Iowa Supreme Court Attorney Disciplinary Board v. Marc R. Engelmann

IN THE SUPREME COURT OF IOWA
No. 13–1029

Filed November 22, 2013

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

MARC R. ENGELMANN,

Respondent.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

Grievance commission reports respondent committed ethical

violations and recommends suspension of his license to practice law.

LICENSE REVOKED.

Charles L. Harrington and Wendell J. Harms, Des Moines, for

complainant.

David R. Treimer, Davenport, for respondent.
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WATERMAN, Justice.

Marc R. Engelmann, an experienced real estate attorney, is serving

a three-year sentence in federal prison after a jury convicted him on nine

felony counts, alleging bank fraud, wire fraud, and conspiracy. His

convictions were affirmed on appeal. He represented a seller in nine real

estate transactions in which he submitted HUD-1 statements that falsely

overstated the sales prices in order to secure inflated mortgage loans.

The jury found he “act[ed] knowingly and with intent to deceive [the

lenders] for the purpose of causing some financial loss, loss of property
or property rights, or . . . detriment.” The lenders suffered losses of

$392,937.73, which Engelmann was ordered to pay in restitution.

Disciplinary proceedings were held in abeyance pending resolution of his

criminal appeal. His license to practice law has been under temporary

suspension.

The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against Engelmann, alleging he committed multiple violations

of the Iowa Rules of Professional Conduct during these nine transactions.

The Board recommended revocation, and Engelmann, through counsel,

offered to “surrender his license” if his convictions were affirmed. A

division of the Grievance Commission of the Supreme Court of Iowa

found Engelmann violated the rules as charged and, after considering his

temporary suspension and thirty-six-month prison sentence,

recommended an additional six-month disciplinary suspension. For the

reasons explained below, we revoke his license to practice law.

I. Scope of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa
Ct. R. 35.11(1). The burden is on the Board to prove attorney

misconduct by a convincing preponderance of the evidence. Iowa
 3

Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864 (Iowa

2010). “This burden is less than proof beyond a reasonable doubt, but

more than the preponderance standard required in the usual civil case.”

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674 N.W.2d 139,

142 (Iowa 2004). We respectfully consider the commission’s findings and

recommendations, but are not bound by them. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 171 (Iowa 2013). If we

find a violation, we “may impose a lesser or greater sanction than the

discipline recommended by the grievance commission.” Iowa Ct. R.
35.11(1).

II. Background Facts and Proceedings.

Engelmann has been practicing law in the Quad Cities since

graduating from law school in 1976. He started with a general practice,

but became increasingly focused on real estate law. Several decades ago,

the Iowa Title Guaranty Division certified Engelmann to write title

guarantees and generate abstracts. Engelmann primarily represented

lenders, and this area of his practice thrived. He represented up to

twenty lenders in real estate closings, including Wells Fargo Bank, Valley

Bank, Quad City Bank, and First Central State Bank. Engelmann also

represented buyers and sellers. By 2006, eighty percent of his practice

was real estate related. In one two-month period that year, Engelmann

represented lenders at over fifty closings and represented buyers or

sellers at another fifty closings. By the time of the misconduct at issue,

he had practiced law for three decades with an unblemished record and

had closed thousands of real estate transactions for his clients.

Engelmann was among the many casualties of the market crash in
2008, after purchasers of real estate sold by his clients defaulted on nine

mortgage loans he helped obtain through fraud. On May 17, 2011,
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federal prosecutors filed a nine-count felony criminal indictment against

him, alleging one count of conspiracy to commit bank fraud or wire

fraud, two counts of bank fraud, and six counts of wire fraud. He pled

not guilty, and his case proceeded to a jury trial. The federal district

court summarized the evidence presented at trial:

