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Iowa Supreme Court Attorney Disciplinary Board v. Capotosto

Supreme Court of Iowa

May 3, 2019

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
DONALD H. CAPOTOSTO, Respondent.

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

         In this attorney disciplinary action, the grievance commission recommends a sixty-day suspension. LICENSE SUSPENDED.

          Tara van Brederode and Amanda K. Robinson, Des Moines, for complainant.

          John D. Brown, Emmetsburg, and Donald H. Capotosto, West Bend, pro se, for respondent.

          CADY, CHIEF JUSTICE

         This case is before us on review from a report and recommendation of a division of the Iowa Supreme Court Grievance Commission concerning attorney Donald Capotosto. The report found Capotosto committed ethical violations and recommended he be suspended from the practice of law for sixty days. We find Capotosto violated the Iowa Rules of Professional Conduct by neglecting several probate cases. We suspend his license to practice law in Iowa for sixty days.

         I. Background Facts and Proceedings.

         Donald Capotosto is an Iowa attorney admitted to practice law in 1973. He resides and maintains a private practice in West Bend, Iowa. In addition to his private practice, he regularly accepts court-appointed criminal and juvenile cases. This disciplinary proceeding involves Capotosto's conduct in handling several probate cases and his failure to cure numerous delinquencies.

         On December 21, 2018, Capotosto and the Iowa Supreme Court Attorney Disciplinary Board jointly filed a stipulation of facts and rule violations. Capotosto stipulated that he allowed six probate estates to become delinquent and violated Iowa Rules of Professional Conduct 32:1.3; 32:1.4(a)(3), (4); and 32:8.4(d). The parties also stipulated that Capotosto entered into a deferral agreement (the Agreement) on March 14, 2018.

         Pursuant to the Agreement, Capotosto was required to remedy all delinquencies by June 1, 2018, or, alternatively, withdraw from the cases. The terms of the Agreement also required Capotosto to complete six hours of continuing legal education in the area of probate law and submit quarterly reports to the Board documenting his compliance with the conditions. The Agreement prohibited Capotosto from commencing probate work on estates for which he was not already the attorney of record. Capotosto acknowledged that failure to meet the conditions of the Agreement would result in disciplinary actions against him.

         Capotosto failed to comply with the requirements of the Agreement. He did not cure or withdraw from the already delinquent probate estates. Moreover, Capotosto opened additional probate estates, causing the number of delinquent cases to increase from five to twelve by the time of the grievance commission hearing. He also failed to file quarterly reports as required under the Agreement.

         Capotosto has been previously subjected to disciplinary action. In January 2015, he was publicly reprimanded for allowing several probate estates to become delinquent. In January 2016, he was temporarily suspended for failing to respond to a complaint from the Board.

         II. Board Complaint and Commission Grievance Report.

         Following Capotosto's failure to comply with the Agreement's terms, the Board recommended a minimum sanction of a six-month license suspension. It further recommended that Capotosto be barred from handling probate cases in the future.

         The commission found Capotosto violated the rules set forth in the stipulation. It also identified numerous aggravating factors, including failing to cure delinquencies, failing to withdraw from the cases, opening of new estates, and receiving new notices of delinquency; a public reprimand in 2015; a temporary suspension in 2016; and the absence of a succession plan. It also recognized several mitigating circumstances, including letters of support and his willingness to accept court-appointed cases. It also observed that he completed substantial work on all of the cases. Ultimately, the commission concluded Capotosto should receive a sixty-day suspension.

         III. ...


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