Iowa Supreme Court Attorney Disciplinary Board v. Heather Marie Kingery

IN THE SUPREME COURT OF IOWA
No. 15–0673

Filed October 30, 2015

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Appellee,

vs.

HEATHER MARIE KINGERY,

Appellant.

Appeal from the report of the Grievance Commission of the

Supreme Court of Iowa.

An attorney contends the grievance commission’s recommended

sanction for violations of disciplinary rules is excessive and features

improper auxiliary conditions on reinstatement. LICENSE SUSPENDED.

David L. Brown of Hansen, McClintock & Riley, Des Moines, for

appellant.

Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for

appellee.
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HECHT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (the Board)

charged attorney Heather Marie Kingery with violating multiple rules of

professional conduct after the Board received four separate complaints.

After a hearing, the Iowa Supreme Court Grievance Commission (the

commission) found Kingery committed the alleged violations and

recommended suspension of her license for six months and several

conditions upon any future reinstatement. Kingery appeals, contending

the sanction and conditions recommended by the commission are

excessive. On our de novo review, we agree Kingery’s conduct merits a

suspension, but impose a shorter one with fewer conditions.

I. Background Facts.

Kingery received a bipolar disorder diagnosis while she was in law

school. Since then she has consistently taken prescribed medications to

manage the disorder. Kingery has also struggled with alcoholism and

committed two misdemeanor criminal offenses involving alcohol, one in

1994 and one in 2007.

Kingery was admitted to practice law in Iowa in 2010 and initially

practiced with a law firm in northeast Iowa. After approximately one

year with the firm, Kingery opened her own practice in Decorah. A

majority of Kingery’s cases in her solo practice were criminal defense

matters, including court appointments in Winneshiek County and

adjacent Howard County. In addition to criminal cases, Kingery also

handled a few civil matters.

Kingery was married in September 2013. Her husband lived in

Europe and was not a United States citizen at the time of the marriage.

The couple retained an immigration attorney to work toward securing his

legal immigration to the United States. Kingery testified at the hearing
 3

before the commission in this case that the immigration issue caused her

significant stress leading up to and immediately following the marriage.

Kingery also testified the immigration issue has not been resolved in the

two years since the marriage, and as a result, she and her husband

communicate almost exclusively by telephone and through webcam

videoconferencing.

While coping with the stress of the immigration issue and the

bipolar disorder, Kingery drank alcohol heavily and frequently in October

2013. Her life very quickly spun out of control, and by December her

daily routine consisted only of buying alcohol, drinking alcohol, and

sleeping. She did not open her mail, and she stopped responding to all

communication from clients, opposing attorneys, court staff and judges,

and the Board.

In January 2014, Kingery sought medical assistance for

detoxification. She received inpatient alcohol treatment in Waterloo and

outpatient treatment in Decorah. In August 2014, Kingery moved to

West Des Moines so that she could be closer to a more robust support

system and live in a bigger market for legal employment. She attends

weekly support group meetings and has become an active church

congregant there. She has also received helpful assistance from the Iowa

Lawyers Assistance Program (ILAP). She has not consumed alcohol in

over a year and has not practiced law since fall 2013. She currently

holds a part-time job in retail customer service, but she hopes to resume

practicing criminal law in the near future as an assistant county

attorney, a private criminal defense attorney, or a public defender.

II. Events Giving Rise to the Board’s Complaint.

A. James Steenhard Matter. Kingery was court appointed to

represent James Steenhard in a criminal appeal. She filed a combined
 4

certificate and ordered a transcript, but she never filed a proof brief or a

designation of appendix. On July 30, 2013, the clerk of the Iowa

Supreme Court entered a notice of default notifying Kingery she was

obligated to file those documents within fifteen days. See Iowa R. App. P.

6.1202(1)(a). Kingery did not respond to the notice or cure the default.

Rather than dismissing the appeal, on September 24—almost two

months after the default notice—this court removed Kingery as counsel,

directed the district court to appoint new counsel, and referred Kingery

to the Board.

B. Christine Kelly Matter. Christine Kelly hired Kingery in 2011

to represent her in enforcing provisions of Kelly’s marriage dissolution

decree. Kingery filed an application for rule to show cause on Kelly’s

behalf. The matter was delayed, however, when the court granted an

indefinite continuance in July 2012.

In early May 2013, Kingery met with Kelly to discuss and draft

responses to discovery requests opposing counsel had served. On

May 20, Kelly requested a copy of the discovery responses and reciprocal

discovery requests prepared for service on the opposing party. Kingery

did not respond to Kelly’s request until May 29, but she apologized for

the delay and assured Kelly her case was still a priority.

On June 26, Kelly requested an update on the status of the

discovery process. Kingery did not respond, so Kelly sent another

inquiry on July 8. That same day Kingery informed Kelly she had

prepared and mailed the discovery requests. However, after that she did

not communicate with Kelly despite repeated emails and phone calls

from Kelly. For example, on August 8, Kelly emailed Kingery noting that

the time for her adversary’s discovery responses had passed and asking

for copies of any discovery responses Kingery had received. Kingery did
 5

not respond. On August 16, Kelly sent Kingery an email requesting a

case status update and expressly citing the rule setting forth Kingery’s

obligation to keep Kelly informed about the status of the matter, but

Kingery again did not respond. See Iowa R. Prof’l Conduct 32:1.4(a)(3).

On September 3, Kelly sent Kingery a letter terminating the

attorney–client relationship and requesting Kingery return all paperwork

and case files. Kingery did not respond to the letter. Kelly sent an email

requesting the case file on September 10. Again, Kingery did not

respond. On September 20, Kelly sent Kingery an email proposing to

meet at the Winneshiek County Courthouse to exchange payment and

documents. After Kingery did not respond to this email, Kelly filed a

complaint with the Board.

