              IN THE SUPREME COURT OF IOWA
                             No. 10–0195

                         Filed October 29, 2010


IOWA SUPREME COURT
ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

PATRICIA K. WENGERT,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance commission recommends a three-year suspension of

attorney’s license to practice law. LICENSE REVOKED.



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



      John P. Roehrick, Des Moines, for respondent.
                                     2

STREIT, Justice.

      Patricia Wengert practiced law in Iowa between 1990 and 2007.

During that time, she committed numerous ethical violations, including

representing clients notwithstanding a conflict of interest, disobeying a

court order, mishandling client funds, and neglecting a client matter.

Because Wengert misappropriated client funds, in addition to numerous

other ethical violations, we revoke her license to practice law.

      I. Background Facts and Prior Proceedings.

      Patricia Wengert was admitted to practice law in Iowa in 1990.

She engaged in private practice in Sioux City and Des Moines until 2007,

when she left the practice of law. Her license is on inactive status.

      The Iowa Supreme Court Attorney Disciplinary Board filed a

complaint alleging nine counts of ethical violations committed by

Wengert while practicing.     Wengert and the board filed a stipulation

setting forth agreed-upon facts and admitted violations of ethical rules

under counts I, II, III, V, VI, VIII, and IX.    The stipulation set forth

mitigating and aggravating circumstances and recommended that

Wengert be suspended from the practice of law for three years.

      The Grievance Commission of the Iowa Supreme Court found that

the admitted violations were supported by the agreed-upon facts. The

commission also found additional ethical violations based on the

stipulated facts for counts I, III, V, and VI.            The commission

recommended that Wengert’s license to practice law be suspended with

no possibility of reinstatement for a period of three years pursuant to

Iowa Court Rule 35.10(2) and ordered that prior to reinstatement,

Wengert must (1) provide proof that the $9,790.29 paid from the Marva
                                         3

Edwards settlement to the Veda Kilbert 1 subrogation claim has been

repaid to Ms. Edwards, (2) retake and successfully pass the Multistate

Professional Responsibility Examination, and (3) complete and produce a

comprehensive psychiatric and psychological evaluation.               We hold the

proper sanction is revocation because Wengert misappropriated client

funds, in addition to other ethical violations.

       II. Scope of Review.

       We review attorney disciplinary proceedings de novo. Iowa Ct. R.

35.10(1). Although we give weight to the commission’s factual findings,

we are not bound by them. Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Marzen, 779 N.W.2d 757, 759 (Iowa 2010). The board has the burden to

prove the allegations of misconduct contained in the complaint by a

convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). While this

burden is higher than the burden in civil cases, it is lower than in a

criminal prosecution. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Ronwin, 557 N.W.2d 515, 517 (Iowa 1996).

       III. Ethical Violations.

       A. Conflict of Interest (Count I). In 2006, Wengert represented

Mary Stenlund in an involuntary guardianship and conservatorship

proceeding. During the course of the proceedings, the State of Iowa filed

a criminal charge against Stenlund’s daughter, Linda Wilson, for neglect

of Stenlund.     Wengert filed an appearance on Wilson’s behalf.               The

district   associate   judge   found    a    concurrent    conflict   of   interest,

disqualified Wengert from representing Wilson, and ordered Wengert not

       1The commission mistakenly switched the names Kilbert and Edwards, stating

that the Kilbert settlement was used to pay the Edwards subrogation claim. According
to the stipulation, the Edwards settlement was used to pay the Kilbert subrogation
claim.
                                     4

to discuss the case with Wilson. Wengert admits she had contact with

Wilson after Wilson was represented by another attorney. Wengert was

found in contempt of the court’s order on April 12, 2007, and received a

seven-day suspended jail sentence.

      Wengert stipulated to the violation of three rules of the Iowa Rules

of Professional Conduct: rule 32:1.7(a) prohibiting concurrent conflicts

of interest, rule 32:4.2 prohibiting an attorney from contacting an

individual who is represented, and rule 32:8.4(d) prohibiting an attorney

from engaging in conduct that is prejudicial to the administration of

justice.

