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Iowa Supreme Court Attorney Disciplinary Board v. Muhammad

Supreme Court of Iowa

October 25, 2019

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
TINA HASSANE MUHAMMAD, Respondent.

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

         The grievance commission recommends a one-year suspension of an attorney's license to practice law for multiple violations of ethics rules, including theft from a client without colorable claim.

          Tara van Brederode, Des Moines, for complainant.

          Tina Hassane Muhammad, Chicago, Illinois, pro se.

          APPEL, JUSTICE.

         In this disciplinary matter, we consider whether a lawyer's depositing of $7500 advanced by a client into a personal account amounts to theft as alleged and, if so, whether the lawyer can avoid revocation by showing that she had a colorable claim to the funds.

         The Iowa Supreme Court Attorney Disciplinary Board (Board) sought revocation of the lawyer's license to practice law. After a hearing, the Iowa Supreme Court Grievance Commission (commission) concluded that the lawyer received the funds for expense purposes in connection with a potential legal claim but that the funds were deposited into the lawyer's personal account. The commission also found that the lawyer did not have a colorable present or future claim to the funds. After balancing aggravating and mitigating factors, the commission recommended the lawyer's license be suspended for one year. The commission further recommended that we require reimbursement of the $7500, that we require the lawyer to obtain a mentor, that the lawyer undergo at least six hours of continuing legal education related to trust account and fee retainer agreements, and that the lawyer continue to comply with our minimum continuing legal education requirements during the period of suspension.

         Based upon our de novo review, we revoke the lawyer's license to practice law.

         I. Factual and Procedural Background.

         A. Introduction.

         Tina Muhammad is a licensed Iowa lawyer. Prior to becoming a lawyer, Muhammad was a stay-at-home mother and worked for a period of time outside the legal profession. She graduated from law school in 2015 and was admitted to the Iowa bar in 2016. During her law school years, Muhammad worked with Black Lawyers for Justice in support of their nationwide efforts against police brutality and served as an assistant on cases.

         At the time she obtained her Iowa law license, Muhammad was employed as a compliance officer with a Des Moines-based company. She left her employment there in the summer of 2016, and in August 2016, she entered solo practice focusing on family and criminal law. At the time of the disciplinary hearing in this case, Muhammad was employed by Upright Law, a Chicago law firm specializing in bankruptcy matters. She also on occasion performed contract work reviewing documents. Muhammad has no prior disciplinary history.

         Rachel Peebles is a resident of the State of Washington. She currently resides in Tacoma. Peebles' son was a mental health patient at Harborview Medical Center in Seattle, Washington. On August 12, 2014, an incident allegedly occurred at Harborview which formed the basis for Peebles' personal injury/civil rights matter against Harborview and other related parties. In August of 2016, Peebles contacted Muhammad in Iowa regarding potential legal representation in this matter.

         B. Nature of Complaint.

         On July 26, 2018, the Board filed a complaint against Muhammad. The Board alleged that in the summer of 2016, Peebles conducted an internet search to find an attorney to evaluate whether she had sufficient grounds to bring a personal injury and civil rights lawsuit against Harborview Medical Center, the State of Washington, the University of Washington, and the Seattle Police Department. According to the Board, Peebles located Muhammad through an online advertisement and paid her a $250 retainer to evaluate her case.

         Peebles allegedly told Muhammad that she did not want an attorney licensed in Washington to represent her. The Board asserted Muhammad advised Peebles that there were grounds to bring a personal injury and civil rights lawsuit in Washington arising from the alleged incident. The Board claimed that Peebles and Muhammad executed a contingency fee agreement (Agreement) regarding the personal injury/civil rights claim.

         Pursuant to the Agreement, the Board alleged that Peebles paid Muhammad $7500 in advance for expenses in connection with the personal injury/civil rights representation. According to the Board, Muhammad deposited the funds in a nontrust account. The Board claimed that when Peebles severed the attorney-client relationship with Muhammad, she requested an accounting of the $7500 advanced for expenses. The Board stated that no accounting was forthcoming and that none of the $7500 was returned to Peebles.

         The Board alleged that Muhammad violated Iowa Rules of Professional Conduct 32:8.4(b) (criminal acts) and 32:8.4(c) (honesty, fraud, deceit, and misrepresentation). Specifically, the Board alleged,

17. Muhammad used the $7, 500 expense retainer for purposes other than for the specific purpose for which it was paid as set forth in the Agreement.
18.Muhammad did not have a colorable future claim to the $7, 500, as it was for the specific purpose of paying expenses, and instead knowingly converted the funds in violation of Iowa Code §§ 714.1(2) and 714.2(2).

