               IN THE SUPREME COURT OF IOWA
                             No. 09–1343

                          Filed April 16, 2010


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

WILLIAM SHAW CARPENTER,

      Respondent.



      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance     commission   recommends       attorney’s   license   be

suspended for thirty months. ATTORNEY ORDERED TO CEASE AND

DESIST PRACTICING LAW IN IOWA.



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

complainant.



      James Quilty of Crawford & Quilty Law Firm, Des Moines, and

William Shaw Carpenter, pro se, for respondent.
                                      2

TERNUS, Chief Justice.

      The complainant, Iowa Supreme Court Attorney Disciplinary

Board, filed charges against the respondent, William Shaw Carpenter,

alleging numerous violations of the Iowa Rules of Professional Conduct.

Carpenter is licensed to practice in Minnesota, but not in Iowa.

Carpenter practices in Iowa under our rules that permit lawyers not

licensed in Iowa to practice in federal law matters venued in this state.

Iowa R. Prof’l Conduct 32:5.5(d)(2). The disciplinary complaint against

Carpenter is based on his representation of clients in seventeen separate

federal immigration matters, his two misdemeanor convictions, and his

trust account violations.

      After a hearing panel denied Carpenter’s motion to dismiss, the

parties entered into a stipulation with regard to Carpenter’s ethical

violations and a recommended sanction of a suspension for thirty

months, as well as a requirement that any application for reinstatement

include an evaluation by a licensed health care professional verifying

Carpenter’s fitness to practice law. Upon the parties’ request, a hearing

panel of the Grievance Commission of the Supreme Court of Iowa

convened without the parties’ participation. Subsequent to the panel’s

discussion of the issues, the panel adopted the parties’ stipulation and

recommended sanction. The panel also recommended the return of all

client funds taken without a proper accounting.

      We agree that Carpenter engaged in the charged misconduct.

Therefore, we order Carpenter to cease and desist from all practice of law

in Iowa indefinitely with no opportunity to request that this order be

lifted for a period of not less than two years. We also order Carpenter to

submit, with any request to lift this order, an evaluation by a licensed

health care professional that he is fit to practice law.
                                          3

       I. Standard of Review.

       Our review of attorney disciplinary proceedings is de novo. Iowa

Ct. R. 35.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729

N.W.2d 812, 815 (Iowa 2007).                  The commission’s findings and

recommendations are given respectful consideration, but we are not

bound by them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Isaacson, 750

N.W.2d 104, 106 (Iowa 2008).           The board has the burden of proving

attorney misconduct by a convincing preponderance of the evidence.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792

(Iowa 2006).

       “This burden is less than proof beyond a reasonable doubt,
       but more than the preponderance standard required in the
       usual civil case. Once misconduct is proven, we ‘may impose
       a lesser or greater sanction than the discipline recommended
       by the grievance commission.’ ”

Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674

N.W.2d 139, 142 (Iowa 2004) (citation omitted)).

       II. Jurisdiction.

       Although licensed to practice law in Minnesota, Carpenter is not

licensed to practice law in Iowa.             From 2005 to 2007, Carpenter

maintained offices in Iowa and provided legal services to persons in Iowa

on federal immigration matters under Iowa Rule of Professional Conduct

32:5.5(d)(2), which provides:

       A lawyer admitted in another United States jurisdiction, and
       not disbarred or suspended from practice in any jurisdiction,
       may provide legal services in this jurisdiction that . . . are
       services that the lawyer is authorized to provide by federal
       law or other law of this jurisdiction. 1


       1Federal  law provides that a member in good standing of the bar of the highest
court of any state, who is not under suspension or otherwise restricted in his or her
practice of law, may practice before the Federal Immigration Court. See 8 C.F.R.
§§ 1001.1(f), 1292.1(a)(1) (2009).
                                        4

      Since October 18, 2007, Carpenter has been prohibited from all

practice of law in Iowa due to his disability related to depression. 2 With

regard to his disability suspension, we determined we had jurisdiction to

prohibit Carpenter’s practice under Iowa Rules of Professional Conduct

32:5.5(d)(2) and 32:8.5(a). Comment 19 to rule 32:5.5(d)(2) provides:

      A lawyer who practices law in this jurisdiction pursuant to
      paragraph (c) or (d) or otherwise is subject to the disciplinary
      authority of this jurisdiction. See rule 32:8.5(a).

Rule 32:8.5(a) provides:

            (a) Disciplinary Authority.      A lawyer admitted to
      practice in Iowa is subject to the disciplinary authority of
      Iowa, regardless of where the lawyer’s conduct occurs. A
      lawyer not admitted in Iowa is also subject to the
      disciplinary authority of Iowa if the lawyer provides or offers
      to provide any legal services in Iowa. A lawyer may be
      subject to the disciplinary authority of both Iowa and
      another jurisdiction for the same conduct.

