IN THE SUPREME COURT OF IOWA
No. 08–1213
Filed January 9, 2009
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
SAMUEL Z. MARKS,
Respondent.
Appeal from the report of the Grievance Commission.
The Grievance Commission of the Supreme Court of Iowa
recommends suspension of respondent’s license to practice law in this
state. LICENSE SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
Samuel Z. Marks, Des Moines, pro se.
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STREIT, Justice.
In this disciplinary action, Samuel Z. Marks neglected two probate
estates and failed to cooperate with the Iowa Supreme Court Attorney
Disciplinary Board (“Board”). The Grievance Commission of the Supreme
Court of Iowa (“Commission”) found Marks violated the Iowa Code of
Professional Responsibility for Lawyers and the Iowa Rules of
Professional Conduct. The Commission recommended we suspend
Marks’ license to practice law for ninety days. Upon our consideration of
the Commission’s findings of fact, conclusions of law, and
recommendation, we find Marks committed ethical violations and
suspend his license to practice law for thirty days.
I. Background Facts.
Marks was admitted to the Iowa bar in 2000. He is thirty-four
years old and practices in Des Moines. Marks took over his father’s
practice in 2000. His practice focuses primarily on bankruptcy.
Marks has been previously disciplined for violating our ethics
rules. In 2006, we temporarily suspended Marks’ license for failure to
respond to the inquiry of the Board regarding a complaint. Iowa Ct. R.
34.7(3). In 2007, the Board publically reprimanded Marks for
incompetence, lack of diligence, and failure to cooperate timely and fully
with the Board’s investigation.
The present disciplinary action concerns a two-count complaint
filed against Marks on January 15, 2008 by the Board. Marks did not
file an answer until April 14, 2008. The Board alleged Marks neglected
two probate matters and failed to cooperate with the Board’s
investigation. At the hearing before the Commission on July 7, 2008,
Marks admitted to the violations and offered evidence to both explain
and mitigate his conduct. He testified he was diagnosed with depression
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approximately one year ago and currently takes an antidepressant. He
also stated things were chaotic in his office because a couple of attorneys
had left.
Considering all the relevant facts and circumstances, the
Commission found Marks neglected the two probate matters and
recommended Marks’ license to practice law be suspended for ninety
days with additional medical certification being required before
reinstatement of his license. The Commission further recommended that
Marks be restricted from practicing in the area of probate law until he
can demonstrate proficiency in that area.
II. Scope of Review.
We review the findings of the Grievance Commission de novo. Iowa
Ct. R. 35.10(1). We give weight to the Commission’s findings, but we are
not bound by those findings. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
McGrath, 713 N.W.2d 682, 695 (Iowa 2006). The Board has the burden
to prove disciplinary violations by a convincing preponderance of the
evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 710
N.W.2d 226, 230 (Iowa 2006). This burden is “ ‘less than proof beyond a
reasonable doubt, but more than the preponderance standard required
in the usual civil case.’ ” Id. (quoting Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).
III. Factual Findings.
A. Neglect. “Professional neglect involves ‘indifference and a
consistent failure to perform those obligations that a lawyer has
assumed, or a conscious disregard for the responsibilities a lawyer owes
a client.’ ” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Honken,
688 N.W.2d 812, 821 (Iowa 2004) (quoting Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Kennedy, 684 N.W.2d 256, 259–60 (Iowa 2004)).
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“Neglect is more than ordinary negligence and usually involves multiple
acts or omissions.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Moorman, 683 N.W.2d 549, 551–52 (Iowa 2004). In an estate matter,
“failure to take the necessary actions . . . in a timely fashion constitutes
professional neglect.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moonen,
706 N.W.2d 391, 399 (Iowa 2005).
1. Rumley estate. William General Rumley died intestate in
October 2002. His son Adrian Rumley, a Des Moines resident, was
appointed administrator. The decedent had three other surviving
children, two of whom resided in Texas and the other in the custody of
the Iowa Department of Corrections. One of two pieces of real estate in
the estate was sold in the spring of 2004. The record does not indicate
any activity on the matter since that sale. Marks claims he could neither
sell the other piece of real estate nor close the estate because he was
unable to find Adrian Rumley, the administrator. Marks lost track of
him when he left town. Marks claims he diligently tried to uncover
Adrian Rumley’s whereabouts. It was not until a few days before his
disciplinary hearing that Marks met with the judge to discuss the
possibility of appointing one of the decedent’s other children as the
administrator. Further, Marks admitted he did not keep any time
records for the Rumley estate and did not have a tickler system in place
until recently.
