Iowa Supreme Court Attorney Disciplinary Board v. Thomas F. Ochs

IN THE SUPREME COURT OF IOWA
No. 11–0636

Filed October 14, 2011

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

THOMAS F. OCHS,

Respondent.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

Grievance Commission reports respondent committed ethical

misconduct and recommends that attorney be suspended from the

practice of law for thirty days. LICENSE SUSPENDED.

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

complainant.

Thomas F. Ochs, Cedar Rapids, pro se.
 2

CADY, Chief Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against Thomas F. Ochs, alleging multiple violations of the

Iowa Rules of Professional Conduct based largely on neglect of probate

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

of Iowa found Ochs’ conduct violated the rules and recommended we

suspend his license to practice law for a period of thirty days. On our

de novo review, we find Ochs violated the rules of professional conduct.

We suspend Ochs’ license to practice law for a period of thirty days.

I. Background Facts and Proceedings.

Thomas F. Ochs is an Iowa lawyer. He was admitted to the

profession in 1988 and practices law in Cedar Rapids with an

established law firm. Ochs has served as a bar admissions examiner

during his career and has provided pro bono representation to financially

needy Iowans.

In his practice, Ochs primarily handles domestic-relations cases,

but he also does work in the area of probate, including estates,

conservatorships, and guardianships. Ochs’ conduct in handling seven

estates, two guardianships, and one conservatorship over the past eight

years formed the basis for this disciplinary action. Prior to the events of

this proceeding, Ochs had no history of disciplinary action.

The conduct of Ochs described in the ten cases involved in this

disciplinary action displayed remarkable consistency. In each instance,

Ochs repeatedly missed deadlines established by the law to perform

required legal services. As a result, he needlessly prolonged the

completion of legal tasks necessary to conclude the cases. His inaction

and misconduct spanned many years. Two of the cases were left open

for over seven years, while other estates were open for four and five
 3

years. In most all of the cases, Ochs repeatedly received inquiries from

the Board regarding his delinquent actions, which he in turn essentially

ignored. In some of the cases, Ochs would perform the work but neglect

to send copies of documents to all essential parties. In one case, the

Board took preemptive action by privately admonishing Ochs for his

delinquent conduct.

At the hearing, Ochs flatly admitted all the allegations against him

in the Board’s ten-count complaint. Each count of the complaint

described the unethical conduct repeatedly engaged in by Ochs over a

period of years. The complaint charged neglect in violation of Iowa Rule

of Professional Conduct 32:1.3 (“A lawyer shall act with reasonable

diligence and promptness in representing a client.”) and 32:3.2 (“A lawyer

shall make reasonable efforts to expedite litigation . . . .”). The Board’s

complaint also alleged Ochs disobeyed duties imposed by the court rules

in violation of Iowa Rule of Professional Conduct 32:3.4(c), failed to

respond to Board inquiries for information in violation of Iowa Rule of

Professional Conduct 32:8.1(b), and engaged in conduct prejudicial to

the administration of justice in violation of Iowa Rule of Professional

Conduct 32:8.4(d).

During the hearing on the complaint, Ochs was honest, contrite,

and apologetic. He offered no excuses and expressed determination to

change his delinquent conduct. Nevertheless, Ochs allowed each case to

linger by ignoring deadlines and failing to responsibly perform the work

necessary to keep the matters moving to completion within a reasonable

time as required by law. See Iowa Code § 633.473 (2011) (requiring final

settlement of estates to generally be made within three years).

The commission found Ochs violated the rules of professional

conduct as charged and recommended he be suspended for a period of
 4

thirty days. Two members of the five-member commission recommended

Ochs receive a public reprimand.

II. Scope of Review.

We review attorney disciplinary actions de novo. Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Dolezal, 796 N.W.2d 910, 913 (Iowa 2011). We

give respectful consideration to the findings and recommendations by the

commission, but are not bound by them. Id. The Board must prove the

misconduct by a convincing preponderance of the evidence. Id.

