               IN THE SUPREME COURT OF IOWA
                             No. 11–0157

                          Filed April 29, 2011


IOWA SUPREME COURT
ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

KENNETH F. DOLEZAL,

      Respondent.



      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance commission recommends a thirty-day suspension of

attorney’s license to practice law. LICENSE SUSPENDED.



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

complainant.



      Kenneth F. Dolezal, Cedar Rapids, pro se.
                                      2

MANSFIELD, Justice.

        This attorney disciplinary proceeding comes before us on the

report of a division of the Grievance Commission of the Supreme Court of

Iowa.    See Iowa Ct. R. 35.10(1).    The Iowa Supreme Court Attorney

Disciplinary Board alleged the respondent, Kenneth F. Dolezal, violated

ethical rules by neglecting three clients’ matters, failing to deposit fees

into a client trust account, failing to provide an accounting, failing to

communicate with a client, making misrepresentations to a client, and

improperly terminating representation of a client.

        The commission found Dolezal violated several of the Iowa Rules of

Professional Conduct and recommended Dolezal be suspended from the

practice of law for thirty days.   The commission further recommended

Dolezal be required to submit a report from a qualified physician or

mental health professional stating he is presently fit and capable to

practice prior to reinstatement and attend a continuing legal education

class on trust accounting. Upon our consideration of the commission’s

findings of fact, conclusions of law, and recommendation, we find Dolezal

committed several violations of the Iowa Rules of Professional Conduct

and suspend his license for thirty days.

        I. Scope of Review.

        We review attorney disciplinary proceedings de novo.          Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790 N.W.2d 791, 793 (Iowa

2010). We give respectful consideration to the commission’s findings and

recommendations, but we are not bound by them.          Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864 (Iowa 2010). “The

board has the burden of proving attorney misconduct by a convincing

preponderance of the evidence.” Id.
                                    3

      II. Ethical Violations.

      Dolezal was admitted to the bar in 1983 and maintains a law office

in Linn County. This proceeding is based on Dolezal’s handling of three

separate legal matters between 2008 and 2010.       We will set forth our

findings and conclusions with respect to each matter.

      A. Conservatorships of Wesley and Lenora Buresh.            The first

matter involves Dolezal’s failure, despite repeated warnings, either to

pursue or dismiss two appeals before this court.

      In approximately 2007, Dolezal was retained by the daughter of

Wesley and Lenora Buresh to represent her in connection with the

Bureshes’ conservatorships. On March 26, 2008, Dolezal filed a notice of

appeal challenging a district court ruling.     He subsequently filed a

combined certificate and paid the docketing fee but did nothing

thereafter.   On August 6, 2008, Dolezal was found in default and

personally assessed a $50 penalty for failing to timely file a proof brief

and designation of appendix in this court.

      On August 22, 2008, Dolezal paid the penalty and also applied for

an extension of time to file the brief and designation. The extension of

time was granted, but on October 16, 2008, Dolezal was again found in

default for not filing the proof brief and designation and assessed another

$50 fine. Dolezal paid the fine as before but, again, asked for another

extension. On March 17, 2009, an order was entered directing the proof

brief and designation of appendix to be filed within thirty days or the

case would be dismissed. No brief or designation was filed, so on May 5,

2009, a notice of default was issued, and Dolezal was personally

assessed another $50 fine. That default was not cured, and the appeal

was dismissed by our clerk of court on June 5, 2009, over a year after it

had been initiated.
                                      4

         On May 26, 2009, Dolezal filed a second notice of appeal.      This

appeal related only to the conservatorship of Lenora Buresh, Wesley

Buresh having died. Dolezal, however, did not pay the filing fee for this

appeal. See Iowa R. App. P. 6.102(3). On September 11, 2009, Dolezal

received written notice that the $150 fee needed to be paid within seven

days to avoid penalty. The fee was still not paid. On October 2, 2009, a

notice of default was issued based on failure to pay the filing fee, and

Dolezal was personally assessed a $150 fine. This notice of default, like

the default notice from the previous appeal, specifically stated in bold:
               You are advised that if the appeal is dismissed as a
         result of counsel’s failure to comply with this default
         notice, a copy of the dismissal order will be forwarded to
         the Iowa Supreme Court Attorney Disciplinary Board
         ....    The dismissal may serve as grounds for an
         investigation of neglect of a client’s legal matter.