Defendant is an attorney in the Quad Cities area and
represented James Laures (Laures) in the mortgage closings
of at least nine residential properties. The transactions
involved Laures as seller and Robert Herdrich (Herdrich) and
Darryl Hanneken (Hanneken) as buyers. The parties agreed
upon the purchase price for each property, but also agreed
to list on the loan documents an inflated price of between
$30,000 and $35,000 more than the actual purchase price
for each property. The various lenders then loaned Herdrich
and Hanneken money for the transaction based on the
inflated price listed on the loan documents. Laures received
the inflated price for each sale and then returned
approximately $30,000 for each property to Herdrich and
Hanneken after each closing as a “kickback.”
Defendant admits he knew about the two different
prices and that Laures returned money to the buyers.
Defendant also knew that the inflated price was not being
listed on the HUD–1 forms that were submitted to the
lenders. Government witnesses testified that Defendant
never disclosed the inflated price or the kickbacks to the
lenders or the closing company, Excel Title. Defendant’s
assistant, Cathy Gockel, testified that Defendant instructed
her not to disclose the inflated price or kickbacks to Excel
Title. FBI Special Agents Jeff Huber (SA Huber) and Jim
McMillan (SA McMillan) testified that Defendant admitted
during an interview that the lenders did not know about the
inflated price or the kickbacks. Defendant, however, testified
that Excel Title was aware of the dual prices and kickbacks
because Defendant had disclosed that information to Excel
Title and believed that Excel Title would have informed the
lenders of this information, and, therefore, he had no intent
to defraud.

United States v. Engelmann, 827 F. Supp. 2d 985, 987 (S.D. Iowa 2011),

vacated in part, 701 F.3d 874 (8th Cir. 2012), aff’d after remand, 720

F.3d 1005 (8th Cir. 2013). Engelmann charged a $350 fee for each of the
nine closings, a volume discount from his standard $400 fee. There is no
 5

evidence or claim he otherwise personally benefited financially from these

transactions.

On September 13, 2011, the jury convicted Engelmann on all nine

counts. The jury rejected Engelmann’s defense that he acted in good

faith and had no intent to defraud because the lenders’ agent was aware

of the true sale prices and the kickbacks. To convict on each count, the

jury instructions required the jury to find Engelmann possessed an

“intent to defraud”1 defined as follows:

1As taken from the jury instructions in Engelmann’s case, the elements of

conspiracy to commit bank fraud or wire fraud are:
(1) . . . [t]wo or more persons reached an agreement or came to an
understanding to commit bank fraud or wire fraud;
(2) The defendant voluntarily and intentionally joined in the
agreement or understanding, either at the time it was first
reached or at some later time while it was still in effect;
(3) At the time the defendant joined in the agreement or
understanding, he knew the purpose of the agreement or
understanding; and
(4) While the agreement or understanding was in effect, a person or
persons who had joined in the agreement knowingly did one or
more overt acts for the purpose of carrying out or carrying
forward the agreement or understanding.
The jury was instructed the elements of bank fraud are:
(1) The defendant knowingly executed, attempted to execute, or
participated in a scheme to defraud a financial institution to
obtain monies, funds and assets owned by and under the custody
and control of a financial institution by means of material false
and fraudulent pretenses, representations, and promises[;]
(2) The defendant did so with intent to defraud; and
(3) The financial institution was insured by the United States
Government.
The jury was instructed the elements of wire fraud are:
(1) The defendant voluntarily and intentionally devised or made up a
scheme to defraud another out of money or property, or
participated in a scheme to defraud with knowledge of its
fraudulent nature, or devised or participated in a scheme to
 6
[T]o act knowingly and with the intent to deceive someone for
the purpose of causing some financial loss or loss of property
or property rights to another or bringing about some
financial gain to oneself or another to the detriment of a
third party.

On January 26, 2012, the federal court sentenced Engelmann to thirty-

six months in prison and ordered him to pay $392,937.73 in restitution.

Engelmann moved for a new trial, contending a witness violated the

sequestration order during trial and a jury instruction on his good-faith

defense was erroneous. The district court denied his motion. Id. at 993.

Engelmann appealed.

On March 20, while Engelmann’s appeal was pending, the Board

filed a complaint, alleging Engelmann violated Iowa Rules of Professional

Conduct 32:1.2(d), 32:1.16(a)(1), 32:4.1(a), 32:4.1(b), and 32:8.4(b). The

Board also alleged that Engelmann’s felony convictions met the

requirements for revocation or suspension under Iowa Code section

602.10122(1). The Board gave notice pursuant to Iowa Court Rule

35.7(3)(c) of its intent to invoke issue preclusion on all matters resolved

in Engelmann’s criminal trial.

