Iowa Supreme Court Attorney Disciplinary Board v. Kim Marlow West

IN THE SUPREME COURT OF IOWA
No. 17–0420

Filed September 15, 2017

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

KIM MARLOW WEST,

Respondent.

On review of the report of the Iowa Supreme Court Grievance

Commission.

Grievance commission recommends a suspension of an attorney’s

license to practice law for violations of ethical rules. LICENSE

SUSPENDED.

Tara van Brederode and Susan A. Wendel, Des Moines, for

complainant.

Kim Marlow West, Des Moines, pro se.
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WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against an attorney alleging multiple violations of the Iowa

Rules of Professional Conduct in connection with the probate and closing

of an estate. A division of the Iowa Supreme Court Grievance

Commission found the respondent’s conduct violated the rules. The

commission recommended we order the attorney to refund half of the

attorney fee he received, personally pay the attorney’s fee and court costs

to close the estate, and suspend his license to practice law with no

possibility of reinstatement for a period of six months. The Board urges

us to adopt the recommendation. On our de novo review, we find the

attorney violated provisions of our rules, which requires us to impose

sanctions. Accordingly, we suspend the attorney’s license to practice law

for a period of sixty days from the date of filing this decision.

I. Scope of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Vandel, 889 N.W.2d 659, 662 (Iowa

2017). The Board has the burden to prove ethical violations by a

convincing preponderance of the evidence. Id. A convincing

preponderance of the evidence is more than the typical preponderance

standard in a civil case but less than proof beyond a reasonable doubt.

Id. “While we respectfully consider the commission’s findings and

recommendations, they are not binding on us.” Id.

II. Findings of Fact.

On September 14, 2016, the Board filed a complaint against

Kim Marlow West alleging various ethical violations in connection with

the estate of Betty Maxine Rumme. The Board amended its complaint

twice. West responded to the Board’s complaints by admitting all of the
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Board’s allegations. On December 1, the Board and West filed a

stipulation pursuant to Iowa Court Rule 36.16, wherein the parties

agreed to the facts, rule violations, and mitigating and aggravating

circumstances.

Facts admitted in an answer are “deemed established,” and a

stipulation of facts is binding on the parties. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa 2013). We

construe a factual stipulation “with reference to its subject matter and in

light of the surrounding circumstances and the whole record, including

the state of the pleadings and issues involved.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 803–04 (Iowa 2010) (quoting

Graen’s Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d 295, 300

(Iowa 1983)). However, we are not “bound by a stipulation of a violation

or of a sanction in reaching our final decision in a disciplinary case.” Id.

at 804; accord Iowa Ct. R. 36.16(3). The Iowa Constitution and our court

rules solely vest the function of determining violations and sanctions for

such violations with our court. See Gailey, 790 N.W.2d at 804.

Using the stipulation of the parties, together with our de novo

review of the record, we make the following findings of fact. West has

practiced law in Iowa since 1983. He worked in the Cerro Gordo, Story,

and Polk County public defender offices until approximately 2002. In

2004, West began a solo private practice in criminal law, which he

continues today at a substantially reduced volume.

On October 16, 2007, William Rumme hired West to handle a

probate matter for the estate of his mother Betty Maxine Rumme.

William Rumme paid West an attorney fee of $1000, which he

subsequently deposited without court authorization as required by

statute. West filed a petition for probate of the will and obtained an
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order admitting the will of Betty Maxine Rumme to probate. West then

failed to file the estate inventory, and on June 1, 2008, he received a

notice of delinquency from the district court clerk’s office. On August 22,

West filed an application for extension of time to file the estate inventory,

which the district court granted. On August 29, West filed the estate

inventory. On June 2, 2009, West received a notice of delinquency after

he failed to file an interlocutory report for the estate. West prepared and

filed the interlocutory report on August 13. West subsequently failed to

file the second notice of publication and failed to file the final report. The

clerk sent several additional delinquency notices to West from 2014

through 2016, but he did nothing to cure the delinquencies. Further,

the Board sent numerous notices and requests regarding the probate

delinquencies from 2014 through 2015, to which the Board received

minimal or no response from West.