         This default also was not cured, so on November 10, 2009, the

second appeal was dismissed by our clerk of court for want of

prosecution.

         At the grievance hearing, Dolezal sought to explain his actions. He

testified that he and his client jointly decided it was not necessary to

pursue either appeal. He also explained that he, not his client, paid the

penalties assessed by the clerk.          Finally, Dolezal admitted he had

received the default notices and never responded to them.                   He

acknowledged he should have dismissed the appeals on his own, but

claimed he was unaware that he had to do so instead of relying upon the

clerk.

         When an attorney’s failure to comply with appellate deadlines

results in an administrative dismissal, his actions are prejudicial to the

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

Wright, 758 N.W.2d 227, 230–31 (Iowa 2008) (finding an attorney’s
                                     5

reliance on a default notice to dismiss an appeal when his client could

not raise funds for the filing of the transcript was conduct prejudicial to

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

Tompkins, 733 N.W.2d 661, 668 (Iowa 2007) (finding an attorney

committed    neglect   and   acted   in   a   manner   prejudicial   to   the

administration of justice when he failed to prosecute or move to dismiss

an appeal he believed to be without merit); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 105 (Iowa 2006) (“To

simply wait for the court to dismiss the case for lack of prosecution is

neglect, inappropriate, and unethical.”); Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Daggett, 653 N.W.2d 377, 380 (Iowa 2002) (failing to

comply with appellate deadlines “not only constitutes neglect, but also

amounts to conduct that is prejudicial to the administration of justice”).

      Dolezal conceded he failed to cure the defaults. Instead, he relied

on the clerk to administratively dismiss both appeals.       But a client’s

decision not to pursue an appeal does not put an end to the attorney’s

responsibility for that matter. See Tompkins, 733 N.W.2d at 668 (“The

burden is on the attorney to comply with the appellate deadlines

regardless of a client’s instruction or interest in the case.”); Lesyshen,

712 N.W.2d at 105 (“[S]imply because a client does not want to pursue

the case does not relieve the attorney from taking steps necessary to end

the matter.”).   Dolezal’s failure to follow through with or dismiss the

appeals and his disregard of the default notices violated ethical rules

32:3.2 (requiring reasonable efforts to expedite litigation) and 32:8.4(d)

(requiring conduct not be prejudicial to the administration of justice).

See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793 N.W.2d 525,

530 (Iowa 2011) (holding that “[i]gnoring deadlines and orders, which

results in default notices from the clerk of court, hampers the ‘ “efficient
                                        6

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

administration of justice” (quoting Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa 2005))); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Monroe, 784 N.W.2d 784, 788 (Iowa 2010) (stating that

acts   prejudicial   to   the   administration   of   justice   generally   have

“ ‘hampered the efficient and proper operation of the courts or of

ancillary systems upon which courts rely’ ” (quoting Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Borth, 728 N.W.2d 205, 211 (Iowa 2007))); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Hoglan, 781 N.W.2d 279, 284 (Iowa

2010) (holding an attorney’s failure to prosecute four appeals violated

rules 32:1.3, 32:3.2, and 32:8.4(d)).

       The commission found that Dolezal’s conduct also violated rule

32:1.3 requiring “reasonable diligence and promptness in representing a

client.”   In a case decided under the former Iowa Code of Professional

Responsibility for Lawyers, we held that even if a client no longer wants a

matter to be pursued, it is neglect for the attorney to allow the matter to

languish, without terminating it. See Lesyshen, 712 N.W.2d at 105. As

we put it in Lesyshen:
       [S]imply because a client does not want to pursue the case
       does not relieve the attorney from taking steps necessary to
       end the matter. To simply wait for the court to dismiss the
       case for lack of prosecution is neglect, inappropriate, and
       unethical. See DR 6–101(A)(3).

