               IN THE SUPREME COURT OF IOWA
                              No. 19–0661

                        Filed September 6, 2019


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

MATTHEW L. NOEL,

      Respondent.



      On review of the report of the Iowa Supreme Court Grievance

Commission.



      The grievance commission recommends a thirty-day suspension of

an attorney’s license to practice law for violations of ethics rules.

ATTORNEY REPRIMANDED.



      Tara van Brederode and Wendell J. Harms, Des Moines, for

complainant.


      Max E. Kirk, Waterloo, for respondent.
                                    2

WIGGINS, Justice.

      The Iowa Supreme Court Attorney Disciplinary Board filed a

complaint against Matthew L. Noel alleging multiple violations of the Iowa

Rules of Professional Conduct.    A division of the Iowa Supreme Court

Grievance Commission found the Board proved some of the alleged

violations and recommended a thirty-day suspension. We agree that the

Board proved some of the alleged violations, but we publically reprimand

Noel under the circumstances of this case.

      I. Scope and Standard of Review.

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

36.21(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kowalke, 918 N.W.2d

158, 161 (Iowa 2018). “The Board must prove attorney misconduct by a

convincing preponderance of the evidence, a burden greater than a

preponderance of the evidence but less than proof beyond a reasonable

doubt.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130,

144 (Iowa 2018) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morse,

887 N.W.2d 131, 138 (Iowa 2016)). We give the commission’s findings,

conclusions, and recommendations respectful consideration, “especially

with respect to witness credibility,” but we are not bound by them. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Kieffer-Garrison, 847 N.W.2d 489, 492

(Iowa 2014) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Beckman, 674 N.W.2d 129, 131 (Iowa 2004)); accord Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Stansberry, 922 N.W.2d 591, 593 (Iowa 2019). We

may impose a sanction that is greater or lesser than that recommended by

the commission. Iowa Ct. R. 36.21(1); Stansberry, 922 N.W.2d at 594.

      II. Findings of Fact and Prior Proceedings.

      “Facts admitted in an answer are ‘deemed established.’ ”        Iowa

Supreme Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519, 522 (Iowa
                                     3

2017) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838

N.W.2d 528, 532 (Iowa 2013)). We admitted Noel to the practice of law in

Iowa in 2008. He practices primarily in civil and criminal litigation. In

December 2015, Noel practiced law in the office of Mayer, Lonergan &

Rolfes. On April 20, 2017, Noel began to practice law as The Noel Law

Firm and ended his partnership with Mayer, Lonergan & Rolfes.

      A. Prior Disciplinary Proceeding.       On October 30, 2017, the

Board filed an ethics complaint against Noel for conduct predating and

unrelated to his conduct that gave rise to the present disciplinary

proceeding. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Noel (Noel I), 923

N.W.2d 575, 581 (Iowa 2019). Between November 2008 and January 1,

2014, Noel had a contract with the state public defender to provide legal

services to indigent adults and juveniles. Id. at 579. During that time,

Noel sought fees for services he did not perform, made false mileage claims,

and failed to remedy billing submissions that he subsequently realized

were incorrect. Id. at 585–86, 587, 588.

      The Board filed an amended complaint in Noel I on March 5, 2018.

Id. at 581.   The Noel I commission held a hearing on that amended

complaint on March 27 and 28, and issued its report and sanctions

recommendation on July 18. Id. In February 2019, we suspended Noel’s

license for at least one year as a result of his unethical billing practices

between 2008 and January 1, 2014. Id. at 591.

      B. Fact-Finding Regarding Present Disciplinary Proceeding—

Janelle Huffman Matter. In December 2015, Janelle Huffman spoke with

Noel about filing a lawsuit against a roofing company, JT Home

Improvement, for water damage caused by the roofing company.           Noel

agreed to represent Huffman in a lawsuit against JT Home Improvement

upon payment of a retainer. Noel and Huffman also orally agreed that Noel
                                        4

would charge her $175 per hour.             Huffman’s insurance carrier hired

Restoration and Cleaning of the Quad Cities, L.L.C., doing business as

Rainbow International Restoration & Cleaning (Rainbow), to repair the

water damage and restore the interior of her residence.

      In January 2016, Huffman met with Noel to discuss filing a lawsuit

against Rainbow for failing to properly repair and restore the interior of

her residence.      Noel agreed to represent Huffman in a lawsuit against

Rainbow upon payment of a retainer. That month, Huffman paid Noel’s

firm $920.

      On January 26, Noel billed Huffman $350 to “Draft and Prepare

Petition and Original Notice.” The petition named JT Home Improvement

and Rainbow as defendants, but Noel never filed this petition.

      Between January and June 2016, Huffman repeatedly contacted

Noel’s law office to ask about the status of her suit against JT Home

Improvement and Rainbow and for advice on how to handle her housing

situation and interactions with Rainbow.          She received no substantive

response from Noel.

      On June 17, Rainbow sued Huffman for $6800, which it alleged

Huffman      owed     for   Rainbow’s   water     damage    remediation   and

reconstruction services beginning in August 2015. Huffman emailed Noel

on June 25 to report that Rainbow had served her with papers and that

she would deliver them to his office.

      In a letter dated July 17, Noel informed Huffman that he was

working on an answer and counterclaim to Rainbow’s suit, the answer was

due on July 15, and he would have it filed by then. Noel filed an answer

and breach-of-contract counterclaim against Rainbow on July 29.

      On August 29, counsel for Rainbow and Huffman filed the Iowa Rule

of Civil Procedure 1.281 Trial Scheduling and Discovery Plan for Expedited
                                       5

Civil Action.    The plan provided that the parties would provide initial

disclosures no later than September 30, 2016, and a complete set of joint

jury instructions and verdict forms, including a statement of the case, at

least fourteen days before trial. It also stated late settlement fees under

Iowa Rule of Civil Procedure 1.909 were applicable. Noel never provided

Huffman’s initial disclosures to Rainbow. He admitted he did not file the

jury instructions and “that is certainly something [he] dropped the ball on,

there’s no doubt about it.”