      We agree the stipulated facts demonstrate Wengert violated these

rules. Wengert’s attempt to represent Stenlund in a guardianship and

conservatorship proceeding and to simultaneously represent Wilson for

alleged neglect of Stenlund was a clear conflict of interest that violates

ethical rule 32:1.7(a). See also Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Wagner, 599 N.W.2d 721, 726 (Iowa 1999) (noting under the

Iowa Code of Professional Responsibility for Lawyers that “the mere

possibility of an adverse effect upon the exercise of free judgment

prevents a lawyer from representing clients with opposing interests”).

Wengert violated rule 32:4.2(a), which prohibits an attorney from

“communicat[ing] about the subject of the representation with a person

the lawyer knows to be represented by another lawyer in the matter.”

Wengert admits she contacted Wilson and was held in contempt for

violating an order not to discuss the case with Wilson.

      Engaging in the clear conflict of interest and then disobeying a

court order constitute conduct that is prejudicial to the administration of

justice, a violation of rule 32:8.4(d). See Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Mulford, 625 N.W.2d 672, 682 (Iowa 2001) (“[W]hen
                                     5

an attorney willfully disobeys an order or command of a court or the

processes of a court, the administration of justice is prejudiced.”). The

commission also found a violation of rule 32:3.4(c), which prohibits an

attorney from knowingly disobeying an obligation under the rules of a

tribunal.   We agree that the district court’s order holding Wengert in

contempt supports a violation of rule 32:3.4(c) as well.

      B.    Inappropriate Statements (Counts II and III).          Wengert

stipulated to making a number of critical statements during court

proceedings in two instances.    First, Wengert stipulated that in 2006,

following a hearing on a fee application after Wengert was removed as the

attorney for an estate, Wengert made “unduly critical allegations

concerning the probate process and the court.” Wengert also stipulated

that during the process of her representation of a client involved in a

juvenile court proceeding in 2006, Wengert “suggested the process was

racist; requested the judge’s recusal because of lack of objectivity and

violation of the mother’s (client’s) constitutional rights; and, accused the

Department of Human Services of fraudulently misleading the court.”

      Wengert stipulated that she violated rule 32:8.4(d) prohibiting

conduct prejudicial to the administration of justice in both instances.

The commission also found Wengert violated rule 32:1.1 which requires

an attorney to provide competent representation. The commission noted

that Wengert’s statements in the juvenile court proceeding would only be

prejudicial to the administration of justice if false and making false

statements during the course of a representation constitutes a failure to

provide competent representation.

      We are unable to find that Wengert violated any ethical rules

relating to her allegedly inappropriate statements because the stipulation

does not articulate the necessary underlying facts. Wengert admits only
                                    6

to making “unduly critical” statements. We cannot simply assume, as

the commission did, that because Wengert stipulated to an ethical

violation, those statements must have been false.            Instead, the

underlying stipulation must provide the facts to support the ethical

violation. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carpenter, 781

N.W.2d 263, 272 (Iowa 2010) (holding the commission’s recommendation

that the attorney be ordered to refund his clients’ funds could not be

enforced because the stipulation failed to detail the amount of such

funds and no witness testimony or evidence was taken on the matter).

        C.   Mishandling Client Funds (Counts V and VI).          Wengert

mishandled client funds in two separate circumstances. First, Wengert

represented Pamela Meals in a personal injury case. In August 2006,

Meals wrote Wengert a check of $1,825 to pay for a medical examination.

Wengert used the funds to pay herself for other expenses that she claims

were advanced on behalf of Meals. Over a year later, Wengert used her

personal funds to pay the cost of the medical examination.