West also failed to communicate with the executor of the estate,

causing such frustration that the executor attempted to file a final report

and communicate directly with the probate judge. West never contacted

the executor of the estate to explain what was going on with the estate or

to inform him of how the probate matter was progressing. The executor

of the estate attempted to contact West about the delinquency notices.

Nevertheless, West failed to keep the executor of the estate informed with

respect to the status of the probate matter and failed to respond to the

executor’s attempt to reach him.

Prior to undertaking the probate matter that is the subject of this

disciplinary action, West had no experience handling estates and did not

take any steps to understand that area of the law or follow through in

pursuing outside expertise. Because of the lack of proper

administration, the estate remains open. Based on West’s handling of
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the estate, the Board alleged and West admitted violations of the Iowa

Rules of Professional Conduct related to providing competent

representation, acting diligently, failing to respond to a disciplinary

authority, engaging in conduct prejudicial to the administration of

justice, violating a fee restriction imposed by law, and keeping a client

reasonably informed. We discuss additional facts as needed in the

violations and sanction sections of this opinion.

III. Ethical Violations.

A. Competence—Rule 32:1.1. This rule states, “A lawyer shall

provide competent representation to a client. Competent representation

requires the legal knowledge, skill, thoroughness, and preparation

reasonably necessary for the representation.” Iowa R. Prof’l Conduct

32:1.1. “Competent handling of a particular matter includes inquiry into

and analysis of the factual and legal elements of the problem, and use of

methods and procedures meeting the standards of competent

practitioners.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797

N.W.2d 591, 598 (Iowa 2011) (quoting Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Tompkins, 733 N.W.2d 661, 668 (Iowa 2007)).

West’s experience as an attorney was primarily in the area of

criminal law, and he had no experience in probate matters. West

admitted that he did not possess the requisite knowledge to handle this

probate matter competently. He neither took steps to understand the

probate requirements nor followed through in seeking outside expertise.

Accordingly, West’s failure to administer the estate constituted

incompetent representation, violating rule 32:1.1.

B. Diligence—Rule 32:1.3. This rule provides, “A lawyer shall

act with reasonable diligence and promptness in representing a client.”

Iowa R. Prof’l Conduct 32:1.3. Rule 32:1.3 “requires an attorney to
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handle a client matter in a ‘reasonably timely manner.’ ” Vandel, 889

N.W.2d at 667 (quoting Netti, 797 N.W.2d at 598). Violations of this rule

occur “when an attorney fails to appear at scheduled court proceedings,

does not make the proper filings, or is slow to act on matters.” Id.

(quoting Nelson, 838 N.W.2d at 537); see also Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Ackerman, 786 N.W.2d 491, 495 (Iowa 2010) (holding

attorney violated rule 32:1.3 for the dilatory handling of estates, despite

receiving delinquency notices and inquiries from the beneficiaries).

Generally, a violation does not “occur from one missed deadline,

but arises when a lawyer ‘repeatedly fail[s] to perform required functions

as attorney for the executor, repeatedly fail[s] to meet deadlines, and

fail[s] to close the estate within a reasonable period of time.’ ” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102

(Iowa 2012) (alteration in original) (quoting Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002)).

“[N]eglect involves ‘a consistent failure to perform those obligations that a

lawyer has assumed[] or a conscious disregard for the responsibilities a

lawyer owes to a client.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Lickiss, 786 N.W.2d 860, 867 (Iowa 2010) (quoting Iowa Supreme Ct. Bd.

of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551 (Iowa 2004)).

It often involves “a lawyer doing little or nothing to advance the interests

of a client after agreeing to represent the client.” Moorman, 683 N.W.2d

at 552.

West repeatedly failed to perform the legal obligations he assumed

in probating the Rumme estate. He failed to perform the required

functions as an attorney for the executor, meet deadlines, publish

required notice, file the final report, and timely close the estate prior to

the three-year statutory deadline in Iowa Code section 633.473 (2017).
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West’s consistent failures to perform his obligations as an attorney in the

Rumme estate violate rule 32:1.3.