Engelmann requested that the Board hold the disciplinary

proceedings in abeyance until the Eighth Circuit issued its decision on

his appeal. Engelmann filed denials to the paragraphs in the Board’s
complaint that alleged he made false representations, intentionally

concealed facts, knew of the fraudulent nature of the transactions, or

committed any of the charged crimes. He also denied that issue
________________________
obtain money or property by means of material false
representations or promises;
(2) The defendant did so with the intent to defraud; and
(3) The defendant used, or caused to be used, the interstate wire
facilities in furtherance of, or in an attempt to carry out, some
essential step of the scheme.
 7

preclusion should apply in the grievance commission proceedings and

denied that he committed the alleged rule violations. His motion to hold

the proceedings in abeyance, however, stated that if he “is unsuccessful

in his appeal to the 8th Circuit, he will acquiesce in the suspension of

his license without the necessity of the discovery and hearing process.”

The Board agreed to postpone Engelmann’s hearing. Engelmann

consented to the temporary suspension of his license. That suspension

has remained in effect since June 20, 2012. The disciplinary hearing

before the commission took place on December 4. Engelmann’s counsel
again asked the commission to delay issuing its report until the Eighth

Circuit ruled on Engelmann’s appeal. His counsel stated on the record,

“[I]f the conviction stands, Mr. Engelmann will surrender his license.”

Engelmann did not testify at the hearing, but his testimony from the

criminal trial was introduced as an exhibit. The Board’s attorney urged

the commission to recommend revocation of his license.

On December 19, 2012, the Eighth Circuit remanded Engelmann’s

case for an evidentiary hearing concerning the alleged sequestration

order violation. United States v. Engelmann, 701 F.3d 874, 875 (8th Cir.

2012). Engelmann again asked the commission to hold the proceedings

in abeyance, and the commission granted this motion. After an

evidentiary hearing, the district court denied his motion for new trial.

This ruling was upheld on appeal. United States v. Engelmann, 720 F.3d

1005, 1008 (8th Cir. 2013).

On June 27, 2013, the commission filed its report, finding

Engelmann violated all five rules as charged. The commission

recommended an additional six-month disciplinary suspension in light of
Engelmann’s three-year prison sentence. Engelmann filed no

subsequent response regarding the appropriate sanction.
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III. Review of Ethical Violations.

The underlying misconduct is similar to but more egregious than

that in Iowa Supreme Court Attorney Disciplinary Board v. Bieber, 824

N.W.2d 514 (Iowa 2012). Engelmann and Bieber each represented

sellers in real estate closings that led to criminal charges. Engelmann,

827 F. Supp. 2d at 987; Bieber, 824 N.W.2d at 516–17. Their respective

clients each sold property to the same buyers, Robert Herdrich and

Darryl Hanneken. Engelmann, 827 F. Supp. 2d at 987; Bieber, 824

N.W.2d at 516. Engelmann and Bieber played the same role in the real
estate transactions. Engelmann, 827 F. Supp. 2d at 987; Bieber, 824

N.W.2d at 517. Bieber and Engelmann each prepared HUD-1 forms and

other documents that reflected a higher selling price than the price

actually agreed on by the parties and concealed the existence of cash

kickbacks to the buyers. Id. Bieber pled guilty to misprision of a felony

for a single transaction and was sentenced to three years of probation

and ordered to pay $37,969.99 in restitution, which he paid in full.

Bieber, 824 N.W.2d at 516. We found that Bieber had violated Iowa

Rules of Professional Conduct 32:1.2(d), 32:1.16(a)(1), 32:4.1(a),

32:4.1(b), and 32:8.4(b)—the same rules the Board alleges Engelmann

violated. Id. at 518–21. We address each rule in turn.

A. Rule 32:4.1. The commission found Engelmann violated rule

32:4.1(a) and (b). We agree. Rule 32:4.1(a) states, “In the course of

representing a client, a lawyer shall not knowingly . . . make a false

statement of material fact or law to a third person.” Iowa R. Prof’l

Conduct 32:4.1(a). Rule 32:4.1(b) provides, “In the course of

representing a client, a lawyer shall not knowingly . . . fail to disclose a
material fact to a third person when disclosure is necessary to avoid
 9

assisting a criminal or fraudulent act by a client, unless disclosure is

prohibited by rule 32:1.6.” Id. r. 32:4.1(b).

Engelmann argued at trial that he did not make a false statement

of material fact or fail to disclose a material fact. He maintained that he

believed it was legitimate for Laures, Herdrich, and Hanneken to

structure their contract with a cash refund to the buyers, although he

admitted this was an unusual practice. He testified it was his belief that

the closing company knew of the dual pricing structure and informed the

lenders. He argued his misconduct was not criminal because the
properties were independently appraised for the lenders and they relied

on the appraised values, not the sales prices. Engelmann further argued

he did not have the requisite intent for the conspiracy, bank fraud, or

wire fraud convictions because he had a good-faith belief that the

transactions were legal.

