Iowa Supreme Court Attorney Disciplinary Board v. Robert Allan Wright Jr.

IN THE SUPREME COURT OF IOWA
No. 13–0780

Filed December 6, 2013

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

ROBERT ALLAN WRIGHT JR.,

Respondent.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

Grievance commission found violations of multiple ethical rules

and recommended lengthy suspension. LICENSE SUSPENDED.

Charles L. Harrington and Nicholas Tré Critelli, Des Moines, for

complainant.

Alfredo G. Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble,

Parrish, Gentry & Fisher, LLP, Des Moines, for respondent.
 2

HECHT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board)

charged Robert Wright Jr. with violations of the Iowa Rules of

Professional Conduct based on Wright’s conduct in persuading several of

his clients to loan money to another client. A division of the Grievance

Commission of the Supreme Court of Iowa found Wright’s actions

violated several ethical rules and recommended a suspension of his

license to practice law. Wright has appealed from the commission’s

recommendation. After reviewing the record, we find Wright committed
ethical violations warranting a suspension.

I. Factual and Procedural Background.

Wright was admitted to the bar and began practicing law in 1981.

He developed a general practice, handling criminal cases, family law

matters, personal injury and workers’ compensation claims, and

employment discrimination cases. While representing Floyd Lee Madison

in a criminal case in 2011, Wright was presented with documents

purporting to evidence that Madison was the beneficiary of a large

bequest from his long-lost cousin in Nigeria. Madison represented to

Wright that upon payment of $177,660 in taxes owed on the inheritance

in Nigeria, the sum of $18,800,000 would be released to Madison. He

asked Wright to represent him in securing the transfer of the funds from

Nigeria. In consideration for a fee equal to ten percent of the funds

recovered, Wright agreed to represent Madison in the Nigerian

transaction.

Wright was at that time representing Danny Wayne Rynearson in a

pending felony criminal case. Wright knew Rynearson might have funds
that Madison could borrow for the purpose of paying the taxes and fees

on the Nigerian funds. Armed with this knowledge, Wright approached
 3

Rynearson about his willingness to make a loan to Madison. Wright

arranged a meeting in his office between Madison, Rynearson, and

Rynearson’s wife. As a consequence of the meeting, the Rynearsons

agreed to make the loan to Madison and drew a check on June 9, 2011,

in the amount of $12,000 payable to Wright. Wright prepared and

signed a letter dated June 9, 2011, confirming the agreement that his

client Rynearson would loan Madison the sum of $12,000 for the

purpose of paying the Nigerian tax. Madison signed the document

promising to pay Rynearson the sum of $50,000 “upon receipt of [the]
inheritance funds.” Wright deposited Rynearson’s check in his trust

account. Believing more funds were needed to complete the transaction,

Wright informed the Rynearsons that he was in immediate need of an

additional $12,500 and desperately needed their help. Mrs. Rynearson

drew a check in the amount of $12,500 payable to Wright on August 1,

2011. Wright also deposited that check in his trust account.1

Wright was also representing Linda Putz at that time in a pending

workers’ compensation case. The case was nearing completion, and

Wright and Putz were awaiting receipt of proceeds of a settlement.

Knowing Putz would soon net approximately $25,000 from the

settlement, Wright informed her Madison hoped to borrow money to pay

Nigerian authorities for an “anti-terrorism certificate” and inquired

1Rynearson and his spouse requested security for this second loan. Wright
consequently drew a check dated August 1, 2011, on his trust account in the amount of
$12,500 payable to himself. The words “Atty fees” were typed on the memo line of the
instrument. Wright endorsed the trust account check and delivered it to the
Rynearsons. Wright testified that the $12,500 in attorney fees was earned while
representing another client, Linda Putz, in a workers’ compensation matter discussed
below in this opinion. Although Wright had negotiated a settlement of Putz’s claim by
August 1, 2011, he had not yet received or deposited in his trust account a draft
representing the settlement proceeds for that claim. The Board did not charge Wright
in this proceeding with a violation of any ethical rule pertaining to the maintenance of
his trust account.
 4