        In the second instance of mishandling client funds, Wengert

represented three individuals (Veda Kilbert, Marva Edwards, and

Daphine Hayes) in a case seeking recovery for injuries sustained in a

work-related accident. All three cases settled. Wengert violated a variety

of the rules governing appropriate conduct relating to client funds. First,

Wengert advanced $175 to Kilbert. Second, Wengert improperly handled

settlements obtained on behalf of her clients.          Wengert received

settlement funds in Kilbert’s case in February 2006. Wengert did not use

those funds to pay Kilbert’s $9,790.29 subrogation obligation to St. Paul

Travelers and used “those settlement funds for other purposes.” Wengert

then received the funds to settle Edwards’s claim for $81,000 in June

2006.    Wengert did not deposit the settlement proceeds in her trust
                                          7

account and did not pay Edwards’s subrogation obligation of $17,811.23

owed to St. Paul Travelers. Instead, Wengert used some of the Edwards

settlement funds to pay Kilbert’s $9,790.29 subrogation obligation.

Wengert did not keep an accurate accounting for the Edwards

settlement. 2      Wengert eventually paid off Edwards’s subrogation

obligation over a year later with her personal funds.              As noted by the

commission, it is unclear whether the money used to pay Kilbert’s

$9,790.29 subrogation obligation was repaid to Edwards.

       During this time period—in April 2006—Wengert signed a Client

Security questionnaire in which she asserted that her trust account was

properly reconciled. An audit of Wengert’s trust account demonstrated

serious problems including: comingling of personal and trust funds, lack

of records regarding which client funds were affected, and lack of

reconciliations.    The auditor found it was impossible to reconcile the

account.

       Wengert stipulated to violations of rules 32:1.15, 32:1.8(e), and

32:8.4(c).   The commission also found violations of rule 32:8.4(d) and

Iowa Court Rules 45.1 and 45.2(2). Wengert’s failure to keep her client’s

funds separate from her own funds, failure to place client settlement

funds into a trust account, and use of client settlement funds for “other

purposes” and to pay the subrogation obligation of another client violated

rule 32:1.15, which governs the safekeeping of a client’s property. See

also Comm. on Prof’l Ethics & Conduct v. Harris, 524 N.W.2d 179, 181

(Iowa 1994) (noting under the Iowa Code of Professional Responsibility

for Lawyers that “paying the client from trust funds belonging to other

       2Wengert claimed in her response to the complaint that the money used from

the Edwards settlement was part of the attorney fee portion of the settlement, although
this was not a stipulated fact. The stipulation states only that Wengert “used some of
the Edwards recovery to pay the Kilbert subrogation obligation.”
                                      8

clients is a gravely serious ethical violation”). Wengert’s failure to place

settlement funds into her trust account and keep appropriate records

violated client trust account rules 45.1 and 45.2(2).        Wengert’s false

certification that her trust account was properly reconciled and her

misappropriation of and failure to account for client settlement funds

violated rule 32:8.4(c), which prohibits an attorney from engaging in

conduct involving dishonesty, fraud, deceit, or misrepresentation.          See

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Isaacson, 750 N.W.2d 104, 109

(Iowa 2008) (holding attorney’s false representations on client security

questionnaire violated DR 1–102(A)(4) of the Iowa Code of Professional

Responsibility, which prohibited conduct involving dishonesty, fraud,

deceit, or misrepresentation); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Moorman, 729 N.W.2d 801, 804 (Iowa 2007) (holding attorney’s failure to

account for retainer fees violated DR 1–102(A)(4)).

      The commission also found Wengert’s mishandling of client funds

violated   rule   32:8.4(d)   (engaging   in   conduct   prejudicial   to   the

administration of justice). We have explained that acts are prejudicial to

the administration of justice when they “ ‘have hampered the “efficient

and proper operation of the courts or of ancillary systems upon which

the courts rely.” ’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton,

784 N.W.2d 761, 768 (Iowa 2010) (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa 2005)).                 The

stipulation does not provide sufficient facts to support a violation of

32:8.4(d) for Wengert’s actions with regard to Meals. Wengert improperly

used funds meant for a medical examination for other expenses. It is

unclear based on the stipulated facts, however, whether the independent

medical examination was ordered by a court and whether Wengert’s

actions delayed or hampered the court system.
                                          9