Id. We see no reason to interpret rule 32:1.3 differently from former DR

6–101(A)(3) in this respect. The new rule provides that a lawyer “shall

act with reasonable diligence and promptness in representing a client”;

the old rule provided that a lawyer shall not “neglect a legal matter

entrusted to him.”        Thus, both rules are broadly worded to require

diligence, or conversely to prohibit neglect, in the course of legal work on
                                           7

a client’s behalf. It is not a defense under either rule that the client may

be indifferent to the attorney’s lack of diligence.

       B. Social Security Disability Claim of Michael David.                       This

attorney disciplinary proceeding also concerns Dolezal’s representation of

a client in a social security disability appeal to federal district court. To

summarize our findings, which we discuss in more detail below, Dolezal

received a retainer from his client and filed the federal court complaint,

but did not have the complaint served (resulting in dismissal of the case),

did not communicate adequately with his client, and did not handle the

retainer funds appropriately.

       In March 2006, Dolezal was hired by Michael David to pursue a

social security disability claim. After receiving unfavorable rulings in the

Social Security Administration’s administrative process, Dolezal wrote

David suggesting the matter be appealed to the United States District

Court for the Northern District of Iowa. 1 Dolezal’s letter dated December

27, 2007, stated:
       I believe it should be appealed to the U.S. District Court but
       there is now a financial cost. You would need to deposit
       $1,000.00 in my trust account for payment of filing fees,
       brief preparation costs and attorneys fees. This must be
       accomplished by February 8, 2008 if you want me to
       proceed.
       On or about January 17, 2008, David made an initial payment of

$500 to Dolezal by check and agreed to pay an additional $100 monthly

through June 2008 to bring the total to $1000. This payment plan was

memorialized in a writing that further provided, “These funds will be

       1On  June 29, 2007, while David’s original application for benefits was before the
Social Security Appeals Council, the Social Security Administration granted David’s
subsequent, pro se application for disability benefits. This ruling meant that David
would be entitled to receive benefits beginning August 2007. However, David still had
his original claim, prosecuted by Dolezal, for disability benefits for an earlier time
period.
                                          8

used to pay the court required filing fees, the service of process fees, my

time at the rate of $175 per hour and copy or printing expenses.”

Dolezal testified he put the $500 check in a file and left it there until he

filed the federal court complaint.

       On March 13, 2008, Dolezal filed the complaint in federal district

court. 2   At that time, according to Dolezal’s testimony, he cashed the

check and used $350 for the filing fee while keeping the remainder as

attorney fees. David provided additional checks to Dolezal in February

2008 ($100), May 2008 ($200), and October 2008 ($100). Dolezal did not

place any of these payments into a trust account; presumably, they were

also cashed and treated by Dolezal as income. In addition, David claims

he paid $100 in cash to Dolezal, stating, “I thought I dropped it off.”

However, David has no receipt for this alleged cash transaction.

       Although Dolezal filed the complaint, he never had it served on the

Commissioner. As a result, on February 25, 2009, the federal district

court issued a notice stating the case would be dismissed unless some

action was taken by March 16, 2009. No action was taken, and the case

was dismissed.

       According to Dolezal, shortly after the federal court complaint was

filed in March 2008, David provided a transcript of a deposition he had

given in December 2005 in a workers’ compensation case.                       Dolezal

testified that after reading the deposition transcript, he concluded David

had made several misrepresentations to him.               Dolezal testified that “a

very heated discussion” ensued during which he orally terminated his


       2The  board maintained that Dolezal’s filing of the complaint was untimely, but
Dolezal testified he would have been able to get a retroactive extension of the filing
deadline if he and his client had decided to pursue the matter. Dolezal claimed that he
did not regularly handle social security appeals and that he and his secretary had some
difficulty mastering the e-filing requirements.
                                     9

representation of David and told David to find new counsel.         Dolezal

admitted he did not send a letter to David confirming the termination of

their relationship, nor did he file a motion to withdraw as counsel with

the federal district court. Dolezal further testified that he did not speak

with David again until he came to his office in January 2010.