In February 2014, Kelly filed a small claims action against Kingery

seeking the return of her file plus $1500 in damages. Kingery filed an

answer and counterclaim seeking $800 in allegedly unpaid attorney fees

and costs associated with copying Kelly’s file. After hearing the case, the

court awarded damages to each party and, offsetting the amounts,

ultimately awarded Kingery $38.40. Kelly paid the amount and received

her file.

C. Court Appointed Criminal Defense Matters. Kingery was

court appointed to represent a number of criminal defendants in

Winneshiek County. On July 16, 2013, the district court granted

continuances to three of Kingery’s clients—Lee Holkesvik, Karlie Marlow,

and Scott Swehla—when they appeared for arraignment or other

proceedings but Kingery did not. Another client, Justin Borseth,

requested new counsel after Kingery failed to appear as scheduled for a

hearing on July 30. The court granted Borseth’s request.
 6

Kingery was also court appointed to represent Dante DeGrazia. In

fall 2013, Kingery twice failed to appear for DeGrazia’s arraignment,

although DeGrazia personally appeared both times. On the second of

these occasions, DeGrazia reported he had been unable to contact

Kingery. On its own motion, the court removed Kingery from the case

and appointed replacement counsel. That same day, it removed Kingery

as counsel for Abbey Lowe in a separate criminal case for the same

reason—Kingery had failed to appear in court as scheduled and had not

communicated with the court or her client.

On October 31, another of Kingery’s clients, James Thorne, filed a

request for new counsel with the district court. Thorne’s request for new

counsel stated Kingery “does not answer or return my phone calls” and

also alleged she had missed a scheduled appointment with Thorne that

day. A magistrate granted Thorne’s request, removed Kingery from

representing Thorne, and appointed replacement counsel. The

magistrate found removal was “necessary to secure defendant’s rights.”

Unfortunately, for two of Kingery’s clients—Scott Geary and Dylan

Carlson—receiving newly appointed counsel was not the only

consequence of Kingery’s missed appearances and proceedings. In late

July 2013, Kingery requested and received a continuance of proceedings

in Geary’s case until August 6. The order granting the continuance

stated Geary was required to appear personally on August 6. Kingery

and Geary both failed to appear on August 6. The court issued a warrant

for Geary’s arrest, and he was arrested and jailed. The court later

released Geary on bond, in part because Geary wrote a letter from his jail

cell asking for a new lawyer and explaining both he and the jail staff had

tried unsuccessfully to reach Kingery.
 7

Similarly, Carlson sent a handwritten pleading from his jail cell to

the district court after he was arrested for failing to appear. He asked

the district court to consider contacting him personally to discuss

payment options for court fees owed, and he explained he did not appear

in court because Kingery did not respond to his phone calls inquiring

about the scheduled time for hearing. Kingery does not dispute that

both Geary and Carlson served time in jail because she did not apprise

them of the need to appear personally in court.

Local prosecutors and judges noted Kingery’s absence from the

courthouse as it stretched over several months. By mid-December,

Kingery had not retrieved any notices from the clerk’s office for over a

month. The chief judge of the First Judicial District suspended Kingery

from receiving any further court appointments and the Office of the State

Public Defender terminated Kingery’s indigent defense contract. The

Winneshiek County Attorney sent a letter to the Board regarding

Kingery’s serial failures to appear for hearings and court proceedings,

believing he was ethically obligated to report the information. A district

court judge within the First Judicial District also notified the Board of

Kingery’s neglect of clients’ matters.

D. Brookview Farms Matter. Doug Corson, the president of

Brookview Farms LLC, hired Kingery in February 2013 to draft a

conveyance granting to Corson and his two children a life estate in land

the LLC owned. In an email to Kingery, Corson explained he wanted the

deed “to be an iron-clad document that cannot be legally contested.”

Kingery did not complete the work for several months, mentioning health

issues had affected her productivity. Corson accepted the delay at first,

but by August he was growing impatient.
 8

On September 5, Kingery apologized for her lack of contact and

scheduled a meeting with Corson for the following day. At the meeting,

Kingery presented the deed she had drafted and a bill for $347, and

Corson paid her. Corson was concerned the deed did not accurately

describe the real estate and did not adequately convey a life estate, but

Kingery assured Corson it did. Based on Kingery’s assurances, Corson

signed the deed but instructed Kingery not to record it until he ensured

Kingery had drafted it correctly. Accordingly, Kingery did not record the

deed, although she did cash Corson’s check.

Corson determined the deed’s legal description of the property was

incomplete and therefore incorrect. He asked Kingery to correct the

errors and Kingery agreed to do so. However, Kingery stopped

responding to Corson’s communications. On January 8, 2014, Corson

sent an email demanding a meeting with Kingery. Kingery did not

respond. On March 9, Corson sent an email terminating the attorney–

client relationship. He also filed a complaint with the Board.

