Iowa Supreme Court Attorney Disciplinary Board v. Robert J. Hearity

IN THE SUPREME COURT OF IOWA
No. 11–1645

Filed February 24, 2012

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,

vs.

ROBERT J. HEARITY,
Respondent.

On review from the report of the Grievance Commission of the

Supreme Court of Iowa.

Grievance commission recommends attorney’s license be

suspended. LICENSE SUSPENDED.

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

complainant.

Robert J. Hearity, Waterloo, pro se.
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WATERMAN, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against Robert J. Hearity alleging twelve violations of the Iowa

Rules of Professional Conduct in his work for five clients. Hearity failed

to answer the Board’s complaint or otherwise respond, and as a result,

his license has been under temporary suspension since January 11,

2011. A division of the Grievance Commission of the Supreme Court of

Iowa determined Hearity engaged in “multiple instances of misconduct”

and unanimously recommended a suspension. Upon our de novo review,

we find Hearity has engaged in multiple acts of misconduct. We suspend

his license to practice law indefinitely with no possibility of reinstatement

for one year from the date of this opinion.

I. Scope of Review.

“We review attorney disciplinary proceedings de novo.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo, 799 N.W.2d 524, 528

(Iowa 2011) (citation and internal quotation marks omitted). We

respectfully consider the commission’s findings, but we are not bound by

them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Schmidt, 796 N.W.2d

33, 36 (Iowa 2011). “The [B]oard must establish attorney misconduct by

a convincing preponderance of the evidence.” Dunahoo, 799 N.W.2d at

528. If we find the Board proved misconduct, we may impose a sanction

more or less severe than the commission’s recommended sanction. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 282 (Iowa

2009).

II. Prior Proceedings and Findings of Fact.

On June 27, 2011, the Board filed its complaint against Hearity,

alleging five counts of misconduct. Hearity failed to answer the Board’s

complaint against him and failed to comply with the Board’s requests for
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information. “[T]he allegations of an ethics complaint are deemed

admitted if the respondent fails to answer within the specified time.”

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conroy, 795 N.W.2d 502, 506

(Iowa 2011); accord Iowa Ct. R. 36.7. At the evidentiary hearing, the

commission properly found the complainant’s allegations admitted. The

commission received into evidence forty-seven exhibits. The commission

considered brief testimony from Sarah Burgess, who hired Hearity to

defend her charge of driving while intoxicated (DUI) in Georgia. Based

upon this record, we find the following facts on our de novo review.

Hearity became a licensed attorney in Iowa in 1982. He resided

and practiced in Black Hawk County. We suspended his license to

practice law pursuant to Iowa Court Rule 35.21 on September 15, 2010,

for failure to comply with an obligation owed to the Iowa Department of

Revenue. On January 11 and March 8, 2011, this court again

temporarily suspended his license, pursuant to Iowa Court Rule 34.7(3),

for his failures to respond to Board inquiries. See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Cunningham, ___ N.W.2d ___, ___ (Iowa 2012)

(discussing purpose and effect of temporary license suspension for

failure to respond to the Board). Hearity has yet to participate in this

proceeding, and his license remains suspended.

A. Estate of Mary S. Theroith (Count I). Mrs. Theroith died

intestate on January 28, 2007. A month later, the estate’s

coadministrators retained Hearity as counsel to facilitate the estate’s

closing. Three and one-half years later, the estate still had not closed.

While representing the coadministrators, Hearity filed the report and

inventory two months late, never filed the interlocutory report despite

receiving three delinquency notices, and twice asked the district court for

additional time to close the estate. The district court learned of Hearity’s
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September 15, 2010 suspension and, on September 27, removed him

from the case and appointed attorney Timothy Ament as substitute

counsel. Ament had to ask Hearity for the case file three times before

Hearity turned it over to him in late November. Ament identified

numerous tasks Hearity had left unresolved, including paying the

Waterloo Courier for publication of notice, ascertaining whether the

Estate Recovery Program had a claim, addressing three pending claims,

collecting funds held by the Child Support Recovery Unit, filing tax

returns, and distributing assets.

B. Robert Campbell (Count II). In September 2009, Campbell

retained Hearity in six criminal matters pending in Black Hawk County.

Hearity filed his appearances in all six cases and collected a $5000

advance fee. In February 2010, Campbell filed a complaint with the

Board against Hearity. Hearity filed a response with the Board regarding

Campbell’s complaint, but never responded to the Board’s August 11

request for information and documentation.

