Full Opinion (html_with_citations)

               IN THE SUPREME COURT OF IOWA
                              No. 14–1406

                         Filed December 26, 2014

                         Amended March 9, 2015


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

ROBERT ALLAN WRIGHT JR.,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      The grievance commission reports respondent committed ethical

violations and recommends a one-year suspension of the attorney’s

license. LICENSE SUSPENDED.



      Charles L. Harrington and David J. Grace, Des Moines, for
complainant.



      Alfredo Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble,

Gentry & Fisher LLP, Des Moines, for respondent.
                                    2

WIGGINS, Justice.

      The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against Robert Allan Wright Jr., alleging Wright violated

multiple ethical rules.   A division of the Grievance Commission of the

Supreme Court of Iowa found Wright committed numerous violations

and recommended a one-year suspension from the practice of law.

      On our de novo review, we find the Board established by a

convincing preponderance of the evidence that Wright practiced law

while his license was suspended and committed various trust account

violations. We also find the length of his temporary suspension for the

same conduct met or exceeded the time we would have suspended his

license, so we will not impose any further suspension for this conduct.

      However, because Wright’s license is under suspension for other

conduct, he must serve that suspension before we will reinstate him to

the practice of law.

      I. Prior Proceedings.

      In 1981, we admitted Wright to the Iowa bar. On August 16, 2012,

we entered an order temporarily suspending Wright’s license for failing to

comply with requests from the client security commission for documents

needed to complete an audit of his client trust account. We suspended

Wright’s license until the client security commission certified Wright had

complied with all requests. At this time, we have not lifted the August

2012 suspension.

      On January 23, 2013, the client security commission sent the

Board a notice, alleging a review of Wright’s trust account showed

activity consistent with an active practice of law. On January 29, Wright

submitted a request to have the August 2012 suspension lifted and his

law license reinstated.    On February 5, the Board filed a petition
                                    3

requesting we immediately suspend Wright’s license under Iowa Court

Rule 35.4, for posing a substantial threat of harm to the public

predicated on the fact he may have been practicing law while suspended.

On February 7, we granted the petition for interim suspension for threat

of harm pending a final disposition of the disciplinary proceeding on this

matter. We also required the chief judge of the district court to appoint a

trustee to inventory Wright’s client files, sequester all trust funds, and

return all files, funds, and other property to Wright’s clients.       On

February 8, Chief Judge Gamble appointed a trustee. We confirmed the

appointment on February 11.

      On April 29, the Board filed a complaint alleging Wright was

engaged in the unauthorized practice of law and had violated the terms

of his August 2012 suspension.      Wright filed an answer on May 17.

Wright admitted to some of the allegations, including that after his

suspension he continued to practice law in one case, which he settled on

the client’s behalf.   Wright also denied a number of the allegations,

including that he continued to take on new clients, that he gave the

appearance he was authorized to practice law, and that he failed to

comply with the obligations of his August 2012 suspension.

      On July 18, Wright filed a consent to suspension and the Board

filed an unresisted motion to stay the disciplinary proceedings.       On

July 19, the commission granted the Board’s motion and indefinitely

continued the matter until we had the opportunity to review the consent

to suspension. We rejected the consent to suspension on November 21.

      In a matter unrelated to the present violations, on December 6,

2013, we suspended Wright’s license for engaging in “representation of

[his] clients in violation of conflict of interest rules and engaging in

misrepresentation or deceit resulting in a client’s financial loss.” Iowa
                                     4

Supreme Ct. Att’y Disciplinary Bd. v. Wright,
840 N.W.2d 295, 303
 (Iowa

2013). We sanctioned Wright with a suspension of his license to practice

law with no possibility of reinstatement for a period of no less than

twelve months that will not begin until after we lift the August 2012

temporary suspension.
Id. at 304
.

