IN THE SUPREME COURT OF IOWA
No. 18–0319
Filed March 22, 2019
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
ERIC KENYATTA PARRISH,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
On review of a grievance commission report recommending
revocation of the respondent’s license to practice law in this state.
LICENSE SUSPENDED.
Tara van Brederode and Elizabeth E. Quinlan, for complainant.
Eric K. Parrish, Ankeny, pro se.
2
APPEL, Justice.
In this matter, the Iowa Supreme Court Attorney Disciplinary Board
brought a series of charges against attorney Eric Parrish related to his
handling of a payment made by a client that the Board alleged was for the
specific purpose of paying the cost of preparing a transcript on appeal.
The Iowa Supreme Court Grievance Commission found that Parrish failed
to use the funds to pay for the transcript as instructed by his client and,
instead, converted the funds for his own use. The commission
recommended revocation of Parrish’s license. For the reasons stated
below, we agree with the commission that Parrish violated ethical rules
and suspend his license.
I. Factual and Procedural Background.
A. Disciplinary History. Eric Parrish is a licensed Iowa attorney.
He was admitted to practice in 1999. Parrish received ten private
admonitions between 2001 and 2013. On three occasions, the private
admonitions related to Parrish’s failure to provide his clients with
itemization of services following his receipt of retainers. On three other
occasions, he was privately admonished for neglect when his failure to pay
filing fees or take other action caused dismissal of proceedings. On two
occasions, he received private admonitions for withdrawing retained funds
in excess of fees earned from his trust account. On another occasion, he
allowed trust funds in a settled case to fall below the amount of a lien on
the settlement funds, thereby failing to protect the rights of a third party
to funds in his possession. He was also admonished for neglect in failing
to notify clients of an adverse court decision and to inquire as to whether
they wished to appeal. Although private admonitions are not discipline,
they put a lawyer on notice of deficiencies regarding ethical requirements.
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Said, 869 N.W.2d 185, 194 (Iowa
2015).
In 2011, Parrish’s license was suspended for sixty days as a result
of misconduct related to trust account violations and mishandling of fees.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 583
(Iowa 2011). Specifically, Parrish withdrew funds from trust accounts
before they were actually earned, failed to appropriately account for earned
fees, and failed to return the unearned portion of the fees in violation of
Iowa Rules of Professional Conduct 32.1.5(a) (prohibiting unreasonable
fees), 32.1.15(c) (permitting withdrawal of fees only as they have been
earned), 32:1.15(d) (requiring notice to clients after receiving funds and a
prompt return of client funds), 32:1.15(f) (incorporating chapter 45 of the
Iowa Court Rules, including requirements associated with a
contemporaneous written accounting to client), and 32:1.16(d) (requiring
return of unearned payments upon termination of representation). Id. at
585–88. In addition to violations of our ethical rules, we also found
violations of parallel court rules. Id.
After his suspension, Parrish received a public reprimand in 2012
for failing to provide contemporaneous billings to clients, including
contemporaneous notices when funds were withdrawn, and for delaying
the return of unearned fees in violation of ethical rules 32:1.15(d) and
32:1.16(d) and Iowa Court Rule 45.7(4). He was further reprimanded for
violating rule 32:1.3 (requiring reasonable diligence) for failing to attend a
hearing. Also in 2012, he received a second public reprimand for failing
to respond to a demand for information from our disciplinary authorities.
B. Nature of Complaint. On September 19, 2016, Taylor Ware
filed a complaint with the Board regarding Parrish’s conduct. Ware hired
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Parrish to represent her in a child custody matter. After an adverse ruling
from the district court, she agreed with Parrish to take an appeal.
Ware stated Parrish informed her that in order to appeal she would
need to pay $2500 for a transcript. Although Ware had just lost her job,
she claimed she arranged to pay for the transcript by asking for support
from family and friends. Ware averred, “Eric [Parrish] assured me that he
had filed the appeal, was writing a brief, and that as soon as I paid him for
the transcripts, he would get them from the [court] reporter.”
Although Ware stated she gave Parrish a check for $2467.50 to pay
for transcripts—the exact amount billed by the court reporter—the
transcripts were never obtained. Sometime later, Ware learned through
another attorney that Parrish had not paid for the transcript and that her
appeal had been dismissed. According to Ware, “I gave Mr. Parrish a check
for $2467.50 for transcripts that were never purchased from the court
reporter, and was promised an appeal that was filed, but dismissed.”
The Board filed its revised amended complaint on October 13, 2017.
According to the complaint, Ware hired Parrish to represent her in a
custody modification matter. After the district court awarded primary
custody to the child’s father on March 23, 2016, Parrish recommended an
appeal but told Ware that she would have to advance approximately $2500
to pay for the cost of the trial transcript. The Board alleged that Parrish
filed a notice of appeal on April 21, 2016.
The Board further noted that on April 28, Ware wrote Parrish a
check for $2467.50 with the notation “Transcript Fees” on the memo line.
The Board asserted the specific purpose of the check was to pay the
transcript fees. That same day, the Board alleged, Parrish filed the
combined certificate in the appeal with this court.
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The Board asserted, however, that Parrish converted the $2467.50
received from Ware for his own personal use without a colorable future
claim in violation of Iowa Code section 714.1(2) (2016) (prohibiting
misappropriation of property held in trust) and section 714.2(2)
(prohibiting theft of property valued in excess of $1000 but not exceeding
$10,000). The Board further alleged that Parrish falsely told this court in
filings on June 17 and July 1 that Ware had not been able to pay the cost
of the transcript and needed additional time.
The Board noted that this court dismissed Ware’s appeal on August
1. The Board alleged that Parrish did not tell Ware about the dismissal.
The Board further asserted that upon dismissal, Parrish had an obligation
to return the $2467.50 to Ware.
The Board claimed Parrish’s actions violated five of our ethical rules.
Specifically, the Board alleged that Parrish violated Iowa Rules of
Professional Conduct 32:1.15(d) (requiring prompt delivery and
accounting of client funds), 32:3.3(a)(1) (prohibiting knowing false
statements to a tribunal), 32:8.4(b) (prohibiting criminal acts reflecting
adversely on honesty, trustworthiness, or fitness), 32:8.4(c) (prohibiting
conduct involving dishonesty, fraud, deceit, or misrepresentation), and
32:8.4(d) (prohibiting conduct prejudicial to the administration of justice).
On October 25, 2017, Parrish filed an answer to the Board’s revised
amended complaint. Parrish denied that Ware’s April 28, 2016 check for
$2467.50 was for the specific purpose of paying the transcript fee. Among
other things, Parrish affirmatively alleged that “Ware wrote ‘Transcript,’
‘Fees’ on the memo line of the check.” He further affirmatively alleged that
under the terms of his agreement with Ware, he earned his fee upon receipt
and, as a result, he had no obligation to hold the money received from
Ware on April 28 in trust. Parrish denied that he committed any of the
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ethical violations alleged in the Board’s revised amended complaint.