         On October 7, Rainbow served interrogatories and requests for

production of documents on Noel as Huffman’s counsel.            Noel’s office

passed along the interrogatories to Huffman on October 10, asking her to

answer and return them to the office “at her earliest convenience.” Noel

did not inform Huffman of the necessity of returning the interrogatories in

a timely manner.

         Noel did not timely produce the discovery requests. He eventually

conveyed unsigned interrogatory answers on February 1, 2017, and

responded to Rainbow’s request for documents on May 8, 2017. However,

he did so only after Rainbow sent him a notice of overdue discovery

requests, and the court granted Rainbow’s motions for orders compelling

discovery and awarding sanctions.

         Noel did not resist either the motion to compel or the motion for

sanctions. Although it is disputed whether Noel informed Huffman of the

motion to compel, he did not inform Huffman of the motion for sanctions.

The sanctions order imposed a $345 attorney fee sanction that Noel

eventually paid, even though he claimed Huffman was the cause of the

delay.

         On February 3, the court granted Noel’s motion to continue the trial.

It scheduled a settlement conference for April 21 and trial for May 22. On
                                      6

April 20, court administration informed Rainbow’s counsel and Noel that

Judge Mark Cleve would preside at the settlement conference. However,

on April 21, the court cancelled the settlement conference because Noel

did not want to proceed with the settlement conference due to Judge

Cleve’s prior affiliation with Rainbow’s counsel’s law firm, some years

back. The court never rescheduled the settlement conference.

      Noel did not consult with Huffman about whether to proceed with

the settlement conference scheduled with Judge Cleve. Huffman did not

instruct Noel to cancel the settlement conference.          Efforts to reach

Huffman    to   discuss   the   circumstances    with   Judge    Cleve   were

unsuccessful, so Huffman met Noel at the courthouse for the cancelled

conference on April 21. Noel then was able to inform Huffman that the

case was not settled and would be tried to a jury beginning on May 22.

Throughout this time, Huffman continued to inquire about the status of

her case against JT Home Improvement.

      The week before the trial date, Noel and Huffman met for a trial

preparation meeting. On Friday, May 19, Huffman emailed Noel’s legal

assistant, saying she hoped “Noel can maybe make a settlement.” Noel’s

legal assistant conveyed this desire to Noel and to Rainbow, but Rainbow

refused to settle unless Huffman paid something. Noel’s office informed

Huffman of Rainbow’s refusal. It also said that a settlement would be

unlikely and that trial on Monday was “probably the best bet.”

      The morning of trial, counsel met with the presiding judge, Judge

Joel Barrows, in chambers to discuss Rainbow’s unresisted motion in

limine and Noel’s failure to file jury instructions. Because Noel did not file

jury instructions and neither party moved to continue, Judge Barrows said

that he needed some time to think about the appropriate next steps and

suggested the attorneys “see what we can go do with this case.”
                                     7

      The attorneys then negotiated a $4500 settlement with their

respective clients and reported the settlement to Judge Barrows. The court

assessed a late settlement fee of $1000 against Huffman. Noel testified

that he told Huffman the late settlement fee was part of the settlement

package. Huffman denies this. We find Huffman more credible on this

fact issue.

      On June 6, Huffman filed the first of two “To Whom It May Concern”

letters with the court. In the June 6 letter, Huffman alleged that Noel “told

[her] the judge told him this isn’t a Rainbow problem – it’s a Roofer [(i.e.,

JT Home Improvement)] issue – get out of there – settle it – he was sending

the Jury home.” She also claimed that Noel led her to believe that she had

to pay only $4500 but then she was sent a bill for an additional $1000.

      On June 9, Noel sent Huffman a letter after he had received a copy

of her June 6 letter. In his letter to Huffman, he explained that he thought

she understood that she would pay the court costs. He also stated that

he had not filed against JT Home Improvement yet because her June 6

letter “essentially turned [him] into a witness as to the [settlement]

negotiations [and] it may be [his] ethical duty [to] withdraw from th[e] case

[against JT Home Improvement].” He then stated, “If [Huffman] insist[ed]

on holding a hearing with the Judge about the Court costs [he] will have

to withdraw and will no longer [be] able to represent [her].” Huffman paid

the $1000 late settlement fee on June 12.

      On June 14, Huffman sent her second letter to the court. In that

letter, she again inquired why the court assessed her the $1000 fee even

though she already paid Rainbow and did not have her day in court. She

claimed, “[T]his [(the $1000 fee)] wasn’t a late settlement[;] this was a you

pay!!!” She also claimed Noel told her he would not represent her against

JT Home Improvement if she did not pay the $1000 bill.
                                     8

        The district court treated Huffman’s June 6 and June 14 letters as

motions for a hearing and scheduled one for July 27.        At the hearing,

which Judge Barrows presided over, Huffman declined to waive attorney–

client privilege such that Noel could discuss the communications between

himself and Huffman relevant to the allegations made in Huffman’s letters.

Judge Barrows also expressed his belief that he was obligated to refer the

matter to the Board because of Noel’s purported misrepresentation of

Judge Barrows’s statements, handling of discovery, and failure to comply

with the terms of the trial scheduling and discovery plan. Judge Barrows

thereafter set Huffman’s letter-motions for a status conference on

August 24 and recused himself. He filed his complaint with the Board

shortly after the July 27, 2017 hearing.

        Noel subsequently filed a motion to withdraw. After the August 24

status conference, the court found that the settlement record revealed Noel

“agreed to be personally liable for the late settlement fee” and that the

court should return the $1000 Huffman paid.         The court also granted

Noel’s motion to withdraw. Noel eventually paid the $1000 fee on April 5,

2018.