      David, who also testified at the grievance hearing, denied that this

argument had occurred or that the attorney-client relationship had been

terminated.   Rather, while acknowledging that he was “not very good

with the dates,” David testified his meeting with Dolezal in January 2010

was his first news about the case since its filing. David characterized

that meeting as follows:
      I went to the office and I said, what’s going on? He said, let
      me get my laptop, and I’ll look it up. He got his laptop, and
      he came back to the desk, and he looked for a while, and he
      said, if I recollect – if I recollect right, he said you’ve been
      denied. And I said, okay. Why didn’t you get a hold of me so
      we could appeal it again, because you said there’s another
      appeal process? He really didn’t answer me. He just looked
      down, and that was about it. He just didn’t say nothing to
      me, why or what happened; it was just that that’s it. You
      can’t appeal it no more, or I was denied, one or the other, so
      I just left.

David also testified that he referred his brother to Dolezal for
representation in October 2009. Finally, David testified he had retained

an attorney for the potential purpose of filing a malpractice case against

Dolezal.

      Upon our de novo review, we are not persuaded by a convincing

preponderance of the evidence that Dolezal misrepresented the status of

the case to David. The commission found, “Mr. David testified that he

would try and call [Dolezal] during 2008 and 2009 regarding the case

and was told it would take awhile, that he had not heard anything, and

[Dolezal] would find out.” David’s actual testimony, however, was that
                                     10

once, in 2008, Dolezal said the case was “going to take a while” and

much later, in December 2009 or January 2010, Dolezal promised to find

out about the case but never got back to David, prompting David to

make the January 2010 trip to Dolezal’s office.       Given David’s actual

testimony, and his admissions to being “forgetful” and “forget[ting] a lot

of things,” we are not able to find that Dolezal misled his client.        Yet,

Dolezal’s claim that he orally terminated the attorney-client relationship

shortly after March 13, 2008, does not square with events either.

Dolezal did nothing at the time to withdraw from the district court case

or to protect his client’s interests therein. Dolezal also did not send a

letter to David confirming the termination of representation, despite

having   previously   sent   David    letters   confirming   the   terms     of

representation.    In addition, after the alleged termination, David

continued to make installment payments, Dolezal continued to accept

them, and David also referred his brother to Dolezal for representation.

It seems odd that all of these things would have occurred if Dolezal had

actually “fired” David after learning of David’s alleged dishonesty.

      Thus, we find Dolezal continued to represent David, but neglected

his case, with the result that it was involuntarily dismissed for failure to

effect timely service. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Thomas,

794 N.W.2d 290, 293–94 (Iowa 2011) (holding that failure to effect

service within the prescribed time period constitutes neglect). David lost

his right of appeal to federal court, and the court was forced to expend

resources unnecessarily before dismissing David’s stale appeal.            The

neglect was further compounded by Dolezal’s failure to keep David

informed of the case’s status.       By his own admission, Dolezal went

almost two years without speaking to David, and all attempts at

communication after early 2008 were initiated by David. Accordingly, we
                                            11

find sufficient proof that Dolezal violated rules 32:1.3 (requiring

reasonable diligence and promptness), 32:1.4 (requiring reasonable

communication with client), 32:3.2 (requiring reasonable efforts to

expedite litigation consistent with the interests of the client), and

32:8.4(d) (requiring conduct not be prejudicial to the administration of

justice). See Thomas, 794 N.W.2d at 293–94 (finding violations of rules

32:1.3, 32:1.4, and 32:8.4(d)); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Johnson, 792 N.W.2d 674, 681 (Iowa 2010) (finding that an attorney’s

failure to make necessary filings in bankruptcy case—resulting in a

motion to dismiss and a court hearing—and his failure to keep clients

informed violated rules 32:1.3, 32:1.4, 32:3.2, and 32:8.4(d)).                         As

previously noted, we do not find a clear preponderance of evidence

establishes a misrepresentation by Dolezal to his client in violation of

rule 32:8.4(c).       In addition, because we find that Dolezal did not

terminate his representation of David in early 2008, and instead

continued to serve as his counsel in the federal appeal, we do not find a

violation    of   rule    32:1.16(d)     (requiring     certain     procedures       when

terminating client representation). 3

       This brings us to Dolezal’s trust account violations. In his initial
December 2007 letter, Dolezal agreed to perform the specific service of

appealing David’s claim to the federal district court for a predetermined

amount of $1000. This was a “flat fee” arrangement. See Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Piazza, 756 N.W.2d 690, 697 (Iowa 2008)