Parrish also filed a notice pursuant to Iowa Court Rule 36.8(1) and (2),
asserting that he had a colorable future claim of right for the funds.
C. Proceedings Before the Commission.
1. Evidence presented at hearing. The commission held a hearing
on the matter on November 13 and 14, 2017. The commission heard
testimony from Ware and Parrish. It also received a variety of exhibits
from the Board showing Parrish’s prior admonitions and discipline,
communications between Ware and Parrish, and filings made by Parrish
in this court related to the appeal of the child custody matter. Parrish
offered exhibits showing his communications with Ware and documents
related to his medical condition.
2. Commission ruling. The commission found that Parrish and Ware
entered into a $5000 flat fee agreement for representation in the custody
modification trial and a $2500 flat fee agreement for representation in the
appeal. The commission found that after the notice of appeal was filed on
April 21, 2016, Parrish was notified by the court reporter that the exact
cost of the transcript would be $2467.50. Parrish forwarded the figure to
Ware.
The commission found that on April 27, Ware texted Parrish that
she was able to pay the money for the transcript because of help provided
from her grandmother as a result of the grandmother’s income tax refund.
The next day, Ware wrote a check payable to the Polk County Courthouse
but texted Parrish to confirm the appropriateness of the payee on the
check. The commission found that Parrish responded by informing Ware
to make the check payable to him because the court reporter issued the
billing statement in Parrish’s name. Ware then issued a new check
payable to Parrish in the amount of $2467.50 and wrote on the memo line
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of the check “Transcript Fees.” According to the commission, Ware
understood that the amount would be placed in Parrish’s trust account
and that Parrish would use the funds to pay the court reporter.
According to the commission, Parrish did not put the funds in his
trust account and did not pay the court reporter. As a result, no transcript
was prepared. Nonetheless, the commission found that Parrish filed a
combined certificate with this court certifying that he did “order” the
transcript and that “[n]o arrangements have been made or suggested to
delay the preparation thereof.” The commission noted that Parrish knew
that before commencing preparation of the transcript, the court reporter
required the transcript fee be paid in full. The commission further found
that on June 17 and July 1, Parrish advised the court that Ware had been
unable to raise the necessary funds but that he expected Ware to have the
necessary funds in fourteen days or by the end of the week. Ultimately,
the commission noted that the appeal was dismissed by this court on
August 1.
The commission found that Parrish did not notify Ware of the
pleadings or orders concerning the status of the appeal, including the
dismissal of the appeal. Further, the commission found that Parrish did
not reimburse Ware in the amount of $2467.50.
The commission considered and rejected Parrish’s contention that
the $2467.50 was a payment in full of his $2500 flat fee for handling the
appeal. The commission noted that the check referenced “Transcript
Fees,” and was written for the precise amount of the cost of the transcript.
Further, the commission noted that texts prior to April 28 expressly
referred to the need for funds for the transcript while the texts after April
28 do not mention transcript costs but only attorney fees. Finally, to the
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extent there was a conflict in testimony, the commission found Ware
credible.
The commission also addressed Parrish’s attempt to explain his
actions by suggesting that he used a fee structure devised to reduce the
possibility of trust account violations. The commission found that the fee
structure had no bearing on the proceeding, as the $2467.50 payment to
Parrish was specifically intended for transcript costs and not for Parrish’s
attorney fees.
In light of its factual findings, the commission found numerous
ethical violations. The commission found violations of Iowa Rules of
Professional Conduct 32:8(4)(b) and 32:8(4)(c). The commission found that
Parrish had no colorable future claim for funds given to him for a
particular purpose other than attorney fees. As a result, according to the
commission, a severe sanction is appropriate. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 500–01 (Iowa 2017).
The commission recognized that in order to find a violation of rule
32:8(4)(c), there must be a finding of scienter rather than mere negligence.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Haskovec, 869 N.W.2d 554,
560 (Iowa 2015). The commission concluded that Parrish knew the check
from Ware was for the specific purpose of paying the transcript fee, not for
his legal representation. The commission further reasoned that Parrish
converted the funds for his own personal use when he failed to pay for the
transcript and lied to Ware and to this court regarding payment status of
the transcript. As a result, the commission found that Parrish committed
theft by misappropriation in violation of Iowa Code sections 714.1(2) and
714.2(2) when he converted the $2467.50 for his own personal use.
The commission recognized that when an attorney misappropriates
funds to which he did not have a colorable claim, it is unnecessary to
9
discuss the other rule violations in detail or consider aggravating or
mitigating factors. Guthrie, 901 N.W.2d at 500. Nonetheless, the
commission briefly considered other ethical violations. The commission
concluded Parrish violated rules 32:1.15(d), 32:3.3(a)(1), and 32:8.4(d).
The commission also catalogued mitigating and aggravating factors.
As mitigating factors, the commission rejected the notion that Parrish’s
mental health status mitigated accountability for his actions. The
commission noted Parrish testified that his mental health issues were “well
controlled.”
On the other hand, the commission found a number of aggravating
factors. The aggravating factors found by the commission included
Parrish’s multiple violations of ethical rules; his history of private
admonitions, public reprimands, and prior suspension; his prior discipline
for similar misconduct; his substantial experience in the practice of law;
his refusal to show remorse or admit wrongful conduct; and his
uncooperative course of conduct throughout the disciplinary proceedings.
The commission recommended revocation of Parrish’s license to
practice law. It also recommended Parrish reimburse $2467.50 to Ware.
D. Preliminary Appellate Proceedings. Parrish filed a notice of
appeal. He sought to remand the case to expand the record regarding
mitigating factors. This court denied the remand. Parrish also filed a
motion with this court to answer what he characterized as a “certified
question”; namely, whether a formal retirement under Iowa Rule of
Professional Conduct 39.7(2) would impact the current appeal and
disciplinary action in this case. We ordered the parties to address the
matter in their briefs on the merits.
Parrish, however, failed to file a timely brief even though we
extended the deadline for briefing. We ordered the matter submitted to
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the court without briefing pursuant to Iowa Court Rule 36.21. Under rule
36.21, the parties may file statements in support or opposition to the
sanction recommended by the commission. Neither party filed a sanctions
statement.
We have found no provision in our disciplinary rules for this court
to answer “certified questions” posed by an attorney related to pending
disciplinary proceedings. 1 In any event, a lawyer may not avoid the
disciplinary process involving a potential revocation of the lawyer’s license
through a strategy of voluntary retirement. See Iowa R. Prof’l Conduct
34.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelsen, 807 N.W.2d
259, 265 (Iowa 2011).