        Sometime after the July and August 2017 hearings, Huffman filed

her complaint with the Board.

        C.   Present Disciplinary Proceedings.      On July 31, 2018, the

Board filed the present complaint alleging Noel’s conduct in the Huffman

matter violated Iowa Rules of Professional Conduct 32:1.2(a) (“[A] lawyer

shall abide by a client’s decisions concerning the objectives of

representation and . . . shall consult with the client as to the means by

which they are to be pursued.”), 32:1.3 (“[A] lawyer shall act with

reasonable    diligence   and   promptness   in   representing   a   client.”),

32:1.4(a)(1) (“[A] lawyer shall . . . promptly inform the client of any
                                      9

decisions or circumstances with respect to which the client’s informed

consent . . . is required . . . .”), 32:1.4(a)(2) (“[A] lawyer shall . . .

reasonably consult with the client about the means by which the client’s

objectives are to be accomplished[.]”), 32:1.4(a)(3) (“[A] lawyer shall . . .

keep the client reasonably informed about the status of the matter[.]”),

32:1.4(a)(4) (“[A] lawyer shall . . . promptly comply with reasonable

requests for information[.]”), 32:1.4(b) (“[A] lawyer shall explain a matter

to the extent reasonably necessary to permit the client to make informed

decisions regarding the representation.”), 32:3.4(d) (“[A] lawyer shall

not . . . in pretrial procedure . . . fail to make a reasonably diligent effort

to comply with a legally proper discovery request by an opposing party[.]”),

32:8.4(c) (“It is professional misconduct for a lawyer to . . . engage in

conduct involving dishonesty, fraud, deceit, or misrepresentation[.]”), and

32:8.4(d) (“It is professional misconduct for a lawyer to . . . engage in

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

      Noel filed his answer on August 27, and the commission scheduled

a hearing for December 12–13. In his answer, Noel directly responded to

the Board’s factual allegations, and at the hearing on December 12, he

clarified that he was also denying the rule violations allegations.

      On December 4, the Board amended its complaint to add additional

facts. Noel did not file an answer to the amended complaint, but at the

outset of the first day of the hearing, he denied the new allegations.

      The commission submitted the case on December 13. In February

2019, while the commission was awaiting the parties’ submission of

posthearing filings, we issued our Noel I opinion, suspending Noel’s license

for at least one year as a result of his unethical billing practices between

2008 and January 1, 2014. See Noel I, 923 N.W.2d at 579–80, 591.
                                         10

      On       April 19,   2019,   the   commission issued   its   report   and

recommendation in the present case. It found Noel violated rules 32:1.2(a)

in two respects, 32:1.3, and 32:1.4(a)(2)–(4) and (b). It found the Board

failed to establish Noel violated rules 32:3.4(d) and 32:8.4(c) and (d). The

Board did not pursue its allegation that Noel violated rule 32:1.4(a)(1) in

its posthearing brief, and the commission did not address that allegation

in its report and recommendation. Neither will we.

      The commission recommended a thirty-day suspension of Noel’s

license to practice law for the present violations.      In determining its

sanctions recommendation, it did not take into account our February 2019

opinion disciplining Noel.

      Noel did not appeal, and the Board did not apply for permission to

appeal the commission’s ruling. See Iowa Ct. R. 36.22(1)–(2). We set the

date for submission of the commission’s report, and both parties filed

written statements regarding the recommended discipline.               See id.

r. 36.21(1).     Of particular import, the Board contends we should treat

Noel’s February 2019 discipline as prior discipline, which is an aggravating

factor. Noel contends to the contrary.

      III. Violations.

      A. Whether           Noel    Violated    Rule   32:1.2(a)—Scope        of

Representation and Allocation of Authority Between Client and

Lawyer. Rule 32:1.2(a) provides in pertinent part,

      Subject to paragraphs (c) and (d), a lawyer shall abide by a
      client’s decisions concerning the objectives of representation
      and, as required by rule 32:1.4, shall consult with the client
      as to the means by which they are to be pursued. A lawyer
      may take such action on behalf of the client as is impliedly
      authorized to carry out the representation. A lawyer shall
      abide by a client’s decision whether to settle a matter.

Iowa R. Prof’l Conduct 32:1.2(a).
                                     11

      We find the Board proved by a convincing preponderance of the

evidence that Noel failed to abide by Huffman’s objective in suing JT Home

Improvement and Rainbow and his agreement to file a lawsuit against

JT Home Improvement and Rainbow. See Kieffer-Garrison, 847 N.W.2d at

494 (finding attorney failed to abide by her client’s decisions concerning

the objectives of the representation when she agreed to prepare and file an

application for further review but did not do so).       The record reveals

communications from Huffman to Noel, beginning in January 2016,

indicating her desire to proceed with a lawsuit against JT Home

Improvement and Rainbow. However, Noel never filed the lawsuit.

      The commission also found that Noel violated this rule by failing to

sufficiently consult with Huffman “as to the means by which [her

objectives were] to be pursued.” Iowa R. Prof’l Conduct 32:1.2(a). We

disagree.

      Comment [1] to rule 32:1.2 provides in relevant part, “With respect

to the means by which the client’s objectives are to be pursued, the lawyer

shall consult with the client as required by rule 32:1.4(a)(2).” Id. r. 32:1.2

cmt. [1]. Rule 32:1.4(a)(2) imposes a duty on the lawyer to “reasonably

consult with the client about the means by which the client’s objectives

are to be accomplished.” The commission concluded Noel did not do this

because he failed to ensure Huffman understood what he expected of her,

specifically, by communicating expectations in a written letter after it

became clear that Huffman often misunderstood oral communications.

