IN THE SUPREME COURT OF IOWA
No. 11–2114
Filed May 18, 2012
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
THOMAS G. McCUSKEY,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission recommends respondent’s license be
suspended. LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
Thomas G. McCuskey, Cedar Rapids, pro se.
2
MANSFIELD, Justice.
An attorney continued to practice while his license was temporarily
suspended. He also accepted advance fee payments in a matter and did
not provide an accounting of earned fees or a refund of unearned fees. In
addition, the attorney failed to respond to inquiries from the Iowa
Supreme Court Attorney Disciplinary Board (Board) or generally
cooperate with the disciplinary process.
This case comes before us on the report of a division of the
Grievance Commission of the Supreme Court of Iowa (commission). See
Iowa Ct. R. 35.10(1). 1 The Board alleged the respondent, Thomas G.
McCuskey, violated several rules of professional conduct and client trust
account rules. Agreeing with the Board, the commission found that
McCuskey violated Iowa Rules of Professional Conduct 32:1.3, 32:1.4,
32:1.5, 32:1.15(f), 32:1.16(a), 32:3.4(c), 32:5.5(a), and 32:8.4(c) and Iowa
Court Rules 45.2(2) and 45.7. The commission recommended an
indefinite suspension from the practice of law with no possibility of
reinstatement for two years. Upon our consideration of the commission’s
findings of fact, conclusions of law, and recommendations, we agree
McCuskey has committed most of the violations found by the
commission. We order his license suspended indefinitely with no
possibility of reinstatement for one year.
I. Factual and Procedural Background.
Because McCuskey did not answer the Board’s complaint, its
factual allegations are deemed admitted. 2 We also rely on several
1Recent amendments to the Iowa Court Rules are not applicable in this case
because the hearing was held prior to the effective date of the amendments. See Iowa
Ct. R. 35.26 (2012).
2The Board filed a motion to invoke Iowa Court Rule 36.7, which provides, “If the
respondent fails or refuses to file [an] answer within the time specified, the allegations
of the complaint shall be considered admitted, and the matter shall proceed to a
3
exhibits that the Board put into evidence at the commission hearing;
McCuskey did not attend that hearing.
McCuskey was admitted to practice law in Iowa in 1974. At times
relevant to these proceedings, he resided and maintained his law office in
Linn County, Iowa.
On July 22, 2009, the Iowa Department of Revenue filed a
certificate of noncompliance, informing this court that McCuskey’s
license was subject to suspension for an unpaid debt. See Iowa Code
§§ 272D.7–8 (2009); Iowa Ct. R. 35.21. The next day, we issued a notice
to McCuskey that his license would be suspended unless he caused the
collection unit of the department of revenue to withdraw its certificate
within thirty days. Withdrawal did not occur, so on September 30, 2009,
we temporarily suspended McCuskey’s license to practice law.
The order made the suspension effective immediately and stated it
would continue until the department of revenue withdrew its certificate
of noncompliance and this court reinstated McCuskey’s license. The
order also directed McCuskey to comply with Iowa Court Rule 35.22 (now
Iowa Court Rule 35.23) regarding notification of clients, counsel, and
courts.
The suspension order was sent to McCuskey by restricted certified
mail to two separate addresses. One of these addresses was the actual
Cedar Rapids address (including the suite number) that McCuskey was
using at the time as his business address according to his own
letterhead. 3
_________________________________
hearing on the issue of the appropriate sanction.” The commission granted the Board’s
unresisted motion.
3The record does not contain a signed certified mail receipt. However, as we
note above, the record indicates that the notice was sent to McCuskey’s then-current
business address, and there is no indication he did not receive it.
4
Nonetheless, McCuskey continued to practice law. On September
24, 2009, several days before the temporary suspension order but two
months after our July 23, 2009 notice warning McCuskey of his
impending suspension, McCuskey met with Frank and Lauri Gusta. The
next day, September 25, he sent the Gustas a letter acknowledging
receipt of $500 to start work on their bankruptcy case. In the letter,
McCuskey indicated that a Chapter 7 bankruptcy filing for the Gustas
would probably cost them about $1700 for attorney fees plus a $300
filing fee.
On October 7, after the suspension had taken effect, McCuskey
sent the Gustas another letter, this time enclosing a draft of their
proposed bankruptcy schedules and statement of affairs. On October
22, McCuskey arranged for a $1200 money order from the Gustas, dated
October 21, to be deposited.
