IN THE SUPREME COURT OF IOWA
No. 21–0309
Submitted September 16, 2021—Filed October 15, 2021
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
SCOTT D. FISHER,
Respondent.
On review of the report of the Iowa Supreme Court Grievance Commission.
Iowa Supreme Court Grievance Commission determined that an attorney
violated multiple rules of professional conduct and recommended the attorney’s
license be suspended. LICENSE SUSPENDED.
Christensen, C.J., delivered the opinion of the court, in which all justices
joined.
Tara van Brederode and Crystal W. Rink, Des Moines, for complainant.
Scott D. Fisher, Apex, North Carolina, pro se.
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CHRISTENSEN, Chief Justice.
The Iowa Supreme Court Attorney Disciplinary Board (Board) charged an
Iowa attorney, Scott D. Fisher, with numerous violations of the Iowa Rules of
Professional Conduct during the representation of multiple clients. The charges
involved client neglect, mishandling funds and trust accounts, revealing
confidential information of former clients on the internet, false statements,
frivolous filings, improperly withdrawing from a case, conduct prejudicial to
justice, and failing to cooperate with the Board. The Iowa Supreme Court
Grievance Commission (commission) determined the Board proved a majority of
its charges and recommends we suspend Fisher’s license for one year. The Board
and Fisher agree that a one-year suspension is appropriate. Upon our de novo
review of the record, we suspend Fisher’s license for one year.
I. Factual and Procedural Background.
This is a review of an attorney disciplinary proceeding against the
respondent, Scott D. Fisher, currently of Apex, North Carolina (formerly of
Waukee, Iowa), an attorney admitted to practice law in Iowa since 2007.
On October 23, 2019, the Board filed its first complaint against Fisher. On
October 26, 2020, the Board amended its complaint to reflect a removal of a
count but maintained ethical violations occurred during the representation or
interactions with Haylie Reiter, Michelle Curry, Dustin Hallett, J.H., A.H., and
C.B.W., along with various trust account violations. In total, the second
substituted and amended complaint alleged approximately fifty individual
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violations across twenty separate ethics rules during the representation of six
different clients.
Fisher answered both complaints. In his answer, Fisher admitted to some
trust account violations under Iowa Rules of Professional Conduct 32:1.15(c)
(withdrawal of fees only when earned) and 32:1.15(f) (trust accounting governed
under chapter 45), and under Iowa Court Rules 45.2(3)(c) (types of acceptable
records for trust funds) and 45.7(4) (notification of fee withdrawal from trust
funds). Fisher also admitted to one violation of rule 32:8.1(b) (failure to respond
to disciplinary proceedings). Fisher denied the remaining allegations in his
answer.
A hearing before the commission occurred November 2 through
November 5, 2020, and reconvened on November 30. The commission
determined Fisher violated the following ethics rules, several of which reoccurred
between clients:
32:1.3 (diligence),
32:1.4(a)(2), (3), and (4) (client communication),
32:1.5(a) (unreasonable fee agreement),
32:1.9(c)(2) (revealing confidential information of a former
client),
32:1.15(c) (withdrawal of fees when earned),
32:1.15(d) (prompt delivery of accounting)
32:1.16(b)(1) and 32:1.16(d) (proper withdrawal),
32:3.2 (expediting litigation),
32:3.4(d) (diligence with regard to discovery),
32:8.1(b) (responding in disciplinary proceedings),
32:8.4(d) (misconduct prejudicial to justice),
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45.2(3)(a) (complete records of funds and other property),
45.2(3)(c) (types of acceptable records for funds),
45.7(4) (notification of fee withdrawal),
45.10(3) (proper fee agreements).
Based on these violations, the commission recommended a suspension of one
year. The commission set forth its factual findings, conclusions of law, analysis
of mitigating and aggravating factors, and sanction in a report filed March 8,
2021.
Fisher and the Board did not contest the commission’s factual findings.
Upon our de novo review of the record, we agree with the commission’s factual
findings. We briefly summarize the commission’s factual findings surrounding
the ethics violations.
A. Haylie Reiter. In August 2016, Haylie Reiter (formerly known as Kelsey
Blake) hired Fisher for a custody modification action. Fisher’s failure to notify
Reiter of outstanding opposing attorney fees and to timely return complete
discovery to the opposing party led to contempt charges against Reiter. Fisher
also filed a frivolous motion for sanctions. Fisher later revealed Reiter’s
outstanding legal fees in a publicly viewable online exchange.
