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Iowa Supreme Court Attorney Disciplinary Board Complainant v. Noel

Supreme Court of Iowa

September 6, 2019

MATTHEW L. NOEL, Respondent.

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

         The grievance commission recommends a thirty-day suspension of an attorney's license to practice law for violations of ethics rules.

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

          Max E. Kirk, Waterloo, for respondent.


         The Iowa Supreme Court Attorney Disciplinary Board filed a complaint against Matthew L. Noel alleging multiple violations of the Iowa Rules of Professional Conduct. A division of the Iowa Supreme Court Grievance Commission found the Board proved some of the alleged violations and recommended a thirty-day suspension. We agree that the Board proved some of the alleged violations, but we publically reprimand Noel under the circumstances of this case.

         I. Scope and Standard of Review.

         We review attorney disciplinary matters de novo. Iowa Ct. R. 36.21(1); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Kowalke, 918 N.W.2d 158, 161 (Iowa 2018). "The Board must prove attorney misconduct by a convincing preponderance of the evidence, a burden greater than a preponderance of the evidence but less than proof beyond a reasonable doubt." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Turner, 918 N.W.2d 130, 144 (Iowa 2018) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Morse, 887 N.W.2d 131, 138 (Iowa 2016)). We give the commission's findings, conclusions, and recommendations respectful consideration, "especially with respect to witness credibility," but we are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Kieffer-Garrison, 847 N.W.2d 489, 492 (Iowa 2014) (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 131 (Iowa 2004)); accord Iowa Supreme Ct. Att'y Disciplinary Bd. v. Stansberry, 922 N.W.2d 591, 593 (Iowa 2019). We may impose a sanction that is greater or lesser than that recommended by the commission. Iowa Ct. R. 36.21(1); Stansberry, 922 N.W.2d at 594.

         II. Findings of Fact and Prior Proceedings.

         "Facts admitted in an answer are 'deemed established.'" Iowa Supreme Ct. Att'y Disciplinary Bd. v. West, 901 N.W.2d 519, 522 (Iowa 2017) (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa 2013)). We admitted Noel to the practice of law in Iowa in 2008. He practices primarily in civil and criminal litigation. In December 2015, Noel practiced law in the office of Mayer, Lonergan & Rolfes. On April 20, 2017, Noel began to practice law as The Noel Law Firm and ended his partnership with Mayer, Lonergan & Rolfes.

         A. Prior Disciplinary Proceeding.

         On October 30, 2017, the Board filed an ethics complaint against Noel for conduct predating and unrelated to his conduct that gave rise to the present disciplinary proceeding. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Noel (Noel I), 923 N.W.2d 575, 581 (Iowa 2019). Between November 2008 and January 1, 2014, Noel had a contract with the state public defender to provide legal services to indigent adults and juveniles. Id. at 579. During that time, Noel sought fees for services he did not perform, made false mileage claims, and failed to remedy billing submissions that he subsequently realized were incorrect. Id. at 585-86, 587, 588.

         The Board filed an amended complaint in Noel I on March 5, 2018. Id. at 581. The Noel I commission held a hearing on that amended complaint on March 27 and 28, and issued its report and sanctions recommendation on July 18. Id. In February 2019, we suspended Noel's license for at least one year as a result of his unethical billing practices between 2008 and January 1, 2014. Id. at 591.

         B. Fact-Finding Regarding Present Disciplinary Proceeding- Janelle Huffman Matter.

         In December 2015, Janelle Huffman spoke with Noel about filing a lawsuit against a roofing company, JT Home Improvement, for water damage caused by the roofing company. Noel agreed to represent Huffman in a lawsuit against JT Home Improvement upon payment of a retainer. Noel and Huffman also orally agreed that Noel would charge her $175 per hour. Huffman's insurance carrier hired Restoration and Cleaning of the Quad Cities, L.L.C., doing business as Rainbow International Restoration & Cleaning (Rainbow), to repair the water damage and restore the interior of her residence.

         In January 2016, Huffman met with Noel to discuss filing a lawsuit against Rainbow for failing to properly repair and restore the interior of her residence. Noel agreed to represent Huffman in a lawsuit against Rainbow upon payment of a retainer. That month, Huffman paid Noel's firm $920.

         On January 26, Noel billed Huffman $350 to "Draft and Prepare Petition and Original Notice." The petition named JT Home Improvement and Rainbow as defendants, but Noel never filed this petition.

         Between January and June 2016, Huffman repeatedly contacted Noel's law office to ask about the status of her suit against JT Home Improvement and Rainbow and for advice on how to handle her housing situation and interactions with Rainbow. She received no substantive response from Noel.

         On June 17, Rainbow sued Huffman for $6800, which it alleged Huffman owed for Rainbow's water damage remediation and reconstruction services beginning in August 2015. Huffman emailed Noel on June 25 to report that Rainbow had served her with papers and that she would deliver them to his office.

         In a letter dated July 17, Noel informed Huffman that he was working on an answer and counterclaim to Rainbow's suit, the answer was due on July 15, and he would have it filed by then. Noel filed an answer and breach-of-contract counterclaim against Rainbow on July 29.