      However, the record reveals otherwise. Either directly or through

his office assistants, he did reasonably consult with Huffman about the

means for accomplishing her objectives. Noel and the office assistants

would communicate with Huffman by email and left voicemails for her—

two methods of communication that can reduce misunderstandings. The
                                    12

office assistants routinely made follow-up phone calls to Huffman to see

where she was on getting Noel certain documents. One assistant, Janna

Linville, testified that even when Huffman would email the office, she found

Huffman responded better to oral communication “so [Huffman] could ask

her question right then.” Both office assistants also testified that Huffman

would stop into the office weekly so there were times when Huffman would

email the office and then stop in before anyone had a chance to respond

by email.

        The record further reveals that someone in the office did

communicate to Huffman what Noel expected of her. Linville testified that

if she communicated orally with Huffman, she would have Huffman repeat

back the information, that she “had to think outside the box how to explain

things to [Huffman],” and that Huffman acted as if she understood what

the office conveyed to her at the time.

        The commission concluded Noel failed to consult with Huffman

regarding the means by which her objectives were to be pursued because

Noel’s communications with Huffman were often oral and he admitted at

the hearing that he “should have kept [Huffman] more updated.”

Specifically, the commission questioned why Noel did not write letters to

communicate with Huffman, a client who was difficult to communicate

with.

        It is undoubtedly true that Noel could have communicated with

Huffman more often and through additional letters or emails as the

commission concluded. However, there is some evidence in the record

suggesting that even if Noel had communicated more often or through

writing, Huffman still would have struggled to understand. For example,

after Huffman filed her June 6, 2017 letter to the court, Noel sent Huffman

a letter dated June 9, 2017, explaining that her June 6 letter to the court
                                     13

“essentially turned [him] into a witness as to the [settlement] negotiations

[and i]f [she] insist[ed] on holding a hearing with the Judge about the Court

costs [he] will have to withdraw and will no longer [be] able to represent

[her against JT Home Improvement].” On June 12, in an email response

to Huffman, one of Noel’s legal assistants again explained the conflict of

interest that Huffman’s June 6 letter possibly created and the potential

consequences. Nevertheless, in her June 14 letter to the court, Huffman

claimed Noel refused to represent her against JT Home Improvement

unless she paid the late settlement fee. Huffman’s June 14 letter to the

court suggests she struggled to understand why Noel would not represent

her against JT Home Improvement even though she was twice given an

explanation in writing.

      Similarly, after Huffman wrote the $1000 check and a hearing on

her letters to the court was set, Noel emailed Huffman a copy of the court

order for the hearing and a letter dated June 21, 2017.           The email

explained why the $1000 fee was still outstanding—because he was

holding Huffman’s check in trust and he had not cashed it. Nonetheless,

Huffman replied to the email, claiming Noel cashed the check.

      Upon our review, we conclude that the record does not show that

Noel failed to reasonably consult with Huffman about the means for

accomplishing her objectives.      Noel’s office repeatedly informed and

reminded Huffman of what Noel expected of her. There was testimony that

the office assistants tried to communicate with Huffman in ways that she

seemed most responsive to.       Noel and both office assistants testified

Huffman would often act as if she understood after they consulted her on

what Noel needed.

      Although not best practices, Noel’s consultations with Huffman

about the means for accomplishing her objectives cannot be said to be
                                    14

unreasonable. Moreover, the fact that a client did not comply as instructed

or requested and would forget or not actually understand does not, alone,

establish that the attorney’s consultation was unreasonable.

      We find Noel violated rule 32:1.2(a) when he failed to file a lawsuit

against JT Home Improvement and, thereby, failed to abide by Huffman’s

decisions regarding the objectives of the representation.      Noel did not

violate rule 32:1.2(a) by failing to reasonably consult with Huffman about

the means for accomplishing her objectives.

      B. Whether Noel Violated Rule 32:1.3—Diligence. Rule 32:1.3

provides, “A lawyer shall act with reasonable diligence and promptness in

representing a client.”   Thus, the lawyer has a duty to handle client

matters in a “reasonably timely manner.”         Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Netti, 797 N.W.2d 591, 598 (Iowa 2011) (quoting Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 678 (Iowa

2010)). An attorney violates this rule when the attorney “fails to appear at

scheduled court proceedings, does not make the proper filings, or is slow

to act on matters.” Nelson, 838 N.W.2d at 537.
      Ordinarily, a violation of rule 32:1.3 does not “occur from one missed

deadline.”   West, 901 N.W.2d at 524 (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012)). Rather,

a violation occurs from the “consistent failure to perform those obligations

that a lawyer has assumed[ ] or a conscious disregard for the

responsibilities a lawyer owes to a client.”    Id. (alteration in original)

(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d

860, 867 (Iowa 2010)).    Often, this involves the “lawyer doing little or

nothing to advance the interests of [the] client after agreeing to represent

the client.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman,

683 N.W.2d 549, 552 (Iowa 2004).
                                      15

      Noel failed to handle Huffman’s matters in a reasonably timely

manner.     Although he drafted a petition and original notice against

JT Home Improvement and Rainbow in January 2016 and he represented

Huffman through August 2017, he never filed that lawsuit.           See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Barry, 908 N.W.2d 217, 223–24 (Iowa

2018) (holding attorney violated rule 32:1.3 by never filing a completed

petition); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weiland, 885 N.W.2d

198, 208–09 (Iowa 2016) (finding attorney violated rule 32:1.3 when he

delayed filing a petition for four months); cf. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 668–69 (Iowa 2007)

(holding attorney violated rule 32:1.3 when he failed to file an appellate

brief on behalf of his client or move to withdraw).

      Noel failed to make the initial disclosures required in the trial

scheduling and discovery plan. He failed to file a set of jury instructions

as required by the trial scheduling and discovery plan. He was also late

in producing answers to interrogatories and responses to requests for

production and produced those discovery items only after the opposing

side filed a motion to compel and a motion for sanctions.

      Noel’s consistent failures to timely meet his obligations as Huffman’s

attorney violated rule 32:1.3.

