Iowa Supreme Court Attorney Disciplinary Board v. Bruce A. Willey

IN THE SUPREME COURT OF IOWA
No. 16–1228

Filed January 27, 2017

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

BRUCE A. WILLEY,

Respondent.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

Grievance commission reports respondent committed ethical

misconduct and recommends a thirty-day suspension. LICENSE

SUSPENDED.

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

complainant.

Leon F. Spies of Mellon & Spies, Iowa City, for respondent.
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ZAGER, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) filed

a complaint charging an attorney with violations of four of our ethical

rules based on his representation of two clients in a business

transaction. The Board and the attorney entered into a joint stipulation

of facts and rule violations, and the Grievance Commission of the

Supreme Court of Iowa (commission) found the attorney violated three

ethical rules. The commission recommended a thirty-day suspension.

Upon our de novo review, we conclude the Board proved by a convincing

preponderance of the evidence violations of Iowa Rules of Professional

Conduct 32:1.7(a)(2) (concurrent conflict of interest) and 32:1.7(b)(4)

(informed consent). We impose a sixty-day suspension for the rule

violations.

I. Background Facts and Proceedings.

Attorney Bruce A. Willey practices law at Willey O’Brien, L.C. in

Linn County, Iowa. Willey was licensed to practice law in Iowa during

the time of the conduct that gave rise to this disciplinary action. Willey

is also a Certified Public Accountant (CPA).

David A. Wild (Wild) has been a client and business partner of

Willey since at least 2006. In December 2006, Willey incorporated

Synergy: Projects, Inc. (Synergy) on Wild’s behalf. At the time of

incorporation, Wild was the president of Synergy and Willey was the

original registered agent. Willey continued to serve in this capacity until

April 2015. While the precise legal and business relationships between

Wild and Willey are unclear from the record, by February 2007, conflicts

of interests were apparent such that Wild and Willey executed a detailed

consent and waiver form for the conflicts. The first paragraph of the

form provides:
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I, David Wild, am President of and otherwise involved with
several corporations, including but not limited to, Evergreen
Timber Corp., Global Resources, Inc., and Synergy: Projects,
Inc. as well as member and manager of other Limited
Liability Companies, related entities and subsidiaries
(collectively “Wild Group”), do hereby acknowledge that I
have been fully informed of the potential conflicts inherent in
the representation of me and my company by Bruce A.
Willey, Bruce A. Willey, P.C., Willey O’Brien, L.C. and its
successors and assigns (collectively “Willey”).

Willey began providing legal services to Henry J. Wieniewitz, III

(Wieniewitz) in 2008. Willey provided legal advice on corporate business

structure and tax structure for companies owned by Wieniewitz. Willey

also prepared income tax returns for Wieniewitz and advised him

regarding companies he was exploring for purchase.

In June 2010, Willey and Wieniewitz met to discuss a business

that Wieniewitz was considering purchasing. During this meeting, Willey

learned that Wieniewitz was interested in possible investment

opportunities. After discussing the original business purchase, Willey

told Wieniewitz that he knew of another investment opportunity that

might be available and he would let him know if there was space for an

additional investor.

In July, Willey contacted Wieniewitz and told him that he could

participate in the investment opportunity if he acted quickly. Willey told

Wieniewitz that other clients of his had been involved with the same or

similar investment opportunities and that it was a safe and common

investment. Specifically, Willey emailed Wieniewitz, “[There] isn’t really

risk related to that . . . .” Willey informed Wieniewitz that the minimum

investment was $100,000. Wieniewitz decided to invest $100,000. Prior

to forwarding the check to Willey, Wieniewitz told Willey, “I can afford to

be out the liquidity 30–60 days, but could never afford to put the money

in a place to potentially lose it.” Wieniewitz denies that Willey ever
 4

advised him prior to his investment that he was investing money with

another client.

The investment opportunity was structured as a loan between

Wieniewitz and Synergy. Wieniewitz wrote a check for $100,000 payable

to Willey’s law firm. Willey prepared a promissory note on behalf of

Synergy that reflected the agreement between Synergy and Henry and

Amber Wieniewitz. Pursuant to the terms of the promissory note, this

original investment would be repaid within forty-five days. Thereafter,

Wieniewitz would receive $100,000 every forty-five days until the total

amount paid to him equaled $400,000. The promissory note did not

provide any security or collateral to Wieniewitz in exchange for the loan.