         On August 29, counsel for Rainbow and Huffman filed the Iowa Rule of Civil Procedure 1.281 Trial Scheduling and Discovery Plan for Expedited Civil Action. The plan provided that the parties would provide initial disclosures no later than September 30, 2016, and a complete set of joint jury instructions and verdict forms, including a statement of the case, at least fourteen days before trial. It also stated late settlement fees under Iowa Rule of Civil Procedure 1.909 were applicable. Noel never provided Huffman's initial disclosures to Rainbow. He admitted he did not file the jury instructions and "that is certainly something [he] dropped the ball on, there's no doubt about it."

         On October 7, Rainbow served interrogatories and requests for production of documents on Noel as Huffman's counsel. Noel's office passed along the interrogatories to Huffman on October 10, asking her to answer and return them to the office "at her earliest convenience." Noel did not inform Huffman of the necessity of returning the interrogatories in a timely manner.

         Noel did not timely produce the discovery requests. He eventually conveyed unsigned interrogatory answers on February 1, 2017, and responded to Rainbow's request for documents on May 8, 2017. However, he did so only after Rainbow sent him a notice of overdue discovery requests, and the court granted Rainbow's motions for orders compelling discovery and awarding sanctions.

         Noel did not resist either the motion to compel or the motion for sanctions. Although it is disputed whether Noel informed Huffman of the motion to compel, he did not inform Huffman of the motion for sanctions. The sanctions order imposed a $345 attorney fee sanction that Noel eventually paid, even though he claimed Huffman was the cause of the delay.

         On February 3, the court granted Noel's motion to continue the trial. It scheduled a settlement conference for April 21 and trial for May 22. On April 20, court administration informed Rainbow's counsel and Noel that Judge Mark Cleve would preside at the settlement conference. However, on April 21, the court cancelled the settlement conference because Noel did not want to proceed with the settlement conference due to Judge Cleve's prior affiliation with Rainbow's counsel's law firm, some years back. The court never rescheduled the settlement conference.

         Noel did not consult with Huffman about whether to proceed with the settlement conference scheduled with Judge Cleve. Huffman did not instruct Noel to cancel the settlement conference. Efforts to reach Huffman to discuss the circumstances with Judge Cleve were unsuccessful, so Huffman met Noel at the courthouse for the cancelled conference on April 21. Noel then was able to inform Huffman that the case was not settled and would be tried to a jury beginning on May 22. Throughout this time, Huffman continued to inquire about the status of her case against JT Home Improvement.

         The week before the trial date, Noel and Huffman met for a trial preparation meeting. On Friday, May 19, Huffman emailed Noel's legal assistant, saying she hoped "Noel can maybe make a settlement." Noel's legal assistant conveyed this desire to Noel and to Rainbow, but Rainbow refused to settle unless Huffman paid something. Noel's office informed Huffman of Rainbow's refusal. It also said that a settlement would be unlikely and that trial on Monday was "probably the best bet."

         The morning of trial, counsel met with the presiding judge, Judge Joel Barrows, in chambers to discuss Rainbow's unresisted motion in limine and Noel's failure to file jury instructions. Because Noel did not file jury instructions and neither party moved to continue, Judge Barrows said that he needed some time to think about the appropriate next steps and suggested the attorneys "see what we can go do with this case."

         The attorneys then negotiated a $4500 settlement with their respective clients and reported the settlement to Judge Barrows. The court assessed a late settlement fee of $1000 against Huffman. Noel testified that he told Huffman the late settlement fee was part of the settlement package. Huffman denies this. We find Huffman more credible on this fact issue.

         On June 6, Huffman filed the first of two "To Whom It May Concern" letters with the court. In the June 6 letter, Huffman alleged that Noel "told [her] the judge told him this isn't a Rainbow problem - it's a Roofer [(i.e., JT Home Improvement)] issue - get out of there - settle it - he was sending the Jury home." She also claimed that Noel led her to believe that she had to pay only $4500 but then she was sent a bill for an additional $1000.

         On June 9, Noel sent Huffman a letter after he had received a copy of her June 6 letter. In his letter to Huffman, he explained that he thought she understood that she would pay the court costs. He also stated that he had not filed against JT Home Improvement yet because her June 6 letter "essentially turned [him] into a witness as to the [settlement] negotiations [and] it may be [his] ethical duty [to] withdraw from th[e] case [against JT Home Improvement]." He then stated, "If [Huffman] insist[ed] on holding a hearing with the Judge about the Court costs [he] will have to withdraw and will no longer [be] able to represent [her]." Huffman paid the $1000 late settlement fee on June 12.

         On June 14, Huffman sent her second letter to the court. In that letter, she again inquired why the court assessed her the $1000 fee even though she already paid Rainbow and did not have her day in court. She claimed, "[T]his [(the $1000 fee)] wasn't a late settlement[;] this was a you pay!!!" She also claimed Noel told her he would not represent her against JT Home Improvement if she did not pay the $1000 bill.

         The district court treated Huffman's June 6 and June 14 letters as motions for a hearing and scheduled one for July 27. At the hearing, which Judge Barrows presided over, Huffman declined to waive attorney- client privilege such that Noel could discuss the communications between himself and Huffman relevant to the allegations made in Huffman's letters. Judge Barrows also expressed his belief that he was obligated to refer the matter to the Board because of Noel's purported misrepresentation of Judge Barrows's statements, handling of discovery, and failure to comply with the terms of the trial scheduling and discovery plan. Judge Barrows ...

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