(discussing the concept of a “flat fee”); see also Iowa Ct. R. 45.10(1)

(defining a “flat fee” as “one that embraces all services that a lawyer is to

        3Notably, even if Dolezal’s testimony were accepted in its entirety, he still failed

to terminate his representation of David properly. As Dolezal put it, “My problem, as I
see it, with the David case is I did not send him a letter, okay, confirming that I was no
longer representing him.”
                                     12

perform, whether the work be relatively simple or complex”). “A flat fee is

‘nothing more than an advance fee payment which . . . must be deposited

in a client trust account.’ ”   Piazza, 756 N.W.2d at 697 (quoting Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Apland, 577 N.W.2d 50, 56

(Iowa 1998)); accord Iowa Ct. R. 45.10(2). “[A] flat fee . . . is earned when

the services are completed and therefore requires deposit in a client trust

account coupled with a contemporaneous accounting to the client prior

to withdrawal of such fees from the trust account.” Piazza, 756 N.W.2d

at 698. This is because, “[u]ntil services are complete, it is possible that

at least a portion of the fee ‘would need to be refunded to the client in the

event the attorney-client relationship is terminated before the services

were rendered.’ ”   Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Kennedy, 684 N.W.2d 256, 260 (Iowa 2004) (quoting Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Frerichs, 671 N.W.2d 470, 476 (Iowa

2003)). Arguably, in his second letter of January 2008, Dolezal qualified

his earlier description of the fee arrangement by stating that he would

bill for his time at $175 per hour. Still, we believe the only reasonable

interpretation of the two letters would leave the overall amount paid by

David subject to a $1000 cap. (The second letter reiterates that $1000 is

the amount “required to pursue the appeal of your case to the U.S.

District Court.”) And if anything, the second letter confirms that Dolezal

would only earn fees as he performed work on the case.

      It is undisputed that Dolezal received a $500 check from David

before performing any services.     Dolezal testified he did not cash the

check, but kept it in a file until he had prepared and filed the four-page

federal appeal and incurred the $350 filing fee. At that time, he treated

the remaining $150 as income he had earned through his work on the

federal appeal. He took the same position with respect to the subsequent
                                           13

installment payments totaling $400, which he also took as income.

Neither the board nor the commission questioned Dolezal’s contentions

that he had earned these funds; however, they faulted Dolezal for not

opening a trust account, for not initially depositing the payments into a

trust account, and for not providing an accounting and notice to his

client of how the client’s funds were being used. 4

       We agree that Dolezal should have deposited the funds in a trust

account, as he said he would do in his December 2007 letter to David,

and should have provided an accounting to David for the use of the

funds. These actions were required by rule 32:1.15 and rule 45.7. See

Iowa Ct. R. 32:1.15(a), (c) (requiring complete records of trust account

funds to be kept and requiring advance payments of fees and expenses to

be deposited into a client trust account); Iowa Ct. R. 45.7(4) (requiring

the lawyer to provide an accounting and notice to the client when

withdrawing advance fee or expense payments); Iowa Ct. R. 32:1.15(f)

(incorporating chapter 45 of the Iowa Court Rules); see also Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 152–53

(Iowa 2010) (finding violations of rules 32:1.15 and 45.7 when a lawyer

did not properly maintain trust records justifying withdrawals of

payments to himself and did not provide an accurate accounting to his

client); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carpenter, 781 N.W.2d

263, 269 (Iowa 2010) (finding violations of rules 32:1.15 and 45.7 when a

lawyer received advance fee retainers, failed to deposit them in a client

trust account, and failed to properly account for them).




       4Dolezaltestified that, after his client complained to the board, he prepared a
statement recreating his time and showing that he had earned his fees.
                                      14

         C. Estate of Steven M. Carter.         The final subject of this

proceeding is a probate proceeding in which Dolezal failed to file required

reports or explain to the court why he was unable to do so.