Willey deposited the check into his trust account and immediately

disbursed the money to Synergy. Willey did not bill any party for

drafting the promissory note. However, Wild considered Willey to be

acting on behalf of Synergy. In his personal statement to the Board,

Willey stated that he believed he was acting only as an intermediary who

was facilitating a business relationship between two sophisticated

business people.

Willey did not disclose his relationship with Wild or Synergy to

Wieniewitz until much later. Willey never obtained informed consent

from Wieniewitz, nor confirmed in writing any potential conflict of

interest with Wild and Synergy. Willey did not recommend Wieniewitz

consult with independent counsel regarding the concurrent conflict of

interest.

At the outset of the transaction, Willey offered Wieniewitz the

opportunity to meet with Wild to discuss the loan; however, Wieniewitz

declined the offer. All communication regarding the loan and efforts to

collect on the loan was made through Willey. Although Willey facilitated
 5

the loan and all of the communication between the parties, he had no

independent information about the transaction other than what Wild told

him. At the time Willey prepared the promissory note between Synergy

and Wieniewitz, he had no knowledge of how Synergy would utilize the

funds from Wieniewitz or the identities of the other parties or entities

with whom Synergy was working. Willey had no direct financial interest

in Synergy.

After the initial $100,000 investment, no payments were received

as promised. Wieniewitz contacted Willey on multiple occasions to

request information about the status of the loan repayment. Wieniewitz

began emailing Willey in September 2010 expressing concern about the

transaction. On September 20, Willey emailed Wieniewitz to update him

that Wild had informed him of a “short delay” in disbursements. In an

email on September 27, Wieniewitz wrote that he had expected to have

his principal returned by then, as per the promissory note. He told

Willey that his wife believed the entire transaction was a scam. Willey

responded that he did not believe it was a scam, but Wild had been tied

up with a family emergency and that may explain the delay. Later, Willey

responded that he had spoken with Wild and Wild told him there was no

problem with the transaction, but that the parties were “negotiating a few

items behind the scenes and that [was] the reason for the delays.”

In October 2010, Wieniewitz again emailed Willey to ask about the

status of the disbursements. Willey emailed him an update from Wild:

“They are expecting funds to arrive at Singapore account tonight our

time. The time has been used up getting through the system by trading

bank, settlement bank and disbursement bank. Will be speaking again

this coming night (US).” On November 18, Willey emailed Wieniewitz to
 6

tell him that Wild expected to have the funds that week, but was “[j]ust

clearing up last of [the] paperwork necessary to allow release.”

In February 2011, Wieniewitz emailed Willey asking about the

payments because he wanted to use the loaned funds to purchase some

apartments. Willey responded that “some things have been going on

behind the scenes and neither [Wild] nor [he] wanted to give out

information before its time.” Willey again included a response from Wild

that said the “funds are sold, just behind schedule.”

Wieniewitz emailed Willey again in March asking about the

payments and was again forwarded a response from Wild:
The representation of platform manager is as follows:
All will be finished in the next 4 days regarding trade
platform issues and should have no more problems.
[T]heir intent is to have liquidity available (overseas) this
coming week. Thank you for your patience.

Wieniewitz did not receive any payment and followed up with an email to

Willey on May 6. Willey responded,

Dave [Wild] reports that everything is moving well now, he is
trying to pinpoint when funds will be available in US and
expects update in 48 hours or so. He says there is good
progress, shouldn’t be much longer, this will get done.

When no payments were received, Wieniewitz sent another email to

Willey on September 18 asking for a realistic timeline on the return of his

money. Wieniewitz also expressed frustration at repeatedly being told

things were “close” but never receiving a disbursement. Willey

responded and again told Wieniewitz the funds would be disbursed “in

the next couple of weeks.”

On January 19, 2012—a year and a half after his original

investment—Wieniewitz sent Willey a letter and an email demanding the
 7

money he invested be returned to him by January 23. Willey responded

via email,

I don’t know that it works that way, though I understand
your position and feelings. The ability to return the funds
would be different if the principal were sitting in a bank
account. It has been deployed and has not yet come back. I
would be happy to arrange a call with Dave to discuss the
situation and to obtain the most up to date information. I
would be happy to visit with you and Amber as well. There
has been some positive progress of late and it has been
represented that things will clear up soon. We are just as
frustrated as you are. Let me know if you would like to
arrange a call with Dave so we can schedule.