Engelmann’s trial testimony that he informed the closing agent of

the true sales prices was contradicted by his own assistant, who testified

that he “instructed her not to disclose the inflated price or kickbacks” to

the closing agent. Engelmann, 827 F. Supp. 2d at 987. FBI agents

testified that Engelmann “admitted during an interview that the lenders

did not know about the inflated price or the kickbacks.” Id. And,

regardless of whether Engelmann believed the lenders knew of the cash-

back agreement, any good-faith belief does not excuse his false

statements on the HUD-1 settlement statements and closing statements.

See Bieber, 824 N.W.2d at 520. We further find that the false sales

prices were material. Engelmann never testified that he believed the

buyers were going to use the cash refund to improve the properties. In
contrast, Bieber gave uncontroverted testimony that he and his client

believed the additional loan proceeds obtained from the lender would be
 10

used by the buyers to improve the property that secured the bank loan.

Id. at 518, 525 n.8. Engelmann, an experienced real estate attorney who

had represented many lenders, knew or should have known the lenders

would rely in part on the stated selling prices on the HUD documents.

The federal jury verdict required a finding that Engelmann made

material false and fraudulent representations with an intent to defraud.

The commission correctly applied issue preclusion. See Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Stowers, 823 N.W.2d 1, 7–8 (Iowa 2012)

(discussing issue preclusion in disciplinary cases). The jury rejected
Engelmann’s defense. Based on the verdict affirmed on appeal, we do

the same. We find Engelmann violated rules 32:4.1(a) and (b) by

misrepresenting the true sales prices and by failing to disclose to the

lenders the cash kickbacks and the inaccuracy of stated sales prices.

B. Rules 32:1.2(d) and 32:1.16(a)(1). Rule 32:1.2(d) prohibits a

lawyer from assisting a client “in conduct that the lawyer knows is

criminal or fraudulent.” Iowa R. Prof’l Conduct 32:1.2(d). Rule

32:1.16(a)(1) provides guidance to a lawyer confronted with a situation in

which the lawyer’s assistance will facilitate illegality. It states that “a

lawyer shall not represent a client or, where representation has

commenced, shall withdraw from the representation of a client if . . . the

representation will result in violation of the Iowa Rules of Professional

Conduct or other law.” Id. r. 32:1.16(a)(1).

Engelmann testified at trial that Laures had signed a contract to

sell his properties to Herdrich and Hanneken before retaining Engelmann

on the matter. This does not change the fact that Engelmann assisted

the parties in executing their fraudulent contract by preparing the
inaccurate forms and representing Laures at the closings. Comment 10

to rule 32:1.2(d) addresses this situation:
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When the client’s course of action has already begun and is
continuing, the lawyer’s responsibility is especially delicate.
The lawyer is required to avoid assisting the client, for
example, by drafting or delivering documents that the lawyer
knows are fraudulent or by suggesting how the wrongdoing
might be concealed. A lawyer may not continue assisting a
client in conduct that the lawyer originally supposed was
legally proper but then discovers is criminal or fraudulent.
The lawyer must, therefore, withdraw from the
representation of the client in the matter.

Id. r. 32:1.2(d) cmt. 10.

Engelmann knew the true sales prices of the properties were less

than stated on the HUD-1 forms. He also knew the buyers were

receiving loans that exceeded the actual sales prices. As an experienced

real estate lawyer, Engelmann knew or should have known that such a

contract was not aboveboard. He helped the parties complete their

fraudulent transaction by preparing documents that misrepresented the

facts of the transaction, deceiving the lenders. The jury’s finding that

Engelmann was guilty of bank fraud and wire fraud establishes that he

“knowingly did one or more overt acts for the purpose of carrying out” the

fraud. We apply issue preclusion to find that Engelmann knowingly

assisted his client in defrauding the buyers’ lender, in violation of rule

32:1.2(d). See Bieber, 824 N.W.2d at 517–18.
Engelmann should have declined to represent Laures in the

transactions in the first instance. And, he should have withdrawn his

representation before making misrepresentations. Engelmann had

ample opportunity to withdraw. In fact, he had nine opportunities. But,

instead of withdrawing, Engelmann continued to represent Laures in

nine separate closings, misrepresenting the true price of the property in

each transaction. We find Engelmann violated rule 32:1.16(a)(1).
C. Rule 32:8.4(b). Finally, the commission found Engelmann