         In October 2006, Dolezal was retained by Gene Carter, the

administrator of the estate of Steven Carter (Gene’s father). No question

has been raised about Dolezal’s initial work on the case, including his

successful defense of an appeal. See In re Estate of Carter, No. 08–0344,

2008 WL 5235574 (Iowa Ct. App. Dec. 17, 2008). However, following the

issuance of procedendo by the appellate court on January 16, 2009,

Dolezal took no further action in the still pending case in the district

court.     Dolezal received notices of delinquency from that court on or

about June 1, 2009, and December 1, 2009. Each notice specified the

failure to file the interlocutory report within sixty days could result in a

report being made to the Iowa Supreme Court Attorney Disciplinary

Board. See Iowa Ct. R. 7.6. Nonetheless, Dolezal took no action.

         On or about March 11, 2010, Dolezal received a notice directing

both him and Gene Carter to appear in person at a show-cause hearing

on April 27, 2010. Dolezal came to the hearing, but his client did not.

As a result of that hearing, the district court again ordered an

interlocutory report to be filed within sixty days. However, to date, no

interlocutory or final reports have been filed with the district court, and

the estate has not been closed.

         Dolezal testified that the estate is still open because Gene Carter

absconded with funds from the estate and he has been unable to locate

him. However, Dolezal admitted that he has never raised this issue with

the district court in writing nor sought to withdraw from representation

due to a lack of cooperation.        In addition, although the notices of

delinquency mailed to Carter were returned to sender, Carter filed an
                                      15

address change with the district court in September 2010. Despite this

filing, Dolezal has still not made any attempts to contact Carter at the

new address.

         The failure to close an estate in a timely fashion, despite repeated

delinquency notices, constitutes neglect.         Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Marks, 759 N.W.2d 328, 331 (Iowa 2009) (finding that

an attorney committed professional neglect under the prior DR 6–

101(A)(3) when he did not sell a piece of real estate or close the estate

allegedly because he could not locate the administrator).       In addition,

such inaction results in unnecessary oversight by the clerk of court and

judicial officers that is prejudicial to the administration of justice. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 701 (Iowa

2008). Based on the foregoing, we find a convincing preponderance of

the evidence shows violations of rules 32:1.3 (requiring reasonable

diligence and promptness), 32:3.2 (requiring reasonable efforts to

expedite litigation), and 32:8.4(d) (requiring conduct not be prejudicial to

the administration of justice). See Lickiss, 786 N.W.2d at 867 (dilatory

handling of four estates violated rules 32:1.3, 32:3.2, and 32:8.4(d));

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ackerman, 786 N.W.2d 491,

495–96 (Iowa 2010) (dilatory handling of two estates violated rules 32:1.3

and 32:8.4(d)).

         III. Discipline.

         “There is no standard sanction for a particular type of misconduct,

and though prior cases can be instructive, we ultimately determine an

appropriate sanction based on the particular circumstances of each

case.”    Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d

437, 443 (Iowa 2007).        In determining an appropriate sanction, we

consider
                                     16
      the nature of the violations, the attorney’s fitness to continue
      in the practice of law, the protection of society from those
      unfit to practice law, the need to uphold public confidence in
      the justice system, deterrence, maintenance of the
      reputation of the bar as a whole, and any aggravating or
      mitigating circumstances.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502

(Iowa 2008).

      As discussed above, this case involves primarily neglect and

related conduct prejudicial to the administration of justice. “In general,

the sanction imposed when neglect is the principal violation can range

from a public reprimand to a six-month suspension.”           Thomas, 794

N.W.2d at 294.    The sanction imposed in a particular instance often

depends upon whether there are multiple instances of neglect, a history

of past disciplinary problems, and other companion violations. Fields,

790 N.W.2d at 798. Another important consideration is the harm caused

by the neglect. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761

N.W.2d 53, 61 (Iowa 2009).