      On December 27, the Board filed an amendment to the complaint,

alleging that on May 27, 2013, Wright engaged in another act of

unauthorized practice of law. Wright denied this allegation. The parties

filed a stipulation of facts on April 2, 2014. The parties stipulated to the

procedural history of the case, to Wright’s continued representation of a

client after his August 2012 suspension, and to certain trust account

activity after his suspension was in effect.      The commission held a

hearing on the complaints on May 5.          The commission found by a

convincing preponderance of the evidence Wright had

      violated rules 32:5.5 (prohibiting the unauthorized practice
      of law in any jurisdiction in which a lawyer is licensed);
      32:1.16(a)(1) (prohibiting representation of a client when
      representation of the client will result in violation of the Iowa
      Rules of Professional Conduct); 32:1.4 (requiring a lawyer to
      inform his or her clients of decisions or circumstances that
      will impact the outcome of their cases); and 32:1.15(c)
      (prohibiting withdrawal of funds in client trust account prior
      to earning the fee).

      The commission also found violations of

      Iowa Court Rules 45.2(2) (requiring a lawyer to promptly
      account for client’s property and promptly deliver to client
      any property to which the client is entitled); 45.7(5)
      (requiring unearned advance fees be refunded); and
      45.2(3)(b)(3) (prohibiting withdrawals made to cash rather
      than by check payable to a named payee from client trust
      fund account).

The commission then recommended we suspend Wright’s license with no

possibility of reinstatement for one year.
                                      5

      II. Scope of Review.

      Neither the Board nor Wright filed an appeal of the commission’s

recommendation.       By rule, we review the recommendation of the

commission.     Iowa R. Prof’l Conduct 35.11(1).         We review attorney

disciplinary proceedings de novo. Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Nelson,
838 N.W.2d 528
, 531–32 (Iowa 2013). The Board must prove

violations by a convincing preponderance of the evidence.
Id. at 532
. “A

convincing preponderance of the evidence is more than a preponderance

of the evidence, but less than proof beyond a reasonable doubt.”
Id.

(internal quotation marks omitted).

      We deem factual matters admitted by an attorney in an answer to

a complaint established without any further investigation into the

supporting evidence in the record.
Id.
   Stipulations of facts are also

binding on the parties.
Id.
 We interpret stipulations “ ‘with reference to

their subject matter and in light of the surrounding circumstances and

the whole record, including the state of the pleadings and issues

involved.’ ”
Id.
 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf,
793 N.W.2d 525, 528
 (Iowa 2011)).          If a stipulation concedes a rule

violation, we will only find a violation if the facts are sufficient to support

the stipulated violation.
Id.

      III. Finding of Facts.

      On August 10, 2012, Wright received an email regarding his client,

Salome Macedo, from a workers’ compensation case manager.                  On

August 16, we temporarily suspended Wright’s license for failing to

comply with requests for documents from the client security commission.

After we temporarily suspended Wright’s license, Wright transferred

almost all of his active cases to an attorney he once shared office space
                                     6

with, Pamela Vandel. Vandel did all of the work on the transferred cases

and gifted any fees she earned in Wright’s cases back to Wright.

      On August 26, ten days after we suspended Wright’s license,

Wright responded to the workers’ compensation case manager’s email.

He asked the case manager to contact him about a resolution to the case

or he would have to file something with the workers’ compensation

commissioner.    Wright and the case manager continued to exchange

emails for the next few months discussing the case. During this time,

Wright sent Macedo for an independent medical evaluation and engaged

in settlement discussions.      Wright admits and stipulates that on

December 20, he settled Macedo’s case for $7982.70. Wright never told

the case manager his license was under suspension.

      Around the same time, Wright met with Rachena Johnson to

discuss issues she was having regarding visitation with her children.

Wright told Johnson he was not an attorney and was not authorized to

practice law, but he was working with Vandel, an attorney who might be

able to take her case.    Wright attempted to have Vandel attend the

weekend meeting with Johnson, but she was unavailable. Wright met

with Johnson, again reminding her he would not be able to represent

her, and gathered all the details of her contempt case against her former

husband. Wright took $500 from Johnson and deposited the money into

his trust account. Wright communicated the information to Vandel and

she took Johnson on as a client. On January 10, 2013, Wright wrote a

check directly to Jasper County for the filing fee in the contempt case.

