               IN THE SUPREME COURT OF IOWA
                             No. 10–0650

                         Filed February 4, 2011


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

ROLLAND EUGENE KNOPF,

      Respondent.



      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance commission recommends a one-year suspension of

attorney’s license to practice law. LICENSE SUSPENDED.



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

complainant.



      R. Eugene Knopf, Newton, pro se.
                                     2

CADY, Chief Justice.

       The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against the respondent, Rolland E. Knopf, alleging violations of

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

Supreme Court of Iowa entered into a stipulation with the respondent,

wherein the parties agreed Knopf’s conduct violated several of the rules

of the Iowa Code of Professional Responsibility for Lawyers and the Iowa

Rules of Professional Conduct and recommended we suspend Knopf’s

license to practice law with no possibility of reinstatement for a period of

one year. Upon our de novo review, we find Knopf’s conduct violated our

ethical rules and suspend his license to practice law indefinitely with no

possibility of reinstatement for a period of three months.

       I. Scope of Review.

       Our review of attorney disciplinary proceedings is de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 764

(Iowa 2010). The board must prove ethical misconduct by a convincing

preponderance of the evidence.      Id.   “This burden is less than proof

beyond a reasonable doubt, but more than the preponderance standard

required in the usual civil case.” Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004).            “Upon proof of

misconduct, we may impose a greater or lesser sanction than the

sanction recommended by the commission.” Templeton, 784 N.W.2d at

764.

       II. Findings of Fact.

       Instead of holding a formal hearing, the commission decided the

case on a joint stipulation filed by the board and Knopf on April 20,

2010. The stipulation contained a stipulation of the facts, the violations,

and a recommendation of a one-year suspension.            The parties also
                                     3

stipulated to mitigating circumstances.     Finally, the board and Knopf

stipulated that, for context, the commission could consider exhibits

submitted by the board. These exhibits comprised parts of the district

court record in Knopf’s criminal case.

      As we have recently noted, we find stipulations of facts by the

parties to be binding on them. Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Gailey, 790 N.W.2d 801, 803 (Iowa 2010).             We interpret factual

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. at 803–04 (quoting Graen’s

Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d 295, 300 (Iowa

1983)). With regard to stipulations that concede violations, we have held

that only “[i]f sufficient legal consideration supports this type of

stipulation [is it] entitled to [enforcement]. [W]e are not bound to enforce

these stipulations if they are unreasonable, against good morals, or

contrary to sound public policy.” Id. at 804. Nor are we bound by a

stipulation to a sanction. We have long held that

      [o]ur rules require us to determine whether an attorney’s
      conduct violates our ethical rules, and if it does, we must
      determine the proper sanction for the violation. Nowhere in
      our rules have we given the parties the authority to
      determine what conduct constitutes a violation of our ethical
      rules or what sanction an attorney should receive for such
      violation.

Id. (citation omitted).

      With these principles in mind, we proceed to find the facts from the

stipulation of facts, in light of the surrounding circumstances and the

whole record. After doing so, we determine whether these facts establish

a violation of our ethical rules. If we find a violation, we must determine

the appropriate sanction. Id.
                                            4

       Rolland E. Knopf has practiced law in Newton, Iowa, since 1968.

In   January     2004,     the    Iowa    Department       of   Revenue        began   an

investigation into allegations Knopf failed to file state income tax returns

for the years 1993 through 2002 and the year 2004.                       Knopf did not

initially cooperate with the investigation, requiring the department to

issue two administrative subpoenas. As a result of its investigation, in

2008, the State charged Knopf with four counts of fraudulent practice in

the second degree for failing to file his income tax returns.                   In 2009,

Knopf pleaded guilty to two counts of fraudulent practice in the second

degree in violation of Iowa Code sections 422.25(5), 714.8(10), and

714.10 (2001) for his failure to file his 2001 and 2002 Iowa income tax

returns.       The    district    court   sentenced      Knopf     to    two    five-year

indeterminate terms, suspended the sentences, and placed Knopf on

supervised probation for five years.