Comment 1 to rule 32:8.5(a) provides in pertinent part:

      It is longstanding law that the conduct of a lawyer admitted
      to practice in Iowa is subject to the disciplinary authority of
      Iowa. Extension of the disciplinary authority of Iowa to other
      lawyers who provide or offer to provide legal services in Iowa
      is for the protection of the citizens of Iowa.

These same provisions give us authority to prohibit Carpenter’s practice
in Iowa on the basis of professional misconduct.            Our jurisdiction to

discipline attorneys practicing in Iowa under rule 32:5.5(d)(2) rests on

our responsibility to protect the citizens of our state from unethical

conduct of attorneys who provide services in Iowa.




        2Since February 2008, Carpenter also has been suspended from practicing

before the Board of Immigration Appeals, the Immigration Courts, and the Department
of Homeland Security. In September 2008, the Minnesota Supreme Court transferred
Carpenter’s Minnesota law license to disability inactive status.
                                      5

      III. Factual Background and Prior Proceedings.

      As previously noted, the respondent is admitted to practice law in

the State of Minnesota. His Minnesota license has been on “disability

inactive status” since September 2008. He is not admitted to practice

law in Iowa; however, from 2005 through 2007, he maintained law offices

in Iowa for the purpose of providing legal services on immigration

matters to persons in Iowa.

      On January 7, 2009, the board filed its initial complaint against

Carpenter that contained seventeen separate counts: fifteen related to

his handling of fifteen different federal immigration matters; one related

to his convictions for operating while intoxicated (OWI), second offense,

and driving with a suspended license; and one related to trust account

violations.   The complaint was subsequently amended to include two

additional counts relating to immigration matters.

      After respondent’s motion to dismiss was rejected, the parties filed

a stipulation regarding the ethical violations and recommended sanction.

Specifically, the respondent stipulated that, on March 29, 2007, he was

convicted of an aggravated misdemeanor of OWI, second offense, in

violation of Iowa Code section 321J.2 (2007), and on May 23, 2007, he

was convicted of a serious misdemeanor of driving while his license was

suspended in violation of Iowa Code section 321J.21.         The parties

stipulated that Carpenter’s traffic convictions violated Iowa Rules of

Professional Conduct 32:8.4(a) (violating a rule of professional conduct),

32:8.4(b) (committing a criminal act that reflects adversely on the

lawyer’s fitness as a lawyer), and 32:8.4(d) (engaging in conduct that is

prejudicial to the administration of justice).

      In addition to his convictions for traffic offenses, Carpenter’s

alleged ethical violations involved his representation of seventeen
                                       6

separate clients—Hector Hernandez, Maria Martinez, Amber Jara-Cruz,

Carmen Ahidee Urrutia-Espino, Joel Villasenor, Antonia and Martin

Moreno, Claudia Michelle Aguilar, Juan Gonzalez, Juan Hurtado,

Ibis Melendrez Ruano, Jose Corado, Rosa Quintana, Oscar Liberato and

Sara   Mejicanos,    Sammie    Hall,       Michelle   Wilson,    Tu   Ngo,   and

Carolina Ibanez Galicia.      His   misconduct        included   trust   account

violations.   The parties stipulated that, with regard to these matters,

Carpenter violated Iowa Court Rule 45.7 (requiring lawyer to deposit

advance fees from a client into a trust account and allowing withdrawal

of such payments only as the fee is earned) and Iowa Rules of

Professional Conduct 32:1.3 (requiring lawyer to act with reasonable

diligence and promptness in representing a client); 32:1.4 (requiring

lawyer to promptly communicate with a client); 32:1.15(a), (c), (d), (f)

(requiring lawyer to deposit unearned fees into a client trust account, to

account to client regarding earned fees, to promptly deliver to client any

funds the client is entitled to receive, to promptly render a full

accounting, and to abide by the rules governing trust accounts contained

in Iowa Court Rules ch. 45); 32:1.16(d) (requiring lawyer to take steps to

protect client’s interests upon termination of representation, including

returning or forwarding files and refunding fees); 32:8.1(b) (requiring

lawyer to respond to the board’s demand for information); and 32:8.4(d)

(engaging in conduct that is prejudicial to the administration of justice).