Wieniewitz contacted another attorney about the transaction and his

options for the return of his money.

Wieniewitz’s new counsel contacted Willey about the return of the

money. Willey responded that he could not provide specifics about the

transaction because the materials regarding the transaction were

protected under a nondisclosure agreement. After multiple emails were

exchanged, Willey continued to state that the funds were expected the

next week. When no funds were received, Wieniewitz filed a complaint

with the Board on April 16, 2012.

The Board filed its complaint against Willey on September 30,
2015. In the complaint, the Board alleged violations of rules 32:1.7(a)(2)

(concurrent conflict of interest), 32:1.7(b)(4) (informed consent), 32:1.8(b)

(using client information), and 32:1.9(c) (duties to former clients). A

hearing was set for April 28, 2016. On April 25, the Board and Willey

entered into a joint stipulation of facts and rule violations. Based on the

joint stipulation, the Board and Willey agreed to waive a hearing and

submitted the case to the commission based on the pleadings,

stipulation, and briefs.
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The commission filed its findings of fact, conclusions of law, and

recommendation on July 18. Based on the stipulation, the commission

found Willey violated rules 32:1.7(a)(2), 1.7(b)(4), and 1.8(b). However, it

found there was not a sufficient factual basis to find a violation of rule

32:1.9(c). The commission met again to consider the parties’ briefs

addressing the appropriate sanction for the rule violations. The

commission considered mitigating and aggravating factors and

recommended a thirty-day suspension. Willey filed a timely notice of

appeal.

II. Standard of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Stoller, 879 N.W.2d 199, 207 (Iowa

2016). “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.” Id.

(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cross, 861 N.W.2d

211, 217 (Iowa 2015)). While we give the findings and recommendations

of the commission respectful consideration, we are not bound by them.

Id. If we find the Board proved attorney misconduct by a convincing

preponderance of the evidence, we may choose to impose a sanction that

is lesser or greater than the sanction recommended by the commission.

Id.

III. Analysis.

While Willey stipulated that he committed certain rule violations,

“[a]n attorney’s stipulation as to a violation is not binding on us.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Kingery, 871 N.W.2d 109, 117 (Iowa

2015) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kelsen, 855

N.W.2d 175, 181 (Iowa 2014)). Even if an attorney’s stipulation concedes
 9

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

sufficient to support the stipulated violation. Id. Thus, we address each

alleged rule violation in turn to determine whether the Board met its

burden of proof. Id.

A. Rule 32:1.7(a)(2) Violation (Concurrent Conflict of Interest).

Rule 32:1.7(a) provides that an attorney cannot represent a client if the

representation of that client would involve a concurrent conflict of

interest. Iowa R. Prof’l Conduct 32:1.7(a). There are two types of

concurrent conflicts of interest under this rule. Id. Under subsection

(a)(1), a conflict of interest exists if an attorney’s representation of one

client is “directly adverse to another client.” Id. r. 32:1.7(a)(1). Under

subsection (a)(2), a concurrent conflict of interest exists if “there is a

significant risk that the representation of one or more clients will be

materially limited by the lawyer’s responsibilities to another client, a

former client, or a third person or by a personal interest of the lawyer.”

Id. r. 32:1.7(a)(2). The Board charged and the commission found a

violation of rule 32:1.7(a)(2), the “materially limited” prong of the

concurrent conflict of interest rule.

1. Background of rule 32:1.7. We utilize a two-step approach to

determine whether an attorney has violated rule 32:1.7(a)(2). First, we

must decide whether Willey’s representation of one client was affected by

his “responsibilities to another client, a former client, or a third person.”

Id.; see also Stoller, 879 N.W.2d at 207. If so, we next decide whether

Willey’s representation of one client was materially limited by his

representation of another. Iowa R. Prof’l Conduct 32:1.7(a)(2); see also

Stoller, 879 N.W.2d at 208.

The comments to the rule expand on the meaning of material

limitation:
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Even where there is no direct adverseness, a conflict of
interest exists if there is a significant risk that a lawyer’s
ability to consider, recommend, or carry out an appropriate
course of action for the client will be materially limited as a
result of the lawyer’s other responsibilities or interests.

