                                                        2/15/2019 8:10:13 AM

               IN THE SUPREME COURT OF IOWA
                                No. 18–1229

                         Filed February 15, 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 we suspend an attorney’s

license for an indefinite period of at least one year based on the attorney’s

conduct of charging and collecting excessive fees, conduct reflecting

adversely on his fitness to practice law, and conduct involving deceit.

LICENSE SUSPENDED.


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

complainant.



      Max E. Kirk, Waterloo, and Dan McClean of McClean & Heavens Law

Office, Dyersville, for respondent.
                                      2
CHRISTENSEN, Justice.
      An audit by the Iowa State Public Defender (SPD) revealed an Iowa

attorney billed the state for services he did not perform and made excessive

mileage claims. The attorney pled guilty to two counts of fourth-degree

theft for billing for family team meetings he did not attend.       The Iowa

Supreme Court Attorney Disciplinary Board (Board) subsequently brought

a complaint against the attorney alleging he violated numerous Iowa Rules

of Professional Conduct while performing legal services for the SPD. The

Iowa Supreme Court Grievance Commission (commission) found various
violations of our ethical rules and recommended suspending the attorney’s

license to practice law in Iowa indefinitely for a period of at least one year

from the date of our holding in this matter.

      The attorney challenges the commission’s recommended sanction

and requests a ninety-day suspension instead. Further, he argues the

commission should not have relied on the doctrine of issue preclusion in

determining he committed a criminal act based on his criminal

convictions, nor should it have admitted the minutes of testimony from his

criminal theft case as evidence.          The attorney also maintains the

commission made incorrect factual findings and erroneously concluded he
violated certain ethical rules. After our de novo review of the record, we

agree with the recommendation of the commission and suspend the

attorney’s license to practice law in the State of Iowa indefinitely for a

period of at least one year.

      I. Background Facts and Proceedings.

      Matthew Noel is an attorney admitted to the Iowa bar in 2008. In

November 2008, Noel and the SPD entered into a contract for Noel to

provide legal services to indigent adults and juveniles in five judicial

districts and in appellate matters. At the time of the alleged conduct, Noel
                                     3

maintained a law office in Dubuque County.         He was appointed as a

magistrate in Dubuque County in August 2013. Noel’s contract with the

SPD was renewed in 2010, and the renewed contract expired on January

1, 2014. The terms and conditions of the contract provided that Noel “shall

claim fees only for actual time and expenses reasonably necessary to

properly represent the client.” Pursuant to the contract, Noel was required

to submit a claim form to the SPD to receive payment for his services. The

contract required him to submit the following or similar language:

      I, the undersigned attorney, certify that I have completed my
      services under the appointment; that I have not received nor
      have I entered into any agreement to receive compensation for
      these services, direct or indirect, from any source other than
      the State Public Defender; and that the above information
      summarizes the services and expenses for which I am entitled
      to payment. I further state that an itemized statement of
      services and expenses is attached hereto and a copy has been
      provided to my client.

      In a letter dated December 23, 2013, Samuel Langholz of the SPD

informed Noel the SPD had concerns about Noel’s billing practices related

to his claims for mileage expenses. Langholz explained Noel had been

reimbursed nearly $15,000 for traveling more than 40,000 miles in each

of the past two fiscal years, “[a]nd in each of these years, [Noel] claimed

and [was] paid more mileage than any other indigent defense contract

attorney in the state.” Due to billing concerns, Langholz stated the SPD

was “not comfortable renewing [Noel’s] contract for a full three-year term”

and would only agree to a renewal of its contract with Noel for one month

“on the condition that several more distant counties [were] removed from

[the] contract.”

      Noel responded to Langholz and the SPD in a letter dated January

14, 2014, admitting he billed the SPD full trip mileage for each client, even

when he made the trip on behalf of multiple clients. Noel claimed he did
                                     4

not learn he was incorrectly billing the mileage until he attended a SPD

conference in June 2013. Noel gave two reasons for his incorrect billing.

First, he told Langholz that he was an electrician prior to becoming a

lawyer and the industry standard for electricians was “to charge all

customers mileage for a trip to a single location on one day.” Second, he

was continuing the billing practice he was taught by his previous law firm’s

office manager and other attorneys. In a letter dated January 29, Langholz

told Noel he had considered Noel’s January 14 response and determined

the SPD would not continue to contract with Noel to provide indigent

defense services.     Langholz explained Noel’s billing for mileage had

resulted in more than $11,000 of potential overpayments and Noel never

contacted the SPD to remedy his billing issues after he claimed he learned

he had been incorrectly billing his mileage.