On January 21, 2010, McCuskey sent a letter to the Gustas “to
follow up on our brief discussion this morning.” The letter confirmed
that the Gustas had provided updated information regarding their
income and advised them it was “probably best to wait until your tax
refund is determined before going further.” The next day, McCuskey
caused a $400 check from the Gustas, also dated January 21, to be
deposited.
In addition, McCuskey corresponded by mail with several of the
Gustas’ creditors on December 18, 2009, February 17, 2010, February
26, 2010, March 22, 2010, and April 7, 2010. These letters informed the
creditors that he represented the Gustas and expected to file a Chapter
13 (not a Chapter 7) bankruptcy petition on their behalf soon.
5
McCuskey never filed a bankruptcy petition for the Gustas. He
also failed to send accountings to them for their earned fees or refund
unearned fees.
McCuskey not only represented the Gustas after being suspended,
he also filed a “supplemental argument” on behalf of The Views, LLC in a
Linn County case on October 13, 2009. 4 In addition, according to the
federal PACER system, McCuskey filed reports on behalf of debtor
Carney Enterprises, LLC on November 13, 2009, December 16, 2009,
and January 18, 2010. McCuskey also made a filing on behalf of Daniel
Oakley in a Linn County case on June 8, 2010. There is no indication
that McCuskey withdrew as counsel of record in these cases. See Iowa
Ct. R. 35.22. Further, McCuskey failed to submit proof to the Board that
he had sent notice of his suspension to his clients, opposing counsel,
and all courts in which he had pending litigation. See id.
On April 29, 2010, the Board filed a certificate with this court
stating that McCuskey had failed to respond to the Board’s second notice
of inquiry concerning a complaint. On April 30, we issued a notice that
McCuskey’s license would be suspended unless he caused the Board to
withdraw its certificate within twenty days. McCuskey did not respond,
and on June 8, we ordered another suspension of his license effective
immediately and lasting until the Board filed a withdrawal of the
certificate and this court entered an order to reinstate his license. The
order was sent to the same two addresses as before by both certified and
regular mail.
On July 1, 2011, the Board filed a complaint against McCuskey,
alleging he had violated Iowa Rules of Professional Conduct 32:1.3,
4The certificate of service indicates the document was served on September 29,
but the file stamp indicates it was not actually filed until October 13.
6
32:1.4, 32:1.5, 32:1.15(f), 32:1.16(a), 32:3.4(c), 32:5.5(a), and 32:8.4(c)
and Iowa Court Rules 45.2(2) and 45.7. The complaint was sent by
certified mail to the aforementioned business address in Cedar Rapids as
well as a post office box in Keokuk. Personal service was attempted,
unsuccessfully, through the Linn County Sheriff.
McCuskey did not file an answer within twenty days of service of
the complaint. See Iowa Ct. R. 36.7. The Board filed, and the grievance
commission granted a motion to invoke Iowa Court Rule 36.7 and deem
the allegations of the complaint admitted. Therefore, the hearing was
limited to the appropriate sanction.
McCuskey did not appear at the hearing on November 29, 2011,
and he did not submit any evidence to the commission. The Board did
appear through counsel and introduced a number of exhibits. Following
the hearing, the commission issued a report finding that McCuskey had
violated Iowa Rules of Professional Conduct 32:1.3, 32:1.4, 32:1.5,
32:1.15(f), 32:1.16(a), 32:3.4(c), 32:5.5(a), and 32:8.4(c) and Iowa Court
Rules 45.2(2) and 45.7. The commission recommended that McCuskey
be suspended indefinitely with no possibility of reinstatement for two
years.
II. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa Ct. R.
35.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790 N.W.2d
791, 793 (Iowa 2010). We give respectful consideration to the
commission’s findings and recommendations but are not bound by them.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864
(Iowa 2010). “The board has the burden of proving attorney misconduct
by a convincing preponderance of the evidence.” Id. “This burden is less
than proof beyond a reasonable doubt, but more than the preponderance
7
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). It is also a
less stringent burden than clear and convincing evidence which is “the
highest civil law standard of proof.” Iowa Supreme Ct. Bd. of Prof’l Ethics
& Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996). If a violation is
established, we “may impose a lesser or greater sanction than
recommended by the commission.” Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Murphy, 800 N.W.2d 37, 42 (Iowa 2011); see also Iowa Ct. R.