C. Redell R. Walls III (Count III). Hearity represented Walls in

four criminal matters in Black Hawk County beginning in October 2009.

Following his conviction and sentence, Walls filed a pro se appeal in one

of the cases. Our clerk of court sent Hearity a courtesy notice informing

him that as counsel of record in the trial court he was presumed to be

appellate counsel. The notice directed him to promptly prosecute the

appeal or file a motion to withdraw. Hearity did not respond to the

notice. A month later, the clerk issued him a notice of default and

assessment of penalty because he failed to file the combined certificate

and pay the filing fee. The notice informed Hearity that “unless this

default is remedied within fifteen days . . . the . . . appeal will be

dismissed.” The notice also advised Hearity that a dismissal order would
 5

be forwarded to the Board and may be grounds for an investigation.

Hearity did not remedy the default, and Walls’ appeal was dismissed.

D. Sarah Burgess (Count IV). On June 9, 2010, Burgess met

with Hearity about her DUI case pending in Georgia. Her court date was

set for June 29. Hearity assured Burgess he could represent her in

Georgia by gaining admission to the Georgia court pro hac viće. Burgess

paid Hearity $500 at this meeting, without any written agreement.

Hearity told Burgess this advance fee would cover the entire

representation, unless he had to appear in Georgia. He advised Burgess

she did not need to travel to Georgia. At the close of the meeting, Hearity

assured Burgess: “I’ll take care of it for you.”

Burgess attempted to reach Hearity several times on June 15 to

receive an update on her pending hearing. After several attempts,

Hearity called back to inform her he was still trying to obtain pro hac viće

approval. After another week of negligible progress, Burgess arranged a

meeting for June 23. She asked for her money back and the case file.

Hearity refused to refund the money at the meeting and insisted he

would review the file and prepare a bill. Hearity claimed he worked 5.25

hours on the matter and charged a $250 hourly rate for a total bill of

$1312.50. His bill reflects charges for “research of Georgia law,

including pro hac viće admission.” He never refunded her $500.

Burgess obtained counsel in Georgia. She paid the Georgia

counsel $975. She also had to travel to Georgia on June 29 to appear at

her court hearing.

E. Practicing Law While Suspended (Count V). On

September 23, 2010, Hearity appeared on behalf of the father in a

Black Hawk County juvenile permanency hearing. Judge Block
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questioned Hearity about the September 15 order suspending his law

license:

Q. Now, Mr. Hearity, are you appearing on behalf of
Mr. Grimson? A. Yes, Your Honor.
Q. All right. I was provided notice from the Supreme
Court that your license had been suspended. Has it been
reinstated? A. I guess I have not even received that notice
so I will leave the room.
Q. You didn’t receive a notice from the Supreme
Court? A. I have not received that, but it may be in my
mail, Judge. That’s all I can say.
Q. Well, I think, you know, this is my copy, but if you
want to review it, I can’t believe they haven’t provided you
notice of that. A. It may be in my mail, Your Honor. I’m not
doubting what you say at all.

Postal service records show the Office of Professional Regulation sent the

September 15 order by certified mail to Hearity’s home, and on

September 17, he signed and accepted the certified mailing—six days

before the hearing.

III. Ethical Violations.

A. Lack of Diligence and Failure to Expedite Litigation. The

Board alleged Hearity violated rules 32:1.1 and 32:3.2 that govern

diligence and expedition of litigation. The commission found Hearity
violated both rules in the Theroith estate and Walls appeal. We agree.

Rule 32:1.3 requires counsel to “act with reasonable diligence and

promptness.” This rule requires an attorney to handle matters in a

“reasonably timely manner.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Johnson, 792 N.W.2d 674, 678 (Iowa 2010). We find Hearity’s neglect of

the Theroith estate over three and one-half years and his failure to

prosecute Walls’ appeal resulting in its dismissal demonstrate a lack of

diligence in violation of rule 32:1.3.
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Rule 32:3.2 requires a lawyer to “make reasonable efforts to

expedite litigation consistent with the interests of the client.” “The

purpose of this rule is to prevent the ‘use of tactics that unreasonably

delay litigation.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793

N.W.2d 525, 530 (Iowa 2011) (quoting 2 Geoffrey C. Hazard, Jr. &

W. William Hodes, The Law of Lawyering § 28.2, at 28–3 (3d ed. Supp.

2007)). On April 8, 2009, the district court filed an order requiring

Hearity to participate in a review hearing in six months because the

court was concerned Hearity was not taking actions to close the Theroith

estate. Hearity asked to continue this hearing three times, until the

district court finally removed Hearity from the case in September 2010.