whether Putz would be willing to loan the sum of $12,500 for this

purpose. In a letter to Putz dated August 12, 2011, Wright memorialized

a proposed loan agreement calling for Madison to repay the loan with a

payment of $50,000 upon his receipt of the inheritance which was

anticipated “before August 24, 2011.” Putz later agreed to loan Madison

an additional $12,500, and thus loaned the entire net proceeds of her

settlement to Madison in consideration for his promise to pay her

$100,000 upon receipt of the inheritance from Nigeria. All of the

proceeds of Putz’s loans to Madison were deposited in Wright’s trust
account.

The Board subsequently filed a complaint alleging Wright had

violated several rules of professional conduct in his transactions with

Danny Wayne Rynearson and Putz. Shortly before the hearing on the

complaint in front of the grievance commission, Wright presented to the

Board a “Disclosure Statement” revealing for the first time that he had

also solicited loans for Madison from three other clients in furtherance of

the Nigerian transaction.2 The statement admitted Wright had solicited

and received from Toryan White a loan for Madison in the amount of

$7000. The statement also revealed Wright solicited a loan for Madison

from another client, Vern Stodden, in the amount of $160,000.3 Lastly,

2In a previous answer to an interrogatory propounded by the Board, Wright had
indicated Rynearson and Putz were the only clients from whom he had solicited loans
for Madison. It appears the answer was based on Wright’s understanding that the
interrogatory addressed solicitations from persons whom Wright was actively
representing in other matters at the time of the solicitations. As we have noted, Wright
was actively representing Rynearson and Putz at the time they made loans to Madison.
Although Wright had represented Toryan White, Vern Stodden, and Bob Nunneman in
the past, he was not actively representing them in other matters when he solicited them
for loans to Madison.
3Of this amount, Wright testified that approximately $30,000 to $50,000 was
deposited in and distributed from his trust account in payment of the demands of
persons claiming to be in control of the Nigerian funds.
 5

the statement disclosed Wright had solicited and obtained for Madison a

loan in the amount of $20,000 from Bob Nunneman. Wright stipulated

that he failed to advise White, Stodden, and Nunneman that they should

seek independent counsel before making the loans to Madison. Denying

that he derived any financial gain from these transactions, Wright urged

the grievance commission to consider his voluntary disclosure as a

mitigating factor in its determination of the appropriate sanction in this

case.

Although Wright’s disclosures of additional loan transactions on
the eve of the hearing before the commission were a surprise to the

Board, no objection was raised to the disclosure statement when it was

offered and received in evidence by the grievance commission. In its

posthearing brief, the Board urged that Wright’s admitted conduct in the

transactions with White, Stodden, and Nunneman be considered as an

aggravating factor in the determination of the appropriate sanction for

any violations committed in the transactions with Rynearson and Putz,

on the ground that Wright’s conduct involving White, Stodden, and

Nunneman was part of a pattern arising from the same Nigerian

transaction for which loans made by Rynearson and Putz were solicited.

In the course of his work on behalf of Madison in pursuit of the

Nigerian inheritance, Wright communicated with persons he believed

were representatives of the “Central Bank of Nigeria,” the “African

Union,” and the President of Nigeria. Wright also communicated with

Okey Okafor, a person who claimed to be the Nigerian lawyer who had

witnessed the decedent’s will. Wright also had communications with a

person who claimed to be a lawyer in England named Johnson Walkers.
Walkers claimed he had, on Madison’s behalf, traveled to Nigeria and

investigated the legitimacy of the inheritance.
 6

Wright apparently transferred to others all of the loan proceeds he

collected from his clients on behalf of Madison.4 As the story developed,

Wright and Madison were told the inherited funds would be released by

the Nigerian authorities for transfer to the Royal Bank of Canada. Later,

however, Wright and Madison were told the inheritance—in the form of

U.S. currency—had been shipped (for reasons not detailed in the record)

in two trunks to Spain where the trunks supposedly came into the

possession of a “diplomat” in Madrid. The diplomat demanded payment

of €25,600 (25,600 Euros) for his “logistic charges” in return for
possession of the trunks. He instructed Wright and Madison to conceal

the foreign currency in their luggage5 and travel to Madrid where they

were to pay the logistics charges and take possession of the property.