       As detailed in the parties’ stipulation, with regard to all seventeen

separate immigration matters, Carpenter failed to deposit unearned fees

in a client trust account and withdrew funds without a proper

accounting to the client as to the services provided. With regard to the

Hernandez, Martinez, Jara-Cruz, Hurtado, Ruano, Corado, Quintana,

Liberato/Mejicanos, Hall, Wilson, Ngo, and Galicia matters, the parties
                                        7

stipulated that Carpenter “failed to take all reasonable steps practicable

to protect the client’s interests upon termination of representation.”

With    regard   to   the   Martinez,       Jara-Cruz,   Hurtado,    Quintana,

Liberato/Mejicanos, Hall, Wilson, Ngo, and Galicia matters, the parties

stipulated that Carpenter “was not prompt or diligent with his

communications with his clients.”           Finally, with regard to the Galicia

matter, the parties stipulated that Carpenter failed to respond to two

notices he received from the board regarding the client’s complaint.

       The parties’ stipulation also noted mitigating circumstances,

including Carpenter’s temporary disability due to depression, for which

he has sought treatment, and his cooperation with the board.               The

parties’ stipulation recommended that Carpenter be suspended for thirty

months and that any application for reinstatement be accompanied by

an evaluation from a licensed health care professional of Carpenter’s

fitness to practice law.

       Pursuant to the parties’ motion, the complaint was submitted to a

hearing panel based upon the stipulation and without the submission of

any additional evidence. On September 14, 2009, the panel submitted

its findings of fact, conclusions of law, and recommendations, adopting

the parties’ stipulation of facts and recommended sanction. The panel

also recommended that all client funds taken without a proper

accounting be refunded to each client.

       IV. Ethical Violations.

       A. Neglect and Failure to Communicate.                Under our rules

prohibiting neglect, an attorney must advance and protect his clients’

interests. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d

301, 307 (Iowa 2009) [Earley II]. “ ‘[A]n attorney [must] attend to matters

entrusted to his care and . . . do so in a reasonably timely manner.’ ”
                                     8

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ramey, 746 N.W.2d 50, 54

(Iowa 2008) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo,

730 N.W.2d 202, 205 (Iowa 2007)).          Neglect warranting discipline

“involves ‘indifference and a consistent failure to perform those

obligations that a lawyer has assumed, or a conscious disregard for the

responsibilities a lawyer owes to a client.’ ”   Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 817 (Iowa 2007) (quoting Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549,

551 (Iowa 2004)).      Carpenter neglected his clients’ legal matters and

failed to keep his clients informed about their cases.   In doing so, he

violated Iowa Rules of Professional Conduct 32:1.3, 32:1.4, 32:1.16(d),

and 32:8.4(d). Earley II, 774 N.W.2d at 307.

      B. Trust Account Violations. Carpenter violated several ethical

rules when he received advance fee retainers and failed to properly

deposit the fees in a client trust account and failed to properly account

for the fees.   See Iowa Rs. Prof’l Conduct 32:1.4; 32:1.15; 32:1.16(d);

Iowa Ct. R. 45.7; Earley II, 774 N.W.2d at 307–08; see also Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Plumb, 766 N.W.2d 626, 631–32 (Iowa 2009)

[Plumb II] (finding similar ethical violations under the Iowa Code of

Professional Responsibility for Lawyers for failure to deposit and account

for advance fees); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729

N.W.2d 437, 443 (Iowa 2007) [Earley I] (same).

      C. Failure to Respond to Board’s Inquiries. Carpenter violated

rule 32:8.1(b) in the Galicia matter when he failed to respond to the

board’s inquiries.   Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dull, 713

N.W.2d 199, 205 (Iowa 2006) (holding failure to respond to board inquiry

is an ethical violation).
                                         9

      D. Conviction of Traffic Offenses. Carpenter violated Iowa Rule

of Professional Conduct 32:8.4(a), (b), and (d) when he was convicted of

an aggravated misdemeanor OWI, second offense, and a serious

misdemeanor of driving with a suspended license.               Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Johnson, 774 N.W.2d 496, 499 (Iowa 2009)

(holding conviction of OWI offense violates rule 32:8.4(a), (b), (d)); see

also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71,

79 (Iowa 2008) (holding attorney’s OWI conviction evinced conduct

adversely reflecting on fitness to practice law in violation of Iowa Code of

Professional Responsibility for Lawyers DR 1–102(A)(6)); Dull, 713 N.W.2d

at 204 (same); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth,

636 N.W.2d 86, 88 (Iowa 2001) (same).

      V. Sanctions.

      A. Equitable Powers. In cases in which this court disciplines an

attorney, our rules permit the suspension or revocation of the attorney’s

license,   as   well   as   additional   or   alternative   sanctions    such   as

reprimands,     restitution,    payment       of   costs,   practice   limitations,

appointment of a trustee or receiver “and other measures consistent with

the purposes of attorney discipline.” See Iowa Ct. R. 35.9; see also Iowa

Ct. R. 35.10(2). We do not have a rule that specifies sanctions peculiar

to an attorney practicing in Iowa without an Iowa law license.