Hearity had left much work to be completed before the estate could be

closed. Hearity also delayed the work of substitute counsel by waiting

until late November to turn over the case file after three written requests.

We find Hearity used unreasonable tactics to delay litigation in order to

mask his dilatory handling of the matter. Accordingly, we find Hearity

violated rule 32:3.2.

B. Unreasonable Fees and Failure to Communicate Regarding

Fees. The Board alleged Hearity violated rules 32:1.5(a) and (b), which

govern fee agreements, in the Burgess DUI matter. The commission

found Hearity violated both rules. We agree. Rule 32:1.5(a) prohibits

attorneys from agreeing to or collecting an unreasonable fee and lists

eight factors to determine “reasonableness.” Burgess paid Hearity a

$500 advance fee to handle the matter. He lacked a license to practice

law in Georgia and did nothing to resolve her case pending there.

Hearity billed Burgess for $1312.50, but Burgess never agreed to pay

this amount nor did Hearity collect this sum. His itemized billing

statement falls short of justifying the $500 he refused to refund to
 8

Burgess. Burgess had to hire Georgia counsel to resolve the case for her

at an additional cost of $975. In the absence of any justification for the

fee from Hearity, we find he violated rule 32:1.5(a).

Rule 32:1.5(b) requires the attorney to communicate with the

client, preferably in writing, “[t]he scope of the representation and the

basis or rate of the fee and expenses for which the client will be

responsible.” Hearity did not enter into a written fee agreement with

Burgess. After their initial meeting, Burgess believed the parties agreed

the $500 advance fee would represent the total cost of Hearity’s

representation unless Hearity had to travel to Georgia, which he did not.

Several weeks later, Hearity billed Burgess for $1312.50. We find Hearity

failed to properly communicate the fee and expense rate for which

Burgess was responsible. We find Hearity violated rule 32:1.5(b).

C. Failure to Properly Terminate Representation. The Board

alleged Hearity’s failure to prosecute or withdraw from Walls’ appeal

violated rules 32:1.16(c) and (d). The commission found Hearity violated

each rule. Rule 32:1.16(c) requires a lawyer to “comply with the

applicable law requiring notice to or permission of a tribunal when

terminating a representation.” As Walls’ trial counsel, Hearity was

deemed his appellate counsel. Iowa R. App. P. 6.109(4). “An attorney

may not withdraw from representation of a party before an appellate

court without permission of that court unless another attorney has

appeared or simultaneously appears for the party.” Id. r. 6.109(5). No

other counsel appeared on Walls’ behalf. Hearity, however, effectively

ceased representing Walls on appeal without the appellate court’s

permission to withdraw. As a result of Hearity’s failure to respond to the

default notice, Walls’ appeal was dismissed. We find Hearity in violation

of rule 32:1.16(c).
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Rule 32:1.16(d) requires a lawyer to “take steps to the extent

reasonably practicable to protect a client’s interest.” The record shows

Hearity did nothing to protect Walls’ interests in this appeal. His

inaction led to dismissal of the appeal. We find Hearity violated rule

32:1.16(d).

D. Failure to Respond to the Board. The Board alleged Hearity

violated rule 32:8.1(b) by failing to respond to the Board’s discovery

requests about Campbell’s fee complaint. Rule 32:8.1(b) states a lawyer

shall not “knowingly fail to respond to a lawful demand for information

from . . . [a] disciplinary authority.” “Knowingly” is defined as “actual

knowledge of the fact in question” and “may be inferred from

circumstances.” Iowa R. Prof’l Conduct 32:1.0(f). On August 11, 2010,

the Board asked Hearity to provide documentation concerning the scope

of representation and fee agreement with Campbell. Hearity did not

respond. This instance is emblematic of Hearity’s continued failure to

participate in this disciplinary process. We find Hearity violated rule

32:8.1(b).

E. Disobedience of Obligations to a Tribunal. The Board alleged

Hearity violated rule 32:3.4(c) in the Theroith and Walls matters and in

the juvenile court proceeding. The commission found Hearity did not

violate this rule. We agree with the commission. In Dunahoo, we stated:

Rule 32:3.4(c) is entitled “Fairness to opposing party
and counsel,” and the rule states a lawyer shall not
“knowingly disobey an obligation under the rules of a
tribunal.” The comments to the rule suggest its purpose is
to ensure “[f]air competition in the adversary system”
through proper adherence to discovery and evidence rules.