       We are also unable to find that Wengert’s handling of the Kilbert

and Edwards settlement funds violated rule 32:8.4(d).                      We have

previously held that delay in the administration of settlement funds after

a lawsuit had been filed, and therefore delay in the resolution of a client’s

pending lawsuit, violated rule 32:8.4(d).           See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Casey, 761 N.W.2d 53, 59 (Iowa 2009) (finding

attorney’s untimely disbursement of settlement proceeds, mishandling of

subrogation lien, and failure to respond to client’s complaints that the

court costs and subrogation lien had not been paid constituted conduct

prejudicial to the administration of justice under Iowa Code of

Professional Responsibility DR 1–102(A)(5)). Although Wengert failed to

timely pay subrogation claims and used settlement funds for other

purposes, it is unclear from the stipulation whether Wengert had filed

lawsuits on behalf of Kilbert and Edwards.               Therefore, it is unclear

whether Wengert’s actions hampered the efficient operation of our court

system.

       Additionally, Wengert’s loan of funds to a client violated rule

32:1.8(e), which prohibits an attorney from providing financial assistance

to a client in connection with pending or contemplated litigation except

in the case of a contingency fee or an indigent client. 3

       D.     Neglect of Client Matter (Count VIII).             In 2007, Wengert

represented a client in a domestic relations appeal but failed to timely file

the appellant’s proof brief.       Wengert was notified of the default, fined

$50, and given fifteen days to cure the default. She ignored the default


       3The  stipulation is unclear regarding whether the advancement of $175 to
Kilbert took place after July 1, 2005, the date on which the Iowa Rules of Professional
Conduct replaced the Iowa Code of Professional Responsibility for Lawyers. Regardless,
the previous rules also prohibited such conduct in DR 5–103(B), which stated that “a
lawyer shall not advance or guarantee financial assistance to a client.”
                                    10

notice and the appeal was dismissed. Wengert’s neglect of her client’s

matter violated rules 32:1.3 (attorney must act with reasonable diligence

and promptness in representing client) and 32:8.4(d) (conduct prejudicial

to the administration of justice). See Carpenter, 781 N.W.2d at 268–69

(stating that “[u]nder our rules prohibiting neglect, an attorney must

advance and protect his clients’ interests” and holding attorney neglect

violated ethical rules, including rules 32:1.3 and 32:8.4(d)); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 668–69

(Iowa 2007) (holding an attorney’s failure to comply with the appellate

deadlines and disregard of the default notice in a client’s appeal

constituted a violation of rules 32:1.3 and 32:8.4(d)); see also Templeton,

784 N.W.2d at 768 (noting acts prejudicial to the administration of

justice are those which “ ‘have hampered “the efficient and proper

operation of the courts or of ancillary systems upon which the courts

rely” ’ ” or violate “the well-understood norms and conventions of the

practice of law” (quoting Howe, 706 N.W.2d at 373)).

      E.   Failure to Provide Competent Representation (Count IX).

Wengert and the board stipulated that in 2007, Wengert represented

Christine Kilmer in a federal civil rights case, and the “drafting of the

Complaint was poor.” Wengert stipulated that by virtue of her poor work

in this case she failed to provide competent representation in violation of

rule 32:1.1 and also engaged in conduct prejudicial to the administration

of justice under rule 32:8.4(d). Although there may be circumstances in

which a single poorly drafted complaint could constitute an ethical

violation, the stipulation does not provide enough factual detail for this

court to find a violation of rules 32:1.1 and 32:8.4(d). The stipulation

does not detail what, if any, harm to the client resulted or why the

complaint was considered “poorly drafted.”
                                    11

      IV. Sanction.

      There is no standard sanction for a particular type of attorney

misconduct, and we determine an appropriate sanction based on the

particular circumstances of each case. Carpenter, 781 N.W.2d at 270.