III. Disciplinary Proceedings.

In November 2013, the Board sent Kingery an inquiry about the

Steenhard appeal and requested a response. After several weeks passed

with no response, the Board filed a certificate on December 5 advising

the court that Kingery had failed to respond and requesting a temporary

suspension of Kingery’s license if she did not respond within twenty

days. See Iowa Ct. R. 34.7(3). Kingery did not respond within twenty

days. Accordingly, on January 16, 2014, this court temporarily

suspended Kingery’s license. The Board repeated that process after

sending inquiries to Kingery about her conduct in the Kelly and

Brookview Farms matters, and in the several criminal cases mentioned
 9

above. Each time the Board sent inquiries, Kingery did not respond, and

we issued a temporary suspension. 1

Eventually, the Board filed a four-count complaint alleging Kingery

violated numerous provisions of the Iowa Rules of Professional Conduct

in her representation of Steenhard, Kelly, Brookview Farms, and the

criminal defendants: neglect (rule 32:1.3); failure to keep a client

informed about the status of their matter (rule 32:1.4(a)(3)); failure to

comply promptly with reasonable requests for information (rule

32:1.4(a)(4)); charging an unreasonable amount for expenses (rule

32:1.5(a)); failure to deliver property the client is entitled to receive (rule

32:1.15(d)); failure to withdraw from representation when required (rule

32:1.16(a)(2)); failure to expedite litigation (rule 32:3.2); knowingly

making a false statement of fact or law to a tribunal (rule 32:3.3(a)(1));

knowingly making a false statement of fact or law to a third person (rule

32:4.1(a)); engaging in dishonesty, fraud, deceit, or misrepresentation

(rule 32:8.4(c)); and engaging in conduct prejudicial to the administration

of justice (rule 32:8.4(d)).

The Board later withdrew its allegations that Kingery violated rules

32:3.3(a)(1) and 32:8.4(c) by making dishonest or false statements. It

also withdrew the allegation that Kingery failed to deliver property a

client was entitled to receive, in violation of rule 32:1.15(d). The

withdrawals left eight alleged ethical violations for disposition. Kingery

filed an answer admitting she committed rule violations in representing

Steenhard, Brookview Farms, and the criminal defendants. She denied

committing rule violations in representing Kelly.

1We lifted the multiple concurrent suspensions in April 2015 after Kingery
retained counsel and answered the Board’s formal complaint. See Iowa Ct. R.
34.7(3)(d).
 10

The commission held a hearing on March 13, 2015. Kingery

testified, explaining the circumstances of her bipolar disorder and

alcoholism and describing the steps she has taken since 2013 to develop

a support system and prevent relapse. She expressed remorse and

regret, and she took responsibility for “some horrible mistakes.” Kingery

further noted her humbling experience the last few years has caused her

to “see things differently now.”

The commission concluded Kingery committed neglect by delaying

the Brookview Farms matter, failed to keep Corson apprised of the status

of the Brookview Farms matter, and both failed to expedite litigation and

engaged in conduct prejudicial to the administration of justice in the

Steenhard appeal and the appointed criminal defense matters. It also

concluded Kingery failed to comply promptly with a reasonable request

for information from both Kelly and Corson. Most importantly, however,

the commission found Kingery failed to withdraw from each of her cases

when her alcoholism began materially impairing her ability to represent

her clients. 2

The commission found Kingery’s lack of disciplinary history,

alcoholism, and bipolar disorder to be significant mitigating factors. It
also commended her for taking full responsibility and expressing

remorse. The commission recommended an indefinite suspension of

Kingery’s license for no less than six months with several conditions on

any future reinstatement. In particular, the commission recommended

Kingery be required to (1) offer documentation from medical providers

showing her fitness to practice law at the time of reinstatement,

2Although the Board’s complaint alleged Kingery violated rule 32:1.5(a) by

attempting to charge Kelly an unreasonable amount for expenses and violated rule
32:4.1(a) by making false statements to a third person, the Board presented no evidence
as to those alleged violations, and the commission made no findings on them.
 11

(2) continue to undergo and comply with mental health and substance

abuse treatment and counseling, (3) update the Board continually for

one year with medical records proving compliance, (4) maintain sobriety,

(5) associate with another licensed attorney and not practice on her own,

and (6) cooperate with the ILAP.

Kingery appeals contending the sanction recommended by the

commission is unwarranted. She contends a six-month suspension is

excessive and asserts a public reprimand is a more appropriate sanction

because her violations were all rooted in a single continuous episode of

neglect. Further, she contends the attorney supervision requirement and

the requirement that she provide medical documentation for one year

after reinstatement are inappropriate under the circumstances. The

Board asserts a suspension is necessary because Kingery’s clients

suffered harm and suggests the suspension should last at least three

months. However, it concedes the attorney supervision and

postreinstatement documentation requirements recommended by the

commission are inappropriate.

IV. Scope of Review.

We review appeals from the grievance commission de novo. Iowa

Ct. R. 35.12(4). The Board must prove each rule violation by a

convincing preponderance of the evidence—a standard higher than in

most civil cases but lower than the criminal burden of proof beyond a

reasonable doubt. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Hedgecoth, 862 N.W.2d 354, 360 (Iowa 2015); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Wengert, 790 N.W.2d 94, 97–98 (Iowa 2010).

V. Rule Violations.

Kingery stipulated that she committed certain ethical violations in

her representation of Steenhard, Brookview Farms (Corson), and the
 12

criminal defendants. However, “[a]n attorney’s stipulation as to a

violation is not binding on us.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Kelsen, 855 N.W.2d 175, 181 (Iowa 2014); accord Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 335 (Iowa 2015); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 804 (Iowa

2010) (“Nowhere in our rules have we given the parties the authority to

determine what conduct constitutes a violation . . . .”). “If a stipulation

concedes a rule violation, we will only find a violation if the facts are

sufficient to support the stipulated violation.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Wright, 857 N.W.2d 510, 514 (Iowa 2014). Thus, we

“address in turn each rule violation alleged by the Board in determining

whether the Board carried its burden of proof.” Hedgecoth, 862 N.W.2d

at 360.

A. Neglect. “A lawyer shall act with reasonable diligence and

promptness in representing a client.” Iowa R. Prof’l Conduct 32:1.3.