        In September 2014, the state auditor (auditor) issued her report on

a special investigation of the SPD’s office that spanned from July 2009

through August 2013. The auditor’s report found the SPD overpaid Noel

at least $5070 for legal services, including $2364 for family team meetings

in juvenile cases Noel did not attend. The auditor’s report also found the

SPD overpaid Noel at least $12,333.45 in mileage expenses, which

represented payment for more than 35,328 miles at thirty-five cents per

mile.    The state subsequently filed a trial information against Noel,

charging him with second-degree theft, a class “D” felony, in violation of

Iowa Code sections 714.1(3), 714.2(2), and 714.3 (2013). The state later

amended the trial information to charge Noel instead with two counts of

fourth-degree theft, serious misdemeanors, in violation of Iowa Code

sections 714.1(3), 714.2(4), and 714.3. The charges alleged Noel obtained

“a transfer of possession, control, or ownership of the property of another

by deception, where the amount of money involved exceeds $200, by billing
                                    5

the State Public Defender’s Office for work not actually performed” from

July 2009 through August 2013.

      Noel filed a written guilty plea to the two counts of fourth-degree

theft on June 22, 2017. In this plea, Noel proclaimed,

      In order to establish a factual basis I ask the court to accept
      as true the minutes of testimony, the date[] of the offense is
      July 2009 through August 2013 and I admit that I did the
      following: The Defendant admits that there is a factual basis
      for both Count I and Count II related to billings for Family
      Team Meetings.         Defendant does not contest paying
      restitution for allegations of over billing mil[e]age.

The district court accepted Noel’s guilty plea, and he was sentenced to a

mandatory minimum fine of $315 on each count; a $125 law enforcement

initiative surcharge on each count; the applicable surcharges and court

costs on each count; and restitution in the amount of $14,697.45—

$12,333.45 for Noel’s mileage claims and $2364 for his fee claims for

family team meetings he did not attend. Noel also received a thirty-day

fully suspended jail sentence on count I and unsupervised probation to be

served concurrently with a one-year fully suspended jail sentence and

unsupervised probation on count II. Noel did not appeal this judgment.

      On October 30, the Board filed a complaint against Noel, alleging

numerous violations of the Iowa Rules of Professional Conduct.          On

January 26, 2018, the Board filed a motion for leave to substitute an

amended complaint, which the commission approved, and the amended

complaint was filed on March 5, separating the matter into two counts.

Count I alleged Noel violated Iowa Rules of Professional Conduct 32:1.5(a)

(unreasonable fees or expenses), 32:8.4(b) (criminal act that reflects

adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer

in other respects”), and 32:8.4(c) (conduct involving dishonesty, fraud,

deceit, or misrepresentation”) in his billings for family team meetings he
                                      6

did not attend. Count II alleged Noel violated the same three rules in his

billings to the SPD for mileage claims. On March 5, the Board filed a notice

of issue preclusion pursuant to Iowa Court Rule 36.17(4), stating it

intended to invoke issue preclusion regarding all matters resolved in Noel’s

criminal proceedings for his fourth-degree theft convictions.

      The Board held a hearing to present evidence on March 27 and

March 28. The Board presented nineteen exhibits at the hearing. Noel

objected to exhibit 2, which contained the confidential minutes of

testimony in Noel’s criminal theft case, and exhibit 5, which contained

additional minutes of testimony in Noel’s criminal theft case.            The

commission admitted exhibits 2 and 5 after listening to arguments on the

objections. Additionally, Noel presented twenty-two exhibits of his own.

Pursuant to rule 36.17(2), Noel also submitted affidavits from an Iowa

district court judge and an Iowa district associate judge in lieu of character

testimony.

      On     July   18,   the   commission     issued    its   findings   and

recommendation. In its factual findings, the commission declared,

            34. The issue of Noel’s conduct raised in Count I of the
      Board’s Complaint as to the billings for Family Team Meetings
      is identical to the issue raised in his criminal case. The
      mileage reimbursement was not at issue in the criminal
      proceeding, although the Court ordered restitution for the
      mileage reimbursement as part of the criminal proceeding. . . .

            35. The issue of Noel’s conduct as to his billings for
      Family Team Meetings was material and relevant to the
      disposition of the criminal case. . . .

            36. The determination of the issue of Noel’s conduct in
      the criminal case as to his billings for Family Team Meetings
      was necessary and essential to the resulting judgment. Noel
      accepted responsibility for his actions and admitted he was
      overpaid for billing Family Team Meetings he did not
      attend. . . .
                                     7
             37. In the criminal case, Noel was afforded a full and
      fair opportunity to litigate the issue of his conduct as to his
      billings for Family Team Meetings. . . .

            38. There is a rational connection between the
      criminality of Noel’s conduct as to his billings for Family Team
      Meetings and his fitness to practice law. . . .

(Emphasis added.) The commission found Noel violated rule 32:1.5(a) by

claiming duplicate mileage and fees for family team meetings he did not

attend, rule 32:8.4(b) for billing the SPD for family team meetings he did

not attend and his criminal convictions for this billing, and rule 32:8.4(c)

for intentionally making dishonest statements about his mileage and

billing practices.   The commission recommended we suspend Noel’s

license for an indefinite period with no possibility of reinstatement for at

least one year from the date of our decision in this matter.