       On     October    19,     2009,    the   Iowa    Supreme         Court   Attorney

Disciplinary Board filed a complaint against Knopf, alleging the

respondent failed to file state income tax returns for the years 1993

through 2002 and the year 2004, and filed his 2003 return late without

paying the taxes due. The complaint further noted that, in relation to his

failure to file his 2001 and 2002 state income tax returns, the

respondent pleaded guilty to two counts of fraudulent practice in the

second degree. The board alleged this conduct violated DR 1–102(A)(3),

(4), (5), and (6) of the Iowa Code of Professional Responsibility for

Lawyers. 1

       1The   board also alleges the respondent’s failure to file state income tax returns
violated Iowa Rule of Professional Conduct 32:8.4(a)–(d). Those rules did not become
effective until July 1, 2005. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790
N.W.2d 791, 793 n.1 (Iowa 2010). Therefore, because the conduct constituting the
alleged violations occurred prior to July 1, 2005, we do not consider the application of
the new rules.
                                          5

        Knopf subsequently appealed his convictions for fraudulent

practice.     His appeal, however, was ultimately dismissed for want of

prosecution.        On April 2, 2010, the board petitioned to amend its

complaint against Knopf to include a charge that his failure to cure the

default and the resultant dismissal of his appeal violated Iowa Rules of

Professional Conduct 32:3.2 and 32:8.4(d). 2 The commission granted the

board’s petition.

        In the stipulation filed April 20, 2010, the parties stipulated to

Knopf’s failure to file his Iowa income tax returns for the years 2001 and

2002.       They further stipulated to the respondent’s guilty plea and

conviction of two counts of fraudulent practice in the second degree in

violation of Iowa Code sections 422.25(5), 714.8(10), and 714.10. They

also stipulated that the respondent appealed his conviction to the Iowa

Supreme Court, but did not timely file his proof brief and designation of

contents of the appendix.          When he failed to timely remedy this, his

appeal was dismissed for failure to cure the default. We now consider

the import of these factual stipulations in light of our ethical rules.

        III. Violations.

        Failure to file and pay state income taxes are undisputed violations

of our ethical rules.        Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields,

790 N.W.2d 791, 797 (Iowa 2010). We agree with the commission that

such conduct violates DR 1–102(A)(3) (prohibiting a lawyer from engaging

in   “illegal      conduct    involving   moral   turpitude”),    DR 1–102(A)(4)

(prohibiting a lawyer from engaging in “conduct involving dishonesty,

fraud, deceit, or misrepresentation”), and DR 1–102(A)(6) (prohibiting a


        2Because  this conduct occurred after July 1, 2005, we will consider this
allegation in relation to the new rules contained in the Iowa Rules of Professional
Conduct.
                                     6

lawyer from engaging in “any other conduct that adversely reflects on the

fitness to practice law”) of the Iowa Code of Professional Responsibility

for Lawyers.    Id. (noting in the past we have held failure to file tax

returns constituted conduct prejudicial to the administration of justice in

violation of DR 1–102(A)(5), but “unless the facts and circumstances

establish a lawyer’s failure to file taxes adversely impacted the

functioning of the court, we would not find such conduct . . . to violate

rule 32:8.4(d)”).

      The board also alleged Knopf violated Iowa Rules of Professional

Conduct 32:3.2 and 32:8.4(d) for his failure to cure the default in his

appeal.   Rule 32:3.2 provides that “[a] lawyer shall make reasonable

efforts to expedite litigation consistent with the interests of the client.”

Iowa R. Prof’l Conduct 32:3.2. The purpose of this rule is to prevent the

“use of tactics that unreasonably delay litigation.” 2 Geoffrey C. Hazard,

Jr. & W. William Hodes, The Law of Lawyering § 28.2, at 28-3 (3d ed.

Supp. 2007). As noted in the comment to our rule:

      Although there will be occasions when a lawyer may properly
      seek a postponement for personal reasons, it is not proper
      for a lawyer to routinely fail to expedite litigation solely for
      the convenience of the advocates. Nor will a failure to
      expedite be reasonable if done for the purpose of frustrating
      an opposing party’s attempt to obtain rightful redress or
      repose. . . .   Realizing financial or other benefit from
      otherwise improper delay in litigation is not a legitimate
      interest of the client.