Although the word “neglect” does not appear in rule 32:1.3, cases

sanctioning neglect under a predecessor to the rules are relevant to our

analysis here. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel,

809 N.W.2d 96, 102 (Iowa 2012).

“Neglect involves an attorney’s consistent failure to perform his or

her obligations . . . .” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conroy,

845 N.W.2d 59, 63 (Iowa 2014). An attorney violates rule 32:1.3 when he

or she “fails to appear at scheduled court proceedings, does not make the

proper filings, or is slow to act on matters.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 537 (Iowa 2013). An

attorney who ignores appellate deadlines, does not cure default notices,

and fails to file required documents violates rule 32:1.3. See, e.g.,

Hedgecoth, 862 N.W.2d at 357–58, 361; Wengert, 790 N.W.2d at 101;
 13

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Adams, 749 N.W.2d 666, 669

(Iowa 2008). We have also concluded an attorney violated rule 32:1.3

when he “failed to appear at a pretrial conference and a hearing.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 606

(Iowa 2012); see also Nelson, 838 N.W.2d at 537 (finding an attorney

violated rule 32:1.3 when he “did not attend three pretrial hearings”);

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 150,

152 (Iowa 2010) (finding an attorney committed neglect when he failed to

appear for his client’s civil trial); Adams, 749 N.W.2d at 669 (finding an

attorney violated rule 32:1.3 when he failed to appear at his client’s

arraignment).

In this case, Kingery engaged in the same type of neglectful

conduct. In the Steenhard appeal, she did not file required documents

on time and subsequently ignored a default notice. The clerk of court did

not dismiss Steenhard’s appeal, but “only because this court intervened

and ordered [Kingery] removed.” Conroy, 845 N.W.2d at 65. Although

she missed deadlines in just one appeal, the missed deadlines were part

of a larger “pattern of rule violations” affecting multiple clients. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Eslick, 859 N.W.2d 198, 203 (Iowa

2015); cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d

431, 442 (Iowa 2012) (noting an attorney’s ethical shortcomings “were

not isolated” and caused “extensive problems” with multiple clients).

This pattern is patently clear because Kingery repeatedly failed to appear

for court proceedings in her court-appointed criminal cases, affecting at

least eight clients. We find Kingery violated rule 32:1.3.

B. Attorney–Client Communication. “A lawyer shall . . . keep

the client reasonably informed about the status of the matter.” Iowa R.

Prof’l Conduct 32:1.4(a)(3). Further, a lawyer must “promptly comply
 14

with reasonable requests for information.” Id. r. 32:1.4(a)(4).

Compliance with requests for information includes responding to or at

least acknowledging a client’s attempts to communicate. Id. cmt. [4].

These two rules are interrelated because “regular communication with

clients will minimize the occasions on which a client will need to request

information concerning the representation.” Id.

“[W]hen an attorney neglects to keep a client informed about the

status of the case or does not respond to a client’s attempts to contact

the attorney about the case,” the attorney violates rule 32:1.4. Nelson,

838 N.W.2d at 537. In Nelson, we concluded an attorney violated this

rule when he “neither initiated nor returned client phone calls, despite

requests by clients that he do so.” Id. We have also found an attorney

violated both subsection (a)(3) and subsection (a)(4) when she “did not

attempt to inform her client about the status of the client’s case . . . and

failed to respond to the client’s multiple phone calls and visits.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Ryan, 863 N.W.2d 20, 26 (Iowa

2015); see also McCarthy, 814 N.W.2d at 606 (finding a violation when

the attorney’s “failure to answer his telephone and respond to telephone

and e-mail messages” caused “[n]early all of [his] clients” to have

difficulty contacting him); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Cunningham, 812 N.W.2d 541, 547 (Iowa 2012) (finding a violation when

an attorney did not inform a client the court had ordered sanctions and

did not respond to the client’s attempts to contact him); Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 678 (Iowa 2010)

(concluding the attorney’s “failure to respond to [the client]’s phone calls

and requests for information” constituted a violation of rule 32:1.4).

Here, we find Kingery failed to update Kelly about the status of

discovery in her dissolution matter in response to the client’s multiple
 15

inquiries requesting information. Similarly, Corson sent Kingery

multiple inquiries about his real estate matter before receiving a

response. In both the Kelly and Corson matters, Kingery eventually

stopped responding to emails and phone calls altogether. Finally, in the

several criminal defense matters discussed above, multiple clients

reported to the court that they had been unable to contact Kingery and

that she would not answer or return their calls. We find Kingery violated

rule 32:1.4(a)(3) and (4) in each of these instances.

C. Unreasonable Expenses. “A lawyer may seek reimbursement

for the cost of services performed in-house, such as copying . . . .” Iowa

R. Prof’l Conduct 32:1.5 cmt. [1]. However, the amount the lawyer seeks

must be reasonable. See id. r. 32:1.5(a) (“A lawyer shall not make an

agreement for, charge, or collect an unreasonable fee or an unreasonable

amount for expenses . . . .”). If it is not, the attorney is subject to

discipline. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Baldwin, 857

N.W.2d 195, 215 (Iowa 2014) (noting an attorney had previously been

admonished for “charging his client an excessive fee to copy his file”).

When Kelly sued Kingery in small claims court to obtain her file,

Kingery counterclaimed for damages that included allegedly unpaid

hourly fees and $500 for costs to reproduce the file. The Board’s

complaint alleged Kingery violated rule 32:1.5(a) by counterclaiming for

$500 to copy Kelly’s file. However, the Board’s trial brief before the

commission did not mention rule 32:1.5(a) at all, and the Board

presented no evidence regarding that alleged violation. Thus, on our

de novo review, we find the Board has failed to prove by a convincing

preponderance of the evidence that Kingery violated rule 32:1.5(a).