         The conversion and lack-of-colorable-future-claim allegations are sufficient to comply with Iowa Court Rule 36.8(1).[1]

         The Board also alleged a series of trust account violations. Specifically, the Board alleged violations of Iowa Rules of Professional Conduct 32:1.15(a) (holding funds in separate accounts), 32:1.15(c) (depositing advance legal and expense fees in trust account), 32:1.15(d) (safekeeping and prompt delivery of property), and 32:1.15(f) (complying with chapter 45 of the Iowa Court Rules).

         Muhammad answered the Board's complaint. She asserted that Peebles agreed to pay her a $15, 000 flat fee to assist in the settlement of a separate action related to public disclosure of video footage but not for expenses associated with her potential personal injury/civil rights claim. Thus, according to Muhammad, the payment of the $7500 was "already earned."[2] Muhammed asserted that she pulled the Agreement off the Internet and that it was "all wrong for this case." She asserted that the Agreement "is very confusing and seems to allude that [she] charged [Peebles] $7500.00 for expenses, but that is incorrect."

         On the trust account issue, Muhammed claimed she put the $7500 she received from Peebles in what she thought was a client trust account. Muhammad claimed the account was improperly set up by bankers, a fact she claimed she did not know until she prepared her yearly client security questionnaire.

Muhammad admitted that she did not provide Peebles with an accounting in connection with the $7500 payment. Regarding her ability to provide an accounting to Peebles, Muhammad asserted that she failed to keep track of her time. Muhammad affirmatively pled that she helped get Peebles a settlement in the public disclosure case, contacted attorneys regarding a trust account for Peebles, helped Peebles get visitation rights to the facility where her son was confined, and negotiated a release for her son. According to Muhammad's pleading, Peebles called her and her paralegal "every day, and sent tons of emails and various documents." In her answer, Muhammad maintained that not only did she earn the $7500 but that Peebles owed her an additional $7500.

         Muhammad denied the Board's allegation that she had no colorable claim to the $7500. She repeated her insistence that the funds were not for expenses related to her potential personal injury/civil rights claim. According to Muhammad, "I never converted funds knowingly, that is not true. . . . [M]y intentions were good and remained good, it was my paperwork that was lousy. I admit that." In effect, Muhammad admitted that she violated rule 32:1.15(f) (complying with Iowa Code chapter 45) but denied the remainder of the Board's alleged violations.

         II. Proceedings Before the Commission.

         A. Sanction for Pretrial Noncompliance and Motion to Continue.

         In its scheduling order, the commission established November 6, 2018, as the deadline for the filing of exhibits, exhibit lists, and witness lists. The scheduling order provided that a hearing on the matter would be held on November 29-30, 2018.

         Muhammad did not timely file the required documents on November 6. Further, on November 9, Muhammad did not participate in a hearing on the question of whether the testimony of Peebles could be taken by telephone.

         On November 13, counsel for the Board sent an email to Muhammed asking when the documents might be available but received no answer. In light of the lack of response, the Board on November 15 filed a motion to intervene with the panel president seeking any of the following: (1) an order prohibiting Muhammad from introducing witnesses and exhibits, (2) an order extending the deadline for witness and exhibit lists, or (3) setting the matter for hearing.

         On November 16, the panel president granted the motion to intervene and extended the deadline for providing submissions to the following Monday, November 19, but warned Muhammad that if she failed to provide the documents she would be precluded from calling witnesses or offering exhibits at the hearing. Muhammad failed to file any documents under the extended deadline. On November 20, the Board filed a motion to preclude her from offering exhibits or witnesses at the hearing. That same day, the panel president granted the motion and entered an order precluding Muhammad from offering exhibits or witnesses at the hearing. Cf. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cepican, 861 N.W.2d 841, 843 (Iowa 2015) (holding respondent was precluded from introducing witnesses and evidence as a sanction for failing to answer the complaint or to provide discovery responses).

         On November 26, Muhammad filed a motion to continue the hearing asserting hardship and the need to consult with an attorney. The Board resisted the continuance. The Board recounted Muhammad's history of noncompliance with the various orders and deadlines. The panel president denied the motion to continue.

         B. Hearing Before the Commission.

         The hearing occurred on November 29 and 30, 2018. The Board called two witnesses to testify, Peebles (telephonically) and Muhammad.

         Muhammad was not allowed to present a case-in-chief but only to cross-examine Peebles and herself. The commission members engaged in extensive examination of the two witnesses.

         C. Commission's Findings of Fact, Conclusions of Law, and Recommendation.

         1. Find ...


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