      With regard to violations that typically warrant sanctions not

directly affecting an attorney’s licensure, such as reprimands and

restitution, it is possible to impose the same sanctions on non-Iowa

licensed lawyers as would be imposed on attorneys with an Iowa license.

See, e.g., Ky. Bar Ass’n v. Shane, 553 S.W.2d 467, 467–68 (Ky. 1977)

(holding attorney licensed in another jurisdiction was subject to the

discipline deemed appropriate by Kentucky court, including public
                                       10

reprimand for communicating with party known to be represented by a

lawyer).      In contrast, when a non-Iowa licensed attorney commits

misconduct      that   typically   warrants   a   sanction   directly   affecting

licensure, such as suspension or revocation, such sanctions are not

feasible because there is no Iowa law license to suspend or revoke.

Nevertheless, like our sister courts, we conclude our authority to

discipline non-Iowa licensed attorneys includes the ability to fashion

practice limitations through our injunctive and equitable powers that are

equivalent to license suspension, disbarment, or other sanctions related

to an attorney’s license. See, e.g., In re Towne, 929 A.2d 774, 781–82

(Del. 2007) (ordering nonlicensed attorney to cease and desist from all

practice of law in Delaware and excluding attorney from admission to the

bar as injunctive relief similar to disbarment); Att’y Grievance Comm’n v.

Kimmel, 955 A.2d 269, 295 (Md. 2008) (ordering attorneys who were not

licensed to practice law in Maryland be indefinitely “suspended,” which,

for purposes of attorneys not licensed in Maryland, included exclusion

from any privilege allowed nonadmitted attorneys associated with the

practice of law within the state, with the right to apply for reinstatement

after ninety days); In re Discipline of Droz, 160 P.3d 881, 885 (Nev. 2007)

(recognizing its limitations on discipline of nonlicensed attorney, court

concluded enjoining attorney from practicing law in Nevada or appearing

in Nevada court was appropriate sanction).           This authority is clearly

necessary for the protection of Iowa citizens.

          B. Appropriate Sanction. In applying our equitable powers, we

first examine our prior cases involving similar violations committed by

Iowa-licensed lawyers.      An examination of these cases will provide a

basis for translating the appropriate sanction into equivalent injunctive

relief.
                                    11

      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. Bd. of Prof'l Ethics & Conduct v. Plumb, 589 N.W.2d

746, 748–49 (Iowa 1999) [Plumb I].       When fashioning a sanction, we

examine several factors, including “the nature of the violations, the need

for deterrence, protection of the public, maintenance of the reputation of

the Bar as a whole, and the violator’s fitness to continue to practice law.”

Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ramey, 639 N.W.2d

243, 245 (Iowa 2002); accord Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Marks, 759 N.W.2d 328, 332 (Iowa 2009).           We also examine both

mitigating and aggravating circumstances. Earley II, 774 N.W.2d at 308.

Significant aggravating factors for punishment include “ ‘the existence of

multiple instances of neglect, past disciplinary problems, and other

companion violations.’ ”    Marks, 759 N.W.2d at 332 (quoting Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106

(Iowa 2006)).

      When neglect is the principal violation, discipline usually ranges

from a public reprimand to a six-month suspension. Dull, 713 N.W.2d at

206. When multiple instances of neglect are involved and combine with

other violations or cause significant harm to the clients, we have imposed

a longer period of suspension. Id. For example, in Iowa Supreme Court

Attorney Disciplinary Board v. Maxwell, the attorney neglected three

client matters, two of which involved allowing the statute of limitations to

run. 705 N.W.2d 477, 478–79 (Iowa 2005). Based upon the number of

instances of neglect, the resulting harm, and the attorney’s present

unfitness to engage in the practice of law due to mental health issues, we

imposed a one-year suspension. Maxwell, 705 N.W.2d at 480. Likewise,
                                    12

in Moorman, we held the attorney’s multiple acts of pervasive neglect

resulting in great harm to his clients, coupled with his offer to engage in

fraudulent conduct, supported a two-year suspension.        683 N.W.2d at

552–53.