35.10(1).
III. Review of Alleged Ethical Violations.
McCuskey repeatedly failed to comply with this court’s order
temporarily suspending him from the practice of law. From this
misconduct, we find that several ethical violations follow.
A. Rule 32:5.5. Rule 32:5.5 is entitled “Unauthorized practice of
law” and prohibits a lawyer from “practic[ing] law in a jurisdiction in
violation of the regulation of the legal profession in that jurisdiction.”
Iowa R. Prof’l Conduct 32:5.5(a). We recently found an attorney in
violation of this rule for appearing in juvenile court six days after he had
been notified that his law license had been temporarily suspended for
failure to meet a department of revenue obligation. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Hearity, 812 N.W.2d 614, 620 (Iowa 2012); see
also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 591,
604 (Iowa 2011) (holding that counseling a client on a tax matter after
suspension violated rule 32:5.5(a)).
The record does not reflect that McCuskey personally signed for
the certified mailing that contained the September 30, 2009 suspension
order. Nonetheless, we noted in Hearity that rule 32:5.5(a) “contains no
express scienter requirement.” 812 N.W.2d at 620; see also Comm. on
8
Prof’l Ethics & Conduct v. Toomey, 253 N.W.2d 573, 574 (Iowa 1977)
(charging an attorney with constructive knowledge of a published
supreme court order suspending his license). In any event, McCuskey
did not deny receiving notice of the suspension, and given the
undisputed facts set forth above, it seems highly unlikely that he would
have been unaware of it.
There is no question that McCuskey’s post-September 30, 2009
representation of the Gustas, Carney Enterprises, and Daniel Oakley
constituted the practice of law. In particular, McCuskey took money
from the Gustas, advised the Gustas, and corresponded on their behalf
with creditors—all after September 30. Continuing to practice law
despite being suspended is, of course, prohibited. This includes
practicing in federal bankruptcy court. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. D’Angelo, 710 N.W.2d 226, 233 n.3 (Iowa 2006).
Accordingly, we find McCuskey violated rule 32:5.5(a).
B. Rule 32:8.4(c). Rule 32:8.4(c) states a lawyer commits
professional misconduct by engaging “in conduct involving dishonesty,
fraud, deceit, or misrepresentation.” Iowa R. Prof’l Conduct 32:8.4(c). A
lawyer violates this rule if his misconduct is done with a purpose to
deceive. Id. r. 32:1.0(d) (defining “fraud” as “conduct that . . . has a
purpose to deceive”). Recently, in Iowa Supreme Court Attorney
Disciplinary Board v. Dunahoo, we found that an attorney violated this
rule when he intentionally disobeyed a bankruptcy court’s suspension
order “for the purpose of deceiving his clients into believing he could
continue to represent them in bankruptcy court.” 799 N.W.2d 524, 531
(Iowa 2011). We discern a similar situation here. Even though
McCuskey undoubtedly knew his license had been suspended, he
continued to take fees from the Gustas and indicated to them and to
9
their creditors that he was working on their bankruptcy filing. This
conduct violated rule 32:8.4(c).
C. Rule 32:1.16(a). Rule 32:1.16(a) provides that a “lawyer shall
not represent a client . . . if . . . the representation will result in violation
of the Iowa Rules of Professional Conduct.” Iowa R. Prof’l Conduct
32:1.16(a). In the Dunahoo case, we found that a lawyer’s representation
of a client after suspension violated this rule as well. 799 N.W.2d at 531.
The same analysis applies here. McCuskey’s representation of the
Gustas and his other clients after his suspension amounted to a violation
of rule 32:1.16(a). See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kirlin,
741 N.W.2d 813, 817 (Iowa 2007).
D. Rule 32:1.4. Rule 32:1.4 requires a lawyer to inform his or
her clients of decisions or circumstances necessary to accomplish their
goals and keep them informed on the matter. More particularly, rule
32:1.4(a)(3) requires a lawyer to “keep the client reasonably informed
about the status of the matter,” whereas rule 32:1.4(a)(5) requires a
lawyer to “consult with the client about any relevant limitation on the
lawyer’s conduct when the lawyer knows that the client expects
assistance not permitted by the Iowa Rules of Professional Conduct or
other law.” The Gustas expected McCuskey to represent them in their
bankruptcy proceeding. The Iowa Rules of Professional Conduct did not
permit such assistance because as of September 30, 2009, McCuskey
was suspended by order of this court for failure to meet an obligation
owed to the department of revenue. McCuskey’s failure to notify the
Gustas about his suspension and inability to represent them was a
violation of rule 32:1.4(a). See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Earley, 774 N.W.2d 301, 308 (Iowa 2009) (finding that an attorney’s
failure to inform his clients of his suspension violated rule 32:1.4(a)(3)).