C. Failure to Respond to the Board—Rule 32:8.1(b). This rule

provides a lawyer shall not “knowingly fail to respond to a lawful demand

for information from . . . [a] disciplinary authority.” Iowa R. Prof’l

Conduct 32:8.1(b). “ ‘Knowingly’ means ‘actual knowledge of the fact in

question’ and ‘may be inferred from circumstances.’ ” Nelson, 838

N.W.2d at 539–40 (quoting Iowa R. Prof’l Conduct 32:1.0(f)). We infer a

lawyer knowingly failed to respond when the lawyer received the Board’s

inquiries, yet failed to provide a timely response. Id.; Netti, 797 N.W.2d

at 604–05; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d

53, 60 (Iowa 2009) (per curiam). A lawyer “has an obligation to cooperate

with disciplinary authorities and ... failure to respond to an

investigation committee’s request constitutes a separate act of

misconduct subjecting the attorney to discipline.” Casey, 761 N.W.2d at

60.

West received at least seven letters from the Board regarding the

delinquencies in closing the Rumme estate. West responded to the

Board on only two occasions, after the clerk of the supreme court issued

a notice of possible temporary suspension pursuant to Iowa Court Rule

35.7(3)(a) to him. West admitted he received inquiries from the Board

regarding the delinquencies in the probate matter and failed to respond;

thus he violated rule 32:8.1(b).

D. Conduct Prejudicial to the Administration of Justice—Rule

32:8.4(d). This rule prohibits a lawyer from engaging “in conduct

prejudicial to the administration of justice.” Iowa R. Prof’l Conduct

32:8.4(d). “[A]ctions that have commonly been held to violate this

disciplinary rule have hampered ‘the efficient and proper operation of the
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courts or of ancillary systems upon which the courts rely.’ ” Vandel, 889

N.W.2d at 666 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Templeton, 784 N.W.2d 761, 768 (Iowa 2010)). We have found a violation

of rule 32:8.4(d) when a lawyer’s “misconduct results in additional court

proceedings or causes court proceedings to be delayed or dismissed.” Id.

(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 841 N.W.2d

114, 124 (Iowa 2013)). “In a number of cases involving probate neglect,

we have held that a finding of neglect and conduct prejudicial to the

administration of justice can exist alongside each other.” Van Ginkel,

809 N.W.2d at 103; accord Netti, 797 N.W.2d at 605; Lickiss, 786 N.W.2d

at 867; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rickabaugh, 728

N.W.2d 375, 380–81 (Iowa 2007).

West’s conduct caused the district court to issue numerous

delinquency notices. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Curtis, 749 N.W.2d 694, 699 (Iowa 2008) (holding use of clerk’s office as

a “private tickler system” is conduct prejudicial to the administration of

justice). Accordingly, his multiyear procrastination in the closing of the

Rumme estate amounted to conduct prejudicial to the administration of

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

West also violated rule 32:8.4(d) when he failed to respond to

communications from the Board. See Nelson, 838 N.W.2d at 540–41

(holding attorney violated rule 32:8.4(d) when he did not timely respond

to Board inquiries); Casey, 761 N.W.2d at 60 (holding attorney’s failure

to respond to Board in a timely fashion violated rule 32:8.4(d)). Finally,

West violated rule 32:8.4(d) by prematurely receiving the entire attorney

fee to handle the probate of the estate contrary to Iowa Court Rule 7.2(4).

See Van Ginkel, 809 N.W.2d at 105 (concluding attorney violated rule

32:8.4(d) when he prematurely received second-half fee without payment
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of court costs); Ackerman, 786 N.W.2d at 497 (concluding attorney’s

premature taking of probate fees contrary to our court rules was

prejudicial to the administration of justice).

E. Probate Fees—Rule 32:1.5(a). “Iowa law prohibits an attorney

from collecting fees in probate cases without a prior court order

approving the fees.” Lickiss, 786 N.W.2d at 867 (citing Iowa Code

§§ 633.197, .198); see Iowa Ct. R. 7.2. Accepting an attorney fee for the

administration of an estate “without prior approval by the court violates

rule 32:1.5(a),” which prohibits fees charged or collected in violation of

the law. Lickiss, 786 N.W.2d at 867–68. In addition, an attorney is

entitled to only half of the fee for ordinary services in a probate

proceeding until filing the final report and paying costs. Iowa Ct.

R. 7.2(4).

West did not file a written application for or receive court approval

prior to taking the full amount of legal fees for his services in this

probate matter. West also received full payment for his services in this

probate matter prior to filing the final report and paying the estate costs.

Thus, West violated rule 32:1.5(a).