violated rule 32:8.4(b), which makes it “professional misconduct for a
 12

lawyer to . . . commit a criminal act that reflects adversely on the

lawyer’s honesty, trustworthiness, or fitness as a lawyer in other

respects.” Iowa R. Prof’l Conduct 32:8.4(b). A criminal act does not

necessarily violate this rule. Rather, “ ‘[t]here must be some rational

connection other than the criminality of the act between the conduct and

the actor’s fitness to practice law.’ ” Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Weaver, 812 N.W.2d 4, 11 (Iowa 2012) (quoting Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 767 (Iowa 2010)).

We weigh a number of factors to determine if a criminal act constitutes a
violation of rule 32:8.4(b), including

“the lawyer’s mental state; the extent to which the act
demonstrates disrespect for the law or law enforcement; the
presence or absence of a victim; the extent of actual or
potential injury to a victim; and the presence or absence of a
pattern of criminal conduct.”

Id. (quoting Templeton, 784 N.W.2d at 767).

As we recognized in Bieber, there is more than a “rational

connection” when a lawyer’s criminal behavior actually involves actions

undertaken by the lawyer in the course of representing a client. 824

N.W.2d at 520. The jury’s verdict establishes Engelmann possessed the

intent to defraud. Engelmann’s crime was not a victimless one: the
extent of the harm was quite great, as reflected by the restitution order of

$392,937.73. Finally, there is a pattern of criminal conduct in this case.

There were nine separate closings and thus nine opportunities for

Engelmann to disclose the true sales price. It is axiomatic that

fraudulent behavior reflects adversely on a lawyer’s honesty,

trustworthiness, and fitness as a lawyer. We agree with the

commission’s finding that Engelmann violated rule 32:8.4(b).
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IV. Consideration of Appropriate Sanction.

We now consider the appropriate sanction for Engelmann’s rule

violations. In 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.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431, 441

(Iowa 2012) (citation and internal quotation marks omitted). For similar
but less egregious misconduct, we suspended Bieber’s license for six

months. Bieber, 824 N.W.2d at 528. Engelmann, like Bieber, had no

prior disciplinary or criminal record. But, we conclude Engelmann is

significantly more culpable than Bieber.

First, their convictions are not the same: Bieber pled to one count

based on a single transaction, id. at 516–17, whereas Engelmann was

convicted of nine felonies based on nine transactions. Bieber pled guilty

to misprision of a felony, a federal felony. See 18 U.S.C. §§ 4, 3559(a)(5)

(2006); Bieber, 824 N.W.2d at 516. The elements of this crime are:

“1) the principal committed and completed the alleged felony;
2) defendant had full knowledge of that fact; 3) defendant
failed to notify the authorities; and 4) defendant took steps
to conceal the crime.”

Bieber, 824 N.W.2d at 516 n.2 (quoting United States v. Cefalu, 85 F.3d

964, 969 (2d Cir. 1996)). Looking to parallel state law crimes confirms

that Engelmann’s offenses are much more serious than Bieber’s. Iowa

does not have a precise counterpart to the federal crime of misprision of

a felony, but the state law crimes of accessory after the fact,
compounding a felony, and obstructing prosecution are similar. Iowa

Code §§ 703.3, 720.1, 719.3. All three of these crimes are aggravated
 14

misdemeanors under Iowa law. See id. By contrast, Engelmann’s federal

felonies line up with first-degree fraud, a class “C” felony under Iowa

law.2 Id. § 714.9. The consequences of Engelmann’s misrepresentations

were also substantially more severe than those in Bieber in terms of both

pecuniary losses and sentencing. The federal district court ordered

Bieber to pay $37,969.99 in restitution to the lender and sentenced him

to three years of probation, which was within the federal sentencing

guidelines for his crime. 824 N.W.2d at 516. By the time of his

disciplinary hearing, Bieber had fully paid his restitution. Id. at 518. In
contrast, the court ordered Engelmann to pay $392,937.73 in restitution

and sentenced him to thirty-six months in prison. The record does not

show any amount of restitution has been paid to date.