B. Michelle Curry. On February 7, 2017, Michelle Curry hired Fisher to
represent her in a marriage dissolution. Fisher failed to complete various aspects
of the discovery process and delayed hiring an appraiser to appraise a family
farm. Fisher also failed to respond to several inquiries from Curry about
discovery or the appraiser. After Curry terminated the representation and hired
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a new attorney, Fisher engaged in a drawn out dispute with Curry and the new
attorney over whether Fisher would give Curry’s client file to the new attorney.
C. Dustin Hallett. In June 2017, Dustin Hallett asked Fisher to file a
custody modification action to gain sole custody of two minor children from
Rebecca Holbrook, but Fisher struggled to get Holbrook served. Fisher made it
difficult for Hallett’s new attorney to obtain independent documentation about
the trust account funds for Hallett and Hallett’s client file. Fisher later revealed
Hallett’s outstanding legal fees in a publicly viewable online exchange.
D. J.H. On June 9, 2017, Fisher filed a petition for termination of J.H.’s
parental rights on behalf of C.J.R. Fisher hired a process server but either lost
or never obtained proof of service. Despite this uncertainty, he emailed J.H.’s
mother that he possessed an affidavit of service and he was going to terminate
J.H.’s parental rights at a hearing even though he later filed a continuance.
E. A.H. On September 1, 2017, A.H. and Fisher entered into an attorney–
client relationship. Fisher pursued a custody modification action in September
and then a termination action in November. Fisher also removed $615 of
unearned money from A.H.’s funds almost immediately and had substantial
overlap in billing between the custody modification and the termination actions.
Fisher did not respond to a guardian ad litem’s continuance motion and did not
update A.H. on various aspects of the case.
F. C.B.W. On February 21, 2018, C.B.W. and J.B.W. hired Fisher to
terminate parental rights of C.B.W.’s former spouse, J.M., with respect to her
child L.M. so that C.B.W.’s current spouse could adopt L.M. Fisher’s contract
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involved a flat fee of $2,100 that was “deemed earned upon commencement of
work.” He struggled to get J.M. served or submit service by publication through
the Des Moines Register, resulting in several continuances of the case. Fisher
ultimately moved to withdraw on Friday, July 20, at 2:21 p.m. before a Monday,
July 23 8:30 a.m. termination hearing after deciding to accept a new nonlegal
job offer with a July 23 start date. Fisher did not provide replacement counsel
despite offering to do so and told C.B.W. and J.B.W. to represent themselves
pro se because most of the work was done. This led to more continuances and
an order to show cause against Fisher.
G. Trust Account Violations. The Board requested “any fee agreements,
all trust account records, all subaccount records, and all notices sent to clients
upon withdrawal of funds held in trust with regards” to Reiter, Curry, A.H., and
C.B.W. by April 5, 2020. Fisher failed to do so. The Board filed a motion to compel
on April 7. On May 21, the commission granted the motion and ordered Fisher
to provide documents related to the request within fourteen days of the order.
Fisher provided some banking records, invoices, and retainer agreements for a
few of the clients. On July 6, the Board filed a motion for sanctions for failure to
provide all of the requested trust account records, subaccount records, and
notices of withdrawal of trust funds for each of the requested clients. The
commission granted the motion for sanctions.
II. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Kieffer-Garrison, 951 N.W.2d 29, 35–36 (Iowa 2020). The
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Board must prove the alleged attorney misconduct by a convincing
preponderance of the evidence. Id. at 36. This standard is more demanding than
proof by a preponderance of the evidence but “less demanding than proof beyond
a reasonable doubt.” Id. (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Nine, 920
N.W.2d 825, 827–28 (Iowa 2018)). We respectfully consider the commission’s
factual findings and recommendations but we are not bound by them. Iowa Sup.
Ct. Att’y Disciplinary Bd. v. Noel, 923 N.W.2d 575, 582 (Iowa 2019). The parties
are also bound by stipulated facts in “reference to their subject matter and in
light of the surrounding circumstances and the whole record.” Nine, 920 N.W.2d
at 828 (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Johnson, 884 N.W.2d 772,
777 (Iowa 2016)). Lastly, we “have the discretion to ‘impose a greater or lesser
sanction than what the commission has recommended upon proof of an ethical
violation.’ ” Kieffer-Garrison, 951 N.W.2d at 36 (quoting Noel, 923 N.W.2d at 582).
III. Discussion.
Fisher and the Board did not contest the commission’s legal conclusions.
We agree with the commission’s legal conclusions based on our analysis of the
record.
