal case, Noel was afforded a full and fair opportunity to litigate the issue of his conduct as to his billings for Family Team Meetings. . . .
38. There is a rational connection between the criminality of Noel's conduct as to his billings for Family Team Meetings and his fitness to practice law. . . .

(Emphasis added.) The commission found Noel violated rule 32:1.5(a) by claiming duplicate mileage and fees for family team meetings he did not attend, rule 32:8.4(b) for billing the SPD for family team meetings he did not attend and his criminal convictions for this billing, and rule 32:8.4(c) for intentionally making dishonest statements about his mileage and billing practices. The commission recommended we suspend Noel's license for an indefinite period with no possibility of reinstatement for at least one year from the date of our decision in this matter.

         Upon our review, Noel requests a ninety-day suspension and maintains the commission's recommended one-year suspension is inconsistent with the sanctions imposed in similar cases. Additionally, Noel contends the commission should not have relied on the doctrine of issue preclusion to determine he committed a criminal act based on his guilty plea to two counts of fourth-degree theft. He also argues the commission should not have admitted the minutes of testimony from his criminal theft case as evidence in his disciplinary hearing. Further, Noel challenges certain factual findings and the commission's conclusion that he violated certain Iowa Rules of Professional Conduct.

         II. Standard of Review.

         Our court reviews attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Nine, 920 N.W.2d 825, 827 (Iowa 2018). The Board must prove the alleged attorney misconduct by a convincing preponderance of the evidence, which "is more demanding than proof by [a] preponderance of the evidence, but less demanding than proof beyond a reasonable doubt." Id. at 827-28 (alteration in original) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Johnson, 884 N.W.2d 772, 777 (Iowa 2016)). Though we are not bound by the commission's factual findings and recommendations, we respectfully consider them. Id. at 827. Ultimately, we have the discretion to "impose a greater or lesser sanction than what the commission has recommended upon proof of an ethical violation." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Mathahs, 918 N.W.2d 487, 489 (Iowa 2018).

         III. Analysis.

         A. ...


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