F. Communication—Rule 32:1.4(a)(3). This rule provides, “A

lawyer shall . . . keep the client reasonably informed about the status of

the matter.” Iowa Ct. R. 32:1.4(a)(3). West did not keep the executor of

the estate informed with respect to the status of the probate matter and

did not respond to the executor’s attempts to communicate with him.

West’s failure to communicate with the executor of the estate caused

such frustration that the executor attempted to file a final report and

began communicating directly with the probate judge. West’s conduct in

failing to provide the executor of the estate with any information about
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the estate’s progress, required tasks, and deadlines violated rule

32:1.4(a)(3).

IV. Sanctions.

Upon accepting the stipulation filed by the parties, the commission

held a hearing on December 16, 2016, to determine an appropriate

sanction. The commission recommends we suspend West’s license to

practice law indefinitely, with no possibility of reinstatement for six

months. In addition to the indefinite suspension, the commission

recommends West be ordered to hire a probate attorney to finish and

close the Rumme estate, pay said attorney’s fee and court costs, and

refund half of the attorney fee West received to the executor of the estate.

We note the Board, in its brief, previously recommended to the

commission that West should be publicly reprimanded at a minimum

and be required to associate with legal counsel hired by the executor of

the estate to close the estate at West’s expense.

We have discretion to impose a greater or lesser sanction than

recommended by the commission. Nelson, 838 N.W.2d at 542. In

determining an appropriate sanction, we take into account

the nature of the violations, protection of the public,
deterrence of similar misconduct by others, the lawyer’s
fitness to practice, and the court’s duty to uphold the
integrity of the profession in the eyes of the public. We also
consider aggravating and mitigating circumstances present
in the disciplinary action.

Id. (quoting Templeton, 784 N.W.2d at 769–70).

Sanctions for attorney misconduct involving neglect have typically

ranged from a public reprimand to a six-month suspension. Lickiss, 786

N.W.2d at 868. “Often, the distinction between the punishment imposed

depends upon the existence of multiple instances of neglect, past

disciplinary problems, and other companion violations.” Id. (quoting
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks (Marks I), 759 N.W.2d

328, 332 (Iowa 2009)).

We have found a public reprimand sufficient for attorney

misconduct involving neglect in a number of cases. Van Ginkel, 809

N.W.2d at 109 (collecting cases). However, in other cases, we imposed

sixty-day suspensions. See id. at 111 (imposing a sixty-day suspension

upon an attorney who neglected the closing of an estate, obtained

probate fees prematurely, and made a false statement to the court); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Thomas, 794 N.W.2d 290, 295 (Iowa

2011) (imposing a sixty-day suspension on attorney who had a history of

sanctions for failing to cooperate with the Board and not communicating

with clients, and who had again neglected client matters and failed to

communicate with clients); Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Daggett, 653 N.W.2d 377, 381–82 (Iowa 2002) (imposing a

sixty-day suspension when attorney with only one prior reprimand for

neglect again neglected his client, made misrepresentations to the court,

failed to respond to a court order, and did not cooperate with the Board).

“In cases involving neglect in one or two cases and other

misconduct such as misrepresentations associated with the neglect, the

suspensions have been in the range of three months.” Van Ginkel, 809

N.W.2d at 109; see Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks

(Marks II), 831 N.W.2d 194, 202 (2013) (imposing a three-month

suspension for attorney’s neglect of estate and failure to cooperate with

the Board); Lickiss, 786 N.W.2d at 868–69, 872 (imposing a three-month

suspension for multiple instances of neglect in four probate matters,

early collection of fee, and failure to respond to clients and the Board);

Ackerman, 786 N.W.2d at 497–98 (imposing a ninety-day suspension for

neglect in two estates, multiple misrepresentations to the court and to
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the beneficiaries of one of the estates, and early receipt of probate fees);

Casey, 761 N.W.2d at 61–62 (imposing a three-month suspension for

neglect in two cases, multiple misrepresentations to the court and the

tax department, and premature collection of a probate fee and failure to

deposit the fee into a trust account); Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Adams, 749 N.W.2d 666, 669–70 (Iowa 2008) (imposing a four-

month suspension for neglect in three cases, misrepresentation

associated with neglect, failure to account to a client, and failure to

respond to the Board). In cases where the pattern of misconduct is more

extensive or involves serious misrepresentations, we typically impose

longer suspensions. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Bartley, 860 N.W.2d 331, 333–34, 335–40 (Iowa 2015) (imposing a six-

month suspension on an attorney who failed to properly close two estates

for a number of years, made multiple misrepresentations, including

creating a false check claiming to pay off the creditors of one of the

estates, failed to deposit client payments into the client trust account,

and took fees years before court approval).