II. Standard of Review.
In cases submitted pursuant to Iowa Court Rule 36.21, our review
is de novo. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809
N.W.2d 96, 101 (Iowa 2012). In our de novo review, we give respectful
consideration to the grievance commission’s findings but are not bound by
them. Id. In proceedings under our ethical rules, “[t]he Board must prove
attorney misconduct by a convincing preponderance of the evidence, a
burden greater than a preponderance of the evidence but less than proof
beyond a reasonable doubt.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Weiland, 862 N.W.2d 627, 634–35 (Iowa 2015). The burden of proof is less
than the clear and convincing evidence standard that is ordinarily the
highest burden of proof in a civil proceeding. See Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996) (per
curiam).
1Parrish cites a nonexistent Iowa Code chapter 645A. He may have intended to
cite Iowa Code chapter 684A, which authorizes the supreme court to answer certified
questions presented to it from various courts.
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In proceedings under Iowa Rule of Professional Conduct 36.21, we
review only the commission’s report and the record made before the
commission. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Mathahs, 918
N.W.2d 487, 492 (Iowa 2018). Although the parties are entitled to file a
statement in support or opposition to the commission’s recommended
sanction, see id., neither party filed a sanctions statement in this matter.
III. Discussion.
A. Legal Framework.
1. The distinction between misappropriation of client funds and
violation of trust regulations under future claim of right. Before we analyze
the individual charges brought by the Board, we present an overview of
relevant caselaw. In particular, we note that the caselaw establishes that
there is a question whether a colorable future claim in funds provides a
potential defense for alleged misappropriation or conversion of client funds
entrusted to an attorney for a particular purpose.
At the outset, we note that in cases involving misappropriation of
client funds, we generally impose the severe sanction of revocation.
Guthrie, 901 N.W.2d at 500–01 (“[I]n nearly every case where an attorney
converts client funds without a colorable future claim, we revoke the
attorney’s license to practice law.”); Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Thomas, 844 N.W.2d 111, 117 (Iowa 2014) (“The amount of money an
attorney converts does not lessen the sanction.”); Comm. on Prof’l Ethics &
Conduct v. Ottesen, 525 N.W.2d 865, 866 (Iowa 1994) (“There is no place
in our profession for lawyers who convert funds entrusted to them. It is
almost axiomatic that we revoke licenses of lawyers who do so.”).
On the other hand, the failure to follow the rules governing retainer
fees normally results in a less severe sanction. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Cepican, 861 N.W.2d 841, 844 (Iowa 2015). For
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example, a lawyer who has earned a fee but has taken it without the
necessary court approval may have his license suspended for trust
account violations but not revoked for stealing. Comm. on Prof’l Ethics &
Conduct v. Rauch, 486 N.W.2d 39, 40 (Iowa 1992) (per curiam). In addition
to cases in which fees were taken without required approval, the doctrine
of future colorable claim has been extended to situations in which an
attorney paid his fees from client funds before they were earned. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 97 (Iowa
2006).
The critical difference between whether a lawyer has committed
theft, thereby inviting license revocation, or merely violated trust account
requirements that may result in a lesser sanction, often depends upon
whether the attorney had a colorable future claim to the funds. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Carter, 847 N.W.2d 228, 232 (Iowa
2014). While the Board has the burden of showing that a misappropriation
of funds occurred, the attorney has the burden of providing evidence of a
colorable future claim to the funds. Cepican, 861 N.W.2d at 844.
In Carter, we engaged in analysis of the colorable future claim
doctrine. Carter, 847 N.W.2d at 233–34. After surveying the cases, we
observed that the colorable future claim doctrine “broadly applies to the
premature conversion of client funds intended as attorney fees, as opposed
to the conversion of client funds with no future claim of right to the funds.”
Id. at 233 (emphasis added). The Carter court further noted that we have
generally been more willing to allow the colorable future claim doctrine to
shield an attorney from revocation when the premature fee claims exceed
the actual fee earned “if the funds converted were retainer funds.” Id. at
233–34. We observed that because the purpose of retainer funds is to pay
future attorney fees, “the conversion of retainer funds by an attorney can
13
be consistent with a claim that the funds were intended to be earned as
fees.” Id. at 234. In refusing to recognize a future claim of right in trust
funds in one matter, the Carter court noted that the lawyer converted
funds from a trust account that were not held as a retainer or an advance
fee. Id. at 234. The Carter court additionally noted that the lawyer
converted the funds in a fashion inconsistent with an intent to take the
funds as estate fees. Id.
2. Disciplinary cases involving taking of fees held for a specific
purpose. In Committee on Professional Ethics & Conduct v. Nadler, 445
N.W.2d 358, 361 (Iowa 1989), we considered a case in which a client
forwarded $500 to an attorney to settle a matter. Upon receiving the
funds, the attorney asked for payment of outstanding fees, but no money
for that purpose was forthcoming. Id. The attorney retained the $500
intended to settle the claim as an attorney fee. Id. In support of his action,
the attorney relied upon Iowa Code section 602.10116(2) (1987), which
provided that “[a]n attorney has a lien for a general balance of
compensation upon . . . [m]oney in the attorney’s hands belonging to the
client.” Id. (alteration in original).
In Nadler, we declared it “unthinkable that a lawyer would satisfy a
fee bill out of funds entrusted by a client for the express purpose of settling
a lawsuit.” Id. We noted that the general rule is that “[p]roperty or funds
delivered for a special purpose by a client to his attorney cannot constitute
the subject matter of a retaining lien in favor of such attorney.” Id.
(alteration in original) (quoting 7A C.J.S. Attorney & Client § 377, at 745
(1980)). We held that “[b]y keeping his client’s money instead of applying
it to the purpose for which he received it, [the lawyer] clearly failed to seek
the lawful objectives of his client and prejudiced his client’s cause” in
violation of our disciplinary rules. Id. We suspended the lawyer’s license
14
indefinitely with no possibility of reinstatement for one year. Id. at 362.
The Nadler case did not involve an allegation of theft or misappropriation
of client funds.
Another case of interest is Iowa Supreme Court Attorney Disciplinary
Board v. Powell, 830 N.W.2d 355 (Iowa 2013). In Powell, the attorney was
charged with violating Iowa Rule of Professional Conduct 32:1.15 for
failing to segregate trust funds into a separate account, Iowa Court Rule
45.1 for failing to deposit client funds into the trust account, rule 45.2(2)
for failing to maintain complete trust account records and make full
accountings, and rule 45.7 for failing to notify clients of the withdrawal of
advanced funds. Id. at 356–57.
In Powell, one of the specific trust fund violations arose from Powell’s
use of “client funds placed in his trust account for the purpose of paying
a property settlement and the attorney fees of opposing counsel pursuant
to a stipulated decree for dissolution of marriage to pay his own attorney
fees.” Id. at 357. We generally concluded that “the evidence failed to
support a finding that Powell had no colorable claim to the funds he
removed from his trust account or failed to place in his trust account.” Id.
at 358. This language in Powell suggests a claim of right is a mitigating
factor in trust account violations. See id. Notably, however, the board did
not charge Powell with a violation of Iowa Rule of Professional Conduct
32:8.4(b) or (c). See id. at 356.