2. Albach estate. Robert E. Albach died January 22, 2002, leaving
his entire estate to his wife Lucille and appointing her executor in his
will. Lucille died in 2004, shortly after selling the property of the estate
and relocating to Arizona. Marks claims he has closed the estate.
However, he admitted he closed the estate only after receiving the
complaint that was filed in this case. Additionally, he was unable to
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provide any evidence indicating the estate had been closed. Explaining
the delay in closing the estate, Marks stated he could not locate the
contingent beneficiaries listed in the will after the death of Albach’s wife
Lucille, the executor and primary beneficiary. Further, Marks explained
that the file on this matter was lost for a while. He also admitted he did
not keep any time records for the Albach estate.
The evidence establishes Marks committed professional neglect on
the Rumley estate and the Albach estate. Marks failed to close the
estates in a timely fashion. His neglect delayed the administration of
both estates, and it is possible that beneficiaries were prejudiced by
Marks’ neglect. “Such action constitutes not only a disservice to the
client, but is also conduct prejudicial to the administration of justice and
conduct that reflects adversely on the fitness to practice law.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502 (Iowa
2008). Marks’ conduct violated DR 1–102(A)(5) (a lawyer shall not engage
in conduct that is prejudicial to the administration of justice); DR 1–
102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on
the fitness to practice law); and DR 6–101(A)(3) (a lawyer shall not
neglect a client’s legal matter).
B. Failure to Cooperate with Disciplinary Process. Marks did
not file an answer to the Board’s complaint within twenty days as
required by Iowa Court Rule 34.6(4). It took Marks three months to
answer the complaint and nearly four months to file answers to the
interrogatories. His only defense was that he felt he could close the
estates if he had more time. We expect and demand attorneys to
cooperate with disciplinary investigations. Honken, 688 N.W.2d at 821.
A failure to do so is an independent act of misconduct. Comm. on Prof’l
Ethics & Conduct v. Pracht, 505 N.W.2d 196, 199 (Iowa 1993). Marks’
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failure to respond to the Board’s complaint in a timely fashion violates
DR 1–102(A)(5) (a lawyer shall not engage in conduct that is prejudicial
to the administration of justice) and DR 1–102(A)(6) (a lawyer shall not
engage in conduct that adversely reflects on the fitness to practice law).
The Commission recommended Marks’ license be suspended with
no possibility of reinstatement for ninety days and then only reinstated
with additional medical certification and if Marks is able to demonstrate
he is fit to practice law. Further, the Commission recommended Marks
be restricted from practicing in the area of probate law until he can
demonstrate proficiency in that area.
IV. Misconduct and Sanction.
We agree with the Commission’s findings and conclusion that
Marks neglected two estate matters and failed to cooperate with the
Board. We must now determine the appropriate sanction. We consider
“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.”
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Fleming, 602 N.W.2d
340, 342 (Iowa 1999). We also consider both aggravating and mitigating
circumstances. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth,
656 N.W.2d 93, 99 (Iowa 2002). Ultimately, the form and extent of a
disciplinary sanction “must be tailored to the specific facts and
circumstances of each individual case.” Comm. on Prof’l Ethics &
Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa 1981). “Often, the
distinction between the punishment imposed depends upon the existence
of multiple instances of neglect, past disciplinary problems, and other
companion violations.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Lesyshen, 712 N.W.2d 101, 104 (Iowa 2006).