Iowa R. Prof’l Conduct 32:1.7 cmt. 8. The key questions a lawyer must

ask are whether it is likely a difference in interests will occur between the

clients and, if so, whether that difference in interests will interfere with

the lawyer’s ability to offer independent, professional judgment to each

client. Id.
A material limitation is also defined in the Restatement (Third) of

the Law Governing Lawyers. See Restatement (Third) of the Law

Governing Lawyers § 121 cmt. c(ii), at 248 (2000). A “materially adverse

effect” is defined “by reference to obligations necessarily assumed by the

lawyer.” Id. These general obligations include the duty to “proceed in a

manner reasonably calculated to advance a client’s lawful objectives,” the

duty of competence, the duty of diligence, the duty to keep confidences,

the duty to avoid conflicting interests among clients, the duty to deal

honestly, the duty to not act in a manner adverse to a client’s interests,

and the duty to fulfill all obligations to the client. Id. § 16, at 146.

Likewise, our own rules require that a lawyer fulfill certain duties to

clients: competence, diligence, and communication. Iowa Rs. Prof’l

Conduct 32:1.1, 1.3, 1.4. In determining whether an attorney’s

representation was materially limited, we ask whether the attorney was

able to fully perform all of these duties to each of his or her clients. See,

e.g., Stoller, 879 N.W.2d at 209.

The comments to rule 32:1.7 also provide examples of material

conflicts, one of which discusses joint ventures:

For example, a lawyer asked to represent several individuals
seeking to form a joint venture is likely to be materially
limited in the lawyer’s ability to recommend or advocate all
 11
possible positions that each might take because of the
lawyer’s duty of loyalty to the others.

Iowa R. Prof’l Conduct 32:1.7 cmt. 8. When two clients enter into a joint

venture, their positions are at odds from the outset, which prevents an

attorney from adequately advising each party of all the available

alternatives. See, e.g., Stoller, 879 N.W.2d at 209. Similarly, we have

recognized that the positions of a landlord and tenant or a buyer and

seller are at odds with each other in a transaction. See, e.g., id.

2. Disciplinary case examples. In Iowa Supreme Court Attorney
Disciplinary Board v. Marks, we found an attorney violated our rules

regarding conflicts of interest. 814 N.W.2d 532, 539 (Iowa 2012). The

attorney had previously represented a client in a foreclosure action and

thereafter represented his own wife when she sold a piece of property to

the former client. Id. at 540. Marks failed to obtain informed consent,

confirmed in writing from his former client. Id. at 541. We noted that

the situation was analogous to those situations where an attorney enters

into a business transaction with a current client. Id. Because there was

no harm to the client, we concluded that a public reprimand was

appropriate. Id.

In Iowa Supreme Court Attorney Disciplinary Board v. Qualley, we

found two attorneys violated rules 32:1.7 and 32:1.8. 828 N.W.2d 282,

289 (Iowa 2013). Attorneys Qualley and Bleyhl represented Broadmoor

Place Homeowners Association in collecting delinquent dues from a

homeowner. Id. at 285. They began by sending the proper notice to cure

default to the homeowner as a prerequisite to a foreclosure action and

later filed the foreclosure petition on behalf of Broadmoor. Id. While the

foreclosure action was pending, the homeowner filed for bankruptcy. Id.
 12

The attorneys continued to represent Broadmoor in the bankruptcy

action. Id.

In the decree of foreclosure it obtained later, Broadmoor

acknowledged a first mortgage existed on the property that was superior

to their lien. Id. When the first mortgage holder initiated a foreclosure

action, Qualley and Bleyhl continued to represent Broadmoor’s interests.

Id. A sheriff’s sale was set, but the first mortgagor dismissed its

foreclosure action one week before the sale. Id. at 286. Also before the

sheriff’s sale, Bleyhl had sent an email to Broadmoor’s property manager

informing her of the company’s right to purchase the property at the

sale, but advising her against exercising that right. Id. The email also

stated that Bleyhl and Qualley had found a potential buyer, but there

was a potential conflict of interest because they would also be

representing the buyer. Id.

Qualley and Bleyhl had a friend, Izaah Knox, with whom they had

discussed entering into a business to “flip” real estate. Id. Qualley and

Bleyhl approached Knox about buying the property at the sheriff’s sale

because they believed they could flip it quickly and make a profit. Id.