10
In sum, we find that McCuskey’s continued efforts to practice law
despite his suspension violated rules 32:5.5(a), 32:8.4(c), 32:1.16(a), and
32:1.4(a). See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Vilmont, 812
N.W.2d 677, 680 (Iowa 2012) (noting that “[a] violation of one rule of
professional conduct often implicates other rules of professional
conduct”). 5
E. Trust Account Rules (Rules 32:1.15, 45.2, and 45.7). We
now turn to the alleged violations related to McCuskey’s handling of
funds entrusted to him by the Gustas. Rule 32:1.15(c) requires fees to
be withdrawn by the lawyer only as earned; rule 32:1.15(f) requires trust
accounts to be governed by chapter 45. Iowa Court Rule 45.2(2) in turn
requires a lawyer to properly account for a client’s property and promptly
deliver to the client any property the client is entitled to receive.
Likewise, rule 45.7(4) requires attorneys to notify and provide
accountings when they withdraw funds from advance fee payments, and
rule 45.7(5) requires the refunding of unearned advance fees.
In the Gusta matter, McCuskey admittedly did none of these
things. McCuskey accepted funds from the Gustas on three different
occasions, did not render an accounting to them when he took these
funds into his own income, and did not refund any unearned portion of
5The commission held that McCuskey’s continued practicing of law following his
suspension also violated rule 32:3.4(c). Rule 32:3.4(c) is entitled “Fairness to opposing
party and counsel,” and forbids an attorney from “knowingly disobey[ing] an obligation
under the rules of a tribunal.” Iowa R. Prof’l Conduct 32:3.4(c). However, we have
indicated that the purpose of the rule is to ensure “ ‘[f]air competition in the adversary
system’ through proper adherence to discovery and evidence rules.” Hearity, 812
N.W.2d at 620 (quoting Dunahoo, 799 N.W.2d at 533). Therefore, we have declined to
find attorneys in violation of this rule for continuing to practice after suspension unless
the misconduct “undermined the competitive fairness of the adversary process or
disadvantaged opposing counsel.” Id.; see also Dunahoo, 799 N.W.2d at 533. No such
record appears here. For this reason, we conclude that McCuskey did not violate rule
32:3.4(c).
11
those fees relating to activity that occurred after his suspension took
effect. See Vilmont, 812 N.W.2d at 680 (finding an attorney violated rules
32:1.15 and 45.7 by failing to treat a retainer as an advance fee and
failing to follow the rules governing advance fees); Dunahoo, 799 N.W.2d
at 532 (finding an attorney violated rules 32:1.15(f) and 45.7(4) by not
providing any contemporaneous accounting for withdrawals).
Accordingly, we agree with the commission that McCuskey’s failure to
provide the Gustas with an accounting or to return unearned fees
violated rules 32:1.15, 45.2(2), and 45.7. 6
F. Rule 32:1.3. Finally, the Board alleged that McCuskey
neglected the Gusta matter in violation of rule 32:1.3. That rule requires
a lawyer to act with “reasonable diligence and promptness in
representing a client.” Iowa R. Prof’l Conduct 32:1.3. We have
recognized neglect to “ ‘involve indifference and 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. Casey, 761 N.W.2d 53, 59 (Iowa
2009) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Moorman, 683 N.W.2d 549, 551 (Iowa 2004)); accord Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 330 (Iowa 2009). It
involves “ ‘a lawyer doing little or nothing to advance the interests of a
6The Board also alleged that McCuskey collected an unreasonable fee in
violation of rule 32:1.5(a). The Board’s theory, as set forth in its trial brief, is that any
fee received by McCuskey on the Gusta matter would have been unreasonable because
he was under suspension. The Board does not contend that McCuskey’s fee would have
been unreasonable for the work he actually did if he had not been under suspension.