D. Mandatory Withdrawal. Lawyers are required to withdraw

from representing a client if “the lawyer’s physical or mental condition
 16

materially impairs the lawyer’s ability to represent the client.” Iowa R.

Prof’l Conduct 32:1.16(a)(2). To find a violation, a convincing

preponderance of the evidence must show (1) the attorney was suffering

from a physical or mental condition, (2) the condition materially impaired

the attorney’s ability to represent clients, and (3) the attorney failed to

withdraw. See Cunningham, 812 N.W.2d at 549.

“There is very little case law interpreting this rule or its

predecessor” to guide our determination of what constitutes a violation.

Id. at 548. In Cunningham, we found the Board had not proven a

violation because the only evidence of the lawyer’s physical or mental

condition was a motion another attorney made that referred to general

“health reasons.” See id. at 548–49. Similarly, in McCarthy, we found an

attorney who suffered a heart attack and underwent open-heart surgery

did not violate the rule because there was no indication the delay in legal

proceedings attributable to his physical condition caused the client any

material disadvantage. McCarthy, 814 N.W.2d at 608–09. On the other

hand, we have found an attorney violated this rule when he neglected

multiple appeals—causing them to be dismissed for lack of prosecution—

while undergoing and recovering from three serious, but nonemergency,

back surgeries. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hoglan,

781 N.W.2d 279, 283–84 (Iowa 2010) (per curiam).

Our professional conduct rule requiring withdrawal in certain

circumstances is materially identical to rules in place in Kansas and

Maryland. Compare Iowa R. Prof’l Conduct 32:1.16(a)(2), with Kan. R.

Prof’l Conduct 1.16(a)(2), and Md. Lawyers’ R. Prof’l Conduct 1.16(a)(2).

The Kansas Supreme Court concluded an attorney with severe

depression violated the rule when he did not withdraw from representing

multiple clients after having suicidal thoughts and taking medical leave
 17

from his practice. In re Murrow, 336 P.3d 859, 861, 866, 869 (Kan.

2014) (per curiam). Similarly, Maryland’s highest court adopted a

disciplinary hearing judge’s finding that an attorney violated the rule

when he was so dependent on narcotics and tranquilizers that he

“regularly did not show up in court when he was scheduled to appear on

behalf of clients” and “ignored communications from judges as well as

clients.” See Att’y Grievance Comm’n v. Patton, 69 A.3d 11, 20 (Md.

2013). Several other courts have concluded an attorney battling

substance abuse or mental health issues can violate similar rules if they

do not withdraw when their physical or mental condition materially

impairs their ability to represent clients. See, e.g., In re Kelly, 917

N.E.2d 658, 658–59 (Ind. 2009) (depression and substance abuse);

Disciplinary Counsel v. Wickerham, 970 N.E.2d 932, 934–35 (Ohio 2012)

(per curiam) (prescription drug addiction); In re Roberts, 725 S.E.2d 925,

925–26 (S.C. 2012) (per curiam) (depression and alcoholism); In re

Disciplinary Proceedings Against Cotten, 650 N.W.2d 551, 555–57 (Wis.

2002) (per curiam) (depression).

Unlike Cunningham, here we have clear evidence—including

medical records—tending to show Kingery suffers from bipolar disorder

and alcoholism. See Cunningham, 812 N.W.2d at 548–49. Thus,

because we have undisputed evidence of Kingery’s health status and we

know she did not withdraw from her cases during an extended period of

professional dysfunction, we must decide whether rule 32:1.16(a)(2)

required her to withdraw. The framework set forth in McCarthy and

Hoglan instructs that, regardless whether the attorney’s physical or

mental condition was within his or her control, we should evaluate what

actually happened in determining if Kingery’s ability to represent her

clients was materially impaired. See McCarthy, 814 N.W.2d at 608–09;
 18

Hoglan, 781 N.W.2d at 283–84. Kingery’s own description of her

dysfunction, the resulting delays in court proceedings, and the total

absence of contact with clients over an extended period leads us to find

by a convincing preponderance of the evidence that it was. See Patton,

69 A.3d at 20. Thus, we conclude Kingery violated rule 32:1.16(a)(2).

E. Failing to Expedite Litigation. “Dilatory practices bring the

administration of justice into disrepute.” Iowa R. Prof’l Conduct 32:3.2

cmt. [1]. Accordingly, the rules of professional conduct discourage

dilatory practices and require lawyers to “make reasonable efforts to

expedite litigation consistent with the interests of the client.” Id. r.

32:3.2.

“An attorney violates this rule by failing to appear for status

conferences and respond to court inquiries.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Kieffer-Garrison, 847 N.W.2d 489, 492 (Iowa 2014).

We have also found a violation when an attorney “failed to follow court

rules governing timely presentation and progression of appeals.”

Hedgecoth, 862 N.W.2d at 362. In this case, Kingery repeatedly failed to

appear for status conferences, arraignments, and other court

proceedings, causing multiple delays and continuances. Similarly, she

did not file required appellate documents and caused the clerk to issue a

default notice in the Steenhard matter. We conclude Kingery violated

rule 32:3.2.

F. Duty to Avoid Making False Statements. Our ethical rules

prohibit lawyers from knowingly making “a false statement of material

fact or law to a third person.” Iowa R. Prof’l Conduct 32:4.1(a). The

Board charged Kingery with violating this rule. However, the Board

presented no evidence to the commission supporting the charge, and the

Board’s appellate brief does not mention it. Further, the Board withdrew
 19

both of the other claimed rule violations based upon allegedly false

statements. We find no violation of rule 32:4.1(a) on this record.