Madison traveled to Spain and later told Wright he had seen the two

suitcases but failed—for reasons not explained in the record—to obtain

possession of them.

Madison recovered no funds from the supposed Nigerian

inheritance. As no funds were recovered by Madison, Wright received no

compensation for his professional services in the matter. The loans

made to Madison by the Rynearsons, Putz, White, Stodden, and

Nunneman have not been repaid.

4The record does not reveal the details of Wright’s distribution of the proceeds of

the loans made by Rynearson, Putz, White, Stodden, and Nunneman. The Board
offered no evidence that Wright retained any of the proceeds for himself.
5This diplomat’s instruction came to Madison via an email message which read
verbatim, in relevant part:
I don’t know of any Bank here, beside, I will suggest you come with the
administrative Logistic charges for the clearance which is €25,600
(Twenty-Five Thousand Six Hundred Euros) in your baggage, have it hide
in your trouser’s and have the trouser fold careful package in your
luggage, so that it will be easy to proceed to custom safe storage house
facilities office here to pay and pick up receipt for immediate delivery of
your two trunk boxes.
 7

Wright’s license is currently suspended under an order of this

court entered on August 16, 2012. The current suspension was imposed

as a consequence of Wright’s failure to cooperate with the efforts of the

Client Security Commission to perform an audit of his lawyer trust

account.

II. The Board’s Complaint.

The Board filed a complaint alleging Wright’s conduct in the

transactions with Rynearson and Putz violated the following rules:

(1) 32:1.1 (requiring representation of a client with the legal knowledge,
skill, thoroughness, and preparation reasonably necessary for the

representation); (2) 32:1.7 (requiring disclosure and client consent if

representing a client when the representation involves a concurrent

conflict of interest); (3) 32:1.8(a) (requiring disclosure and client consent

when entering into a business transaction with a client or knowingly

acquiring an ownership interest or other pecuniary interest adverse to a

client); (4) 32:1.8(b) (requiring disclosure and client consent when using

information relating to representation of a client to the disadvantage of

the client); (5) 32:8.4(c) (prohibiting engagement in conduct involving

dishonesty, fraud, deceit, or misrepresentation); and (6) 32:1.2(d)

(prohibiting assisting a client in conduct the lawyer knows to be illegal or

fraudulent).

III. The Commission’s Report.

The Board’s posthearing brief withdrew the allegation that Wright

violated rule 32:1.2(d) by assisting a client in conduct Wright knew to be

illegal or fraudulent. The Board made this withdrawal based on its view

that “Wright clearly believed in the legitimacy of Madison’s inheritance
. . . .” Noting “Wright appears to have honestly believed—and continues

to believe—that one day a trunk full of . . . one hundred dollar bills is
 8

going to appear upon his office doorstep,” the Board asserted before the

commission that Wright’s conduct might aptly be described as

delusional, but not fraudulent.

The commission’s report found by a convincing preponderance of

the evidence that Wright’s conduct in his transactions with Madison,

Rynearson, and Putz violated each of the other rules as alleged in the

Board’s complaint. The commission’s findings of violations were also

based on Wright’s conduct in soliciting loans from White, Stodden, and

Nunneman based on the substance of Wright’s disclosure statement.6
The report recommends a lengthy suspension be imposed.7

