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Iowa Supreme Court Attorney Disciplinary Board Complainant v. Parrish

Supreme Court of Iowa

March 22, 2019

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
ERIC KENYATTA PARRISH, Respondent.

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

         On review of a grievance commission report recommending revocation of the respondent's license to practice law in this state.

          Tara van Brederode and Elizabeth E. Quinlan, for complainant.

          Eric K. Parrish, Ankeny, pro se.

          APPEL, JUSTICE.

         In this matter, the Iowa Supreme Court Attorney Disciplinary Board brought a series of charges against attorney Eric Parrish related to his handling of a payment made by a client that the Board alleged was for the specific purpose of paying the cost of preparing a transcript on appeal. The Iowa Supreme Court Grievance Commission found that Parrish failed to use the funds to pay for the transcript as instructed by his client and, instead, converted the funds for his own use. The commission recommended revocation of Parrish's license. For the reasons stated below, we agree with the commission that Parrish violated ethical rules and suspend his license.

         I. Factual and Procedural Background.

         A. Disciplinary History.

         Eric Parrish is a licensed Iowa attorney. He was admitted to practice in 1999. Parrish received ten private admonitions between 2001 and 2013. On three occasions, the private admonitions related to Parrish's failure to provide his clients with itemization of services following his receipt of retainers. On three other occasions, he was privately admonished for neglect when his failure to pay filing fees or take other action caused dismissal of proceedings. On two occasions, he received private admonitions for withdrawing retained funds in excess of fees earned from his trust account. On another occasion, he allowed trust funds in a settled case to fall below the amount of a lien on the settlement funds, thereby failing to protect the rights of a third party to funds in his possession. He was also admonished for neglect in failing to notify clients of an adverse court decision and to inquire as to whether they wished to appeal. Although private admonitions are not discipline, they put a lawyer on notice of deficiencies regarding ethical requirements. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Said, 869 N.W.2d 185, 194 (Iowa 2015).

         In 2011, Parrish's license was suspended for sixty days as a result of misconduct related to trust account violations and mishandling of fees. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 583 (Iowa 2011). Specifically, Parrish withdrew funds from trust accounts before they were actually earned, failed to appropriately account for earned fees, and failed to return the unearned portion of the fees in violation of Iowa Rules of Professional Conduct 32.1.5(a) (prohibiting unreasonable fees), 32.1.15(c) (permitting withdrawal of fees only as they have been earned), 32:1.15(d) (requiring notice to clients after receiving funds and a prompt return of client funds), 32:1.15(f) (incorporating chapter 45 of the Iowa Court Rules, including requirements associated with a contemporaneous written accounting to client), and 32:1.16(d) (requiring return of unearned payments upon termination of representation). Id. at 585-88. In addition to violations of our ethical rules, we also found violations of parallel court rules. Id.

         After his suspension, Parrish received a public reprimand in 2012 for failing to provide contemporaneous billings to clients, including contemporaneous notices when funds were withdrawn, and for delaying the return of unearned fees in violation of ethical rules 32:1.15(d) and 32:1.16(d) and Iowa Court Rule 45.7(4). He was further reprimanded for violating rule 32:1.3 (requiring reasonable diligence) for failing to attend a hearing. Also in 2012, he received a second public reprimand for failing to respond to a demand for information from our disciplinary authorities.

         B. Nature of Complaint.

         On September 19, 2016, Taylor Ware filed a complaint with the Board regarding Parrish's conduct. Ware hired Parrish to represent her in a child custody matter. After an adverse ruling from the district court, she agreed with Parrish to take an appeal.

         Ware stated Parrish informed her that in order to appeal she would need to pay $2500 for a transcript. Although Ware had just lost her job, she claimed she arranged to pay for the transcript by asking for support from family and friends. Ware averred, "Eric [Parrish] assured me that he had filed the appeal, was writing a brief, and that as soon as I paid him for the transcripts, he would get them from the [court] reporter."

         Although Ware stated she gave Parrish a check for $2467.50 to pay for transcripts-the exact amount billed by the court reporter-the transcripts were never obtained. Sometime later, Ware learned through another attorney that Parrish had not paid for the transcript and that her appeal had been dismissed. According to Ware, "I gave Mr. Parrish a check for $2467.50 for transcripts that were never purchased from the court reporter, and was promised an appeal that was filed, but dismissed."