III. Findings and Conclusions.

We agree with the commission that Ochs violated the rules of

professional conduct as alleged in the complaint. The Board established

these charges by a convincing preponderance of the evidence.

Consequently, we turn to consider the sanction to impose.

The conduct in this case principally involved neglect. The range of

discipline we normally impose for such conduct falls between a public

reprimand and a suspension for up to six months. Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Thomas, 794 N.W.2d 290, 294 (Iowa 2011).

The nature of the neglect in this case and the number of probate

cases involved warrant consideration of discipline within the full

spectrum of sanctions. See Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Winkel, 542 N.W.2d 252, 255 (Iowa 1996) (imposing a six-

month suspension for neglect of fifteen probate matters after reviewing

prior cases involving neglect of probate cases). Yet, most cases of

extensive probate delinquencies that result in sanctions on the high end

of the spectrum are accompanied by various aggravating factors. For

example, while Winkel involved numerous cases of delinquency in

probate matters that resulted in a six-month suspension, there was

evidence the attorney seemed to be in full denial and had a problem
 5

facing the reality of his conduct. Id. at 254. Other aggravating factors

supporting stiff sanctions for neglect of probate cases involve multiple

instances of neglect, other past disciplinary action, and companion

violations such as dishonesty to clients and the court, failure to

cooperate with the Board’s investigation, and mishandling client funds.

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

871 (Iowa 2010) (imposing three-month suspension for multiple

instances of neglect in four probate cases coupled with collecting fees

without court order, failing to respond to Board inquiries, and prior

discipline for similar conduct); see also Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) (imposing

thirty-day suspension for neglect and failure to cooperate with Board’s

investigation); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moonen, 706

N.W.2d 391, 402 (Iowa 2005) (imposing eighteen-month suspension for

neglect in multiple cases, self-dealing with trust funds, taking fees

without accounting for time, misrepresentation to the court, failure to

cooperate with the Board, and resulting harm misconduct caused

clients).

This case does not involve aggravating circumstances such as

misrepresentation or violations of court orders found in many neglect

cases in which we have imposed lengthy suspensions. Instead, this case

centers almost entirely on the abject failure of an attorney to comply with

the basic structural rules governing the processing of numerous probate

cases over a prolonged period of time. As such, the conduct is more

similar to that described in Iowa Supreme Court Board of Professional

Ethics & Conduct v. Hovda, 578 N.W.2d 673 (Iowa 1998). In Hovda, the

attorney allowed eighteen probate cases to languish, prompting the

issuance of eighty-two probate delinquency notices over a period of six
 6

years. 578 N.W.2d at 674. The attorney in Hovda also failed to respond

to Board inquiries. Id. We imposed a suspension of sixty days. Id. at

675.

Considering all the relevant factors in the case, we agree with the

commission that a thirty-day suspension is an appropriate discipline.

See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lustgraaf, 792 N.W.2d

295, 297 (Iowa 2010) (noting we give respectful consideration to the

commission’s recommendations). This discipline comports with our prior

cases and is consistent with the goals served by the imposition of

attorney discipline. While Hovda involved similar conduct, this

proceeding involved fewer cases of neglect than in Hovda. This

distinguishing factor justifies a less severe sanction for Ochs.

IV. Conclusion.

We suspend Ochs’ license to practice law in the State of Iowa for

thirty days. This suspension applies to all facets of the practice of law.

Iowa Ct. R. 35.12(3). Ochs must comply with Iowa Court Rule 35.22

dealing with notification of clients and counsel. Costs of this action are

taxed to Ochs pursuant to Iowa Court Rule 35.26(1). Absent an

objection by the Board, Ochs shall be reinstated after the thirty-day

suspension period under the condition that all costs have been paid.

Iowa Ct. R. 35.12(2).

LICENSE SUSPENDED.