IV. Scope of Review.

We review the commission’s report de novo. Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 366 (Iowa 2005). “Under

this standard of review, we give weight to the factual findings of the

Commission, especially with respect to witness credibility, but we find

the facts anew.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Beckman, 674 N.W.2d 129, 131 (Iowa 2004). “Although we respectfully

consider the discipline recommended by the Commission, the final

decision on the appropriate sanction is for this court.” Howe, 706

N.W.2d at 366. The Board, as the complainant, must prove its

6Although the complaint did not charge Wright with rule violations for carrying
out these transactions, the parties clearly litigated rule violations based on the
transactions before the commission. Adopting the Board’s contention that the
transactions involving White, Stodden, and Nunneman were part of a single course of
conduct and should be considered in this proceeding, the commission made findings
and recommended a sanction based on them. As the transactions involving White,
Stodden, and Nunneman were stipulated to by Wright and presented to the commission
by the parties, we will also consider them.
7The commission did not unanimously agree on the length of the recommended
suspension. Four members recommended Wright’s license to practice be suspended for
two years; one member recommended a suspension of one year.
 9

allegations of misconduct by a convincing preponderance of the evidence.

Id.

V. Violations.

A. Rule 32:1.1. Rule 32:1.1 requires that attorneys competently

represent their clients. Iowa R. Prof’l Conduct 32:1.1. The requirement

of competence dictates that practitioners apply “the legal knowledge,

skill, thoroughness, and preparation reasonably necessary for the

representation.” Id. It is the Board’s burden to prove Wright either

lacked the legal knowledge or skill for the tasks he was hired to perform,
or he failed to make a competent analysis of the factual and legal

elements of a client’s legal problem. See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 153 (Iowa 2010).

Wright is not the first Iowa lawyer who has become entangled in a

deception with ostensible Nigerian connections. See Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Jones, 606 N.W.2d 5, 9 (Iowa 2000)

(noting the incidence of fraudulent transactions with purported

connections to the country of Nigeria). Lawyers in other jurisdictions

have also been entangled and deceived in such schemes in recent years.

See, e.g., In re Maxwell, 334 B.R. 736, 738–41 (Bankr. M.D. Fla. 2005);

Parker v. Williams, 977 So. 2d 476, 477–78 (Ala. 2007); Lappostato v.

Terk, 71 A.3d 552, 559–60 (Conn. App. Ct. 2013); In re Reinstatement of

Jones, 203 P.3d 909, 912–13 (Okla. 2009); see also Lucas v.

BankAtlantic, 944 So. 2d 1031, 1032 (Fla. Dist. Ct. App. 2006)

(describing a deception originating in Africa). The Board’s evidence in

this case established that a cursory internet search using the query

“anti-terrorism certificate” in early 2011 would have revealed evidence
that Madison’s dream of a Nigerian inheritance was probably based on a

scam.
 10

Although Wright apparently communicated with persons holding

themselves out as attorneys, diplomats, representatives of the Nigerian

government, the “Central Bank of Nigeria,” the Canadian Department of

Justice, the Royal Bank of Canada, and “a special adviser (sic) to the

President [of Nigeria] on financial matters,” he failed to verify that any of

them were who they claimed to be. And although Wright received

documents purporting to be a last will and testament, a death certificate,

and an “Anti Terrorist Clearance Certificate,” they were facially of

doubtful validity. Without confirmation of the authenticity of the
documents, the authority of the persons he was dealing with, or the

existence of the allegedly inherited funds, Wright apparently disbursed

more than $200,000 in pursuit of the scam. We find Wright violated rule

32:1.1 when he failed to make a competent analysis of the bona fides of

Madison’s Nigerian legal matter.

B. Rule 32:1.8(a). The Iowa Rules of Professional Conduct

regulate lawyers’ business transactions with “current clients.” Iowa R.

Prof’l Conduct 32:1.8.