      Upon our review, Noel requests a ninety-day suspension and

maintains the commission’s recommended one-year suspension is

inconsistent with the sanctions imposed in similar cases. Additionally,

Noel contends the commission should not have relied on the doctrine of

issue preclusion to determine he committed a criminal act based on his

guilty plea to two counts of fourth-degree theft.      He also argues the

commission should not have admitted the minutes of testimony from his

criminal theft case as evidence in his disciplinary hearing. Further, Noel

challenges certain factual findings and the commission’s conclusion that
he violated certain Iowa Rules of Professional Conduct.

      II. Standard of Review.

      Our court reviews attorney disciplinary proceedings de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Nine, 920 N.W.2d 825, 827 (Iowa

2018).   The Board must prove the alleged attorney misconduct by a

convincing preponderance of the evidence, which “is more demanding than

proof by [a] preponderance of the evidence, but less demanding than proof
                                      8

beyond a reasonable doubt.” Id. at 827–28 (alteration in original) (quoting

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 884 N.W.2d 772, 777

(Iowa 2016)).   Though we are not bound by the commission’s factual

findings and recommendations, we respectfully consider them. Id. at 827.

Ultimately, we have the discretion to “impose a greater or lesser sanction

than what the commission has recommended upon proof of an ethical

violation.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Mathahs, 918 N.W.2d

487, 489 (Iowa 2018).

      III. Analysis.

      A. Issue Preclusion.       Noel contends the commission erred in

relying upon the doctrine of issue preclusion in count I regarding Noel’s

alleged violation of Iowa Rule of Professional Conduct 32:1.5(a) in his

billings for family team meetings he did not attend. Noel claims he pled

guilty to the fourth-degree theft charges in order to avoid facing “a felony

count with a factual basis that his inadequate records could not rebut.”

However, he maintains his convictions of fourth-degree theft in violation

of Iowa Code section 714.1(3) do not constitute proof of his criminal intent,

and “at best the actions in inaccurate billing of family team meetings

constitute sloppiness and negligence and is not evidence of a crime of

intent.”

      Iowa’s grievance commission rules of procedure allow either party in

an attorney disciplinary proceeding to invoke principles of issue preclusion

if the following three conditions are met:

            a. The issue has been resolved in a civil proceeding that
      resulted in a final judgment or in a criminal proceeding that
      resulted in a finding of guilt, even if the disciplinary board was
      not a party to the prior proceeding.

            b. The burden of proof in the prior proceeding was
      greater than a preponderance of the evidence.
                                      9
            c. The party seeking preclusive effect has given written
      notice to the opposing party, not less than 10 days prior to the
      hearing, of the party’s intention to invoke issue preclusion.

Iowa Ct. R. 36.17(4); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Rhinehart, 827 N.W.2d 169, 177 (Iowa 2013). Additionally, we recognize

the following additional requirements when the Board invokes issue

preclusion offensively:

             (1) the issues . . . sought to be precluded in the . . .
      disciplinary [proceeding] are identical to the issues . . . in the
      prior . . . action;

              (2) the issues . . . were raised and litigated in the prior
      . . . action;

            (3) the issues . . . were material and relevant to the
      disposition of the prior . . . action; and

            (4) the . . . determination of the . . . issues [in the prior
      action] [was] necessary and essential to the resulting
      judgment. . . .

Rhinehart, 827 N.W.2d at 178 (alterations in original) (quoting Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. D.J.I., 545 N.W.2d 866, 875

(Iowa 1996)). Upon our review of the issue preclusion requirements, we

hold the commission correctly applied the doctrine of issue preclusion.

      All three conditions of rule 36.17(4) governing the application of

issue preclusion are satisfied here. First, Noel pled guilty to two charges

of fourth-degree theft, serious misdemeanors, in connection with his

practice of billing the SPD for family team meetings in juvenile cases he

did not attend. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Iversen, 723

N.W.2d 806, 809 (Iowa 2006) (holding first condition of issue preclusion

met because the attorney pled guilty to the crimes at issue in his

disciplinary case). In his guilty plea, Noel admitted “that there is a factual

basis for both Count I and Count II related to billings for Family Team

Meetings.” Second, the burden of proof for fourth-degree theft—beyond a
                                     10

reasonable doubt—is greater than a mere preponderance of the evidence.

Third, the Board provided written notice of its intent to invoke issue

preclusion more than twenty days prior to the hearing.

      Moreover, the Board satisfied all four requirements to invoke issue

preclusion offensively. The issue of Noel’s conduct as to his billings for

family team meetings in his disciplinary proceeding is identical to his

criminal proceeding, which provided Noel with a full and fair opportunity

to litigate the issue in his criminal case. See Emp’rs Mut. Cas. Co. v. Van

Haaften, 815 N.W.2d 17, 23–24 (Iowa 2012) (finding that in the context of

an Alford plea, the factual basis determination meets the requirement that

the issues have been litigated). This family team meeting billing issue was

material and essential to the resulting judgment in Noel’s criminal case

since it served as the factual basis of his guilty plea. We see no additional

circumstances that would justify relitigating Noel’s practice of billing for

family team meetings he did not attend. Noel acknowledged as much in

his answer to the amended and substituted grievance complaint, where he

admitted that no circumstances existed to relitigate this issue as a

criminal proceeding.    Consequently, we give preclusive effect to Noel’s

convictions for fourth-degree theft regarding his billings for family team

meetings he did not attend. Noel “is not entitled to another bite at the

apple through relitigation of the same issue in this disciplinary

proceeding.” Rhinehart, 827 N.W.2d at 179.