In Iowa Supreme Court Attorney Disciplinary Board v. Morse, 887
N.W.2d 131, 133 (Iowa 2016), we considered a case in which a lawyer
obtained funds from clients for the specific purpose of paying for a
transcript but the lawyer failed to forward the funds to the reporter, and
as a result, the appeal was dismissed. In Morse, the lawyer deposited
$1400 forwarded to him to pay for a transcript into his trust account. Id.
15
at 136. Another check from the same client of $500 to pay for attorney
fees was returned for insufficient funds. Id. The lawyer asserted that he
did not pay the court reporter from his trust account for fear that the
$1400 check would also be returned. Id.
Ultimately, the clients’ appeal in Morse was dismissed for failure to
make arrangements to provide a transcript. Id. at 137. After the appeal
was dismissed, the lawyer applied the $1400 against the balance of
attorney fees owed by the client. Id. The board charged that by so doing,
the lawyer violated a number of our disciplinary rules, including rules
32:1.15(d), 32:1.15(e), 32:1.3, and 34:8.4(d). Id. at 138. The commission
found violation of all of these ethical rules, id., and so did we, id. at 139–
43.
In Morse, we emphasized that when an attorney receives funds for a
specific purpose, this understanding supersedes any claim or attorney lien
the attorney may have in the funds. Id. at 139. We noted in Morse that
Nadler established that “an attorney cannot allow a fee claim to conflict
with the lawyer’s obligation as trustee.” Id. (alteration omitted) (quoting
Nadler, 445 N.W.2d at 361). As a result, in Morse, we found a violation of
rule 32:1.15(d) that, among other things, required a lawyer to promptly
deliver funds to third parties (the court reporter) that the third party is
entitled to receive. Id. at 139–40 In addition, we also found that Morse
violated rules 32:1.15(e), 32:1.3, and 32:8.4(d). Id. at 140–43.
In determining the appropriate sanction, we considered whether the
attorney has a colorable claim to fees. Id. at 146. We noted that in a prior
case, we found an attorney who prematurely withdrew a probate fee “had
a colorable claim to these fees, once the estate was closed.” Id. (quoting
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 62 (Iowa
2009)). We noted in Morse that the attorney had a colorable present claim
16
to the funds because his earned fees exceeded the amount of client funds
taken by the attorney. Id.
3. Requirement of scienter. Under our caselaw, the Board must
establish some level of scienter beyond mere negligence to establish a
misappropriation or theft of a client’s funds under rule 32:8.4(c). Iowa
Supreme Ct. Att’y Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 462
(Iowa 2014). Scienter generally “requires that the attorney acted
knowingly, intentionally, or with the aim to mislead.” Guthrie, 901 N.W.2d
at 498. Nonetheless, an attorney’s “casual, reckless disregard for the
truth” also establishes a violation of the rule. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Clarity, 838 N.W.2d 648, 656 (Iowa 2013) (quoting Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Isaacson, 750 N.W.2d 104, 109 (Iowa
2008)).
In considering scienter, it is immaterial that an attorney has not
been charged with a crime. Thomas, 844 N.W.2d at 116; Comm. on Prof’l
Ethics & Conduct v. Hall, 463 N.W.2d 30, 35 (Iowa 1990). The standard of
proof in a disciplinary proceeding is lower than in a criminal proceeding,
and its purpose is to protect the public and not to punish the lawyer. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Green, 888 N.W.2d 398, 404 (Iowa
2016).
B. Review of Factual Findings of the Commission.
1. Introduction. Based on our de novo review of the record, we agree
with the factual findings of the commission in their entirety. Many of the
factual findings of the commission were undisputed. We address below in
detail only three factual issues that were contested at the hearing before
the commission.
2. Purpose of $2467.50 check. The first factual issue surrounds the
purpose of the $2467.50 check delivered to Parrish by Ware on April 28.
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The Board asserts that Ware paid the funds specifically to pay for
preparation of the transcripts, while Parrish claims that the funds were
given to him to satisfy his requirement of a $2500 retainer to handle the
appeal of the child custody matter.
This factual distinction is consequential. If the funds given to him
on April 28 were a retainer to pay for attorney fees, Parrish could at least
argue that he had a colorable future claim of right in the funds for work to
be done on the appeal, thereby lessening the possibility of receiving harsh
sanctions. Carter, 847 N.W.2d at 233. On the other hand, if the funds
were given to Parrish for a particular purpose, any future claim of right
would be undermined. See id. at 233–34. While a lawyer might be able to
claim that the premature withdrawal of retainer funds was only a question
of timing when there was a future claim of right to the funds, that
argument is more difficult to make when the funds given to the lawyer
have a restricted use that does not include payment of attorney fees. See
id.
We think it abundantly clear that Ware advanced the $2467.50 for
the specific purpose of paying for the transcript for her appeal in the
custody matter. Ware’s testimony was firm and consistent on this point.
Further, it is striking that the check was made out in the exact amount to
the penny requested by the court reporter and Ware specifically wrote
“Transcript Fees” on the memo line of the check. Moreover, Ware’s
understanding of the urgency of obtaining transcript funds is reflected by
Ware’s successful effort to convince her grandmother to advance to Ware
money from her income tax refund to pay for it.
If that is not enough, contemporaneous text traffic between Ware
and Parrish forecloses us from coming to any other conclusion. For
example, Parrish advised Ware on April 20 that he would get back to her
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“on the exact cost once [he] hear[d] back from the court reporter.” The
next day, Ware asked Parrish how long she had to come up with “the
transcript fee.” Parrish responded that they had seven days from the
notice for the combined certificate because in the combined certificate he
had to certify ordering the transcript and making arrangements to pay for
it. Ware thus knew that she needed to raise the necessary funds for the
transcript quickly in order to prosecute her appeal.
On April 27, Ware texted Parrish, “We’ve got the money for the
transcripts.” After asking about the rest of the outstanding balance, an
apparent reference to attorney fees, Parrish asked Ware, “How do you want
to take care of the transcripts? Do you want to pay the court reporter
directly or go through me?” Having told Parrish she had the money to pay
for the transcript, Ware responded to Parrish that she was still working on
the outstanding balance and that she and Parrish had an agreement that
she would make payments. Parrish responded by stating, “And there is
an additional price for the appeal [I am] writing.” Ware texted she
understood and was working on that as well.
Later in the afternoon of April 27, Parrish texted Ware, “Going to
take care of transcripts? Do you want to give me the money and I pay for
them?” In response, Ware stated, “I’ll give you a check for it tomorrow.”
When Ware asks about whether she and Parrish had to meet “there” to
make the payment, Parrish responded, “Just give me the check and I’ll get
it to her.”