“In determining the appropriate sanction, we consider ‘ “the nature of the

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

others, the lawyer’s fitness to practice, and the court’s duty to uphold the

integrity of the profession in the eyes of the public.” ’ ” Marzen, 779

N.W.2d at 767 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Iversen, 723 N.W.2d 806, 810 (Iowa 2006)).          We consider relevant

aggravating and mitigating circumstances. Id.

      Wengert violated ethical rules relating to conflicts of interest,

disobeying a court order, mishandling client funds, and neglecting client

matters.

      Misappropriation of a client’s funds by an attorney will typically

result in license revocation. Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Plumb, 766 N.W.2d 626, 634 (Iowa 2009). “Restitution or restoration of

client funds prior to the discovery of their misappropriation does not

preclude the imposition of revocation as a sanction.” Id. This court will

on occasion impose a lesser penalty when commingling of funds appears

negligent, instead of intentional; the funds were not converted to the

attorney’s own use; no client suffered financial loss; or the attorney had

a colorable future claim to the funds. Id.; Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. D’Angelo, 619 N.W.2d 333, 339 (Iowa 2000).          We

have imposed license suspension of up to eighteen months when the

violation involves poor office management and neglect.      See Carpenter,

781 N.W.2d at 271.
                                   12

      Wengert used a client check meant for a medical examination for

other expenses and a year later used her own funds to cover the cost of

the medical examination. Wengert claims that although she commingled

funds, she had a colorable claim to the check for other work in her

representation of Meals and there is no stipulation to the contrary.

Alone, this behavior, though serious, would not necessarily warrant a

revocation.

      Wengert also mishandled settlements received on behalf of clients.

She failed to timely pay subrogation obligations for two clients—Kilbert

and Edwards.    She used the Kilbert settlement funds meant for the

subrogation obligation for “other purposes.”      Wengert then used the

Edwards settlement to pay the $9,790.29 Kilbert subrogation obligation.

It is unclear from the stipulation whether Edwards eventually received

the complete amounts due her from the settlement. The commission was

concerned that Edwards did not receive her entire settlement and

ordered Wengert to provide proof that the amount paid from the Edwards

settlement to cover the Kilbert subrogation obligation had been repaid to

Edwards.

      Although the stipulation states “[i]t is not clear that any client

suffered damage, however, and Respondent’s conduct may have been

negligent and sloppy rather than deliberate conversion of client funds,”

the commission’s order suggests that a client may have been harmed by

Wengert’s poor management of funds. At the very least, it is clear that

Wengert converted client funds for her own use.        Wengert used the

portion of the Kilbert settlement funds meant for the subrogation

obligation for “other purposes.” She later used the Edwards settlement

funds to pay back the money taken from the Kilbert settlement. Such

behavior has previously resulted in revocation.    See Iowa Supreme Ct.
                                    13

Bd. of Prof’l Ethics & Conduct v. Leon, 602 N.W.2d 336, 338–39 (Iowa

1999) (imposing sanction of revocation where attorney repeatedly

neglected client legal matters and misappropriated other clients’ funds in

an effort to cover up the neglect). This is not a situation where Wengert

had a colorable claim to funds but failed to follow the proper procedures

for withdrawals. See Plumb, 766 N.W.2d at 634; Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Gottschalk, 553 N.W.2d 322, 325 (Iowa 1996).

Wengert’s misappropriation of client funds, therefore, supports a

sanction of revocation.

      The    stipulation    identified   aggravating    and    mitigating

circumstances.     As mitigating circumstances, the stipulation noted

Wengert no longer wishes to practice law, Wengert planned to obtain a

psychological evaluation because of depression but did not because of a

lack of funds, and Wengert cooperated with the board. We agree with the

commission that only Wengert’s cooperation is a mitigating factor.

Iversen, 723 N.W.2d at 811.      Wengert’s decision that she no longer

wishes to practice has no bearing on her fitness. Additionally, Wengert

received a continuance from the board and an order for a mental health

examination, but she failed to follow through on the order. This does not

demonstrate that Wengert suffers from any medical disorder such as

depression, but instead demonstrates she was unable to follow through,

a common problem in her prior legal practice.