This rule provides in relevant part:

a. A lawyer shall not enter into a business transaction
with a client or knowingly acquire an ownership, possessory,
security, or other pecuniary interest adverse to a client
unless:

(1) the transaction and terms on which the lawyer
acquires the interest are fair and reasonable to the client and
are fully disclosed and transmitted in writing in a manner
that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of
seeking and is given a reasonable opportunity to seek the
advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing
signed by the client, to the essential terms of the transaction
 11
and the lawyer’s role in the transaction, including whether
the lawyer is representing the client in the transaction.

Id. r. 32:1.8(a). Commentators have observed that attorneys combining

“the distinct roles of loyal counselor and business participant” in

transactions with their clients “[skate] on thin ice and will receive little

sympathy in Iowa if the ice should break.” 16 Gregory C. Sisk & Mark S.

Cady, Iowa Practice Series: Lawyer and Judicial Ethics § 5.8(c), at 373

(2013).

We conclude Wright’s undisclosed contingent fee interest in

Madison’s inheritance claim constituted a pecuniary interest that was

adverse to the interests of Rynearson and Putz. Madison and Wright

urgently desired to obtain the funds to pay the taxes and fees demanded

by the persons who claimed control of the Nigerian inheritance. The

willingness of Madison and Wright to risk their own time and resources

on a transparently dubious enterprise may not have been identical to the

willingness Rynearson and Putz had regarding the enterprise. Wright

failed to advise Rynearson and Putz they should seek advice from an

independent lawyer on the risky loan transactions. As we have already

noted, Wright failed to obtain the clients’ written informed consent to the

proposition that he held a contingent fee interest in Madison’s
inheritance claim and was therefore not representing Rynearson and

Putz in the transactions involving the loans he solicited from them.

Wright also failed to counsel the affected clients about the importance of

independent legal advice in the loan transactions. We have recently

emphasized that lawyers engaged in business transactions involving

conflicting interests with clients “have a duty to explain carefully, clearly

and cogently why independent legal advice is required.” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Wintroub, 745 N.W.2d 469, 474 (Iowa 2008)
 12

(citation and internal quotation marks omitted). Accordingly, we

conclude Wright’s failure to disclose his adverse pecuniary interest and

his failure to explain the importance of independent counsel to

Rynearson and Putz constituted a violation of rule 32:1.8(a).

We analyze separately Wright’s conduct in soliciting and

completing the loan transactions with White, Stodden, and Nunneman.

As we have noted, Wright was not engaged in the current representation

of these three persons when he solicited loans from them on behalf of

Madison. The record does not reveal the details of the matters for which
Wright represented White, Stodden, and Nunneman, and it does not

disclose the time period in which those former attorney–client

relationships existed. Thus, on this record, we find the Board failed to

prove these three persons were Wright’s “current clients” when he

solicited loans from them for Madison. Accordingly, we find no violation

of rule 32:1.8(a) resulting from Wright’s conduct with White, Stodden,

and Nunneman.

C. Rules 32:1.7, 32:1.8(b). The Board also charged Wright with

violation of rules 32:1.7 (prohibiting representation of a client if the

representation involves a concurrent conflict of interest) and 32:1.8(b)

(prohibiting use of information relating to the representation of a client to

the disadvantage of the client). Because adjudication of these alleged

violations will not affect the sanction we impose under these

circumstances, we will not decide them here.

D. Rule 32:8.4(c). The Board’s complaint charged Wright with

violation of rule 32:8.4(c) as a consequence of the transactions with

Rynearson and Putz. This rule includes within the definition of
“professional misconduct” behavior “involving dishonesty, fraud, deceit,

or misrepresentation.” Iowa R. Prof’l Conduct 32:8.4(c). The commission
 13

found Wright’s failure to disclose to Rynearson and Putz: (1) the

substantial risks inherent in the loans to Madison in furtherance of the

risky Nigerian transaction, (2) that he did not intend to protect the

interests of Rynearson and Putz in the loan transactions, and (3) his

contingent fee interest in Madison’s inheritance claim constituted deceit

and resulted in a violation of rule 32:8.4(c). We agree. In a case with

striking factual similarities, we found an Iowa attorney violated a prior

version of this rule when he solicited a loan of $5000 from a former client

he had represented about twenty years earlier in a dissolution action.
Jones, 606 N.W.2d at 6, 9. In that case, we found the rule was violated

in part because Jones had failed to disclose to the former client from

whom he had solicited the loan the fact that the transaction was very

risky under the circumstances, and in part because he had failed to

reveal he had taken a contingent interest in the Nigerian transaction.