      C. Whether Noel Violated Rule 32:1.4(a)(2), (a)(3), (a)(4), and

(b)—Communication. The Board alleged and the commission found Noel

violated rule 32:1.4(a)(2), (a)(3), (a)(4), and (b). We find Noel violated rule

32:1.4(a)(3), (a)(4), and (b).
      Rule 32:1.4(a)(2) provides that an attorney shall “reasonably consult

with the client about the means by which the client’s objectives are to be

accomplished.”      As discussed above, although Noel failed to ensure

Huffman actually understood what he communicated to her and what he
                                    16

expected of her, he did not fail to reasonably consult with her on the means

for accomplishing her objectives. We find the Board failed to establish Noel

violated rule 32:1.4(a)(2).

      Rule 32:1.4(a)(3) requires an attorney to “keep the client reasonably

informed about the status of the matter,” and rule 32:1.4(a)(4) requires the

attorney to “promptly comply with reasonable requests for information.”

Noel failed to keep Huffman reasonably informed about the status of the

suit she wished to file against JT Home Improvement and Rainbow and to

promptly comply with reasonable requests for information.

      Huffman testified and the record reveals that she emailed Noel

several times between January and June 2016 for an update on the status

of that lawsuit. During that same period, she also emailed Noel several

times, asking for advice or suggestions on how to handle matters with

Rainbow and her housing situation.        The commission found credible

Huffman’s testimony that she did not receive any responses from Noel.

Indeed, the record reveals the first recorded substantive response Huffman

received from Noel was a letter dated July 17, 2016, in which Noel

indicated Rainbow had filed suit against Huffman first, he was working on

an answer that was due on July 15, and he would have the answer filed

by then.

      Noel’s failure to keep Huffman reasonably informed caused her to

repeatedly inquire and request information about her case’s status. See

Iowa R. Prof’l Conduct 32:1.4 cmt. [4] (“A lawyer’s regular communications

with clients will minimize the occasions on which a client will need to

request information concerning the representation.”). But the evidence in

the record demonstrates Noel did not respond promptly, if at all, to

Huffman’s inquiries and requests, and Noel produced no evidence that

persuasively rebuts that conclusion. Noel even admitted, “I do think I
                                      17

should have kept her more updated.” Thus Noel violated rule 32:1.4(a)(3)

and (a)(4). See Barry, 908 N.W.2d at 224–25 (finding attorney violated rule

32:1.4(a)(3) and (a)(4) when he failed to reasonably inform the clients about

the status of the case, causing the clients to repeatedly ask or stop in for

updates); cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelissen, 871

N.W.2d 694, 698–99 (Iowa 2015) (finding the Board failed to establish a

violation of rule 32:1.4(a)(3) and (a)(4) when the record showed the attorney

normally, although not always, responded to the client’s emails within one

or two days).

      Rule 32:1.4(b) provides, “A lawyer shall explain a matter to the

extent reasonably necessary to permit the client to make informed

decisions regarding the representation.” Iowa R. Prof’l Conduct 32:1.4(b).

Noel failed to adequately communicate and explain matters to Huffman.

      Comment [5] to rule 32:1.4 provides in relevant part,

      The client should have sufficient information to participate
      intelligently in . . . the means by which [the client’s objectives]
      are to be pursued, to the extent the client is willing and able
      to do so. Adequacy of communication depends in part on the
      kind of advice and assistance that is involved.

Id. cmt. [5]. Several emails from Huffman to Noel and the testimonies of
Huffman, Noel, and Noel’s two office assistants show Huffman struggled

to understand what was expected of her and indicate Noel failed to take

steps to adequately explain matters such that Huffman could intelligently

participate in the means for pursuing her objectives.

      Further, Noel failed to inform Huffman of the necessity of returning

her answers to Rainbow’s interrogatories in a timely manner and the

ramifications for not doing so. He also failed to inform Huffman when

Rainbow filed a motion for sanctions, that he did not resist the motion for

sanctions, or of the ramifications of the motion. Noel’s failure to inform
                                      18

Huffman of that sanctions matter ensured she did not have sufficient

information to make informed decisions about the case or to participate in

that aspect of her case. Cf. Turner, 918 N.W.2d at 146 (finding attorney

violated rule 32:1.4(b) when he did not communicate with a client to the

extent reasonably necessary for the client to be able to make an informed

decision of whether to file a Chapter 7 or Chapter 11 bankruptcy case);

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Vandel, 889 N.W.2d 659, 665

(Iowa 2017) (finding attorney violated rule 32:1.4(b) when her “failure to

fully explain the circumstances [of her threat to withdraw as counsel] left

[the client] unable to make an informed decision regarding [the attorney’s]

representation and effectively prepare for and participate in the trial”).

      We find the Board proved by a convincing preponderance of the

evidence that Noel violated rule 32:1.4(a)(3), (a)(4), and (b).

      D. Whether Noel Violated Rule 32:3.4(d)—Fairness to Opposing

Party and Counsel. Rule 32:3.4(d) provides a lawyer shall not “in pretrial

procedure . . . fail to make a reasonably diligent effort to comply with a

legally proper discovery request by an opposing party.”            Iowa R. Prof’l

Conduct 32:3.4(d). Because this case involved only one motion to compel,

one   motion    for   sanctions,   and     difficulties   in   obtaining   written

documentation from the client in order to comply with the discovery

requests, the commission concluded the Board failed to prove that Noel

violated rule 32:3.4(d). We disagree.