      In this case, Dolezal has neglected three client matters—Buresh,

David, and Carter. Moreover, Buresh could be considered two separate

matters because it involved two different appeals approximately a year

apart from each other. Although Dolezal’s conduct in the Buresh and

Carter proceedings did not result in harm to his clients, the neglect in

the David matter led to the dismissal of David’s appeal. Dolezal’s neglect
in the David matter was coupled with trust account violations.           The

violations involved a relatively small amount of money ($900), and the

record does not establish that Dolezal failed to earn the fees, just that he

did not handle the funds properly.

      Dolezal also has a history of past disciplinary problems. He was

privately admonished in October 2009 for failing to respond to
                                     17

delinquency notices in another guardianship/conservatorship.            In

addition, Dolezal was privately admonished in the early 1990s for an

advertising violation and for acquiring a security interest in the property

of a client that was part of the subject matter of his representation. The

latter two ethical violations occurred many years ago and do not appear

to be similar to Dolezal’s more recent ethical lapses.

      Dolezal’s right to practice also was suspended in 1991 for

noncompliance with both continuing legal education requirements and

client security requirements. This conduct, although it occurred some

time ago, is more similar in nature to Dolezal’s recent pattern of

inattention to court requirements.

      Dolezal was temporarily suspended from the practice of law in

March 2010 for failing to respond to inquiry notices from the board

relating to a complaint. However, we conclude the temporary suspension

was adequate discipline for failing to respond to the board’s inquiry, and

will not consider his failure to respond to the board in fashioning any

additional discipline. Lickiss, 786 N.W.2d at 870.

      We also consider any mitigating circumstances.       Since the late-

1980s, Dolezal has undergone periodic counseling for depression

stemming from his combat service in the Vietnam War.               Dolezal

participates in the counseling voluntarily and is currently taking three

medications for depression and anxiety.       While depression and other

illnesses do not excuse an attorney’s misconduct, they can be mitigating

factors that influence our approach to discipline. Carpenter, 781 N.W.2d

at 271.   To the extent Dolezal acknowledges his depression and has

sought appropriate treatment, we should take this into account in

fashioning an appropriate sanction.       Fields, 790 N.W.2d at 799–800.
                                           18

Dolezal also testified that he underwent back surgery in September 2009

and was catheterized for three weeks.

       Yet Dolezal’s own testimony limits our ability to rely on these

mitigating circumstances.           In general, Dolezal did not attribute his

specific ethical violations, as described above, to his medical conditions.5

Rather, he essentially described his failure to take required court action

in the Buresh, David, and Carter matters as decisions he made with full

command of his faculties. Dolezal’s attempts to justify his own conduct

reveal some misunderstanding of ethical duties:
       A. . . . I believe my duty is to the client.
       Q. Do you believe you have a duty to the court, the courts in
       which you are licensed to practice, as well? A. I have – I see
       that as a secondary duty, yes. I have a duty to the court,
       but I believe my duty to the client exceeds or precedes my
       duty to the court.

See Knopf, 793 N.W.2d at 532 (refusing to consider personal illness as a

mitigating factor when it was not shown to have affected the attorney’s

fitness to practice law).

       In determining an appropriate sanction, we are guided not only by

the factors listed above, but also by prior cases. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Conroy, 795 N.W.2d 502, 506, (Iowa 2011). We find

several prior neglect cases instructive to the present situation.


       5For   example, on the Buresh and David matters Dolezal testified:
       Q. Now, do you claim that problems with depression that you’ve had had
       anything to do with not getting the work done in the Buresh appeals? A.
       No.
       ....
       Q. And do you claim that your problems with depression had anything
       to do with the David matter, with not following through on the federal
       court case? A. Well, maybe not the following through . . . .
On the Carter matter, Dolezal claimed that he did not go back to court because
he was “depressed” and “frustrated” about being owed several thousand dollars
and the estate not having been resolved.
                                        19

      In Conroy, we found an attorney neglected two matters, did not

comply with trust account requirements, failed to forward proceeds to a

client, failed to furnish a timely and complete accounting regarding

earned fees, failed to communicate with a client, and failed to respond to

the board’s inquiries and request for documents.         Id. at 504–05.     As

mitigating circumstances, we found the attorney voluntarily ceased the

practice of law and had no prior discipline.       Id. at 506.     Under these

circumstances, we determined a sixty-day suspension was appropriate.