         The Board filed its revised amended complaint on October 13, 2017. According to the complaint, Ware hired Parrish to represent her in a custody modification matter. After the district court awarded primary custody to the child's father on March 23, 2016, Parrish recommended an appeal but told Ware that she would have to advance approximately $2500 to pay for the cost of the trial transcript. The Board alleged that Parrish filed a notice of appeal on April 21, 2016.

         The Board further noted that on April 28, Ware wrote Parrish a check for $2467.50 with the notation "Transcript Fees" on the memo line. The Board asserted the specific purpose of the check was to pay the transcript fees. That same day, the Board alleged, Parrish filed the combined certificate in the appeal with this court.

         The Board asserted, however, that Parrish converted the $2467.50 received from Ware for his own personal use without a colorable future claim in violation of Iowa Code section 714.1(2) (2016) (prohibiting misappropriation of property held in trust) and section 714.2(2) (prohibiting theft of property valued in excess of $1000 but not exceeding $10, 000). The Board further alleged that Parrish falsely told this court in filings on June 17 and July 1 that Ware had not been able to pay the cost of the transcript and needed additional time.

         The Board noted that this court dismissed Ware's appeal on August 1. The Board alleged that Parrish did not tell Ware about the dismissal. The Board further asserted that upon dismissal, Parrish had an obligation to return the $2467.50 to Ware.

         The Board claimed Parrish's actions violated five of our ethical rules. Specifically, the Board alleged that Parrish violated Iowa Rules of Professional Conduct 32:1.15(d) (requiring prompt delivery and accounting of client funds), 32:3.3(a)(1) (prohibiting knowing false statements to a tribunal), 32:8.4(b) (prohibiting criminal acts reflecting adversely on honesty, trustworthiness, or fitness), 32:8.4(c) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation), and 32:8.4(d) (prohibiting conduct prejudicial to the administration of justice).

         On October 25, 2017, Parrish filed an answer to the Board's revised amended complaint. Parrish denied that Ware's April 28, 2016 check for $2467.50 was for the specific purpose of paying the transcript fee. Among other things, Parrish affirmatively alleged that "Ware wrote 'Transcript,' 'Fees' on the memo line of the check." He further affirmatively alleged that under the terms of his agreement with Ware, he earned his fee upon receipt and, as a result, he had no obligation to hold the money received from Ware on April 28 in trust. Parrish denied that he committed any of the ethical violations alleged in the Board's revised amended complaint. Parrish also filed a notice pursuant to Iowa Court Rule 36.8(1) and (2), asserting that he had a colorable future claim of right for the funds.

         C. Proceedings Before the Commission.

         1. Evidence presented at hearing.

         The commission held a hearing on the matter on November 13 and 14, 2017. The commission heard testimony from Ware and Parrish. It also received a variety of exhibits from the Board showing Parrish's prior admonitions and discipline, communications between Ware and Parrish, and filings made by Parrish in this court related to the appeal of the child custody matter. Parrish offered exhibits showing his communications with Ware and documents related to his medical condition.

         2. Commission ruling.

         The commission found that Parrish and Ware entered into a $5000 flat fee agreement for representation in the custody modification trial and a $2500 flat fee agreement for representation in the appeal. The commission found that after the notice of appeal was filed on April 21, 2016, Parrish was notified by the court reporter that the exact cost of the transcript would be $2467.50. Parrish forwarded the figure to Ware.

         The commission found that on April 27, Ware texted Parrish that she was able to pay the money for the transcript because of help provided from her grandmother as a result of the grandmother's income tax refund. The next day, Ware wrote a check payable to the Polk County Courthouse but texted Parrish to confirm the appropriateness of the payee on the check. The commission found that Parrish responded by informing Ware to make the check payable to him because the court reporter issued the billing statement in Parrish's name. Ware then issued a new check payable to Parrish in the amount of $2467.50 and wrote on the memo line of the check "Transcript Fees." According to the commission, Ware understood that the amount would be placed in Parrish's trust account and that Parrish would use the funds to pay the court reporter.

         According to the commission, Parrish did not put the funds in his trust account and did not pay the court reporter. As a result, no transcript was prepared. Nonetheless, the commission found that Parrish filed a combined certificate with this court certifying that he did "order" the transcript and that "[n]o arrangements have been made or suggested to delay the preparation thereof." The commission noted that Parrish knew that before commencing preparation of the transcript, the court reporter required the transcript fee be paid in full. The commission further found that on June 17 and July 1, Parrish advised the court that Ware had been unable to raise the necessary funds but that he expected Ware to have the necessary funds in fourteen days or by the end of the week. Ultimately, the commission noted that the appeal was dismissed by this court on August 1.