      In Iowa Supreme Court Attorney Disciplinary Board v. Hedgecoth, the

attorney repeatedly failed to comply with opposing counsel’s discovery

requests and, eventually, court orders to produce discovery. 862 N.W.2d

354, 358–59 (Iowa 2015). The attorney’s repeated failures occurred over

a five-month period. Id. Opposing counsel filed one motion to compel and

three motions for sanctions. Id. In that case, there were multiple motions,
                                    19

in part because opposing counsel did not hesitate to file the motions. See

id. (stating that opposing counsel filed the motion to compel two weeks

after the first set of discovery requests was due, the first motion for

sanctions one week after the court granted the motion to compel, the

second motion for sanctions one day after the attorney and his client failed

to appear for a deposition, and the third motion for sanctions two weeks

after the court issued a second order compelling discovery).

      Additionally, the court granted one of the sanctions motions because

the court found the discovery responses the attorney eventually provided

were deficient, untimely, unresponsive, and not in final form. Id. at 359.

We noted that “[e]ach of the[] motions were filed because [the attorney]

repeatedly failed to provide timely discovery responses to opposing

counsel’s proper requests” and found the attorney violated rule 32:3.4(d).

Id. at 362–63.

      In Iowa Supreme Court Attorney Disciplinary Board v. Barnhill, the

attorney failed to “designate expert opinions until months after the

deadline,” “to produce some documents required as part of [the] initial

disclosures,” and to produce some documents properly requested by the

opposing party even though opposing counsel filed two motions to compel,

which the court granted. 885 N.W.2d 408, 415 (Iowa 2016). Roughly half-

a-year after discovery opened, opposing counsel filed a motion for

sanctions. See id. (noting discovery opened in August 2013 and the motion

for sanctions was filed in spring 2014). We found the attorney’s conduct

violated rule 32:3.4(d).   Id. at 423.   We relied on Hedgecoth for the

proposition that an attorney violates rule 32:3.4(d) when “ ‘the court

granted several motions to compel and motions for sanctions filed by

opposing counsel’ because the attorney ‘repeatedly failed to provide timely

discovery responses to opposing counsel’s proper requests.’ ” Id. (quoting
                                     20

Hedgecoth, 862 N.W.2d at 362–63). We reasoned Barnhill’s conduct was

similar to the unethical conduct in Hedgecoth. Id.

      In Iowa Supreme Court Attorney Disciplinary Board v. Kennedy, the

attorney filed, on January 6, a notice of identification of an expert with a

certification that he had served the notice on all parties. 837 N.W.2d 659,

665 (Iowa 2013). Opposing counsel did not receive the notice until June 8

but thereafter immediately notified the attorney that the notice was

insufficient because it did not provide the expert’s qualifications or the

purpose for calling the expert. Id. On July 12, opposing counsel sent a

letter to the attorney threatening to file a motion for summary judgment

within a week because all of the discovery responses were overdue. Id.

Opposing counsel filed for summary judgment on July 20, claiming the

attorney’s client failed to disclose his expert witness’s qualifications and

the purpose for calling the expert within the statutorily designated time.

Id. Opposing counsel sent another letter in October indicating he still had

not received the requested discovery documents or information about the

expert. Id. He then filed a motion to compel two weeks later, which the

court granted.   Id.   The attorney stipulated that she evaded opposing

counsel’s proper attempts to learn the expert’s identity and opinions. Id.

at 670.   We found her “persistent noncompliance fell short of being

‘reasonably diligent’ and thus violated rule 32:3.4[(d)]” despite there being

only one motion to compel. Id. (quoting Iowa R. Prof’l Conduct 32:3.4(d)).

      Although the multiple motions to compel and for sanctions were a

dispositive factor in Hedgecoth and Barnhill, Kennedy demonstrates that

multiple motions are not a prerequisite to violating rule 32:3.4(d). Rather,

such motions are merely evidence suggesting the attorney did not make a

reasonable effort to comply with proper discovery requests.        Opposing

counsel’s willingness to either file such motions, as in Hedgecoth, 862
                                    21

N.W.2d at 358–59, or be forgiving and lenient, like Rainbow’s counsel here

or as in Kennedy, 837 N.W.2d at 665, should not be determinative of

whether an attorney violates rule 32:3.4(d).

      Further, Noel’s conduct is similar to the situations in Hedgecoth,

Barnhill, and Kennedy. As in Barnhill, Noel failed to make the required

initial disclosures, see 885 N.W.2d at 415, and similar to Hedgecoth, when

Noel finally provided Huffman’s answers to interrogatories, they were

unsigned, cf. 862 N.W.2d at 359 (noting discovery responses were not in

final form). Like in Hedgecoth and Kennedy, Noel’s handling of discovery

resulted in multiple requests and inquiries from opposing counsel about

discovery. See Hedgecoth, 862 N.W.2d at 358–59; Kennedy, 837 N.W.2d

at 665.   Often he did not respond to these inquiries from Rainbow’s

counsel for days or weeks. See Kennedy, 837 N.W.2d at 665 (noting after

opposing counsel resent the discovery requests on May 17, the attorney’s

next response was on July 21 when she provided some of the requested

discovery).

      Moreover, Noel’s behavior in early February and March 2017

indicates he had not made a reasonable effort to comply with Rainbow’s

request for production of documents. First, the court compelled Noel to

produce all of the requested discovery by February 1.      Noel provided

Rainbow’s counsel with Huffman’s unsigned answers to interrogatories on

February 1 but did not respond to the request for production of

documents.     He said nothing about the document request in his

February 1 communication conveying the interrogatory answers.          On

February 7, he emailed Rainbow’s counsel to explain that while he had all

the information necessary to complete the document request, he had had

the flu, so he would have the response to the request by the end of the

week. However, a February 7 email from Noel’s legal assistant to Huffman
                                    22

and a February 9 letter from Noel to Huffman reveal that Noel was still

trying to obtain the information from Huffman necessary to complete the

response when he emailed Rainbow’s counsel on February 7. In addition,

in a letter dated March 28, Noel asked Rainbow’s counsel if the deadline

for the response could be moved back to April 7 because he was under a

time crunch with another case involving multiple felony charges.