Id. at 507.

      Likewise, in Thomas, we found an attorney failed to serve original

notice on a defendant in a personal injury action resulting in the case

being dismissed.       794 N.W.2d at 292.     The attorney compounded his

neglect by avoiding his clients and then misrepresenting to his clients

the cause of the dismissal.       Id.    Taking into account the attorney’s

history   of   prior    disciplinary    problems   and   several     mitigating

circumstances, we determined the attorney should be suspended from

the practice of law for sixty days. Id. at 295.

      In Hoglan, an attorney failed to prosecute four appeals resulting in

their dismissal. 781 N.W.2d at 282–83. We decided the proper sanction

was a suspension of thirty days, noting that each dismissal had harmed

the client (although three of the clients did not hold this against Hoglan),

the multiple incidents of neglect covered a two-and-a-half-year span, and

the attorney had already been publicly reprimanded for the dismissal of

two other appeals due to neglect. Id. at 286–87.

      We do not believe this case warrants a sanction as severe as that

in Conroy and Thomas. In Conroy, the attorney’s neglect was coupled

with two trust account violations that appear to be more serious than the

trust account violation in this case. In Thomas, the attorney also made
                                   20

misrepresentations to his clients, a factor we have not found here.

Furthermore, while Dolezal’s behavior has inconvenienced the court

system, in two out of three instances it has not harmed his clients. We

thus believe a sanction comparable to that in the Hoglan case is

appropriate. As in Hoglan, we have a pattern of “dilatory handling” of

litigated matters.    See 781 N.W.2d at 287.    Also, as in Hoglan, the

attorney was recently involved with the board due to similar misconduct,

although in this case Dolezal received a private admonishment, rather

than a public reprimand. Although we have a trust account violation in

this case, unlike in Hoglan, this consideration is counterbalanced to

some extent by the fact that only one of Dolezal’s acts of neglect caused

harm to the client.

      In our view, a public reprimand here would not be adequate. Such

a sanction might have been appropriate had this case involved only a

single instance of misconduct. See Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Sobel, 779 N.W.2d 782, 789–90 (Iowa 2010) (attorney received

public reprimand for failing to provide accounting for an advance fee

payment); Wright, 758 N.W.2d at 231 (finding an attorney who failed to

dismiss an appeal after his client was unable to raise enough funds

warranted a public reprimand); Piazza, 756 N.W.2d at 700 (attorney

received public reprimand for failing to place advance fee payment in

trust account and to provide an accounting); Tompkins, 733 N.W.2d at

670 (finding an attorney who failed to dismiss appeal after he determined

it to be without merit warranted a public reprimand); Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Dunahoo, 730 N.W.2d 202, 207–08 (Iowa 2007)

(attorney was publicly reprimanded for failing to provide an accounting

and neglect in timely closing an estate). The recurring pattern of conduct

in this case warrants a stiffer sanction—namely, a suspension.        See
                                     21

Marks, 759 N.W.2d at 333 (“Although it is unlikely we would suspend

Marks’ license for these instances of neglect alone, Marks’ pattern of

refusing to cooperate with the Board’s investigation tips the scale in favor

of a short suspension.”). Taking into account all the circumstances of

this case, for the reasons we have already discussed, we agree with the

commission’s recommendation of a thirty-day suspension.

      IV. Conclusion.

      Accordingly, we suspend Dolezal’s license to practice law in the

State of Iowa for thirty days. This suspension applies to all facets of the

practice of law. See Iowa Ct. R. 35.12(3). Dolezal must comply with Iowa

Court Rule 35.22 dealing with notification of clients and counsel. Costs

of this action are taxed to Dolezal pursuant to Iowa Court Rule 35.26.

Absent an objection by the board and under the condition that Dolezal

has paid all costs assessed under rule 35.26, we shall reinstate Dolezal’s

license to practice law on the day after the thirty-day suspension period

expires. See Iowa Ct. R. 35.12(2).

      LICENSE SUSPENDED.