Our last issue is to determine the appropriate sanction. We agree with the
commission’s analysis of the aggravating and mitigating circumstances. We
briefly summarize such factors and address Fisher’s comments regarding his
remorse and mental health issues from his brief regarding sanctions.
Fisher’s legal practice showed a clear pattern of misconduct across several
clients. The record is filled with examples of clients or opposing counsel sending
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several emails asking for updates or questions on their cases, as well as many
follow-up emails, texts, or calls that went unanswered. Fisher also failed to meet
various deadlines and inform clients of important updates in their cases. This
misconduct amounted to a concerning amount of continuances, contempt
charges, and the hiring of several new attorneys.
We also stress that the misconduct impacted children through custody
modification or termination actions—practice areas which Fisher held out as
being his expertise. Clients, such as A.H. and C.B.W., strongly indicated either
in emails, texts, or online reviews how Fisher’s neglect or abandonment
negatively affected the relationship with their children and their own mental
health. The fact that some clients were ultimately successful in their legal
proceedings does not justify the stress that they endured during the attorney–
client relationship with Fisher.
Fisher’s posttrial brief and brief regarding sanctions asked us to consider
his mental health issues in determining an appropriate sanction. In October
2016, Fisher was diagnosed with generalized anxiety disorder and panic
disorder. Fisher took daily medication of Prozac and Xanax. He also changed his
routine to manage his anxiety. He stopped regularly meeting with a psychiatrist
in March 2017 but still takes medication. Identifying mental health issues and
seeking treatment is a significant first step. Iowa Sup. Ct. Att’y Disciplinary Bd.
v. Bowles, 794 N.W.2d 1, 7 (Iowa 2011). However, mental health challenges must
show a relationship to the unethical conduct to be considered a mitigating
circumstance. Id. Further, an attorney must continue to address the condition
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after its diagnosis to ensure misconduct will not occur or will not occur again.
See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130, 156 (Iowa
2018). The record does not indicate Fisher’s conditions directly caused the
violations in the complaint. Moreover, much of the misconduct occurred after
his last visit with his psychiatrist. We conclude Fisher’s mental health issues are
not a mitigating circumstance.
Fisher also listed remorse as a mitigating factor in his posttrial brief and
brief regarding sanctions. The record does indicate several times where Fisher
directly apologized to testifying witnesses about their previous interactions and
that he voluntarily dismissed a small claims judgment against Hallett. We also
note that Fisher admitted to wrongdoing for some of the Board’s charges either
in his answer or during the proceedings. However, we give the commission
deference to their factual findings, especially with regard to findings of demeanor
and credibility of witnesses. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Sporer, 897
N.W.2d 69, 84–85 (Iowa 2017). Here, the commission determined Fisher’s
remorse was not genuine repentance but in response to ethical charges. The
commission pointed to several instances within the record where Fisher
examined individuals on irrelevant issues. Moreover, Fisher’s posttrial brief
appears to shift a substantial amount of blame to his clients, opposing counsel,
and even judges for his ethics violations. While an ethics complaint and
subsequent proceeding can be extremely unsettling, attorneys must be mindful
and maintain respect throughout the entire disciplinary process. We conclude
that Fisher’s unsubstantiated claim of remorse is not a mitigating circumstance.
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The number of violations across several ethics rules and aggravating
circumstances warrants a lengthy suspension. The commission’s report
recommended that we suspend Fisher’s license to practice law for one year. Both
the Board and Fisher filed briefs in support of a one-year suspension. A one-year
suspension would be in line with other attorney disciplinary cases. See Turner,
918 N.W.2d at 158 (imposing a one-year suspension for neglect, trust account
violations, and multiple other violations); Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Clarity, 838 N.W.2d 648, 663 (Iowa 2013) (imposing a one-year suspension for
neglect, trust account violations, unreasonable fees, and other violations); Iowa
Sup. Ct. Att’y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 611 (Iowa 2012)
(imposing a two-year suspension for neglect, trust account violations,
withdrawal, and other violations). We agree with the commission, the Board, and
Fisher to conclude that a suspension of one year is appropriate.
IV. Disposition.
We suspend Fisher from the practice of law without the possibility of
reinstatement for one year. This suspension applies to all facets of the practice
of law as provided in Iowa Court Rule 34.23(3), and Fisher must notify any
remaining clients as outlined in Iowa Court Rule 34.24. We tax the costs of this
action to Fisher in accordance with Iowa Court Rule 36.24(1).
LICENSE SUSPENDED.