The Board cites no authority for its position. For present purposes, we conclude that
an attorney who collects a fee for legal work performed while under suspension has
collected an unearned fee in violation of rules 32:1.15 and 45.7 as discussed above, but
not necessarily an unreasonable fee.
12
client after agreeing to represent the client.’ ” Casey, 761 N.W.2d at 59
(quoting Moorman, 683 N.W.2d at 551).
Although McCuskey did not answer the Board’s complaint and the
facts alleged therein were therefore properly deemed admitted, we
nonetheless conduct an independent review of alleged ethical violations.
See Fields, 790 N.W.2d at 795–96 (conducting an independent review
even though the attorney failed to respond and the allegations against
him were deemed admitted, and finding the attorney did not violate rule
32:1.1 as alleged by the Board). On our review, we are not persuaded at
the required level of proof that McCuskey neglected the Gusta matter.
From the exhibits, it appears there was some question whether the
Gustas would be able to qualify for a Chapter 7 bankruptcy, and the
clients and McCuskey may have jointly decided on a wait and see
approach. It also appears that McCuskey responded reasonably
promptly on the Gustas’ behalf to creditor demands during that time.
Based upon our de novo evaluation of the record, we conclude the
Board has shown by a convincing preponderance of the evidence that
McCuskey violated Iowa Rules of Professional Conduct 32:1.4, 32:1.15(f),
32:1.16, 32:5.5(a) and 32:8.4(c) and Iowa Client Trust Account Rules
45.2(2) and 45.7. However, we find that the Board has not established
violations of rules 32:1.3, 32:1.5 or 32:3.4(c).
IV. Consideration of Appropriate Sanction.
Having determined that McCuskey violated a number of
disciplinary rules, we now consider the appropriate sanction. “ ‘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 circumstances of each case.’ ” Casey,
13
761 N.W.2d at 61 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Earley, 729 N.W.2d 437, 443 (Iowa 2007)).
We have repeatedly held that the goal of our ethical
rules is to maintain public confidence in the legal profession
as well as to provide a policing mechanism for poor
lawyering. Important considerations include the nature of
the violations, protection of the public, deterrence of similar
misconduct by others, the lawyer’s fitness to practice, and
our duty to uphold the integrity of the profession in the eyes
of the public. In fashioning the appropriate sanction, we
look to prior similar cases while remaining cognizant of their
limited usefulness due to the variations in their facts. Often,
the distinction between the punishment imposed depends
upon the existence of multiple instances of neglect, past
disciplinary problems, and other companion violations,
including uncooperativeness in the disciplinary
investigation. Aggravating and mitigating circumstances are
also important.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Humphrey, 812 N.W.2d 659,
666 (Iowa 2012) (citations and internal quotation marks omitted).
The violations here center upon McCuskey’s refusal to honor the
terms of his September 30, 2009 temporary suspension. In addition, we
have a single instance of trust account misconduct, including a failure to
provide accountings, as well as the withdrawal of and failure to refund
unearned fees.
“We consider all aggravating and mitigating circumstances.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Adams, 749 N.W.2d 666, 670 (Iowa
2008). “We have long held that an attorney has an obligation to
cooperate with disciplinary authorities and that 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 (citing Comm. on Prof’l Ethics & Conduct v. Horn, 379 N.W.2d 6, 8
(Iowa 1985)). As in our recent Hearity case, McCuskey’s “complete
14
failure to respond” is “a significant aggravating factor.” Hearity, 812
N.W.2d at 622.
Prior discipline is another aggravating factor we consider in
determining the appropriate sanction. Marks, 759 N.W.2d at 332. The
Board urges us to take into account McCuskey’s September 30, 2009
suspension as well as the follow-up suspension order of June 8, 2010. If
these were separate from the present matter, we would do so. See id.
(considering as an aggravating factor the respondent’s unrelated
temporary suspension from 2006 for failure to cooperate with a Board
inquiry). However, treating them as aggravating factors here, when they
are intertwined with the present case, would amount to double counting.
We agree with the commission and the Board, however, that McCuskey’s
substantial legal experience is another aggravating factor. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 15 (Iowa 2012) (citing
the respondent’s “considerable professional experience as an attorney
and judge” as an aggravating factor); Kirlin, 741 N.W.2d at 818 (noting as
an aggravating circumstance “the fact that Kirlin is an experienced
attorney”). Because McCuskey has not participated in these
proceedings, we have no mitigating factors to discuss. See Hearity, 812
N.W.2d at 623 (“Because Hearity failed to participate in these
proceedings, the record is devoid of evidence of any mitigating
circumstances.”).