G. Conduct Prejudicial to the Administration of Justice. Rule

32:8.4(d) prohibits “conduct that is prejudicial to the administration of

justice.” Id. r. 32:8.4(d). “[T]here is no typical form of conduct” that

violates this rule. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Steffes, 588 N.W.2d 121, 123 (Iowa 1999). Instead, the dispositive

inquiry is whether “the attorney’s act[s] hampered the efficient and

proper operation of the courts or of ancillary systems upon which the

courts rely.” Id.

We have concluded an attorney hampered the courts’ efficiency

when he neglected multiple matters, causing delayed proceedings and

“requir[ing] otherwise unnecessary administrative oversight by the clerk

of court and judicial officers.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Lickiss, 786 N.W.2d 860, 867 (Iowa 2010); see also Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 180 (Iowa 2013)

(“[A]n attorney . . . violates rule 32:8.4(d) when his [or her] misconduct

results in additional court proceedings or causes court proceedings to be

delayed or dismissed.”). Similarly, an attorney hampers proper court

operations by “[i]gnoring deadlines and orders, which results in default

notices from the clerk of court.” Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Knopf, 793 N.W.2d 525, 530 (Iowa 2011); see also Hedgecoth, 862

N.W.2d at 363. We think it evident that repeated delays and missed

appearances impede court efficiency because the delays cause

protraction in even the simplest of legal matters. Accordingly, because

the evidence establishes by a convincing preponderance that Kingery’s

neglect of her criminal matters caused numerous delays in the judicial

process, we conclude she violated rule 32:8.4(d).
 20

VI. Sanction.

We now turn to the principal source of the parties’ disagreement in

this case: the appropriate sanction. Kingery asserts she deserves no

more than a public reprimand due to mitigating factors, while the Board

contends a suspension is necessary.

A. General Principles. When we review attorney disciplinary

matters, the commission’s recommended sanction does not bind us,

although we give it respectful consideration. Baldwin, 857 N.W.2d at

213; see Iowa Ct. R. 35.11(1). To arrive at an appropriate sanction,

we consider the nature of the violations, the need for
deterrence, the need to protect the public, the need to
preserve the legal profession’s reputation, and the lawyer’s
fitness to practice law. We also consider mitigating and
aggravating circumstances, including companion violations,
repeated neglect, and the attorney’s disciplinary history.

Conroy, 845 N.W.2d at 66 (citation omitted). “When determining what

sanctions to impose, we consider those imposed in similar cases while

remaining aware of the different circumstances in each case.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Said, 869 N.W.2d 185, 193 (Iowa

2015); see also Eslick, 859 N.W.2d at 202 (“[W]e evaluate each case

individually but still consider prior cases instructive.”).

B. Aggravating and Mitigating Circumstances. The record in

this case reveals aggravating circumstances affecting our determination

of the appropriate sanction.

Because of Kingery’s failure to communicate with her criminal

defense clients or appear for scheduled proceedings in those cases, the

court issued arrest warrants for some of the clients and at least two of

them spent time in jail for failure to appear. Arrests and jail time

certainly constitute harm, and harm to clients is an aggravating factor

warranting more severe discipline. Nelson, 838 N.W.2d at 544 (“[A]t least
 21

four clients . . . were arrested as a direct result of [the attorney’s

misconduct].”); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clarity,

838 N.W.2d 648, 662 (Iowa 2013) (noting the attorney’s neglect caused

three clients to be jailed); Adams, 749 N.W.2d at 669–70 (noting the

attorney’s conduct “resulted in the arrest and incarceration of the

client”); cf. Hedgecoth, 862 N.W.2d at 364–66 (noting the attorney’s

neglect “did not cause any demonstrable financial or other harm” and

considering lack of harm a mitigating factor (emphasis added)).

Additionally, the sheer number of clients affected by Kingery’s

conduct—more than a dozen—is an aggravating factor. See Kieffer-

Garrison, 847 N.W.2d at 496 (concluding when an attorney neglected

nine matters, the evidence showed “serial acts of misconduct, rather

than an isolated misadventure”); Conroy, 845 N.W.2d at 67 (selecting a

more severe sanction in part because the attorney neglected seven

matters).

However, we also consider several mitigating circumstances in this

case. For example, although Kingery ignored the Board’s initial

inquiries, she answered the formal complaint, testified at the hearing,

and admitted the violations. See Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Humphrey, 812 N.W.2d 659, 669 (Iowa 2012); see also Hedgecoth, 862

N.W.2d at 366. The Board credited Kingery’s testimony, finding her

genuinely remorseful. We do as well, and we consider her sincere

acceptance of responsibility as a mitigating factor. See Eslick, 859

N.W.2d at 202 (“[R]emorse and cooperation generally mitigate our

sanction.”); In re Glenn, 256 Iowa 1233, 1242, 130 N.W.2d 672, 678

(1964) (“Repentance is ordinarily a commendable if not a necessary

attribute for one who expects leniency.”).
 22

Additionally, until today, Kingery had an unblemished disciplinary

record. See Bartley, 860 N.W.2d at 339 (considering lack of prior

discipline a mitigating factor); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Bieber, 824 N.W.2d 514, 527 (Iowa 2012) (same). She received a private

reprimand in May 2014 for conduct unrelated to neglect, but “[p]rivate

reprimands are not discipline.” Van Ginkel, 809 N.W.2d at 110; accord

Said, 869 N.W.2d at 194. When we have considered prior reprimands to

be aggravating factors, they were either public reprimands, see Eslick,

859 N.W.2d at 202, or private reprimands for related conduct, see Said,

869 N.W.2d at 194.

However, the most significant mitigating factor is Kingery’s

alcoholism and her robust rehabilitative efforts to control or eliminate it.