Before reaching our conclusion on the proper sanction for West’s

ethical violations, we will first consider the mitigating and aggravating

circumstances present in this case. West contends that his health

problems, including a broken leg in 2013, heart surgery in 2015, and

depression, are mitigating factors. “Personal illnesses, such as

depression, do not excuse a lawyer’s misconduct but can be mitigating

factors and influence our approach to discipline.” Marks I, 759 N.W.2d

at 332. Accordingly, West’s health issues are mitigating factors we can

take into consideration.

We view an attorney’s community service as a mitigating factor in

disciplinary cases. Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGinness,
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844 N.W.2d 456, 467 (Iowa 2014). We acknowledge West’s community

service and pro bono work are mitigating factors in this case. An

attorney’s recognition of some wrongdoing is also a mitigating factor.

Vandel, 889 N.W.2d at 669–70. In this case, West fully acknowledged

and accepted responsibility for his misconduct and expressed remorse to

everyone involved. Finally, West testified that he would never take on

another probate matter. Voluntary remedial efforts to limit an attorney’s

practice to areas of competence do not excuse misconduct; however, we

consider such efforts to be a mitigating circumstance. Lickiss, 786

N.W.2d at 871.

We now turn to the aggravating factors. In 2012, West received an

admonition for failing to keep a client reasonably informed in violation of

rule 32:1.4(a)(3). While a prior private admonition is not discipline, we

consider it an aggravating factor because it put West on notice of his

ethical requirements. See Van Ginkel, 809 N.W.2d at 110.

We also consider harm to a client an aggravating factor that affects

our determination. Vandel, 889 N.W.2d at 669. There are two

beneficiaries of the Rumme estate—William Rumme, and his brother,

Allen Rumme. According to the will, the estate was to be distributed

equally between the two brothers. The estate had one asset, which was a

bank account valued at $55,936.65. In 2010, William Rumme took all

the assets of the estate contrary to the will. West caused harm to the

estate by failing to ensure the estate funds were properly distributed to

each beneficiary of the estate. Additionally, we consider West’s many

years of experience in the practice of law an aggravating circumstance.

See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Wagner, 599

N.W.2d 721, 730 (Iowa 1999).
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West’s misconduct stems entirely from him mishandling the

probate of a single estate—his incompetent representation, neglect,

failure to respond to the Board regarding his neglect, procrastination

prejudicial to the administration of justice, premature receipt of the

attorney fee, and failure to keep his client reasonably informed. We note

that this case does not involve any false statements or

misrepresentations to the court, which typically result in more severe

disciplinary sanctions. See Van Ginkel, 809 N.W.2d at 111 (“A knowing

misrepresentation to the court is a particularly disturbing factor.”).

Taking into consideration West’s violations, the mitigating factors,

and the aggravating factors, we conclude West should be suspended for

sixty days with the possibility of automatic reinstatement. In addition,

West is required to refund the $1000 fee he accepted for the probate of

the estate. We do not adopt the commission’s suggestion that West hire

a probate attorney to finish and close the estate of Rumme and pay said

attorney’s fee and court costs.

V. Disposition.

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

this state for sixty days. Reinstatement of West’s license to practice law

is automatic on the day after the sixty-day suspension period expires,

unless the Board objects to his automatic reinstatement. Iowa Ct.

R. 34.23(2). We condition West’s reinstatement upon him providing the

Board with evidence that he informed the probate court of his

suspension, withdrew from representing the estate, informed the court

that William Rumme took all of the funds from the estate, refunded the

$1000 fee he received, complied with court rule 34.24, and paid the costs

of this action. The suspension applies to all facets of the practice of law
 15

provided by Iowa Court Rule 34.23(3). We tax the costs of this

proceeding against West pursuant to Iowa Court Rule 36.24(1).

LICENSE SUSPENDED.