      This activity in Wright’s trust account led the Board to believe

Wright was practicing law during his August 2012 suspension and to his

February 2013 interim suspension.
                                      7

         In late May 2013, Wright received a phone call from a former

client, Jesse Taylor, asking Wright to meet with him. Wright was careful

to tell Taylor and his stepdaughter that we suspended his license to

practice law and that he could not represent anyone. Wright informed

the pair he was working with Vandel and that he would pass all the

information, including the documents Taylor brought to the meeting, to

Vandel for her to make a determination about the merits of the case.

Wright admitted he may have told Taylor and the child that they “may

have something there,” but that Vandel would have to be the one to

evaluate the claim.      Wright took $250 in cash from Taylor after

explaining Taylor needed to pay Vandel to research the merits of the

claim.     Wright gave the cash to Vandel who eventually refunded the

money after determining it would not be worth the effort to bring a claim

against the child’s school.

         In Wright’s answer, he admitted that after his August 2012

suspension, he deposited $73,860 in his trust account. He admitted in

his answer that he overdrew his trust account in October 2012. In the

stipulation filed by Wright and the Board, Wright stipulated he overdrew

his trust account subsequent to the August 2012 temporary suspension.

He also stipulated he withdrew money from the trust account and gave it

to a former client to use to pay rent and utilities. Finally, in exhibit 11, a

letter dated January 7, 2013, from Wright to the office of professional

regulation, Wright refuted the finding that his trust account had a

deficiency of over $20,000, but acknowledged it had a deficiency of

$8891.27.

         From these admissions and stipulations, we find Wright was

depositing money in his trust account from sources other than client

funds. We reach this conclusion because after August 2012 he was not
                                    8

supposed to be practicing law. Although, the record shows he settled the

Macedo case for around $8000, and he collected fees from Johnson for

$500, these amounts are far less than the $73,860 he ran through his

trust account.

      Additionally, he made withdrawals from the trust account in

excess of the funds in the account. There are no records showing why he

made the withdrawals. Moreover, he withdrew the money from the trust

account without providing a notice to his clients. Finally, he presented

no evidence that the withdrawals from the trust account were for client

expenses or for work he had done.

      IV. Violations.

      A. Iowa Rule of Professional Conduct 32:5.5(a).        Our rules of

professional conduct provide that “[a] lawyer shall not practice law in a

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

jurisdiction, or assist another in doing so.”     Iowa R. Prof’l Conduct

32:5.5(a).   Wright violated this rule when he continued to work on

Macedo’s case after his August 2012 suspension. See Iowa Supreme Ct.

Att’y Disciplinary Bd. v. McCuskey,
814 N.W.2d 250
, 254–55 (Iowa 2012)

(representing a client after the court suspended an attorney’s license

violated Iowa Rule of Professional Conduct 32:5.5(a)).

      We do not find he violated rule 32:5.5(a) in regards to the Johnson

or Taylor matters. Wright informed both Johnson and Taylor that his

license was under suspension and he could not represent them. He also

told them Vandel would be handling their cases if she took them. His

receipt of fees and depositing them in his account, before transferring

them to Vandel, may be a basis for other violations. The mere fact he

took the fees with the intent to give them to Vandel after he disclosed he

could not represent them because his license was under suspension is
                                       9

insufficient to find he was engaged in the unauthorized practice of law

regarding Johnson and Taylor.

      B. Iowa Rule of Professional Conduct 32:8.4(c).             Our rules of

professional conduct provide that “[i]t is professional misconduct for a

lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation.” Iowa R. Prof’l Conduct 32:8.4(c). A violation of this

rule requires an attorney to act with the intent to deceive.                See

McCuskey,
814 N.W.2d at 255
. By knowingly practicing law while his

license was suspended, Wright deceived the workers’ compensation case

manager into believing Wright had the authority under the law to

negotiate the settlement. This conduct violates rule 32:8.4(c). See
id.

(suspended attorney’s conduct indicating to creditors he was working on

client’s bankruptcy was a violation of rule 32:8.4(c)).

      C. Iowa     Rule   of   Professional    Conduct     32:1.16(a).      Rule

32:1.16(a) states that a “lawyer shall not represent a client . . . if . . . the

representation will result in violation of the Iowa Rules of Professional

Conduct.” Iowa R. Prof’l Conduct 32:1.16(a). Wright’s representation of

Macedo after his suspension violates this rule.           See McCuskey,
814 N.W.2d at 255
.