See Nelson, 838 N.W.2d at 542. Alcoholism does not justify or excuse

ethical misconduct, but it can be a mitigating factor in determining the

proper sanction. See Clarity, 838 N.W.2d at 660–61; Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 15 (Iowa 2012). “To be

considered in mitigation, the alcoholism must have contributed to the

ethical misconduct, and the lawyer must undertake rehabilitative efforts

to control his [or her] addiction.” Clarity, 838 N.W.2d at 661; see

Hauser, 782 N.W.2d at 154 (“To the extent [the attorney] acknowledges

his alcoholism and has taken steps to address it . . . , we consider these

acts in fashioning an appropriate sanction.”).

We conclude the facts of this case satisfy the framework set forth

in Clarity. See Clarity, 838 N.W.2d at 661. Kingery’s alcoholism

contributed to her ethical misconduct, but she has since undertaken

necessary and prudent rehabilitative efforts. Kingery’s detoxification,

outpatient treatment, and subsequent efforts to cultivate a support

system and abstain from alcohol are important and commendable. See
 23

id. (“Clarity has repeatedly undergone weeks of inpatient treatment and

ongoing outpatient treatment to cope with his alcoholism . . . . We

consider his efforts to be a mitigating factor.”); Nelson, 838 N.W.2d at

542 (crediting an attorney’s abstention from alcohol and his testimony

that he would not drink again because he feared “losing everything”);

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Axt, 791 N.W.2d 98, 103 (Iowa

2010) (acknowledging the attorney’s “rehabilitative efforts in actively

attempting to control his addiction to alcohol”); Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Ruth (Ruth I), 636 N.W.2d 86, 89 (Iowa 2001)

(“In mitigation of sanctions in this case, we consider that [the attorney]

has made great strides in his battle with alcoholism.”). We therefore

consider Kingery’s alcoholism and her rehabilitative efforts mitigating

factors. 3

C. Cases Involving Similar Conduct. Kingery’s principal

violation was her lack of diligence. “Discipline for these types of

violations ‘generally ranges from a public reprimand to a six-month

suspension.’ ” Hedgecoth, 862 N.W.2d at 365 (quoting Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa

2001)); see also Conroy, 845 N.W.2d at 66. “A lengthy suspension may
be appropriate if the neglect is one violation among many much more

serious ones or occurs amidst aggravating circumstances.” Hedgecoth,

862 N.W.2d at 365.

3We note, however, that the timing of Kingery’s neglect somewhat weakens the

mitigating power of her addiction to alcohol. Kingery testified the depths of the alcohol
addiction began in October 2013 and continued until January 2014, and many
instances of delays or missed appearances occurred in those months. Yet several
others occurred well before that. For example, Geary was arrested and jailed in August
2013, months before Kingery testified alcohol started to consume her life and even
before Kingery’s September wedding. Thus, we consider alcoholism a mitigating factor
for some, but not all, of Kingery’s violations.
 24

Although the typical sanction for neglect ranges from a public

reprimand to a six-month suspension, we have infrequently imposed

sanctions at the lowest boundary of that range. We generally consider a

public reprimand appropriate only when the case involves a single

instance of misconduct. See Van Ginkel, 809 N.W.2d at 110; Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 796 N.W.2d 910, 922 (Iowa

2011); Hoglan, 781 N.W.2d at 286. For example, in Dolezal, we noted a

public reprimand was not appropriate because the attorney’s behavior

affected multiple clients and harmed one. Dolezal, 796 N.W.2d at 922.

Accordingly, we imposed a suspension. Id. at 922–23. Similarly, in

Hoglan, we acknowledged the lawyer’s health problems in mitigation but

suspended his license because he neglected four matters and his neglect

harmed all four clients. Hoglan, 781 N.W.2d at 286–87.

After considering the circumstances of this case, including the

mitigating factors discussed above, we agree with the Board that

Kingery’s conduct merits a suspension. See Clarity, 838 N.W.2d at 662

(“[The attorney]’s neglect resulted in the dismissal with prejudice of [an]

appeal and the jailing of three . . . clients. We have imposed suspension

of one to six months when the attorney’s neglect caused harm to

clients.”); see also Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth

(Ruth II), 656 N.W.2d 93, 99 (Iowa 2002) (“Although we commend Ruth

for [his] progress [in overcoming alcoholism], his efforts toward

rehabilitation do not eliminate the need for a sanction . . . .”). We have

imposed public reprimands for neglect when the misconduct has affected

few clients and caused no client harm. See, e.g., Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 669–70 (Iowa 2007)

(reprimanding an attorney who neglected two matters because “little

prejudice was caused to either [client]”); Iowa Supreme Ct. Bd. of Prof’l
 25

Ethics & Conduct v. Mears, 569 N.W.2d 132, 134–35 (Iowa 1997)

(reprimanding an attorney who neglected two matters because the

attorney’s neglect “did not . . . result in ultimate harm to a client”); Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Sather, 534 N.W.2d 428,

431 (Iowa 1995) (reprimanding an attorney for neglecting one matter

after considering mitigating circumstances, “including that no party ha[d]

been prejudiced by [the attorney]’s conduct”). Kingery’s neglect affected

numerous clients and clearly caused harm to some. Accordingly, we

conclude her conduct merits a suspension.