We have considered cases in the past where attorneys continued to
practice after their licenses were suspended, in addition to committing
trust account violations. In Netti, an attorney represented a client before
the Iowa Department of Revenue after having been suspended. 797
N.W.2d at 604. However, this was merely one of a long list of violations.
Id. at 598–605. In discussing the sanction to be imposed, we focused on
15
the respondent’s other violations, especially his “pattern of taking fees
without doing the work he was hired to do,” his “trust account
violations,” and his “knowing misrepresentations to the court.” Id. at
606. We also emphasized the harm that Netti’s actions caused to others.
Id. at 606–07. We concluded that an indefinite suspension with no
possibility of reinstatement for two years was warranted. Id. at 607.
In D’Angelo, an attorney met with a client, continued to take in
fees, and held himself out as a lawyer while his license was suspended.
710 N.W.2d at 230–31, 233. But the respondent’s other misconduct was
quite extensive and included a two-year delay in responding to the
Board’s notices of complaints regarding four client matters,
misrepresentations to the court, neglect, and intentional
misappropriation of client funds. Id. at 234–236. D’Angelo also had a
serious prior disciplinary record including an indefinite suspension with
no possibility of reinstatement for three years based on another batch of
violations. Id. at 229. In light of D’Angelo’s prior disciplinary record and
“the sheer number of times D’Angelo improperly moved client money
from his client trust account to his operating account, we simply [could]
not conclude the commingling of client funds was negligent, rather than
intentional.” Id. at 236. We also noted the harm D’Angelo’s actions had
caused his clients and concluded “the public w[ould] not be protected if
D’Angelo [wa]s allowed to practice law again.” Id. Accordingly, we
revoked his license to practice law. Id. at 236–37.
In Hearity, an attorney appeared in one matter after he was
suspended, collected and refused to refund an advance fee for an out-of-
state matter that he could not handle, made a false statement to the
court, and neglected two other matters. 812 N.W.2d at 616. Hearity also
had a history of similar ethical misconduct and had completely failed to
16
respond to the Board. Id. at 620. We suspended his license indefinitely
with no possibility of reinstatement for one year. Id. at 622.
We conclude here that an indefinite suspension with no possibility
of reinstatement for one year is appropriate. The misconduct is not as
extensive as in Netti or D’Angelo. In addition, McCuskey does not have
Hearity’s prior disciplinary record or his history of past violations. On
the other hand, McCuskey’s willful noncompliance with a suspension
order, over a period of months and with respect to more than one
representation, is a serious matter. Lawyer discipline is supposed to
protect the public. One bedrock of the system is that a suspension will
actually be a suspension. The system does not work when lawyers
continue to make filings, meet with clients, send out legal
correspondence, and take in fees even while they are supposed to be
under suspension. Further, McCuskey’s admitted failure to account for
or refund the Gustas’ money is another serious matter.
V. Disposition.
Considering all the circumstances of this case, we suspend
McCuskey’s license to practice law in this state indefinitely with no
possibility of reinstatement for one year. This suspension applies to all
facets of the practice of law. See Iowa Ct. R. 35.12(3). McCuskey must
comply with Iowa Court Rule 35.22 dealing with the notification of clients
and counsel.
McCuskey’s prior temporary suspension of June 8, 2010, for
failure to respond to the Board is terminated. Hearity, 812 N.W.2d at
623. However, McCuskey’s temporary suspension for failure to meet a
department of revenue obligation shall remain in effect until the separate
requirements for ending that suspension are met.
17
Upon application for reinstatement, McCuskey must establish that
he has not practiced law during the suspension period and that he has
complied with the requirements of Iowa Court Rules 35.13 and 35.22.
McCuskey also must demonstrate that he has met the requirements for
ending the temporary suspension related to his unpaid department of
revenue obligation. See Iowa Court Rule 35.13(9).
The costs of this action are taxed to McCuskey pursuant to Iowa
Court Rule 35.26(1).
LICENSE SUSPENDED.
Iowa Supreme Court Attorney Disciplinary Board v. Thomas G. Mccuskey
Combined Opinion