         The commission found that Parrish did not notify Ware of the pleadings or orders concerning the status of the appeal, including the dismissal of the appeal. Further, the commission found that Parrish did not reimburse Ware in the amount of $2467.50.

         The commission considered and rejected Parrish's contention that the $2467.50 was a payment in full of his $2500 flat fee for handling the appeal. The commission noted that the check referenced "Transcript Fees," and was written for the precise amount of the cost of the transcript. Further, the commission noted that texts prior to April 28 expressly referred to the need for funds for the transcript while the texts after April 28 do not mention transcript costs but only attorney fees. Finally, to the extent there was a conflict in testimony, the commission found Ware credible.

         The commission also addressed Parrish's attempt to explain his actions by suggesting that he used a fee structure devised to reduce the possibility of trust account violations. The commission found that the fee structure had no bearing on the proceeding, as the $2467.50 payment to Parrish was specifically intended for transcript costs and not for Parrish's attorney fees.

         In light of its factual findings, the commission found numerous ethical violations. The commission found violations of Iowa Rules of Professional Conduct 32:8(4)(b) and 32:8(4)(c). The commission found that Parrish had no colorable future claim for funds given to him for a particular purpose other than attorney fees. As a result, according to the commission, a severe sanction is appropriate. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 500-01 (Iowa 2017).

         The commission recognized that in order to find a violation of rule 32:8(4)(c), there must be a finding of scienter rather than mere negligence. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Haskovec, 869 N.W.2d 554, 560 (Iowa 2015). The commission concluded that Parrish knew the check from Ware was for the specific purpose of paying the transcript fee, not for his legal representation. The commission further reasoned that Parrish converted the funds for his own personal use when he failed to pay for the transcript and lied to Ware and to this court regarding payment status of the transcript. As a result, the commission found that Parrish committed theft by misappropriation in violation of Iowa Code sections 714.1(2) and 714.2(2) when he converted the $2467.50 for his own personal use.

         The commission recognized that when an attorney misappropriates funds to which he did not have a colorable claim, it is unnecessary to discuss the other rule violations in detail or consider aggravating or mitigating factors. Guthrie, 901 N.W.2d at 500. Nonetheless, the commission briefly considered other ethical violations. The commission concluded Parrish violated rules 32:1.15(d), 32:3.3(a)(1), and 32:8.4(d).

         The commission also catalogued mitigating and aggravating factors. As mitigating factors, the commission rejected the notion that Parrish's mental health status mitigated accountability for his actions. The commission noted Parrish testified that his mental health issues were "well controlled."

         On the other hand, the commission found a number of aggravating factors. The aggravating factors found by the commission included Parrish's multiple violations of ethical rules; his history of private admonitions, public reprimands, and prior suspension; his prior discipline for similar misconduct; his substantial experience in the practice of law; his refusal to show remorse or admit wrongful conduct; and his uncooperative course of conduct throughout the disciplinary proceedings.

         The commission recommended revocation of Parrish's license to practice law. It also recommended Parrish reimburse $2467.50 to Ware.

         D. Preliminary Appellate Proceedings.

         Parrish filed a notice of appeal. He sought to remand the case to expand the record regarding mitigating factors. This court denied the remand. Parrish also filed a motion with this court to answer what he characterized as a "certified question"; namely, whether a formal retirement under Iowa Rule of Professional Conduct 39.7(2) would impact the current appeal and disciplinary action in this case. We ordered the parties to address the matter in their briefs on the merits.

         Parrish, however, failed to file a timely brief even though we extended the deadline for briefing. We ordered the matter submitted to the court without briefing pursuant to Iowa Court Rule 36.21. Under rule 36.21, the parties may file statements in support or opposition to the sanction recommended by the commission. Neither party filed a sanctions statement.

         We have found no provision in our disciplinary rules for this court to answer "certified questions" posed by an attorney related to pending disciplinary proceedings.[1] In any event, a lawyer may not avoid the disciplinary process involving a potential revocation of the lawyer's license through a strategy of voluntary retirement. See Iowa R. Prof'l Conduct 34.10(1); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Nelsen, 807 N.W.2d 259, 265 (Iowa 2011).

         II. ...


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