799 N.W.2d at 534 (quoting Iowa R. Prof’l Conduct 32:3.4(c), cmt. 1).

The Board has not established Hearity’s misconduct in these matters

undermined the competitive fairness of the adversary process or
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disadvantaged opposing counsel. Accordingly, we find rule 32:3.4(c) was

not violated.

F. Unauthorized Practice of Law. The Board alleged Hearity

violated rule 32:5.5(a) by appearing for a client in the juvenile court

proceeding six days after accepting receipt of this court’s order

suspending his license to practice law. The commission found Hearity

violated this rule. Rule 32:5.5(a) prohibits a lawyer from “practic[ing] law

in a jurisdiction in violation of the regulation of the legal profession in

that jurisdiction.” The rule contains no express scienter requirement.

On September 17, 2010, Hearity acknowledged receipt of the mailing that

contained the order suspending his law license. Receipt of certified mail

constitutes notice as a matter of law. See Burgess v. Great Plains Bag

Corp., 409 N.W.2d 676, 680 (Iowa 1987) (holding plaintiff deemed to have

notice of contents of accepted certified mail regardless of whether he read

the documents). Six days later, Hearity appeared in court. He was not

authorized to practice law in this state at that time. We find Hearity

violated rule 32:5.5(a).

G. False Statement to Court. The Board alleged Hearity violated

rule 32:3.3(a)(1) during his juvenile court appearance. The commission

found Hearity did not violate this rule. Rule 32:3.3(a)(1) prohibits a

lawyer from “knowingly . . . mak[ing] a false statement of fact or law to a

tribunal.” “Knowingly” is defined as “actual knowledge of the fact in

question” and “may be inferred from circumstances.” Iowa R. Prof’l

Conduct 32:1.0(f). After the district court confronted Hearity about the

order, Hearity stated, “I guess I have not even received that notice so I

will leave the room.” Under further questioning by the court, Hearity

admitted the order of suspension “may be in my mail.” The commission

determined that “Hearity signed the certified mail return receipt
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acknowledging receipt of the notice, but there was insufficient evidence

that he opened the mail and was aware of the suspension at the time of

his exchange with the Court.”

On our de novo review of the record, we find Hearity had actual

knowledge of his suspension. The United States Postal Services form

signed by Hearity to receive the mailing, PS Form 3811, lists the Office of

Professional Regulation as the sender. He accepted this mailing six days

before the court hearing. Indeed, he displayed consciousness of guilt by

immediately stating, “I will leave the [court]room” when Judge Block

noted his suspension. Most lawyers signing for a certified mailing from

the Office of Professional Regulation will open the envelope upon receipt.

We decline to infer Hearity remained blissfully ignorant of his suspension

in the absence of any persuasive explanation. An ostrich-like, head-in-

the-sand approach should not immunize attorneys from an inference of

actual knowledge. Lawyers who accept a certified mailing with notice of

their suspension and who refuse to participate in disciplinary

proceedings should not expect our court to draw inferences in their favor.

We find that, based on the circumstances, Hearity actually knew before

he appeared in court six days later that his license was under

suspension. Our finding is supported by the allegations of the Board’s

complaint against Hearity deemed admitted by his failure to answer.

Accordingly, we find Hearity knowingly made a false statement to the

juvenile court in violation of rule 32:3.3(a)(1).

H. Rule 32:8.4 Misconduct. The Board alleged Hearity violated

rules 32:8.4(c) and (d). The commission found he violated both rules.

Rule 32:8.4(c) states it is professional misconduct to “engage in conduct

involving dishonesty, fraud, deceit, or misrepresentation.” The Board

contends Hearity violated this rule when conversing with the district
 12

court at the juvenile permanency proceeding. “When an attorney’s

conduct violates a specific rule involving dishonesty, fraud, deceit, or

misrepresentation, we will not find the same conduct to also violate a

general rule prohibiting that conduct, such as rule 32:8.4(c).” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 587 (Iowa

2011); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797

N.W.2d 591, 605 (Iowa 2011). We have already determined Hearity

violated rule 32:3.3(a)(1) by making a knowingly false statement to the

district court in the juvenile permanency proceeding. Accordingly, we

decline to hold this same conduct violates rule 32:8.4(c).