Iowa R. Prof’l Conduct 32:3.2, cmt. 1.

      In its brief, the board contended that it was apparent Knopf’s

failure to cure the default was based upon his intention to prolong his

appeal for as long as possible. The commission’s findings of fact appear

to have adopted this view as well, stating that “the [r]espondent’s efforts

to stall the implementation of the consequences of [his] offenses . . .
                                         7

militate in favor of a sanction on the harsher end of the range” of

possible sanctions.

      Upon our de novo review, however, we conclude the board has

failed to prove a violation of this rule. Nothing in the stipulation or the

exhibits supports a finding that Knopf’s dilatory handling of his appeal

was done for the purpose of frustrating the implementation of his

sentence.   A review of the appellate record exhibits reveals that, while

initially Knopf had some problems with his combined certificate, he

ultimately corrected the problem and was permitted to move forward with

his appeal. In the end, however, his appeal was dismissed because he

failed to timely file his appellate proof brief and designation of the

contents of the appendix. The reason or motivation for his failure to cure

the default is not clear from the record, and it would be speculative to

make a factual finding that his actions were done solely for his

convenience or for the purpose of frustrating the implementation of his

sentence.   Moreover, the parties did not stipulate to the reason for

Knopf’s neglect of his appeal.

      That is not to say, however, that his actions did not violate rule

32:8.4(d). Rule 32:8.4(d) states that it is misconduct for an attorney to

“engage in conduct that is prejudicial to the administration of justice.”

Iowa R. Prof’l Conduct 32:8.4(d).        Neglect of an appeal resulting in its

dismissal constitutes conduct prejudicial to the administration of justice.

See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wengert, 790 N.W.2d 94,

101 (Iowa 2010). Ignoring deadlines and orders, which results in default

notices from the clerk of court, hampers “ ‘the efficient and proper

operation   of   the   courts’ ”   and       therefore   is   prejudicial   to   the

administration of justice.     Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Howe, 706 N.W.2d 360, 373 (Iowa 2005) (quoting Iowa Supreme Ct. Bd.
                                     8

of Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa 1999));

see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hoglan, 781 N.W.2d

279, 284 (Iowa 2010) (finding neglect of four appeals resulting in

dismissal of those appeals constituted conduct prejudicial to the

administration of justice).

      IV. Sanctions.

      We have repeatedly held that the goal of our ethical rules is “ ‘to

maintain public confidence in the legal profession as well as to provide a

policing mechanism for poor lawyering.’ ” Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Honken, 688 N.W.2d 812, 820 (Iowa 2004) (quoting

Comm. on Prof’l Ethics & Conduct v. Gill, 479 N.W.2d 303, 306 (Iowa

1991)). In deciding an appropriate sanction, we consider “ ‘the nature of

the violations, protection of the public, deterrence of similar misconduct

by others, the lawyer’s fitness to practice, and [the court’s] duty to

uphold the integrity of the profession in the eyes of the public.’ ”   Id.

(quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. D’Angelo, 619

N.W.2d 333, 338 (Iowa 2000)).            Consideration of aggravating and

mitigating circumstances present in the disciplinary action is also

important. Id.

      “ ‘It is as wrong for a lawyer to cheat the government as it is for

him to cheat a client.’ ”     Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Iversen, 723 N.W.2d 806, 810 (Iowa 2006) (quoting Comm. on Prof’l Ethics

& Conduct v. Strack, 225 N.W.2d 905, 906 (Iowa 1975)).          We have

previously imposed a sanction of license suspension from sixty days to

three years for an attorney’s failure to file income tax returns.      See

Fields, 790 N.W.2d at 799 (citing cases); Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Neuwoehner, 595 N.W.2d 797, 797–98 (Iowa 1999)

(imposing three-month suspension for failure to file income tax returns
                                           9

for three years).     “[W]e have considered it an aggravating factor for an

attorney to have failed to file tax returns for an extended period of time.”

Fields, 790 N.W.2d at 799. In this case, the parties have stipulated that

Knopf failed to file his state income tax returns for two years.