VI. Sanction.

When deciding on an appropriate sanction for an attorney’s

misconduct, we consider

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.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 685

(Iowa 2006) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Honken, 688 N.W.2d 812, 820 (Iowa 2004)) (internal quotation marks

omitted). “There is no standard sanction for a particular type of

misconduct, and though prior cases can be instructive, we ultimately
determine an appropriate sanction based on the particular
 14

circumstances of each case.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Earley, 774 N.W.2d 301, 308 (Iowa 2009).

The range of sanctions imposed upon attorneys engaging in

representation of clients in violation of conflict of interest rules and

engaging in misrepresentation or deceit resulting in a client’s financial

loss has spanned a continuum from a suspension of two months to a

revocation of a license to practice law depending on the severity of the

violations. See Jones, 606 N.W.2d at 9 (imposing two-month

suspension); Comm. on Prof’l Ethics & Conduct v. Hall, 463 N.W.2d 30,
35–36 (Iowa 1990) (citing cases imposing sanctions up to and including

revocation depending on nature and extent of violations).

In determining the appropriate sanction in this case, we consider

aggravating factors supported by the evidence. We note the violations

committed by Wright involved a course of conduct involving multiple

clients who together lost substantially more money than was lost by the

unwitting lender in Jones. See Jones, 606 N.W.2d at 9. Generally, “more

severe discipline is warranted when the ethical violations cause harm to

clients.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Jay, 606

N.W.2d 1, 4 (Iowa 2000). Our calibration of the sanction also requires us

to consider the fact that Wright is an experienced lawyer with more than

thirty years of practice behind him. Iowa Supreme Ct. Bd. of Prof’l Ethics

& Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999). We consider

Wright’s prior record of three private admonitions and two public

reprimands as an additional aggravating factor affecting our decision.

See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. McKittrick, 683

N.W.2d 554, 563 (Iowa 2004).
 15

We also consider at this juncture mitigating factors supported by

the evidence in this case. Wright has a long history of pro bono service

to indigent clients and dedication to public service.

We recognize that “[t]he canons of ethics are not primarily intended

to mete out abstract justice to wayward attorneys, but rather are chiefly

intended to provide protection to the public.” Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Scieszinski, 599 N.W.2d 472, 474 (Iowa 1999).

Having considered all of the factors bearing upon the selection of an

appropriate sanction in this case, we conclude a suspension of twelve
months should be imposed here. This suspension should begin at such

time as the temporary suspension of Wright’s license imposed by this

court on August 16, 2012, is lifted.8

VII. Disposition.

We suspend Wright’s license to practice law in this state with no

possibility of reinstatement for a period of no less than twelve months.

This suspension applies to all facets of the practice of law, including but

not limited to advertising his services. See Iowa Ct. R. 35.13(3). The

period of suspension shall commence at such time as this court enters

an order lifting the temporary suspension now in place. Prior to any

reinstatement of his license to practice law following the period of

suspension ordered in this opinion, Wright shall establish that he has

not practiced law during the period of suspension, that he has conformed

to the rules and procedures governing reinstatement set forth in rule

35.13, and that he has complied with the notification requirements in

8The order of August 16, 2012, provides Wright’s license shall remain suspended
until the Client Security Commission certifies that Wright has fully complied with its
audit request and this court enters an order reinstating his license to practice law.
 16

rule 35.22. We tax the costs of this proceeding to Wright pursuant to

rule 35.27(1). Iowa Ct. R. 35.27(1).

LICENSE SUSPENDED.