Rule 32:8.4(d) states it is professional misconduct to “engage in

conduct that is prejudicial to the administration of justice.” Conduct

prejudices the administration of justice when it impedes “the efficient

and proper operation of the courts or of ancillary systems upon which

the courts rely.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton,

784 N.W.2d 761, 768 (Iowa 2010) (citation and internal quotation marks

omitted). Hearity’s missteps forced the district court to appoint a new

attorney to close the Theroith estate and forced Walls to resort to

postconviction relief to challenge his conviction and sentence. This

misconduct impeded the efficient and proper operation of the courts.

Accordingly, we find Hearity violated rule 32:8.4(d).

IV. Sanction.

“There is no standard sanction for particular types of misconduct.

While prior cases are instructive, we craft an appropriate sanction in

light of each case’s unique circumstances.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Boles, ___ N.W.2d ___, ___ (Iowa 2012) (citation

omitted). In formulating a sanction,
 13
“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. Casey, 761 N.W.2d 53, 61

(Iowa 2009) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland,

748 N.W.2d 498, 502 (Iowa 2008)). The commission unanimously

recommended we suspend Hearity’s license for eighteen months after

“[t]aking into account the multiple instances of misconduct and failure

on the part of [Hearity] to demonstrate any appreciation for the

seriousness of his misconduct.”

We have suspended an attorney’s license for substantial lengths of

times when the attorney’s neglect is compounded by other serious

offenses such as disregarding court orders or making misrepresentations

to the court. See, e.g., Dunahoo, 799 N.W.2d at 535 (suspending license

for one year for neglect compounded with trust account violations and

court misrepresentations); Johnson, 792 N.W.2d at 683 (three-year

suspension for neglect, failure to return client files and unearned fees,

failure to respond to Board’s investigation, and other violations); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 821

(Iowa 2007) (suspending license for one year for neglect and

misrepresentations to court); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Joy, 728 N.W.2d 806, 816 (Iowa 2007) (suspension for eighteen months

for neglect compounded with disobedience of court orders and

misrepresentations to court and clients); Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Walters, 646 N.W.2d 111, 113–14 (Iowa 2002)

(suspending license for eighteen months for neglect, deceit to mask the

neglect, and refusal to comply with Board inquiries). Here, a significant
 14

sanction is warranted by our finding that Hearity knew of his suspension

when he appeared in juvenile court and misrepresented his awareness to

the court.

We agree with the commission that Hearity’s “complete failure to

respond to the [Board] and his decision not to participate in these

proceedings . . . show . . . a complete disregard for the applicable rules.”

Moreover, “[w]e have repeatedly emphasized how important it is for an

attorney to cooperate with disciplinary authorities when a complaint has

been filed against the attorney.” Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Kennedy, 684 N.W.2d 256, 260 (Iowa 2004). Hearity’s failure

to cooperate is a significant aggravating factor.

Hearity has a history of similar ethical misconduct, which is

another aggravating factor. Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Plumb, 766 N.W.2d 626, 634–35 (Iowa 2009). The Board admonished

Hearity in 2006 and 2010 for failing to comply with Board investigations.

He was admonished in 2007 for failing to cure a probate delinquency,

and in 2010, he was admonished for neglecting an appeal.

Because Hearity failed to participate in these proceedings, the

record is devoid of evidence of any mitigating circumstances. As the

commission noted, “There is no evidence that [Hearity] suffers from any

conditions which prevent him from responding or any evidence that he

feels any remorse for his misconduct.” See Boles, ___ N.W.2d at ___

(noting as mitigating factors extensive pro bono defense work and

volunteer community service).

Lawyer discipline is necessary to protect the public and courts

from persons unfit to practice law and to ensure public confidence in the

integrity of our system of justice. Gottschalk, 729 N.W.2d at 821. We

believe a substantial sanction is needed here to achieve the goals of
 15

lawyer discipline. After careful consideration of the record, precedent,

aggravating factors, absence of any mitigating factors, his temporary

suspension since January 2011, and the suspension recommended by

the commission, we conclude a one-year suspension is appropriate.

V. Conclusion.

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

possibility of reinstatement for one year from the date of this opinion.

The suspension applies to all facets of the practice of law, as provided by

Iowa Court Rule 35.12(3), and requires notification to clients, as provided

by Iowa Court Rule 35.22. The prior temporary suspension for failure to

respond to the Board is terminated. See Cunningham, ___ N.W.2d at ___.

Upon any application for reinstatement, Hearity 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.

He must also provide medical proof of his fitness to practice law and

must successfully complete the Multistate Professional Responsibility

Examination (MPRE). The costs of this proceeding are assessed against

Hearity pursuant to rule 35.26(1).

LICENSE SUSPENDED.

All justices concur except Zager, J., who takes no part.