       In addition to his failure to file income tax returns, Knopf’s failure

to cure the default notice on his appeal constituted neglect and was

prejudicial to the administration of justice. See Hoglan, 781 N.W.2d at

286 (finding essence of failure to prosecute appeals resulting in dismissal

was neglect).     “The sanction for attorney misconduct involving neglect

typically ranges from a public reprimand to a six-month suspension.”

Fields, 790 N.W.2d at 798.          The particular sanction imposed depends

upon “whether there are multiple instances of neglect, other additional

violations, or a history of past disciplinary problems.” Id.

       In this case, the parties have stipulated that Knopf has never had

an ethics complaint filed against him by a client.               The parties further

stipulated that Knopf has cooperated with the board in resolving this

matter. Both of these factors mitigate in favor of a less severe sanction.

       The parties have also stipulated that health problems surrounding

Knopf and his family, which have affected his ability to cope with the

“foregoing matters,” 3 and the winding down of Knopf’s practice of law are

mitigating circumstances to be considered in formulating an appropriate

sanction.    We have previously held that, although they do not excuse

misconduct, personal illnesses “can be mitigating factors and influence

         3Because the parties have stipulated that Knopf has cooperated with the board,

we conclude that by “foregoing matters” the parties were stipulating that Knopf’s ability
to file his income tax returns and to attend to his appeal were affected by the medical
problems surrounding himself and his family. This conclusion is supported by Knopf’s
response to the board’s interrogatories. When asked to “[s]tate, with respect to each of
the years 1993 through 2004, why [he] did not timely file [his] state income tax
returns,” Knopf replied that there were “[m]any reasons both personal, financial and
health.”
                                     10

our approach to discipline.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Curtis, 749 N.W.2d 694, 703 (Iowa 2008); see also Iowa Supreme Ct. Bd.

of Prof’l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 134 (Iowa 1999)

(“As for [the attorney’s] depression and alcoholic conditions, we do not

recognize such problems as an excuse of unethical conduct.”).

      In considering personal illnesses in our approach to discipline, we

are concerned with the attorney’s fitness to practice law and, as a

mitigating factor, with the attorney’s efforts to overcome, when possible,

his or her personal afflictions. See Iowa Supreme Ct. Bd. of Prof’l Ethics

& Conduct v. Grotewold, 642 N.W.2d 288, 295 (Iowa 2002) (“[W]e

consider . . . personal afflictions and subsequent recovery efforts in the

imposition of sanctions, both in terms of fitness to practice law and as

mitigating circumstances.”).    Here, we are unable to discern from the

stipulation or the record to what extent Knopf’s health problems and

those of his family will continue to affect his ability to cope and,

therefore, affect his fitness to practice law. We are also unable to discern

to what extent the respondent has made efforts to address these health

issues, if possible. Therefore, we do not consider Knopf’s response to his

personal illness as a mitigating factor.

      In light of the above facts and circumstances, and upon our

consideration of the goals of our ethical rules, mitigating and aggravating

circumstances, and our survey of other disciplinary cases, we conclude

Knopf’s conduct warrants a three-month suspension. In addition, based

upon the parties’ stipulation, we conclude it is necessary for the

respondent to provide medical verification of his fitness to practice law

prior to any reinstatement. See, e.g., Hoglan, 781 N.W.2d at 287 (holding

attorney, who neglected several clients while suffering from debilitating
                                    11

back problems, was required to provide medical verification of his fitness

to practice law prior to reinstatement).

      V. Conclusion.

      We suspend Knopf’s license to practice law in this state indefinitely

with no possibility of reinstatement for three months. This suspension

shall apply to all facets of the practice of law as provided in Iowa Court

Rule 35.12(3). Prior to any reinstatement, Knopf must provide this court

with an evaluation by a licensed health care professional verifying his

fitness to practice law.    Knopf must also establish that he has not

practiced law during the suspension period and has complied in all ways

with the requirements of rule 35.13 and the notification requirements of

rule 35.22.   Costs of this action are taxed to Knopf pursuant to rule

35.26.

      LICENSE SUSPENDED.