       With regard to convictions of criminal offenses, an attorney’s

license to practice law may be revoked or suspended depending on the

severity of the offense and any aggravating or mitigating factors.     See

Johnson, 774 N.W.2d at 499–500 (discussing cases and stating that, with

conviction of an OWI felony, license may be revoked or suspended);

Weaver, 750 N.W.2d at 79, 92 (holding that second-offense OWI and

other violations warranted suspension of three months); Thompson, 595

N.W.2d at 135–36 (discussing criminal assault cases with sanctions

ranging from three to fourteen months and imposing a suspension of two

months).       In a disciplinary case involving a misdemeanor public

intoxication conviction, extensive neglect and the mishandling of client

trust accounts, we imposed an eighteen-month suspension.              Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 405, 409

(Iowa 2005).

       When dealing with client trust account violations, our sanctions

have ranged from a public reprimand when the violation was relatively

minor and isolated, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Piazza, 756

N.W.2d 690, 700 (Iowa 2008), to license suspension when the violation

involved poor office management and neglect, Earley I, 729 N.W.2d at

443,   to   license   revocation   when   the   violation   amounted     to

misappropriation of client funds, Earley II, 774 N.W.2d at 309. Given the

parties’ stipulation, we are not dealing with a single incident nor are we

dealing with a case of misappropriation. Therefore, the suspension cases

are most helpful in determining the ultimate sanction to impose in this
                                     13

case.    Cases involving suspension for client trust account violations

range from two months in less serious cases, Plumb I, 589 N.W.2d at

749, to eighteen months in very severe cases when the violations

combine with multiple instances of neglect and other ethical violations,

Plumb II, 766 N.W.2d at 635.

        We note that the parties have stipulated that Carpenter’s illness of

depression and his treatment for that illness constitute mitigating

circumstances. While such illnesses do not excuse misconduct, they can

be mitigating factors and can influence our approach to discipline. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 703 (Iowa

2008) (holding depression a mitigating circumstance in disciplinary

action resulting in one-year suspension for neglect, client trust account

violations, and dishonesty to client); Iowa Supreme Ct. Att’y Disciplinary

Bd. v. McCann, 712 N.W.2d 89, 96 (Iowa 2006) (holding severe

depression     and   anxiety   constituted   mitigating    circumstances   in

disciplinary action resulting in two-year suspension for multiple acts of

misconduct, including neglect, misrepresentation, and client trust

account violations). We consider Carpenter’s illness and treatment to be

mitigating circumstances and have taken them into account in imposing

a sanction.

        The hearing panel adopted the parties’ recommendation of a thirty-

month suspension.       We believe Carpenter’s misconduct in seventeen

client matters, including neglect, failure to communicate, and failure to

safeguard his clients’ interests upon termination of representation, in

addition to his trust account violations and conviction of two traffic

offenses, would justify a two-year suspension.            See Moorman, 683

N.W.2d at 552–53 (imposing two-year suspension for neglect and other

serious misconduct in six client matters). Translating this suspension to
                                     14

injunctive relief, we order the respondent to cease and desist from the

practice of law in Iowa under Iowa Rule of Professional Conduct

32:5.5(d)(2) or any other law indefinitely with no possibility that the order

will be lifted for a period of not less than two years.       Although the

commission recommended that funds taken in violation of client trust

account rules be refunded to Carpenter’s clients, the parties’ stipulation

does not detail the amount of such funds, and no witness testimony or

other evidence was taken on the matter. Due to this lack of specificity in

the stipulation and absence of evidence, we are unable to determine the

degree of harm caused by the respondent to his clients or the extent to

which they may be entitled to a refund of the advance fees paid by them.

We do, however, agree with the commission that, given Carpenter’s

depression, some showing of competency to practice law must be shown

to have the cease-and-desist order lifted.      Therefore, any request by

Carpenter to return to practice in this state or any request to become

licensed in this state must be accompanied by an evaluation from a

licensed health care professional verifying his fitness to practice law. See

McCann, 712 N.W.2d at 96–97 (requiring evaluation of attorney who

suffered from depression and anxiety).

      VI. Disposition.

      We order Carpenter to cease and desist from all legal practice in

Iowa indefinitely with no possibility that the order will be lifted for a

period of not less than two years.           Carpenter shall provide all

notifications specified in Iowa Court Rule 35.22. In addition, costs are

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

      For purposes of having the cease-and-desist order lifted, as well as

for all other purposes, Carpenter shall be treated as though he has been

suspended.    See Iowa Ct. R. 35.13.      Upon any application to lift this
                                      15

order, Carpenter shall have the burden to show he has not practiced law

in Iowa during the period the order is in effect and that he meets the

requirements of Iowa Court Rule 35.12. Carpenter shall also be required

to submit with any such application an evaluation from a licensed health

care professional stating he is fit to practice law.

      RESPONDENT ORDERED TO CEASE AND DESIST PRACTICING

LAW IN IOWA.