We now turn to the length of the required suspension. In

Van Ginkel, we imposed a sixty-day suspension for neglect because while

the attorney caused no client harm, he engaged in other serious

misconduct including “[a] knowing misrepresentation to the court” and

an “effort to shift the blame to an assistant.” Van Ginkel, 809 N.W.2d at

110–11. Here, Kingery caused some client harm but did not commit

other serious misconduct and has accepted full responsibility for her

inaction. Therefore, we find Van Ginkel to be a useful comparator.

In two other neglect cases, we have imposed a suspension of three

months when the neglect affected multiple clients’ matters. For example,

in Hedgecoth, the attorney’s explanation for his neglect was not a

mitigating factor, but his neglect was relatively limited in scope and

caused no demonstrable harm to clients. Hedgecoth, 862 N.W.2d at 357,

366. Similarly, in a 1989 case, we imposed a three-month suspension

when an attorney struggling with alcoholism “virtually abandoned his

law practice” and utterly disregarded all communication “from the clerk,

court and [ethics] committee,” but soon sought detoxification and

“devoted himself to rebuilding his life personally and professionally.”
 26

Comm. on Prof’l Ethics & Conduct v. Haney, 435 N.W.2d 742, 743–44

(Iowa 1989).

Although Haney and Hedgecoth contain several similarities to

Kingery’s case, we conclude a sixty-day suspension is appropriate here.

Most significantly, we credit Kingery’s treatment efforts, her genuine

remorse, and the fact she did not commit more troubling companion

violations along with her neglect. Additionally, we acknowledge Kingery

voluntarily ceased practicing law—even after we lifted her temporary

suspension—while she pursued treatment and rehabilitation. “The

voluntary cessation of the practice of law is not considered a credit

against any suspension subsequently imposed.” Ruth I, 636 N.W.2d at

89; accord Nelson, 838 N.W.2d at 544. A period of voluntary cessation

from practice does not justify a pro tanto credit against a suspension

imposed because “[a]bsence[s] due to rehabilitation and disciplinary

sanctions serve overlapping, but distinct, purposes.” In re Dean, 855

N.W.2d 186, 193 (Iowa 2014). However, we can consider voluntary

cessation when evaluating whether our sanction will serve its purposes

of deterring future misconduct and protecting the public. Cf. Hedgecoth,

862 N.W.2d at 367 (accepting an attorney’s voluntary commitment not to

undertake appellate cases in lieu of an express practice limitation); Dean,

855 N.W.2d at 194 (“[A]bsence for the purpose of rehabilitation . . . may

be considered a mitigating factor in determining the length and adequacy

of a disciplinary suspension.”). After considering all the circumstances of

this case, we conclude a sixty-day suspension is appropriate for

Kingery’s violations.

D. Conditions of Reinstatement. The commission

recommended several conditions on Kingery’s reinstatement. Because

the court lacks the infrastructure for supervising conditional
 27

reinstatement regimes, we impose some but not all of the conditions on

reinstatement recommended by the commission.

First, we conclude Kingery must, as a condition of any

reinstatement, provide the Board with documentation showing her

compliance with treatment providers’ recommendations and her fitness

to practice law. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Roush, 827 N.W.2d 711, 720 (Iowa 2013) (“We . . . condition Roush’s

reinstatement—per the commission’s recommendation—on his seeking,

and complying with, mental health and substance abuse evaluations.”);

Weaver, 812 N.W.2d at 16 (requiring an attorney to provide medical

documentation showing he had maintained sobriety); Comm. on Prof’l

Ethics & Conduct v. Jackson, 429 N.W.2d 122, 123 (Iowa 1988) (“Any

request for reinstatement shall be accompanied by proof that respondent

has his alcoholism under control.”).

At the hearing before the commission, Kingery stated she was

“agreeable” to reimbursing Corson “to make things right.” In disciplinary

matters, “[w]illingness to reimburse a client . . . is a proper

consideration” in deciding the appropriate sanction, including any

conditions on reinstatement. Comm. on Prof’l Ethics & Conduct v. Martin,

375 N.W.2d 235, 238–39 (Iowa 1985). Accordingly, as a further

condition of reinstatement, Kingery must reimburse Corson $347 and

provide proof to the Board that she has done so. She must satisfy both

conditions no later than fifteen days before any reinstatement. See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 590 (Iowa

2011) (requiring a disciplined attorney to provide proof he had

reimbursed clients prior to reinstatement); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Conroy, 795 N.W.2d 502, 507 (Iowa 2011) (requiring a

health care professional’s evaluation no later than forty days after a
 28

sixty-day suspension began); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Marks, 759 N.W.2d 328, 333 (Iowa 2009) (requiring a health care

professional’s evaluation no later than fifteen days after a thirty-day

suspension began).

Additionally, we urge Kingery to continue her relationship with the

ILAP during the suspension and beyond in furtherance of her continuing

rehabilitation. Cf. Dean, 855 N.W.2d at 194 (commending a disciplined

judicial officer for her compliance with an ILAP monitoring agreement but

not regarding it as a formal sanction).

VII. Conclusion.

We suspend Kingery’s license to practice law in this state

indefinitely with no possibility of reinstatement for sixty days from the

date this opinion is filed. The suspension applies to “all facets of the

ordinary law practice.” Iowa Ct. R. 35.13(3). Unless the Board files an

objection, Kingery will be automatically reinstated after the suspension

period on condition that she has paid all costs, see id. rs. 35.13(2), .27,

and has met the other “reasonable conditions for reinstatement,” see id.

r. 35.13(1), imposed in this opinion. We tax the costs of this action to

Kingery. Id. r. 35.27(1).

LICENSE SUSPENDED.