      B. Evidentiary Issues.     Noel argues the commission should not

have admitted the minutes of testimony from Noel’s criminal case as

evidence in his disciplinary proceeding. These minutes of testimony were

contained in two exhibits, both of which Noel objected to at the hearing

before the commission. In admitting the minutes of testimony into the

record, the commission president referred to Iowa Rule of Evidence
                                      11

5.801(b)(2)(b), a rule number that does not exist in the Iowa Rules of

Evidence. The Board contends this mistake is a scrivener’s error by the

court reporter in trying to distinguish between the pronunciation of the

letters “b” and “d,” and the rule actually referenced was Iowa Rule of

Evidence 5.801(d)(2)(B). Noel claims the challenged exhibits do not come

within any hearsay exception under the Iowa Rules of Evidence.

      Rule 5.801(d)(2)(B) provides a statement is not hearsay if “[t]he

statement is offered against an opposing party and . . . [i]s one the party

manifested that it adopted or believed to be true.”            Iowa R. Evid.

5.801(d)(2)(B). The minutes of testimony in both of the challenged exhibits

meet this definition. Noel manifested his belief that the statements offered

against him in the minutes of testimony were true in his guilty plea,

declaring, “I ask the court to accept as true the minutes of testimony . . . .”

By signing the guilty plea, Noel acknowledged the “statements therein are

true and correct.” Thus, contrary to Noel’s argument that “[n]othing in the

minutes of testimony, Exhibit 2 or Exhibit 5, can be seen as a statement

which [Noel] somehow adopted as his own for purposes of a criminal plea,”

Noel’s explicit request for the court to accept the minutes is a clear

statement of assent to the minutes of testimony. See State v. Menke, 227

N.W.2d 184, 188 (Iowa 1975) (“[I]t must be shown a person clearly and

unambiguously assented to the statements of another before an adoptive

admission comes into being.”). Further, Noel did not deny the accuracy of

any portion of the minutes of testimony, nor is there evidence showing the

facts contained in the minutes of testimony are invalid. See State v. Black,

324 N.W.2d 313, 316 (Iowa 1982) (“The sentencing court should only

consider those facts contained in the minutes that are admitted to or

otherwise established as true.”).
                                      12

      While Noel correctly points out the minutes contained in exhibit 2

pertained to the felony charge that the state later dismissed against him,

this charge was dismissed in exchange for Noel’s guilty plea to the two

counts of fourth-degree theft. “A court may not consider an unproven or

prosecuted offense when sentencing a defendant unless (1) the facts before

the court show the accused committed the offense, or (2) the defendant

admits it.” State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). Noel

admitted to his conduct in billing for family team meetings he did not

attend and incorrectly billing mileage.        The challenged minutes of

testimony relate to this admitted conduct. Noel also admits in his brief

that a factual basis existed for the felony count, stating, “Rather than face

a felony count with a factual basis that his inadequate records could not

rebut, [Noel] pled guilty to two serious misdemeanors and paid a fine which

in total is less than $1,000.”

      Finally, we reject Noel’s claim that the admission of the minutes of

testimony was erroneous due to discrepancies in the filing date of the

minutes contained in exhibit 5. Noel argues his guilty plea was e-filed

before the minutes of testimony contained in exhibit 5, so he could not

have adopted these minutes. The state e-filed exhibit 5 on June 19, 2017,

at 5:03 p.m. with the clerk of the district court while Noel e-filed his guilty

plea to the fourth-degree theft charges on June 22, 2017, at 2:00 p.m.

Though exhibit 5 does have a certificate of authenticity dated November 2,

2017, the record is clear Noel only filed his guilty plea asking the court to

accept the minutes of testimony as true after the state had filed the

minutes of testimony contained in exhibit 5. Therefore, the commission

properly admitted exhibit 2 and exhibit 5.
                                      13

      C. Ethical Violations.

      1. Prohibition against unreasonable fees—rule 32:1.5(a).             Noel

contends he did not knowingly violate Iowa Rule of Professional

Responsibility 32:1.5(a). Rule 32:1.5(a) states, “A lawyer shall not make

an agreement for, charge, or collect an unreasonable fee or an

unreasonable amount for expenses, or violate any restrictions imposed by

law.” Iowa R. Prof’l Conduct 32:1.5(a). The rule provides a nonexclusive

set of factors to determine whether a fee is reasonable, which includes

             (1) the time and labor required, the novelty and
      difficulty of the questions involved, and the skill requisite to
      perform the legal service properly;

            (2) the likelihood, if apparent to the client, that the
      acceptance of the particular employment will preclude other
      employment by the lawyer;

             (3) the fee customarily charged in the locality for similar
      legal services;

             (4) the amount involved and the results obtained;

            (5) the time limitations imposed by the client or by the
      circumstances;

             (6) the nature and        length   of   the   professional
      relationship with the client;

            (7) the experience, reputation, and ability of the lawyer
      or lawyers performing the services; and

             (8) whether the fee is fixed or contingent.