Knox agreed, and Qualley and Bleyhl organized a company named Elite

Real Estate, L.L.C. Id. Knox provided the initial capital to Elite, and

neither Qualley nor Bleyhl provided any financial contribution. Id.

After the first mortgagor on the property dismissed its foreclosure

action, Qualley and Bleyhl failed to inform their client, Broadmoor. Id.

While there was a factual dispute regarding whether Broadmoor was

advised of Qualley and Bleyhl’s relationship with Elite, nothing was

confirmed in writing nor was Broadmoor advised to seek independent

legal advice based on this new development. Id. at 287. At the sheriff’s

sale, Qualley provided a written bid of $6500 on behalf of Broadmoor,
 13

and then either Qualley or Bleyhl made an oral bid of $6900 on behalf of

Elite. Id. Elite was issued the sheriff’s deed to the property that day. Id.

We found that Qualley and Bleyhl violated rules 32:1.7 and 32:1.8. Id. at

289. We suspended their licenses to practice law for a period of sixty

days. Id. at 294.

In Iowa Supreme Court Board of Professional Ethics & Conduct v.

Wagner, an attorney entered into an agreement with Carl Oehl that he

would assist in finding a buyer for his restaurant and represent Oehl in

the sale in exchange for a commission of ten percent of the gross sale

price of Oehl’s business. 599 N.W.2d 721, 723 (Iowa 1999). Shortly

after this agreement, one of Wagner’s former clients, David Childers,

consulted with Wagner about buying Oehl’s restaurant and starting his

own business. Id. at 724. Wagner orally informed Childers that he

represented Oehl in the sale of the restaurant and that Childers should

seek independent counsel. Id. He did not inform Childers that he would

receive a commission or why he was recommending Childers seek the

advice of independent counsel. Id. We held that Wagner violated a

provision of our old rules that prevented an attorney from entering into a

business transaction with a client without disclosing the lawyer’s own

self-interest. Id. at 727. We suspended his license for three months. Id.

at 729.

In Iowa Supreme Court Attorney Disciplinary Board v. Wright, an

attorney utilized funds from five clients to assist another client in

attempting to obtain what he believed was an inheritance from a cousin

in Nigeria. 840 N.W.2d 295, 297–98 (Iowa 2013). One of Wright’s

clients, Madison, approached Wright to see if he would represent him in

a transaction to obtain a large inheritance from a cousin in Nigeria. Id.

at 297. He informed Wright that he needed to pay $177,660 in taxes and
 14

then a sum of $18,800,000 would be released to him. Id. Wright

approached five other clients to ask if they would consider loaning

Madison funds for the purpose of paying taxes and fees on the purported

Nigerian inheritance. Id. at 297–98. One client loaned Madison

$12,000, payable to Wright, and Madison signed a document promising

to repay the client $50,000 “upon receipt of [the] inheritance funds.” Id.

at 297. Another loaned Madison $25,000 in exchange for a promise from

Madison to pay her $100,000 upon his receipt of the inheritance from

Nigeria. Id. at 297–98. Three additional clients loaned Madison sums in

the amount of $7000, $20,000, and $160,000. Id. at 298. None of the

loans made to Madison were ever repaid. Id. at 299. We found Wright

violated rules 32:1.1 (competence), 32:1.8(a) (business transaction with

current client), and 32:8.4(c) (professional misconduct involving

dishonesty, fraud, deceit, or misrepresentation). Id. at 299–302.

Because of the severity of the harm to Wright’s clients and his prior

history of discipline, we imposed a twelve month suspension. Id. at 303.

3. Willey’s conduct. In the transaction between Wieniewitz and

Synergy, Willey represented two parties on opposing sides of a

transaction. The interests of Wieniewitz as the party loaning the money,

and Synergy as the party receiving the loan, were at odds from the

beginning. That the two parties had competing interests is demonstrated

throughout the transaction. Throughout the email correspondence,

Willey was repeatedly caught between the interests of Wieniewitz and the

interests of Wild. During the entire transaction, Willey continued to

represent the interests of Wild and Synergy, charging and collecting tens

of thousands of dollars in legal fees. At the same time, Willey was unable

to adequately pursue the interests of Wieniewitz in obtaining the return

of his original investment, let alone any of the future payments promised
 15

to him in the promissory note prepared by Willey on behalf of

Synergy/Wild. Other than forwarding information from one client to

another, Willey did nothing to advance the legal interests of Wieniewitz.