Parrish and Ware arranged to meet the next day at a coffeehouse.
Ware originally made out the check to the Polk County Court. When she
asked Parrish in a text if that was correct, Parrish told her, “No, I’ll put the
payment in my trust account because I am the one who has to pay as the
bill is directed to me.”
19
Ware and Parrish met at the coffeehouse the following day on
April 28. Ware gave Parrish a check in the amount of $2467.50 with the
phrase “Transcript fees” written in the memo line of the check. 2
After April 28, Parrish sent Ware a series of texts asking for payment.
On May 6, Parrish texted Ware, stating, “Some payment needs to be made
today. Appeal is progressing.” On May 24, Parrish sent another text,
stating, “I need to have payment on your outstanding balance. Thx.”
On May 26, Parrish texted, “Extremely helpful if you could get a
payment in on your account today. I’m trying to get out of town to my
sons graduation. There’s no one you can borrow money from?” Later in
the day, Parrish sent to Ware a recap of account balances, “Modification:
$1,000 Appeal: $2500.” On June 20, Parrish sent Ware a text, stating, “I
need a payment today. $800 balance on one. $2500 balance on the other.”
The May 26 and June 20 texts demonstrate beyond question that
Parrish understood the $2467.50 paid by Ware was for the purpose of
paying for the transcript and not for satisfying his $2500 flat fee for the
appeal or the outstanding balance on fees owed for the modification action
in district court. If the April 28 check had applied against outstanding
balances, there would not be a $2500 balance owed on the appeal and an
$800 balance on modification fees.
Further, in contrast to the period prior to April 28, i.e., before Ware
presented her $2467.50 check, Parrish did not demand payment of the
transcript fees after April 28. When this court entered an order on June 9
declaring that Ware must pay the court reporter for the transcript within
seven days or face dismissal, Parrish did not communicate the substance
of the order to Ware. Instead, on June 10, he texted her, stating, “There
2The texts prior to April 28 occasionally mention payment of the appeal filing fee
of $150. After April 28, however, there is no further mention of the filing fee.
20
needs to be a concerted effort to get the remainder of balance for trial and
appeal in the next five (5) days.” In this text, Parrish is seeking to collect
attorney fees, not funds to pay the court reporter for the transcript of the
modification proceeding. He does not mention the need to pay the court
reporter for transcripts. Nor does he tell Ware that her appeal could be
dismissed at this point for failure to pay for the transcript. And, on
June 14, Parrish texted Ware, “I’m not trying to come down on you at all.
Accounting just gets on me about carrying high balances on flat fees.”
Plainly, Parrish was afraid of telling Ware that her case was about to be
dismissed for failure to pay the court reporter.
Similarly, when this court entered an order on July 12 extending the
time for paying the court reporter for seven days but noting that dismissal
would occur if Ware failed to pay the court reporter, Parrish again did not
advise his client of the status of the appeal. He was silent. Then, when
the appeal was dismissed on August 1, there was no communication with
the client advising her of that fact or of the basis for the dismissal.
Parrish’s refusal to inform Ware of the substance of the July 12 order
supports the notion that Parrish knew that Ware believed the purpose of
the April 28 check for $2467.50 was to pay for the transcript.
Other aspects of Parrish’s testimony regarding the purpose of the
$2467.50 check are simply incredible. Parrish stated that at the April 28
coffeehouse meeting, despite his own acknowledgment that “[Ware] tried
to give [him] one check for the transcript,” he and Ware agreed that the
funds would be applied against outstanding fees rather than used to
obtain the transcript. In support, he asserts that he instructed Ware that
she “need[ed] to write ‘fee’ ” on the memo line of the check. By changing
the memo from “Transcript” to “Transcript fees,” he contends, he had no
21
obligation to use the funds to pay for the transcript but was entitled to use
the funds to pay for his flat fee on appeal.
We find the notion that Ware added the word “fee” to the memo on
the check to allow Parrish to apply the funds to account balances is
unsupported by the record. Ware, of course, denies that such a
modification of the memo on the check took place. Further, if using the
funds for something other than transcript fees was agreed to by the
parties, another check would have been written without the “Transcript
fees” memo or at least the memo on the check would have been crossed
out or obliterated in some way. We simply do not believe Parrish would
have thought that he would be entitled to apply the funds to outstanding
fee balances by instructing Ware to change the memo on the check from
“Transcript” to “Transcript fees.”
In sum, we conclude the Board proved by a convincing
preponderance of the evidence that the purpose of the $2467.50 payment
was to pay for transcript fees and not, as Parrish contended, to pay for
attorney fees. Further, the undisputed facts show that Parrish did not
place the funds in his trust account and did not use them to pay for the
transcript. He simply cashed the check.
3. Nature of underlying fee agreements: flat fee or general retainer.
The parties disputed the nature of the underlying fee agreements between
Ware and Parrish. The Board asserted there was no written fee agreement
but that the parties understood that Parrish would charge a traditional
flat fee for his services. Parrish asserted that services were provided to
Ware under a type of general retainer agreement. Parrish offered a blank,
unsigned form bearing the label “General ‘Flat Fee’ Retainer” into evidence.
Under the “General ‘Flat Fee’ Retainer” agreement offered by Parrish,
services are not provided for particular matters but on an as-needed basis
22
over a specified period of time. Fees paid under the general retainer
agreement are earned on receipt. In this case, if Parrish were operating
under a general retainer agreement with Ware, he might be able to claim
that the $2467.50 he received from Ware was immediately earned upon
receipt, thereby establishing a present colorable claim for the funds. See
generally Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Apland, 577
N.W.2d 50, 54 (Iowa 1998) (describing general retainers). Of course, any
such claim would need to overcome our presumption against general
retainers. See id. at 57.
We conclude, based on our examination of the entire record, that
Parrish did not have a general retainer agreement with Ware at any time.
In fact, there was no written agreement between Ware and Parrish. In the
text messages with Ware, Parrish simply referred to the fee arrangement
as a flat fee. The text messages never used the term retainer and made no
mention of a limited term for representation. Ware and Parrish simply
agreed to a flat fee of $5000 for the custody modification trial and, later,
$2500 for the appeal.
The fact that Parrish and Ware did not have a general retainer
relationship is borne out by Parrish’s response to the initial inquiries from
the Board after Ware filed her complaint. In response to the Board’s
investigation of Ware’s complaint, Parrish told the Board on November 14,
2016, that he and Ware had agreed “on a flat fee of $5,000 for
representation at her modification trial” and “a $2500 flat fee should an
appeal become necessary.” He made no mention at all of a general retainer
agreement. Further, Parrish attached a copy of his standard flat fee
agreement in response to the Board’s investigation. The blank form was a
traditional flat fee agreement, not a general retainer agreement.