Moreover, Engelmann was a sophisticated real estate attorney,

while Bieber did “some real estate work” in the course of his general civil

practice. Id. “ ‘[T]he law takes account of a lawyer’s legal training and

experience in assessing his or her state of mind.’ ” Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Barry, 762 N.W.2d 129, 139 (Iowa 2009) (quoting

1 Geoffrey C. Hazard Jr. & W. William Hodes, The Law of Lawyering

§ 1.23, at 1–46 (3d ed. 2005-2 Supp.)). We expect an attorney who

specializes in a particular field to be more aware and responsible. See

2The Iowa Code structure penalizing fraud increases the severity of the

punishment as the value of the property involved increases. See Iowa Code §§ 714.9–
.13 (2013). The highest degree of fraud is reserved for crimes involving property valued
at more than $10,000. Id. § 714.9. Iowa Code section 524.1607 criminalizes
knowingly mak[ing] or caus[ing] to be made, directly or indirectly, any
false statement in writing . . . with the intent that such statement shall
be relied upon by a financial institution, a mortgage banker, a mortgage
broker, or any other entity licensed by the banking division for the
purpose of procuring the delivery of property, the payment of cash or the
receipt of credit in any form, for the benefit of such person or of any
other person in which such person is interested or for whom such person
is acting.
 15

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 92

(Iowa 2008) (finding “considerable professional experience” to be an

aggravating factor).

But, most important is the difference in their states of mind. In

Bieber, we noted “there is no evidence that Bieber knew the buyers were

walking away with someone else’s money.” 824 N.W.2d at 523. Rather,

“Bieber understood the excess funds provided by the lender would be

spent on repairs to improve the property in which the lender had a

security interest.” Id. at 525 n.8. Specifically,

Bieber asserted that both he and his client Woods believed
the $55,000 rebate would actually go toward needed repairs
and improvements to the property. By their account, which
no one disputed, Bieber and Woods were unaware the
buyers intended simply to pocket the difference between the
$108,500 they had borrowed and the $100,000 net they had
transferred to Woods.

Id. at 518. We stated, “Bieber did not convert funds himself or knowingly

assist a client in doing so. . . . While [his] conduct is reprehensible, we

do not think it is the same as outright theft of another person’s money.”

Id. at 523 (emphasis added). Engelmann offered no comparable

testimony in his own defense.
The same day we decided Bieber, we filed our decision in Iowa

Supreme Court Attorney Disciplinary Board v. Wheeler, another case in

which the attorney obtained a real estate mortgage through fraud. 824

N.W.2d 505, 508 (Iowa 2012). Specifically, attorney Ronald Wheeler

agreed to serve as a straw man to obtain a loan to purchase a residence

for his client. Id. Wheeler falsely stated on the loan application that he

was the purchaser who would reside in the home. Id. Wheeler

substantially overstated his assets and income and failed to disclose he
financed the down payment. Id. His client moved into the home but
 16

later failed to make payments, and after the real estate market crashed,

Wheeler ultimately defaulted on the loan. Id. at 509. He filed for

bankruptcy and pled guilty to making a false statement to a financial

institution. Id. He was sentenced to probation and ordered to pay

restitution. Id. Wheeler’s state of mind was central to our decision to

impose a six-month suspension rather than revoke his license:

Wheeler intended to misrepresent the bank by filing false
financial documents. Yet, his intent was to obtain a loan
from the bank, not for the bank to suffer a loss. The
misrepresentation was for the purpose of obtaining the loan,
which Wheeler was contractually obligated to repay. He
believed his client would eventually refinance the house and
pay off the loan to the bank. He also believed the bank was
protected from loss by the mortgage on the home.

Id. at 512. Wheeler, like Bieber, offered evidence in mitigation, including

his cooperation with the board’s investigation, his reputation in the legal

community, voluntary community service, remorse over the conduct at

issue, and acknowledgment of wrongdoing. Id. at 513; see Bieber, 824

N.W.2d at 527–28 (discussing his mitigating factors). We imposed the

same six-month suspension as in Bieber, stating:

Wheeler’s act of knowingly making a false statement to
a financial institution is inexcusable and cannot be undone.
But, we do not believe Wheeler intended to misappropriate
funds or aid Blessman in misappropriating funds. In this
respect, this case involves similar underlying conduct to the
Bieber case and many of the same mitigating factors. Upon
our review, we agree with the commission’s recommended
sanction of a six-month suspension here. That is the same
sanction we impose in Bieber.

Wheeler, 824 N.W.2d at 513.