      D. Iowa Rule of Professional Conduct 32:1.4.                Rule 32.1.4

provides in relevant part:

             (a) A lawyer shall:
             ....
            (3) keep the client reasonably informed about the
      status of the matter;
             ....
             (5) consult with the client about any relevant limitation
      on the lawyer’s conduct when the lawyer knows that the
      client expects assistance not permitted by the Iowa Rules of
      Professional Conduct or other law.
                                       10

Iowa    R.   Prof’l   Conduct     32:1.4(a)(3), (5).      Wright’s     continued

representation of Macedo after his suspension, without informing

Macedo of his suspension violates this rule. See McCuskey, 814 N.W.2d

at 255–56 (finding the attorney’s failure to inform his clients of his

suspension violated rule 32:1.4(a)).

       E. Iowa    Rule    of   Professional   Conduct      32:1.15(c).       Rule

32:1.15(c) states, “A lawyer shall deposit into a client trust account legal

fees and expenses that have been paid in advance, to be withdrawn by

the lawyer only as fees are earned or expenses incurred.” Iowa R. Prof’l

Conduct 32:1.15(c).      Wright was making withdrawals from his trust

account after we suspended his license to practice law.              This activity

violates rule 32:1.15(c). See McCuskey,
814 N.W.2d at 256
.

       F. Iowa Court Rule 45.1.          Rule 45.1 prohibits comingling of

funds and only allows an attorney to withdraw funds from the trust

account when earned.       See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Kelsen,
855 N.W.2d 175, 181
 (Iowa 2014).               Wright deposited funds

received from Johnson in his trust account after his suspension.

Although Vandel deducted these funds from the client’s bill, Wright never

should have put these funds in the trust account because the funds did

not arise out of his practice of law. Moreover, he was writing checks to

third parties, making cash withdrawals, and running a deficit in the

trust account of at least $8891.27.         We find he was using the trust

account for purposes other than those allowed by this rule. This conduct

violates rule 45.1.      See
id.
 (finding attorney’s mishandling of trust

account violated rule 45.1).

       G. Iowa Court Rule 45.2(2). Rule 45.2(2) requires an attorney to

promptly account for a client’s property and promptly deliver to the client

any property the client is entitled to receive.          Iowa Ct. R. 45.2(2).
                                     11

Wright’s trust account records are devoid of any accounting.           This

conduct violates rule 45.2(2).
Id.

        H. Iowa Court Rule 45.2(3)(b)(3).        Rule 45.2(3)(b)(3) provides

cash withdrawals from trust accounts are prohibited.
Id.
 r. 45.2(3)(b)(3).

Exhibit 6 shows numerous cash withdrawals. This conduct violates rule

45.2(3)(b)(3).

        I. Iowa Court Rule 45.7(4).       Rule 45.7(4) requires attorneys to

notify and provide accountings when they withdraw funds from advance

fee payments.
Id.
 r. 45.7(4). Wright’s trust account records are devoid of

any accounting. This conduct violates rule 45.7(4).
Id.

        J. Iowa Court Rule 45.7(5). Rule 45.7(5) provides “advance fee

and expense payments are refundable to the client if the fee is not earned

or the expense is not incurred.”
Id.
 r. 45.7(5). We have held an attorney

who collects a fee for legal work while under suspension violates this

rule.    See McCuskey,
814 N.W.2d at 256
 n.6.          Wright violated rule

45.7(5).

        V. Sanction for These Violations.

        Wright’s unauthorized practice of law, coupled with his numerous

trust account violations is serious. His prior disciplinary record makes

these violations even more egregious.       See Wright,
840 N.W.2d at 303

(discussing Wright’s prior disciplinary history).

        In a recent case, we suspended the license of an attorney who

continued to practice while his license was suspended and committed

similar trust account violations as Wright for one year. See McCuskey,

814 N.W.2d at 251–52.       McCuskey did not have a prior disciplinary

history. Id. at 258. Wright does. Based on Wright’s conduct and his

prior disciplinary history, we believe his suspension should be more than

one year but less than two years. We need not decide a definitive time
                                      12

based upon our coordination of sanctions found in division VI of this

opinion.