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In the present case, Marks neglected two probate matters and
failed to cooperate with the Board’s investigation. Our review of prior
cases reveals the discipline imposed for neglect typically “ranges from a
public reprimand to a six-month suspension.” Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655–56 (Iowa
2001). In those cases warranting more serious discipline, additional
violations or other aggravating circumstances were present, or the
neglect resulted in more serious harm to clients. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Adams, 749 N.W.2d 666 (Iowa 2008) (neglect
resulting in prejudice to client, misrepresentation, and failure to respond
warranted four-month suspension); Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Daggett, 653 N.W.2d 377 (Iowa 2002) (neglect, misrepresentation
to the court, and failing to respond to the complaint warranted sixty-day
suspension); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Plumb,
589 N.W.2d 746, 749 (Iowa 1999) (neglect of two client matters, failure to
return clients’ property, failure to deposit funds in trust account, and
prior public reprimands warranted two-month suspension). In this case,
there is no evidence that Marks’ neglect resulted in harm to his clients or
the beneficiaries of the estates.
Nonetheless, there are aggravating circumstances. Past
disciplinary action bears upon an attorney’s character and is considered
an aggravating factor. Comm. on Prof’l Ethics & Conduct v. Wenger, 469
N.W.2d 678, 680 (Iowa 1991). Marks had been publicly reprimanded in
2007, and his license was temporarily suspended for failure to cooperate
with the Board in 2006. The fact the Board has publicly reprimanded
and sanctioned Marks previously indicates his neglect is not isolated in
nature. Further, multiple incidents of neglect are another aggravating
factor. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d
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694, 703 (Iowa 2008). In this case, Marks neglected two separate legal
matters.
On the other hand, Marks’ depression is a mitigating factor.
Personal illnesses, such as depression, do not excuse a lawyer’s
misconduct but can be mitigating factors and influence our approach to
discipline. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Frerichs, 718
N.W.2d 763, 768 (Iowa 2006). Marks is currently undergoing treatment
for depression and believes it can be controlled with medication.
Considering all the relevant facts and circumstances, we decline to
impose the Commission’s recommended sanction of ninety days. We
suspend Marks’ license to practice law in Iowa for thirty days. We
believe a thirty-day suspension would be more appropriate. Although it
is unlikely we would suspend Marks’ license for these instances of
neglect alone, Marks’ pattern of refusing to cooperate with the Board’s
investigations tips the scale in favor of a short suspension. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 382 (Iowa
2005) (“We think the pervasiveness of the misconduct in the present case
and the prejudicial impact it has on the bar and the criminal justice
system call for a longer period of suspension than . . . ordered in
most . . . cases.”).
We also decline to follow the Commission’s suggestion that Marks
be restricted from practicing law in the area of probate. His problems
were caused by neglect, not incompetence. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 819 (Iowa 2007) (where
attorney’s problems were caused by depression and neglect not
incompetence, imposition of supervision would accomplish no useful
purpose). However, we do agree that Marks should be required to
present additional medical certification before his license is reinstated.
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See id. at 820 (submitting medical certification as a prerequisite to
automatic reinstatement where attorney’s depression contributed to
neglect). Within fifteen days of this suspension, Marks must provide the
court with an evaluation from a licensed health care professional
verifying his fitness to practice law. Subject to this condition and in the
absence of an objection by the Board, Marks’ license will be
automatically reinstated as provided in Iowa Court Rule 35.12(2).
We also issue Marks a stern warning. He is teetering on the brink
of disaster. Although he is fit to practice law, he has fallen into a pattern
of neglect and non-cooperation these past few years. If he does not
remedy this behavior, he will receive a harsher sanction next time he
appears before us. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Beckman, 674 N.W.2d 129 (Iowa 2004). Although we are sympathetic to
the struggles Marks has endured with depression, his past conduct and
record as a whole indicates he lacks diligence and professionalism.
VI. Conclusion.
We suspend Marks’ license to practice law in the State of Iowa for
thirty days. Within fifteen days of this suspension, Marks must provide
the court with an evaluation from a licensed health care professional
verifying his fitness to practice law. Subject to this condition and in the
absence of an objection by the Board, we shall reinstate Marks’ license to
practice law on the day after the thirty-day suspension period expires.
See Iowa Ct. R. 35.12(2).
LICENSE SUSPENDED.