Id. Additionally, the fees must be “reasonable under the circumstances.”

Id. cmt. [1]. Nothing in the rule requires the attorney to “knowingly” violate

the rule in order for a violation to occur.

      Based on the circumstances in this case, we agree with the

commission’s conclusion that Noel violated rule 32:1.5(a) by seeking fees

for family team meetings he did not attend. The evidence in the auditor’s

report found Noel claimed $2364 in fees for family team meetings in
                                           14

juvenile cases he did not attend. Noel did not dispute his practice of billing

for family team meetings he did not attend, as he chose to plead guilty to

two counts of fourth-degree theft based on this conduct. The secretary at

Noel’s previous law firm planned to testify that “[s]he occasionally deleted

Family Team meeting that [Noel] had entered onto his bills, because his

calendar did not show that he attended [them].” When the SPD audit was

released, Noel told the secretary, “I fucked up.”

       The district court ordered Noel to pay restitution fees totaling $2364

despite Noel’s claim in this matter that his fees were not excessive because

he only pled guilty to the theft of $400. 1 The evidence supports the Board’s

assertion that Noel claimed more than $400 worth of fees for family team

meetings he did not attend. Noel’s contract with the SPD informed him

that he would “be paid for legal services performed . . . and [that he should]

claim fees only for actual time and expenses reasonably necessary to

properly represent the client,” yet he billed for services he admittedly did

not perform. A fee charged for services not provided is not reasonable,

even if Noel charged for these services only due to sloppy billing practices

as he claims.

       Additionally, we agree with the commission that Noel violated rule
32:1.5(a) by making false mileage claims.               The evidence demonstrates

Noel’s mileage expense claims far exceed what he could reasonably claim.

In his December 23, 2013 letter, Langholz wrote,

       You consistently billed multiple clients for the full mileage to
       the same location on the same day. And on some of these
       days you also billed mileage to other locations as well, often
       billing what appears to be full roundtrip travel to each location
       even though it would seem likely that you took a single trip


       1Although  Noel only pled guilty to excessive fees regarding the family team
meetings, he agreed to pay all restitution. His guilty plea specifically stated, “Defendant
does not contest paying restitution for allegations for over billing mileage.”
                                     15
      with stops in each location. For example, on January 5, 2012,
      you claimed mileage totaling 994 miles and were reimbursed
      a total of $347.90 on seven separate cases, apparently
      claiming five roundtrips from Dubuque to Clinton and two
      roundtrips from Maquoketa to Clinton. You billed more than
      five hundred miles (which would take more than eight hours
      to travel at 60 mph average speed) on nineteen days. You once
      billed the same client twice for mileage on the same day in two
      different claims. And on thirty days, you billed four or more
      roundtrips to the same county on the same day. In total, you
      claimed mileage expense for two or more round-trips to the
      same county on the same day on 145 separate days, resulting
      in more than $11,000 of potential overpayments.

The auditor’s report revealed the SPD overpaid Noel for at least $12,333.45

in mileage expenses, which represented payment for more than 35,328

miles at thirty-five cents per mile. Approximately twenty percent of Noel’s

total payments from the SPD each year of his contract came from his

mileage claims.

      Despite Noel’s claims that he was mistaken about how to properly

bill for mileage due to his past billing practices as an electrician and the

way his previous law firm incorrectly taught him to bill mileage, the

minutes of testimony contradict his claim. In the minutes of testimony,

the general manager for Noel’s former employer during his time as an

electrician planned to testify “that their electricians do not get involved in

billing mileage for work done.” He further planned to testify that “mileage

would be divided up among the customers so that each paid their

proportion of only the actual miles traveled” if an electrician drove to

another city to do work for multiple customers, and that “he was not aware

of any industry-wide standard that would allow more miles to be billed

than were actually traveled.” Another electrician also planned to testify to

the same information. Moreover, an attorney in Noel’s previous law firm

planned to testify that Noel called him after the SPD terminated his
                                       16

contract due to billing problems and told the attorney, “I fucked up,” “I’m

going to prison,” and “my children are not going to have a father.”

         Noel ultimately admitted to incorrectly billing for his mileage and

claimed he did not learn he was incorrectly calculating it until June 2013.

Nevertheless, Noel did not contact the SPD to alert them to the problem or

attempt to remedy the overpayment until approximately six months later

when Langholz notified him of the SPD’s concerns regarding his billing.

While Noel had a reasonable claim to receive compensation for the mileage

he incurred in his work-related travels, “he did not have a reasonable claim

to receive compensation multiple times for the expenses incurred for the

same trip.” Mathahs, 918 N.W.2d at 493. Based on the record, the Board

proved by a convincing preponderance of the evidence that Noel violated

rule 32:1.5(a) by claiming family team meeting fees and mileage he did not

incur.