23
In proceedings before the commission, however, Parrish changed
course, suggesting that he “mistakenly” produced the traditional flat fee
form. Instead, he took the position that his relationship with Ware was
really reflected by the unsigned, uncompleted “General ‘Flat Fee’ Retainer”
agreement that Parrish introduced as part of an exhibit at the hearing.
We find Parrish’s testimony on this point incredible. Ware had a
specific problem; namely, a child custody problem and, later, an appeal.
While Parrish gave advice and took action related to various Iowa
Department of Human Services proceedings, police reports, and a
protective order, all these events were related to the underlying child
custody proceeding. When Parrish demanded an additional $2500 for the
appeal, he characterized the appeal as a “separate matter.” According to
Parrish, there was “an additional price for the appeal [he was] writing.”
Later, Parrish noted that the amounts owed by Ware were “for trial and
appeal.” After the appeal was dismissed, Parrish told Ware that she “never
paid for [her] appeal.” While Parrish claimed during the hearing that it is
much easier for him to say to clients, “It’s not tied to a single matter, . . .
whatever comes up is what I’ll deal with with the clients and for a specific
time period,” there is no support for such an assertion in the
contemporaneous text record in this case.
Parrish submitted an exhibit that included a one page memo dated
March 23, 2016, and a blank, unsigned copy of Parrish’s “General ‘Flat
Fee’ Retainer” attorney fee contract. The one page memo to Ware advised
her that the district court had ruled against her on the modification. The
one page memo begins by stating, “Attached is the Court’s ruling on the
modification.” There is no reference in the one page memo to an attached
attorney fee contract. On April 21, Parrish texted Ware and stated, “I do
want you to realize that taking this appeal is a separate matter from the
24
district court case.” There is no mention, however, in the April 21 text or
in any other text between Ware and Parrish, of the fee contract attached
to Parrish’s exhibit.
Moreover, the blank, unsigned form—carrying the interesting
description “General ‘Flat Fee’ Retainer” advanced by Parrish as governing
the relationship between Parrish and Ware—has a twelve-month term.
Parrish’s representation of Ware began in January. If the term of the
original agreement between Ware and Parrish was a general retainer for a
twelve-month period, there would have been no need for another fee
agreement three months later to cover the appeal after the adverse ruling
of the district court in March. Parrish claimed that the term of the first
$5000 flat fee agreement “was probably, like, three or four months.” Aside
from Parrish’s testimony, the record does not support his assertion that
the original agreement between Parrish and Ware was a general retainer
of limited duration.
In light of the record developed in this case, we simply cannot find
that an uncompleted and unsigned form of questionable provenance
structured the attorney–client relationship between Ware and Parrish.
Although Parrish claims that he provided Ware with the only copy of the
fee agreement for her records and suggests the term of the agreement was
for three or four months, we find it highly unlikely an attorney would not
maintain a file copy of such a written fee agreement if both parties had
signed it. 3
3Ware did testify that she received a fee agreement of some kind from Parrish. She
testified that it was not signed and that they had no discussion about it. She indicated
that the fee agreement was in the exhibits. The fee agreements in the exhibits include
both a blank copy of Parrish’s standard flat fee agreement and a blank copy of Parrish’s
attorney fee contract characterized as a “General ‘Flat Fee’ Retainer.” Ware did not
identify in her testimony which document she received, but she maintained throughout
the proceeding that she agreed to pay Parrish on a flat fee basis. In any event, no signed
copy of any fee contract was introduced into evidence.
25
We conclude that the Board proved by a convincing preponderance
of evidence that the legal services provided by Parrish to Ware were
pursuant to flat fee agreements, $5000 for the trial of the custody matter
and $2500 for the appeal of the case. There were no general retainer
agreements between Ware and Parrish.
4. Scienter. In cases involving alleged violations of rule 32:8.4)(b)
and (c), the Board must prove scienter. See McGinness, 844 N.W.2d at
462. The evidence in this case establishes that Parrish knew that the
$2467.50 given to him by Ware was for the specific purpose of paying for
the transcript. Certainly the memo on Ware’s check and the text traffic
surrounding the payment demonstrate that Parrish knew that the check
was offered for the limited purpose of paying for the preparation of the
transcript.
Further, Parrish knew that he was providing legal services to Ware
through a flat fee agreement of $5000 for the custody modification
proceedings and, later, $2500 for the appeal. He knew that when Ware
delivered the check to him on April 28, he had at most $1100 in earned
fees related to the modification action in district court and no earned fees
in connection with the appeal. After he cashed the April 28 check, he
texted Ware that she still owed him an $800 balance for the custody
modification and $2500 for the appeal. He did not reduce the balance
owing for the appeal by $2500. He knew that the April 28 funds were not
in payment of attorney fees.
Parrish also knew that he did not have a signed general retainer fee
agreement. The contemporaneous text traffic between Ware and Parrish,
as noted above, is totally devoid of any suggestion that his representation
of her was limited in time or was general in nature. Parrish came up with
26
the theory that Ware agreed to the general retainer agreement in order to
buttress his defense to the pending disciplinary proceedings.
We find that the Board has established by a convincing
preponderance of evidence that Parrish had knowledge of the above facts.
C. Analysis of Disciplinary Violations. We first consider whether
Parrish violated rule 32:8.4(b) and (c) by committing a theft of client funds.
We note that Iowa Code section 714.1(2) (2016) provides that a person
commits theft when the person . . . [m]isappropriates property
which the person has in trust . . . by using or disposing of it
in a manner which is inconsistent with or a denial of the trust
or of the owner’s rights in such property.
Based on our review of the record, it is clear that Parrish knew the
funds given to him by Ware on April 28, 2016, were for a limited purpose.
Nonetheless, he cashed the check on the day it was received, did not place
the funds in trust, and did not pay the court reporter for the preparation
of the transcript needed for the appeal. There is no question that by using
the transcript funds for other than their intended purpose, Parrish violated
ethical rules related to proper handling of client funds. In order to
determine whether Parrish violated rule 32:8.4(b) and (c), however, we
must consider whether Parrish has validly asserted a colorable future
claim of right to the funds.
In Morse, which involved $1400 that had been given to an attorney
to cover court reporter fees, we said, “We consider whether the attorney
has a colorable claim to the fees.” Morse, 887 N.W.2d at 146. We noted
that “Morse clearly had a colorable present claim to the $1400—he was
owed more than that in past-due legal fees.” Id. In Morse, however, there
were no allegations of theft or misappropriation under rules 32:8.4(b) and
(c). See id. at 138 (describing the board’s complaint as alleging violations
of rules 32:1.3 (due diligence), 32:1.15(d) and (e) (safekeeping property),
27
and 32:8.4(d) (conduct prejudicial to the administration of justice)).
Nothing in Morse stands for the proposition that in a misappropriation
case a lawyer may assert a future claim of right when a lawyer takes funds
entrusted to him for a specific purpose as a fee.