      VI. Coordination of Sanctions.

      Wright has the following sanctions presently pending against him.

The first is a temporary suspension issued on August 16, 2012, for

failing to comply with requests for documents from the client security

commission that were needed to complete an audit of his client trust

account. The second is a temporary suspension issued on February 7,

2013, for threat of harm pending a final disposition of the disciplinary

proceeding on this matter.        The basis of this suspension was his

unauthorized practice of law and trust account activity while under the

August 2012 suspension. Both of these suspensions are still in effect.

      We issued the third suspension on December 6, 2013, for engaging

in representation of his clients in violation of conflict of interest rules and

engaging in misrepresentation or deceit resulting in a client’s financial

loss. In this suspension, we stated Wright’s license to practice law was

suspended with no possibility of reinstatement for a period of no less

than twelve months, and it was to begin after we lifted the August 2012

temporary suspension. Wright,
840 N.W.2d at 303
.

      The last suspension is the one we issue today for Wright’s

continued practice of law while his license was suspended and for

various trust account violations. Without deciding a definite time for this

suspension, we noted this suspension should be more than one year, but

less than two years.

      Upon the filing of this opinion, we are terminating the August 16,

2012 suspension for failing to comply with the requests for documents

from the client security commission that were needed to complete an

audit of his client trust account. We reach this conclusion because when
                                    13

we temporarily suspended Wright’s license on February 7, 2013, for the

unauthorized practice of law and irregularities in his trust account, we

also entered an order appointing a trustee to gather all of Wright’s trust

account records and make an accounting to the client security

commission.       Under these circumstances, Wright has provided those

records to the client security commission, thus, allowing us to lift the

August 16, 2012 suspension.

        Wright’s February 7, 2013 temporary suspension for practicing

while his license was suspended and various trust account violations

was to continue pending the outcome of this disciplinary proceeding.

Because this opinion concludes the pending disciplinary proceeding, we

lift the February 7, 2013 suspension. We also found Wright violated our

rules and that his license should be suspended because of these

violations for a period of at least one year but less than two years. When

we order an attorney’s temporary suspension pending the outcome of a

disciplinary proceeding for the same conduct, we should give credit for

the time served for the temporary suspension if the time served equals or

exceeds the appropriate sanction. See Comm. on Prof’l Ethics & Conduct

v. Halleck,
325 N.W.2d 117, 118
 (Iowa 1982). But see Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Powell,
830 N.W.2d 355
, 359–60 (Iowa 2013)

(holding the time served during the temporary suspension for conduct

intertwined in the current case did not equal or exceed the appropriate

sanction, and therefore, the interim suspension “can be considered as a

mitigating factor in determining the length and adequacy of a suspension

as a sanction in the case”).

        We suspended Wright’s license to practice law on February 7,

2013, for practicing law while his license was suspended and for various

trust   account    violations.   This   period   of   temporary   suspension
                                      14

constitutes a sufficient minimum period of suspension for Wright’s

misconduct.     Accordingly, we will consider Wright’s suspension for

practicing law while his license was suspended and for various trust

account violations served.

      These findings still leave Wright with the December 6, 2013

suspension of his license to practice law with no possibility of

reinstatement for a period of no less than twelve months that does not

begin until after we lift the August 2012 suspension. Upon the filing of

this opinion, we lift the August 2012 suspension. Therefore, from the

date of filing this opinion, Wright shall begin serving his suspension

pursuant to the terms of our December 6 opinion.

      VII. Disposition.

      After   fully   considering   the    matter,   we   lift   the   temporary

suspensions of Wright’s license to practice law issued on August 16,

2012, and February 6, 2013. We further find Wright practiced law while

his license was under suspension and had various trust account

violations.   However, because his temporary suspension for the same

conduct meets or exceeds the sanction we would impose, we will not

sanction him any further for that conduct.

      Finally, Wright shall begin serving the suspension we issued him

in our December 6, 2013 opinion upon the filing of this opinion. Wright

shall comply with all the conditions we imposed on him in our

December 6, 2013 opinion.       In addition, before we will reinstate his

license the client security commission should certify that Wright has

taken care of any deficiencies in his trust account. Costs of this action

are assessed against Wright.

      LICENSE SUSPENDED.