         2. Conduct reflecting adversely on the attorney’s fitness to practice

law—rule 32:8.4(b).      Noel challenges the commission’s finding that his

actions violated Iowa Rule of Professional Conduct 32:8.4(b).            Rule

32:8.4(b) provides, “It is professional misconduct for a lawyer to . . .

commit a criminal act that reflects adversely on the lawyer’s honesty,

trustworthiness, or fitness as a lawyer in other respects[.]” Iowa R. Prof’l

Conduct 32:8.4(b).      “Illegal conduct can reflect adversely on fitness to

practice law.      A pattern of repeated offenses, even ones of minor

significance when considered separately, can indicate indifference to legal

obligation.”    Id. cmt. [2].   Nevertheless, “[t]he mere commission of a

criminal act does not necessarily reflect adversely on the fitness of an

attorney to practice law.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Templeton, 784 N.W.2d 761, 767 (Iowa 2010).           “There must be some

rational connection other than the criminality of the act between the
                                      17

conduct and the actor’s fitness to practice law.” Id. (quoting In re Conduct

of White, 815 P.2d 1257, 1265 (Or. 1991) (en banc)). For example, we

previously found an attorney violated rule 32:8.4(b) after he pled guilty to

making a false statement to a financial institution on a mortgage

application because his dishonest behavior reflected adversely on his

fitness to practice law. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wheeler,

824 N.W.2d 505, 510–11 (Iowa 2012).           In doing so, we stressed an

attorney’s conduct “that diminishes ‘public confidence in the legal

profession’ ” is “conduct that reflects adversely on a lawyer’s fitness to

practice law.” Id. at 510.

      Here, Noel engaged in illegal conduct through a pattern of repeatedly

billing for services he did not provide during his time representing indigent

clients on behalf of the SPD. This misconduct is directly connected to his

fitness to practice law.     By charging for services he did not provide,

especially during his time as a magistrate, Noel diminished public

confidence in the legal profession and disregarded his responsibility “to

avoid billing errors in connection with SPD contract work.” Mathahs, 918

N.W.2d at 495.     Upon our de novo review of the record, we find Noel

violated rule 32:8.4(b).

      3. Conduct       involving     dishonesty,     fraud,     deceit,    or

misrepresentation—rule 32:8.4(c). Noel contends the commission erred in

finding he violated Iowa Rule of Professional Conduct 32:8.4(c) because he

lacked the requisite scienter.     Rule 32:8.4(c) states, “It is professional

misconduct for a lawyer to . . . engage in conduct involving dishonesty,

fraud, deceit, or misrepresentation[.]” Iowa R. Prof’l Conduct 32:8.4(c). To

find a violation of this rule, “we also must find ‘a level of scienter that is

more than negligent behavior or incompetence.’ ” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Suarez-Quilty, 912 N.W.2d 150, 158 (Iowa 2018)
                                    18

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

226 (Iowa 2018)).       We must find “the attorney acted knowingly,

intentionally, or with the aim to mislead.” Id. (quoting Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 498 (Iowa 2017)). The

dispositive question “is whether the effect of the lawyer’s conduct is to

mislead rather than to inform.” Id. (quoting Barry, 908 N.W.2d at 226).

Noel maintains he never intended to mislead with his improper billing

practices, as he was merely “negligent and haphazard in his billing

practices.”

      In Wheeler, we found the requisite scienter existed to demonstrate

an attorney engaged in conduct that violated rule 32:8.4(c) based solely on

the attorney’s decision to plead guilty to knowingly making a false

statement to a financial institution.     Wheeler, 824 N.W.2d at 511.

Similarly, Noel exhibited the requisite scienter to demonstrate he violated

rule 32:8.4(c) through his practice of billing for family team meetings he

did not attend when he pled guilty to two counts of fourth-degree theft for

these actions. Noel admitted “that on a handful of occasions he submitted

bills to the [SPD] for family team meetings with dates or descriptions that

he later realized were false.” However, he did not take action to remedy

his errors, nor did he track his time adequately to provide the SPD with

an appropriate record of the meetings he actually did attend. Therefore,

we find Noel “acted knowingly, intentionally, or with the aim to mislead”

through his billing practices regarding family team meetings, and the

Board proved beyond a convincing preponderance of the evidence that Noel

violated 32:8.4(c). Suarez-Quilty, 912 N.W.2d at 158 (quoting Guthrie, 901

N.W.2d at 498).