We think that when a lawyer takes client funds provided for a special
purpose, the future claim of right defense is inapplicable. Our conclusion
is consistent with the reasoning presented in Carter, 847 N.W.2d at 233–
34. In Carter, we noted that when funds are entrusted to a lawyer for the
specific purpose of paying for future fees, a premature taking of those fees
is subject to the defense of a future claim of right. Id.
In this case, Ware did not pay the funds to Parrish as a retainer for
future attorney fees. The funds were provided for the specific purpose of
paying for the transcript and not paying for future fees. The question of
conversion of the funds is not one of mere timing, but of substance. Under
the circumstances, we do not think the future claim of right doctrine is
applicable. There is no future claim of right to use funds provided for a
particular purpose to instead pay for attorney fees a lawyer reasonably
believes will be incurred in the future.
The commission concluded that a future claim of right simply did
not apply when funds are given to an attorney by a client for a particular
purpose. It did not consider whether a lawyer who converts trust funds
for a particular purpose may assert as a defense a present claim of right
for the funds arising from earned fees. The approach of the commission
seems to be that with respect to client funds advanced for a particular
purpose, any personal use of the client funds contrary to the limitations
imposed by the client amounts to a misappropriation or theft. This is a
tenable position in light of the language in Carter emphasizing the purpose
for which the funds are entrusted to the lawyer. Id.
28
In any case, Parrish only had an outstanding earned balance of
$1100 related to his representation of Ware in the custody proceeding in
district court on April 28 when he received the client check for $2467.50.
Even assuming he had a present claim of right for earned fees on April 28,
the funds given him by the client exceed that amount by a substantial
margin. Further, Parrish claimed in the proceedings before the
commission that he applied these fees not against his earned fees arising
from the district court proceeding, but against fees related to the future
appeal.
The problem with Parrish’s theory is that at the time Parrish received
the funds there were literally no earned fees related to the appeal. While
he may have had $1100 in earned fees related to the district court
proceeding at the time he received the transcript fee check from Ware, the
amount of the check retained by Parrish far exceeded that amount.
Parrish sought to avoid his lack of earned fees by claiming he had a general
retainer agreement, and as a result, his fees were earned when he received
them and not when he completed legal work. As indicated above, however,
we have found that Ware and Parrish were not operating under a general
retainer but instead simply had a traditional flat fee agreement.
Under this analysis, Parrish violated rule 32:8.4(b) and (c) by
converting client funds entrusted to him for a specific purpose. Assuming
that he could assert a defense of a colorable present claim of right for his
earned fees, the amount converted, $2467.50, was far in excess of the
unpaid earned fees associated with the custody proceeding in district
court, $1100.
Yet, we are concerned that our prior cases at least suggested that a
future colorable claim of right might prevent a finding of misappropriation
or theft. For example, Iowa Court Rule 36.8(1) requires that in cases
29
involving misappropriated or converted client or third party funds, the
Board must allege misappropriation or conversion “without a colorable
future claim.” Iowa Ct. R. 36.8(1). The rule itself does not distinguish
between retainer funds or limited use funds. In Powell, some of the claims
of mishandling client funds related to limited use payments but we
generally stated that the evidence failed to show a lack of future claim of
right. Powell, 830 N.W.2d at 357–59. In Carter, we stated that “[w]e have
generally been more willing to allow the colorable future claim to continue
to shield an attorney from revocation when the premature fee claim
exceeds the actual fee earned if the funds converted were retainer funds.”
Carter, 847 N.W.2d at 233–34. Yet, in Carter, we did not explicitly and
unequivocally close the door on a colorable future claim of right defense.
In the disciplining process, we believe lawyers are entitled to fair
notice of what might lead to serious discipline, particularly when license
revocation is a potential sanction. See Cepican, 861 N.W.2d at 844.
Because our prior cases suggested but did not clearly and unequivocally
hold that a future colorable claim of right was not a defense to a claim of
theft of misappropriation when limited use client funds are involved, we
decline to find, in this case, that a theft or misappropriation occurred. At
the time he cashed the check for transcript fees, Parrish had a future
colorable claim of right that exceeded the amount of the check. 4 We
therefore consider Parrish’s transgression as involving violations of our
trust account regulations involving safekeeping of client funds. Carter,
847 N.W.2d at 232. We want to make it clear, however, that in future
cases concerning specific purpose funds, a future colorable claim of right
4The Board did not claim that after the appeal was dismissed, Parrish was
obligated to return the unearned portion of the fees.
30
will not be a defense to a charge of theft or misappropriation. In that
sense, our holding here is prospective only.
Aside from theft or misappropriation, it is clear that Parrish engaged
in numerous ethical violations. Parrish plainly violated rule 32:1.15(d) by
not promptly forwarding the transcript fee to the court reporter. See
Morse, 887 N.W.2d at 139. He violated rule 32:3.3(a) when he made
brazenly false statements to this court stating that his client had not yet
been able to raise funds for the transcript but was attempting to raise the
funds. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Vandel, 889 N.W.2d
659, 665–66 (Iowa 2017). He violated rule 32:8.4(d) when he caused court
proceedings to be delayed, and ultimately dismissed, for failure to pay the
transcript fee. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 796
N.W.2d 910, 914 (Iowa 2011).
D. Sanction.
1. Mitigating factors. We begin with a brief discussion of mitigating
factors. Parrish urges consideration of his mental health diagnoses as a
mitigating factor in this case. There is no point in discussing the details
contained in his medical files on the public record here. As the
commission has pointed out, Parrish testified that his mental health
problems were “well controlled.” Further, our careful examination of the
record does not show a linkage between any asserted mental health
conditions and Parrish’s ethical violations in this case as required for us
to consider his mental health condition a significant mitigating factor. See
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d
288, 295–96 (Iowa 2002).
2. Aggravating factors. There are several important aggravating
factors. “[T]he prior disciplinary history of an attorney is a factor we must
consider in imposing discipline.” Parrish, 801 N.W.2d at 589; see also
31
Vandel, 889 N.W.2d at 669 (reviewing prior disciplinary history as
aggravating factor); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Baldwin,
857 N.W.2d 195, 214–15 (Iowa 2014) (same). Parrish has a history of prior
admonitions, public reprimands, and a prior license suspension, all of
which are aggravating factors. See Parrish, 801 N.W.2d at 589–90 (noting
Parrish’s prior disciplinary history and suspending license). Further, like
in this case, Parrish’s prior misconduct generally relates to improper
handling of fees and trust account violations, an aggravating factor.
Baldwin, 857 N.W.2d at 215.
Parrish has practiced law for seventeen years. He is not a new
practitioner unfamiliar with our ethical rules. His substantial experience
in the practice of law is another aggravating factor in imposing discipline.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wright, 758 N.W.2d 227,
231 (Iowa 2008).