Analogous to Kennedy, Noel’s excuses for the continued failure to respond

to Rainbow’s documents request seem like an effort to evade Rainbow’s

attempts of ascertaining information relevant to the case. See id. at 670.

This behavior does not constitute a reasonable effort to comply with

requested discovery.

      Finally, even after Noel claimed on February 7 to have all of the

information needed to respond to Rainbow’s document request, he still did

not provide a response until May 8.       He did not communicate with

Rainbow’s counsel about the delay until Rainbow’s counsel sent him a

letter on March 17, threatening to file for sanctions. Even then, Noel did

not respond to that letter for a week and a half. Noel’s continued delay

caused Rainbow’s counsel to file a motion for sanctions on April 3 and a

motion in limine, specifically to exclude evidence that was not produced in

discovery, on May 8.      Assuming Noel did have all the necessary

information to complete the documents request on February 7, failing to

do so for another three months and failing to communicate with opposing

counsel for almost two months is not a reasonable effort to comply with

requested discovery.

      We find the Board proved by a convincing preponderance of the

evidence that Noel violated rule 32:3.4(d).

      E. Whether Noel Violated Rule 32:8.4(c)—Conduct Involving

Dishonesty, Fraud, Deceit, or Misrepresentation.           Rule 32:8.4(c)
                                      23

provides that it is professional misconduct for an attorney to “engage in

conduct involving dishonesty, fraud, deceit, or misrepresentation.” Iowa

R. Prof’l Conduct 32:8.4(c). To establish a violation of rule 32:8.4(c), “[t]he

Board must prove some level of scienter that is greater than mere

negligence.”   Stansberry, 922 N.W.2d at 596.        The salient question is

“whether the effect of the lawyer’s conduct is to mislead rather than to

inform.” Barry, 908 N.W.2d at 226 (quoting Weiland, 885 N.W.2d at 211–

12). The commission found the Board failed to prove Noel violated rule

32:8.4(c) because it found Huffman’s testimony on this claim lacked

credibility. We agree with the commission’s conclusion.

      The Board alleged Noel violated rule 32:8.4(c) based on Huffman’s

claim about what Noel told her Judge Barrows said on the morning of trial.

In her June 6 letter to the court, Huffman asserted that Noel said Judge

Barrows “told him this isn’t a Rainbow problem – it’s a Roofer [(i.e.,

JT Home Improvement)] issue – get out of there – settle it – he was sending

the Jury home.”     At the July 27 hearing on Huffman’s letters, Judge

Barrows denied making those statements. At the disciplinary hearing,

Noel denied telling Huffman Judge Barrows made such statements.

      As there is no other contemporaneous evidence of what Noel told

Huffman with respect to Judge Barrows’s statements, this fact issue turns

on a credibility determination.     The commission did not find credible

Huffman’s recollection of what Noel told her Judge Barrows said. The

commission made this finding based on Huffman’s other recollections of

the morning of trial that were obviously inaccurate. Although we are not

bound by the commission’s findings, we agree with the commission on its

credibility determinations here. See Kieffer-Garrison, 847 N.W.2d at 492.

      Other than Huffman’s recollection, there is nothing in the record

demonstrating that Noel actually misrepresented Judge Barrows’s
                                    24

statements and that he did so with the intent to mislead. See Netti, 797

N.W.2d at 605; cf. Stansberry, 922 N.W.2d at 596; Barry, 908 N.W.2d at

226.   Accordingly, we find the Board failed to prove Noel violated rule

32:3.4(c) by a convincing preponderance of the evidence.

       F. Whether Noel Violated Rule 32:8.4(d)—Conduct That Is

Prejudicial to the Administration of Justice. Rule 32:8.4(d) provides it

is professional misconduct for an attorney to “engage in conduct that is

prejudicial to the administration of justice.”     Iowa R. Prof’l Conduct

32:8.4(d).   This rule is intended to prohibit conduct “that has an

undesirable effect—some interference with the operation of the court

system.” Weiland, 885 N.W.2d at 212. While “[t]here is no typical form of

conduct that prejudices the administration of justice,” Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Weiland, 862 N.W.2d 627, 637 (Iowa 2015)

(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d

580, 587 (Iowa 2011)), conduct that violates this rule “must hamper ‘the

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

which the courts rely’ by violating the well-understood norms and

conventions of the practice of law,” Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Silich, 872 N.W.2d 181, 191 (Iowa 2015) (quoting Netti, 797 N.W.2d at

605). “We have consistently held an attorney violates rule 32:8.4(d) when

the ‘misconduct results in additional court proceedings or causes court

proceedings to be delayed or dismissed.’ ” Vandel, 889 N.W.2d at 666

(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 841 N.W.2d

114, 124 (Iowa 2013)). The commission concluded the Board failed to

prove that Noel violated rule 32:8.4(d). We disagree.

       Noel’s neglectful and untimely handling of discovery matters

resulted in additional court proceedings and caused other court

proceedings to be delayed. His conduct resulted in opposing counsel filing
                                     25

a motion to compel and a motion for sanctions, which led to three

additional court proceedings—one on each motion and one on the

sanctions amount.     His conduct also resulted in the extension of the

deadline for filing motions for summary judgment and the trial being

delayed from March 13, 2017, to May 22, 2017. See Barnhill, 885 N.W.2d

at 422 (finding attorney violated rule 32:8.4(d) when, in one client matter,

her failure to comply with discovery obligations resulted in additional court

proceedings, “including a sanctions hearing and hearings on [the opposing

party’s] motions to compel,” which required the court to leave the case

open, even after it had granted summary judgment, so the sanctions issue

could be resolved); see also Turner, 918 N.W.2d at 151 (finding attorney

violated rule 32:8.4(d) when he, among other things, made improper filings

in the bankruptcy court that delayed the proceedings).