      Likewise,   the   record   demonstrates   Noel   “acted   knowingly,

intentionally, or with the aim to mislead” in his claims for mileage he did
                                     19

not incur. Id. After Langholz contacted Noel in January 2014 about the

SPD’s concerns surrounding Noel’s mileage claims, Noel informed

Langholz he learned in June 2013 that he had been overbilling the SPD

for mileage. Noel also attempted to excuse his actions by claiming he was

simply following the electrician industry standard of billing. This claim

was rebutted. Despite Noel’s knowledge of his incorrect claims for mileage,

he never contacted the SPD to remedy this issue and waited until Langholz

informed him of the investigation into his practices to inform the SPD

about his problems billing mileage. This level of deceit rises above mere

negligence or incompetence and speaks to Noel’s intention “to mislead

rather than to inform.”    Id.   Consequently, we find Noel violated rule

32:8.4(c) for claiming excessive mileage, in addition to his violation of rule

32:8.4(b) for billing for family team meetings he did not attend.

      D. Sanction.      Noel maintains a ninety-day suspension of his

license to practice law in Iowa is more appropriate, while the Board

continues to request a suspension of Noel’s license for at least one year.

In determining the appropriate sanction for attorney misconduct, we

examine “the nature of the alleged violations, the need for deterrence,

protection of the public, maintenance of the reputation of the bar as a

whole, and [the attorney’s] fitness to continue in the practice of law.”

Mathahs, 918 N.W.2d at 494 (alteration in original) (quoting Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Laing, 832 N.W.2d 366, 367–68 (Iowa 2013)).

We also evaluate any mitigating and aggravating factors, as well as prior

similar cases while keeping in mind “their limited usefulness due to the

variations in their facts.” Id. (quoting Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Casey, 761 N.W.2d 53, 62 (Iowa 2009)).

      Generally, our sanctions for attorneys who charge and collect

unreasonable fees range from sixty days to two years. Id. at 495. In
                                     20

Mathahs, we recently suspended an attorney’s license for sixty days for

violating rule 32:1.5(a) (prohibiting unreasonable fees) by billing the SPD

for excessive hours and mileage and rule 32:5.3(b) (requiring attorney

reasonably ensure conduct of nonlawyer under attorney’s supervision

conforms to the professional obligations of a lawyer) by failing to

adequately supervise his secretary. Mathahs, 918 N.W.2d at 493–94, 496–

97. In reaching this sanction, we noted Mathahs fully cooperated with the

investigations into his billing practices and the board, acknowledged his

responsibility for the errors, and had a record of community service and

pro bono work.     He also took corrective action by making voluntary

restitution and offering to reimburse the SPD for additional funds. Id. at

497–99. Additionally, we considered the office of the attorney general’s

(AG) investigation into Mathahs, which was closed without filing any

criminal charges. Id. at 497. The AG found Mathahs’s billable hours “were

high but believable” and “could not locate any billings for events that did

not actually occur.” Id. The AG also concluded “the billing errors appeared

much more like accidental and less like intentional theft” due to secretarial

issues. Id.

      In contrast, in Iowa Supreme Court Board of Professional Ethics &

Conduct v. Tofflemire, we suspended an attorney’s license indefinitely with

no possibility of reinstatement for two years because the attorney took sick

leave from her full-time employment with the Iowa Workforce Development

while claiming to perform SPD work and billed substantial hours of work

to the SPD that were sometimes in excess of twenty-four hours for a given

date. 689 N.W.2d 83, 90–92, 95 (Iowa 2004). In doing so, we considered

a number of aggravating factors that led to our sanction. While Tofflemire

admitted to sloppy recordkeeping practices and other issues that

contributed to her wrongdoing, each of her acknowledgments was
                                         21

“followed by an excuse, evidencing a lack of an actual appreciation of her

wrongful conduct.” Id. at 93. We were also troubled by Tofflemire’s pattern

of deception, as she engaged in the same deceitful conduct multiple times,

and her evasive conduct before the commission. Id. at 92, 94. Ultimately,

we decided to increase the commission’s recommended suspension of her

license for a minimum of thirty days to two years, id. at 85, 94, reiterating

that “[f]undamental honesty is the base line and mandatory requirement

to serve the legal profession,” id. at 94 (quoting Comm. on Prof’l Ethics &

Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990)).

       We find Noel’s case is somewhere in between Mathahs and

Tofflemire, though it is more analogous to Tofflemire, and we agree with

the commission’s recommended sanction of an indefinite suspension of

Noel’s license to practice law for a period of at least one year from the filing

date of this opinion. Unlike in Mathahs, the auditor’s investigation into

Noel’s misconduct resulted in two criminal convictions for fourth-degree

theft, and Noel both admitted to and was convicted of billing for events

that he did not actually attend.            Despite these convictions, like in

Tofflemire, Noel continues to maintain any misrepresentations he made in

billing for family team meetings and mileage “were the results of honest

mistakes.” Id. at 93. While Noel acknowledged his billing problems, he

follows each of his statements with an excuse, “evidencing a lack of an

actual appreciation of [his] wrongful conduct.” Id. These excuses range

from a claim that he is the victim of selective prosecution because the

commission’s recommended sanction is “inconsistent with sanctions

imposed upon other individuals who have exhibited similar behavior” 2 to

a claim of mere “sloppiness and negligence” in his billing.