      As aggravating factors, the stipulation noted that Wengert

committed multiple violations of the ethical rules.    In addition to the

misappropriation of client funds, Wengert disobeyed a court order,

engaged in a representation that was a conflict of interest, and neglected

a client matter.   The large number and variety of Wengert’s ethical

violations is an aggravating factor.        “Multiple violations of our
                                         14

disciplinary rules such as occurred here call for enhanced disciplinary

sanctions.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lesyshen,

585 N.W.2d 281, 288 (Iowa 1998).

         Wengert was also previously admonished for making a recklessly

false allegation in connection with the Stenlund matter.            The prior

admonishment occurred during the timeframe and related to a matter we

are considering in this action, therefore, it does not require us to

increase the severity of the sanction. See Moorman, 729 N.W.2d at 805–

06 (noting the allegations pertained to the same time period for which

Moorman had already been suspended for two years and therefore

imposing a concurrent sanction of a public reprimand).

         The parties recommended a license suspension of three years, and

the commission agreed.           We disagree and hold revocation is the

appropriate sanction.        The large number of serious ethical violations

suggests a severe sanction is necessary.               Additionally, Wengert

misappropriated client settlement funds twice, once for “other purposes”

and a second time to fulfill the obligation arising from her previous

misappropriation.

         Three cases present similar facts: Iowa Supreme Court Attorney

Disciplinary Board v. Earley, 774 N.W.2d 301, 308–09 (Iowa 2009), Leon,

602 N.W.2d at 339, and Harris, 524 N.W.2d at 180. In Earley, this court

concluded Earley’s misappropriation of client settlement funds warranted

license revocation.        Earley, 774 N.W.2d at 308–09.      Earley received

settlement funds on behalf of a client but failed to pay the subrogation

obligations and instead used that money for personal reasons.             Id. at

306, 308.      We revoked Earley’s license, explaining that Earley did not

assert     a   colorable    claim   to   the   settlement   funds   and    “the

misappropriation of client monies [is] intolerable.” Id. at 309.
                                    15

      In Harris, the attorney withdrew a client’s money from the trust

account to apply toward attorney fees, even though the client had only

agreed the money was to be used for the client’s personal expenses, court

costs, and expenses of litigation. Harris, 524 N.W.2d at 180. When the

client objected, Harris paid the client $3,000 from the client trust

account, even though the client only had $670 in the trust account. Id.

We suspended Harris for three years. Id. at 181. We declined to revoke

Harris’s license because of a “good past professional record” and because

Harris was “not charged with obtaining funds for himself beyond those

fairly earned as fees.” Id. In Leon, the attorney repeatedly covered up

his neglect by paying clients from the client trust account even though

those clients did not have funds in the trust account—therefore, paying

with other clients’ money. Leon, 602 N.W.2d at 337. We revoked Leon’s

license and noted the distinction from Harris was a likelihood of future

misconduct because Leon had misappropriated funds on more than one

occasion involving multiple clients, had lied to coverup his actions, and

had failed to fully reimburse the trust account. Id. at 339.

      Revocation is more appropriate here because, just as in Earley,

Wengert failed to pay subrogation obligations and misappropriated

settlement funds from Kilbert and Edwards. In addition, similar to Leon,

Wengert attempted to cover up her actions by paying a client with

another client’s money and this behavior was part of a series of ethical

violations.   Wengert failed to keep an accounting of client funds,

intermingled client and personal funds, disobeyed a court order, engaged

in a representation that was a conflict of interest, and neglected a client

matter leading to dismissal. Wengert’s pattern of misconduct leads us to

conclude that future misconduct is likely.     Consistent with our prior

decisions, we conclude revocation is the appropriate sanction.
                                  16

     V. Conclusion.

     Wengert’s license to practice law in Iowa is revoked.   Costs are

taxed to Wengert pursuant to Iowa Court Rule 35.26(1).

     LICENSE REVOKED.