By contrast, each of Engelmann’s nine convictions required the

jury to find he acted

knowingly and with the intent to deceive someone for the
purpose of causing some financial loss or loss of property or
 17
property rights to another or bringing about some financial
gain to oneself or another to the detriment of a third party.

In light of this definition of “intent to defraud,” the jury necessarily

concluded beyond a reasonable doubt that Engelmann intended to cause

the lenders financial harm. The jury that heard all the evidence is better

positioned than our court to assess Engelmann’s intent, when the only

evidence he presented to the Board on that issue was a transcript of his

own federal trial testimony. See Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Clarity, 838 N.W.2d 648, 659 (Iowa 2013) (discussing our deference to

credibility findings of fact finders who heard live testimony).

We have revoked the licenses of other Iowa lawyers who assisted

clients in defrauding financial institutions out of money. See, e.g., Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Nelsen, 807 N.W.2d 259, 261 (Iowa

2011) (revoking license of attorney who aided and abetted his client in

defrauding a bank); Comm. on Prof’l Ethics & Conduct v. Austin, 427

N.W.2d 465, 466 (Iowa 1988) (revoking license of attorney convicted of

conspiracy to misapply bank funds). Engelmann collected only his $350

fee for each closing. He did not personally convert any funds or

otherwise benefit financially from the fraud. But, his misconduct

resulted in large financial losses by the lenders. Similarly, in Nelsen, we
revoked the license of the lawyer who improperly diverted at least

$141,335 to his client’s secret account to avoid a court-appointed

receivership, even though the lawyer personally did not profit from the

conversion. 807 N.W.2d at 266–67. We have also revoked the licenses of

attorneys convicted of felony financial fraud crimes. See Iowa Supreme

Ct. Bd. of Prof’l Ethics & Conduct v. Vinyard, 656 N.W.2d 127, 128–31

(Iowa 2003) (revoking license of attorney convicted of mail fraud and
money laundering; collecting revocation cases).
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Other states have revoked the licenses of attorneys convicted of

wire fraud or bank fraud against financial institutions under similar

circumstances. See, e.g., People v. Sichta, 948 P.2d 1018, 1019–20 (Colo.

1997) (disbarring attorney convicted of wire fraud); In re Brewster, 587

A.2d 1067, 1071 (Del. 1991) (disbarring attorney convicted of bank

fraud); Watkins v. Miss. Bar, 589 So. 2d 660, 661, 666 (Miss. 1991)

(finding automatic disbarment appropriate when lawyer was convicted of

“multiple felony counts of financial institution fraud and false statements

to influence actions of a federally insured financial institution”); cf. In re
Vaughn, 585 S.E.2d 881 (Ga. 2003) (accepting attorney’s voluntary

surrender of license when attorney made false statements on HUD

documents). The Louisiana Supreme Court permanently disbarred an

attorney who was convicted of making false statements on an application

for HUD mortgage financing, sentenced to eighteen months in prison,

and ordered to pay $686,565.55 in restitution. In re O’Keefe, 46 So. 3d

1240, 1241, 1244 (La. 2010). The Massachusetts Supreme Court

disbarred an attorney who was convicted of four counts of making false

statements to a lender, five counts of mail fraud, and two counts of wire

fraud. In re Kennedy, 697 N.E.2d 538, 539 (Mass. 1998). The attorney

in that case made false statements on HUD documents for clients and

fabricated income tax returns overstating his income in order to secure

an inflated mortgage for himself. Id. at 539–40. The court stated that

“[a]lthough Kennedy apparently received only $110 in legal fees for his

services to clients in the transactions involved here, he benefited by

retaining his clients.” Id. at 541.

Engelmann acknowledged the seriousness of his misconduct by
stating through counsel at the grievance commission hearing that he

would surrender his license if his convictions were affirmed. His
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convictions indeed were affirmed. He subsequently has made no further

argument or submission as to the appropriate sanction. The Board

recommended revocation. The commission’s recommended six-month

suspension took into account Engelmann’s three-year prison sentence

and accompanying temporary suspension. We give careful consideration

to the parties’ positions and commission’s recommendation in making

our own determination as to the sanction to impose. We conclude his

license to practice law should be revoked.

V. Disposition.
For the reasons stated in this opinion, the license of the

respondent, Marc R. Engelmann, is revoked. We assess costs to the

respondent as provided in Iowa Court Rule 35.27(1).

LICENSE REVOKED.