After Wieniewitz obtained new counsel, Willey expressed that he

could not give certain information to Wieniewitz because of nondisclosure

agreements and because dispersing the information could harm Wild.

Clearly, Synergy was not in a position to return Wieniewitz’s money, and

Willey was not able to adequately pursue Wieniewitz’s interest in

obtaining a full refund of the money he provided under the promissory

note. We agree with the finding of the commission and hold that the

Board proved a violation of rule 32:1.7(a)(2) by a convincing

preponderance of the evidence.

B. Rule 32:1.7(b)(4) Violation (Informed Consent). If there is a

concurrent conflict of interest, our rules provide a mechanism for the

attorney to cure the conflict and continue to represent both clients. Iowa

R. Prof’l Conduct 32:1.7(b); see also Stoller, 879 N.W.2d at 210. If a

concurrent conflict of interest exists, one of the steps an attorney must

take to cure the conflict is to obtain “informed consent, confirmed in

writing” from both clients. Iowa R. Prof’l Conduct 32:1.17(b)(4). When

the conflict exists at the outset of representation, the attorney must

obtain the written consent before undertaking the representation. Id. r.

32:1.7 cmt. 3.

Contrary to the position taken by Willey, he never informed

Wieniewitz of the concurrent conflict of interest, and certainly not the

extent of his relationship with Wild or his involvement with Synergy.

Willey failed to obtain any informed consent, confirmed in writing, from

Wieniewitz before continuing to represent both parties in the loan

transaction. We agree with the finding of the commission and hold that
 16

the Board proved a violation of rule 32:1.7(b)(4) by a convincing

preponderance of the evidence.

C. Rule 32:1.8(b) Violation (Using Client Information). Rule

32:1.8(b) provides that “[a] lawyer shall not use information relating to

representation of a client to the disadvantage of the client unless the

client gives informed consent.” Id. r. 32:1.8(b). Because it will not affect

the sanction we impose, we decline to decide whether a violation of rule

32:1.8(b) occurred under this set of circumstances. See, e.g., Wright, 840

N.W.2d at 302.

D. Rule 32:1.9(c) Violation (Duties to Former Clients). Rule

32:1.9(c) provides,

A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a
client in a matter shall not thereafter:

(1) use information relating to the representation to
the disadvantage of the former client except as these rules
would permit or require with respect to a client, or when the
information has become generally known; or

(2) reveal information relating to the representation
except as these rules would permit or require with respect to
a client.

Iowa R. Prof’l Conduct 32:1.9(c).

The commission found there was not a sufficient factual basis to

find a violation of rule 32:1.9(c). Willey continued to represent Synergy

and to bill Wild for legal services during this entire transaction and

through 2015. We agree that there was not a sufficient factual basis to

determine that either client was a former, rather than current, client of

Willey’s at the time of the transaction and hold that the Board did not

prove a violation of rule 32:1.9(c) by a convincing preponderance of the

evidence.
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E. Sanction. Although we consider our prior cases instructive

when we determine a proper sanction, “[t]here is no standard sanction

for [any] particular type of misconduct.” Stoller, 879 N.W.2d at 218

(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Blessum, 861 N.W.2d

575, 591 (Iowa 2015)). We determine the appropriate sanction for a

violation of our rules based on the particular circumstances of each case.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morris, 847 N.W.2d 428, 435

(Iowa 2014).

When crafting a sanction, we consider the nature of the
violations, the attorney’s fitness to continue in the practice of
law, the protection of society from those unfit to practice law,
the need to uphold public confidence in the justice system,
deterrence, maintenance of the reputation of the bar as a
whole, and any aggravating or mitigating circumstances.

Stoller, 879 N.W.2d at 219 (quoting Blessum, 861 N.W.2d at 591).