      We acknowledge the undesirable effect of Noel’s conduct is not as

egregious as in other cases. See, e.g., Barry, 908 N.W.2d at 226 (finding

attorney’s conduct delayed court proceedings by lengthening the

dissolution process for months); Vandel, 889 N.W.2d at 666 (finding

attorney’s conduct that delayed proceedings was prejudicial to opposing

party because resolution of the show cause application was delayed by two

weeks); Barnhill, 885 N.W.2d at 422 (finding attorney violated the rule, in

another client matter, when she repeatedly falsely asserted she had paid

the client in full, which led to an additional lawsuit and bench trial that

were ultimately unnecessary). Nevertheless, Noel’s conduct interfered with

the operation of the court system by causing three additional hearings,

delaying the summary judgment filing deadline, and delaying the date of

trial. We find by a convincing preponderance of the evidence that Noel

violated rule 32:8.4(d).
                                         26

      IV. Sanction.

      We must now determine the appropriate sanction for Noel’s present

unethical        conduct.    The   commission      recommended     a   thirty-day

suspension. The Board contends we should suspend Noel’s license for an

additional sixty days on top of the one-year suspension we imposed in

Noel I. It also contends we should consider the discipline imposed in Noel I

as prior discipline, an aggravating factor, because the suspension in Noel I

is unrelated to Noel’s representation of Huffman and Noel’s misconduct in

the Huffman matter occurred after the misconduct that gave rise to Noel I.

Noel concurs with the commission’s recommendation that his license be

suspended for an additional thirty days. However, he contends we should

not consider the discipline imposed in Noel I as prior discipline because

the conduct giving rise to the present case occurred and was reported

before the Board filed its complaint in Noel I.

      “We craft appropriate sanctions based upon each case’s unique

circumstances,” Kennedy, 837 N.W.2d at 673 (quoting Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Kallsen, 814 N.W.2d 233, 239 (Iowa 2012)), but we

also “try to achieve consistency with prior cases involving similar

misconduct,” Stansberry, 922 N.W.2d at 598. We consider several factors,

including

      [t]he 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.

Turner, 918 N.W.2d at 152 (alteration in original) (quoting Morse, 887

N.W.2d      at    143).     We   also   consider   aggravating   and mitigating

circumstances. Barry, 908 N.W.2d at 227.
                                    27

      In other cases involving attorney neglect similar to Noel’s, we have

imposed discipline ranging from a public reprimand to a six-month

suspension. See Hedgecoth, 862 N.W.2d at 365; Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Conroy, 845 N.W.2d 59, 66 (Iowa 2014); Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Humphrey, 812 N.W.2d 659, 666 (Iowa 2012).

But we have also imposed lengthier suspensions when “the neglect is one

violation among many much more serious ones or occurs amidst

aggravating circumstances.” Hedgecoth, 862 N.W.2d at 365.

      We disagree with the Board that Noel I is prior discipline. In order

to be prior discipline, we must have found Noel’s prior conduct violated

our rules and sanctioned him before he committed the conduct giving rise

to the present proceeding. See State v. Freeman, 705 N.W.2d 286, 291

(Iowa 2005) (requiring each offense to be complete as to a conviction and

sentencing before commission of the next offense in order to qualify for the

enhancement); see also State v. Wade, 467 N.W.2d 283, 285 (Iowa 1991).

Although Freeman is a criminal case, we find it and its predecessor’s

reasoning is persuasive. We use prior discipline as an aggravating factor

because an attorney did not learn from his or her prior misconduct. How

can we use prior discipline for this purpose when we did not discipline an

attorney prior to committing an act? Thus, for prior discipline to qualify

as an aggravating factor, we must have disciplined an attorney before he

or she commits the subsequent act.

      We believe the timing of the present violations has bearing on the

sanction. The acts that form the basis for this proceeding occurred from

December 2015 to July 27, 2017. The acts forming the basis for Noel I

occurred from July 2009 to August 2013. Noel I, 923 N.W.2d at 581. The

Board filed the Complaint in Noel I on October 30, 2017. Id. On March 5,

2018, the Board amended its compliant in Noel I. Id. On July 18, the
                                     28

commission entered its findings and recommendation in Noel I. Id. The

Board waited until July 31 to file the complaint in the present case. We

entered our decision in Noel I on February 15, 2019.

      In Iowa Supreme Court Attorney Disciplinary Board v. Moorman, we

found the attorney had committed various ethical violations between 2001

and 2004, including neglect in handling client matters. 729 N.W.2d 801,

803–05 (Iowa 2007). We also noted that we had previously suspended the

attorney’s license for two years following his neglect of a client matter in

2002. Id. at 804, 805. We imposed a public reprimand for the 2001–2004

conduct that was the basis of the present disciplinary proceeding even

though the attorney’s conduct would usually generate a suspension up to

two years. Id. at 805–06. We reasoned,

      Had we been aware of the conduct that is the subject of this
      disciplinary proceeding at the time of our previous decision, it
      is unlikely this conduct would have caused us to suspend
      Moorman’s license for longer than two years. Because
      Moorman’s license is presently under suspension, we see no
      purpose served by ordering another suspension insofar as a
      deterrence or protection of the public is concerned.

Id. at 806.

      Likewise, even if we had been aware of Noel’s conduct that gave rise

to the present case when we issued our decision in February of 2019, “it

is unlikely this conduct would have caused us to suspend [Noel’s] license

for longer than [one] year[].” Id.; accord Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Marks, 814 N.W.2d 532, 542 (Iowa 2012). Therefore, we see no

reason to enhance Noel’s sanction in the present case or extend the

suspension we imposed in Noel I.        A public reprimand is the proper

sanction. However, we remind Noel that future misconduct will result in

harsher sanctions.
                                  29
     V. Disposition.

     We impose a public reprimand on Noel rather than the suspension

recommended by the commission. We tax the costs of this action to Noel

pursuant to Iowa Court Rule 36.24(1).

     ATTORNEY REPRIMANDED.