The case also involves multiple rule violations. Multiple rule
violations are an aggravating factor giving rise to more serious sanctions.
Baldwin, 857 N.W.2d at 213; Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Johnson, 792 N.W.2d 674, 682 (Iowa 2010).
In addition, Parrish’s failure to forward the transcript fee to the court
reporter was a knowing violation of rule 32:1.15(d). He understood the
check was for the purpose of paying for the transcript and not for satisfying
his fees. This was not a situation in which he thought that he had earned
the funds, cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Piazza, 756 N.W.2d
690, 697–98 (Iowa 2008), or in which he had sloppy or lazy bookkeeping,
cf. Apland, 577 N.W.2d at 60. Knowingly violating our ethical rules is an
aggravating circumstance. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Lubinus, 869 N.W.2d 546, 553 (Iowa 2015).
32
Parrish’s course of conduct during the disciplinary proceedings is
also an aggravating factor. Parrish repeatedly engaged in conduct that
made the commission’s work more difficult, e.g., he failed to timely
respond and cooperate in the discovery process, he arrived late for a
hearing, he failed to provide hard copies of premarked exhibits, he issued
last minute subpoenas without proof of service, and he failed to file a brief
with the commission. He also did not file a posttrial brief before the
commission. Failure to cooperate with the commission in the hearing
process is an aggravating factor. Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Honken, 688 N.W.2d 812, 821 (Iowa 2004). Further, his
attempt to concoct a “General ‘Flat Fee’ Retainer” agreement to avoid our
trust regulations suggest a deliberate effort to evade, rather than comply,
with our ethical rules.
Parrish’s misconduct also caused harm to his client. He did not
promptly forward the funds received for the transcript to the court
reporter. As a result, no transcript was prepared, and Ware’s appeal of a
child custody modification matter was dismissed. Causing such harm to
a client through ethical misconduct is simply unacceptable and is an
aggravating factor in this case. See McCann, 712 N.W.2d at 97. The fact
that Parrish’s action deprived his client of her right to appeal a highly
personal and sensitive matter involving custody of her child imposes
serious intangible harm on the client, is an embarrassment to the legal
profession, and undermines citizen confidence in our legal system.
Finally, Parrish simply refused to take responsibility for his actions.
Refusing to admit wrongful conduct and showing no remorse is an
aggravating factor. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Tofflemire, 689 N.W.2d 83, 93 (Iowa 2004). Parrish’s lack of remorse
contrasts with his earlier suspension, where he took full responsibility and
33
implemented or planned to implement improvements in his billing and
accounting practices. See Parrish, 801 N.W.2d at 589. His current lack
of remorse is a powerful aggravating factor in this case because a major
role of our disciplinary system is to protect the public from overreaching
and unethical lawyers.
In sum, the lengthy nature of Parrish’s disciplinary record; the
multiple nature of his violations and the relationship of the violations to
past misconduct; his experience as an attorney; his resistance to the
processes before the commission; his knowledge of his own wrongdoing,
coupled with his refusal to admit wrongdoing or show remorse are
important aggravating factors in imposing discipline.
3. Sanction. It is abundantly clear that in light of the nature of the
violations and the many aggravating factors, a lengthy suspension is
appropriate in this case. Although the facts vary from case to case, we
have imposed lengthy suspensions for aggravated attorney misconduct.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596,
611 (Iowa 2012) (imposing two year suspension and noting “a troubling
pattern of neglect, a blatant disregard for his clients, and a lack of respect
for the disciplinary process”); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Plumb, 766 N.W.2d 626, 634–35 (Iowa 2009) (imposing eighteen-month
suspension for misconduct including trust account violations, failure to
return unearned fees, and deceit to cover neglect); Honken, 688 N.W.2d at
820, 822 (imposing two-year suspension for misconduct including
multiple acts of misrepresentation to the court, neglect of client matters,
misrepresenting the status of matters to clients, and failing to respond to
the board’s inquiries). More than anything, Parrish’s obvious indifferent
attitude toward our disciplinary system and basic professional norms and
his persistent history of disciplinary problems weigh heavily in the
34
sanctions scale. Based on our review of the record, we suspend Parrish
from the practice of law indefinitely with no possibility of reinstatement for
two years from the date of this opinion.
IV. Conclusion.
For the above reasons, Eric Parrish’s license to practice law is
suspended for two years. This suspension applies to all facets of the
practice of law. See Iowa Ct. R. 34.23(3). Parrish must also comply with
the requirement of Iowa Court Rule 34.24 with respect to the notification
of clients and opposing counsel. To establish eligibility for reinstatement,
Parrish must file an application for reinstatement meeting all the
applicable requirements of Iowa Court Rule 34.25. Parrish further must
show that he has refunded to Ware the sum of $2467.50 prior to
reinstatement. We tax costs of this action to Parrish pursuant to Iowa
Court Rule 36.24(1).
LICENSE SUSPENDED.
All justices concur except Wiggins, J., who dissents, and McDonald,
J., who takes no part.
35
#18–0319, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish
WIGGINS, Justice (dissenting).
I dissent. I would revoke Eric Parrish’s license to practice law for
two reasons. First, he misappropriated money a client gave him for a
transcript. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell, 830
N.W.2d 355, 360–64 (Iowa 2013) (Wiggins, J., dissenting). The majority
appears to rely on Iowa Supreme Court Attorney Disciplinary Board v.
Morse, 887 N.W.2d 131 (Iowa 2016), when it determines revocation is not
appropriate. Morse, however, is distinguishable. In Morse, the board did
not allege theft or misappropriation under rules 32:8.4(b) and (c). See id.
at 138 (listing the allegations filed by the board against Morse). Had the
board alleged misappropriation, I am not so sure we would have only
suspended Morse’s license.
Second, and more importantly, his conduct in this and prior matters
leads me to conclude he is not fit to practice law. As the majority notes in
its opinion, Parrish has a history of prior violations that have led this court
to admonish him in ten instances, reprimand him twice, and suspend his
license once. Moreover, his prior violations have generally related to
improper handling of fees and trust account violations. In this proceeding,
he attempted to thwart the disciplinary process and failed to take
responsibility for his actions. After seventeen years, one would think that
he would understand the ethical responsibilities and duties of a lawyer.
Therefore, based on the seriousness of his present violations, his
past violations, and his failure to understand his ethical responsibilities
and duties, he is not fit to practice law. See Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Beckman, 674 N.W.2d 129, 139 (Iowa 2004) (revoking
an attorney’s license to protect the public and the reputation of the bar
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after finding an attorney not fit to practice law due to the seriousness and
repetitive nature of the lawyer’s ethical violations).
A revocation would allow him the opportunity to reapply for his
license after at least five years under our recently amended Iowa Court
Rule 34.25(7)–(9). However, I would not allow his reinstatement without
him retaking and passing the Multistate Professional Responsibility
Examination.