1. Range of sanctions. We find that Willey violated rules

32:1.7(a)(2) (concurrent conflict of interest) and 32:1.7(b)(4) (informed

consent). Each of the rule violations fall under the general category of a

conflict of interest. In the cases discussed above, we found a range of

sanctions for attorney misconduct arising out of conflicts of interest. In

Marks, we concluded a public reprimand was the appropriate sanction

when there was no harm found to the client. 814 N.W.2d at 541–42. In

Qualley, we suspended the attorneys’ licenses for sixty days for violations

of rules 32:1.7 and 32:1.8. 828 N.W.2d at 289, 294. In Wagner, we

suspended an attorney’s license for three months for entering into a

business transaction with a client and not disclosing his own interest in

the transaction. 599 N.W.2d at 727, 730. In Wright, we suspended an

attorney’s license for twelve months after he convinced five clients to loan

another client money for a loan scam. 840 N.W.2d at 299, 303.
 18

2. Mitigating and aggravating factors. We must also consider any

existing mitigating or aggravating factors. Stoller, 879 N.W.2d at 220–21.

There are a number of both mitigating and aggravating factors present in

this case.

Willey was cooperative with the Board’s investigation, which we

consider a mitigating factor. Qualley, 828 N.W.2d at 294. In Willey’s

personal statement, he expressed regret for his actions and the harm it

caused to his clients. In the joint stipulation, Willey admitted to the

ethical violations. We consider both remorse and the admission of

wrongdoing to be mitigating factors. Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Weiland, 885 N.W.2d 198, 215 (Iowa 2016) (considering remorse a

mitigating factor); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conroy, 795

N.W.2d 502, 506 (Iowa 2011) (considering admission of wrongdoing a

mitigating factor). We also note that Willey has not been the subject of

prior disciplinary action, which we consider a mitigating factor. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 339 (Iowa

2015). Finally, Willey has engaged in extensive community service,

which we also consider a mitigating factor. Stoller, 879 N.W.2d at 221.

However, we must also consider the aggravating circumstances

surrounding this transaction. We consider harm to a client an

aggravating factor. Weiland, 885 N.W.2d at 215. The $100,000 financial

harm to Wieniewitz was significant. To this day, the Wieniewitzes have

not received any money for their investment. The record also does not

reflect that Wieniewitz is a sophisticated or wealthy business person who

was in a position to lose his and his wife’s money. Prior to investing,

Wieniewitz told Willey that he could only be out the money for no longer

than the forty-five days reflected in the promissory note. Willey assured

him the investment was safe. More significantly, the very structure of
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the investment was questionable from the beginning with an outrageous

promise of a return on the investment. Within weeks, Wieniewitz’s wife

was already questioning whether the transaction was a sham. No one

could reasonably counsel a client that this was a sound investment

opportunity. Willey was also an experienced attorney and CPA who had

been practicing for many years. We consider the experience of an

attorney to be an aggravating factor. Bartley, 860 N.W.2d at 339. In this

same vein, it is clear that Willey was able to recognize a conflict of

interest and knew what his ethical obligations were to his client, as he

had Wild execute a consent and waiver of any conflicts of interest three

years before.

We also note that “persistence . . . in perpetuating [a] falsehood is

a remarkable aggravating factor.” Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Barnhill, 885 N.W.2d 408, 424 (Iowa 2016) (quoting Iowa Supreme Ct.

Att’y Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 466 (Iowa 2014)).

While failing to disclose the conflict of interest to Wieniewitz, Willey

repeatedly represented to Wieniewitz that his payment was forthcoming

“soon,” whether in a few days or the next week. Willey continued to tell

Wieniewitz the payment would be coming “just next week” for nearly two

years. It was only much later that Wieniewitz learned of the conflict of

interest, and then Willey advised him to seek other legal counsel. In our

de novo review of the record, and considering all of the mitigating and

aggravating circumstances in this case, we find that the aggravating

factors weigh in favor of a longer period of suspension. We conclude a

sixty-day suspension is appropriate.

IV. Conclusion.

For the above reasons, we suspend Willey’s license to practice law

with no possibility of reinstatement for sixty days from the filing of this
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opinion. The suspension shall apply to all facets of the practice of law.

Iowa Ct. R. 34.23(3). Willey must comply with the notification

requirements of our rules. Id. r. 34.24. Costs are assessed to Willey. Id.

r. 36.24(1). Unless the Board objects, Willey shall be automatically

reinstated after the sixty-day suspension period on the condition all costs

have been paid. Id. r. 34.23(2).

LICENSE SUSPENDED.