      2Noel does not provide us with any authority to support his argument that the

Board must take an all or nothing approach to professional regulation by investigating
                                         22

       Further, Noel engaged in repeated deception over a period of years,

resulting in $14,697.45 of overpayment to him from the SPD, and the SPD

and Board spent numerous hours analyzing his account for the

discrepancies. See id. at 94 (“What is troubling here is that instead of an

isolated instance of misrepresentation, there was repeated deception.”);

see also Mathahs, 918 N.W.2d at 499 (considering “the nature and extent

of the amount of funds that Mathahs improperly collected from the SPD”

and the numerous hours spent analyzing his account as aggravating

factors). “[A]ttorneys who have engaged in misrepresentation and deceit

have received lengthy suspensions because such conduct ‘constitutes a

grave and serious breach of professional ethics.’ ” Tofflemire, 689 N.W.2d

at 93–94 (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Stein,

603 N.W.2d 574, 576 (Iowa 1999)). Although Noel claims he found out in

June 2013 that he had been incorrectly overbilling the SPD for his mileage,

Noel never contacted the SPD to remedy this problem until after Langholz

informed him of the SPD’s concerns and its desire to no longer contract

with him. “The chronology tends to deflate consideration of remorse and

cooperation as mitigating factors.” Iowa Supreme Ct. Att’y Disciplinary Bd.

v. McGinness, 844 N.W.2d 456, 467 (Iowa 2014).

       When Langholz contacted Noel about the billing issues, Noel had

only been practicing for approximately five years. While inexperience is

typically a mitigating factor, see Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Turner, 918 N.W.2d 130, 155 (Iowa 2018) (discussing inexperience as a

mitigating factor), that is not the case in this situation. Noel repeatedly

billed for meetings he did not attend and made false mileage claims.

all of the attorneys named in the auditor’s report regarding the SPD. In any event, we
evaluate each attorney disciplinary case based on the individual circumstances present
without consideration to whether other attorneys have been disciplined for similar
behavior.
                                      23

“Lawyers of any level of experience would understand that such actions

are deplorable.”       Id. (finding inexperience not mitigating factor for

repeatedly missing court hearings and making misrepresentations to the

court). Additionally, Noel applied for and was appointed as a magistrate

in 2013, which further undermines the role inexperience plays as a

mitigating factor. As a magistrate, he was tasked with administering the

law, yet he violated the law himself and diminished “public confidence in

the legal profession” in the process. Wheeler, 824 N.W.2d at 510 (quoting

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Keele, 795 N.W.2d 507, 512

(Iowa 2011)).

      Nevertheless, there are some mitigating factors in this case that

warrant   a     suspension   less   than   Tofflemire’s   indefinite   two-year

suspension. Pursuant to his restitution order, Noel has reimbursed the

SPD for the duplicate mileage expenses and improper billings.               See

Mathahs, 918 N.W.2d at 499. He also has demonstrated respect within

the legal community by submitting affidavits of his character from local

judges.   See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Springer, 904

N.W.2d 589, 597 (Iowa 2017). Additionally, Noel has since taken measures

to implement better recordkeeping and billing practices.               See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Barnhill, 847 N.W.2d 466, 486 (Iowa

2014) (holding “corrective measures to address previous misconduct are a

mitigating factor”).    Moreover, Noel has no prior history of disciplinary

action, though his misconduct did begin shortly after he was admitted to

the bar. See Tofflemire, 689 N.W.2d at 92.

      Upon our de novo review of the record and consideration of the

mitigating and aggravating factors, we suspend Noel’s license for an

indefinite period of at least one year from the date of filing this opinion.
                                      24

      IV. Conclusion.

      We suspend Noel’s license to practice law in Iowa indefinitely for a

period of at least one year from the date of filing this opinion.         This

suspension applies to all facets of the practice of law. Iowa Ct. R. 34.23(3).

Noel is required to notify all clients as outlined in Iowa Court Rule 34.24.

Additionally, to establish his eligibility for reinstatement, Noel must file an

application for reinstatement pursuant to the requirements of Iowa Court

Rule 34.25. We tax the costs of this action to Noel in accordance with Iowa

Court Rule 36.24(1).

      LICENSE SUSPENDED.
                                      25

                   #18–1229, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Noel

WIGGINS, Justice (dissenting).

      I dissent.

      Noel pled guilty to theft in violation of Iowa Code sections 714.1(3),

714.2(4), and 714.3 (2013). The Code provides,

             A person commits theft when the person does any of the
      following:

             ....

            3. Obtains the labor or services of another, or a transfer
      of possession, control, or ownership of the property of
      another, or the beneficial use of property of another, by
      deception.

Id. § 714.1(3).

      The applicable definition of “deception” under the Code consists of

knowingly “[c]reating or confirming another’s belief or impression as to the

existence or nonexistence of a fact or condition which is false and which

the actor does not believe to be true.” Id. § 702.9(1). This definition makes

fraud an element of theft by deception. See State v. Wilson, 573 N.W.2d
248, 252 (Iowa 1998). By pleading guilty, Noel acknowledged that at the

time he submitted his claims with the Iowa State Public Defender, he

knowingly committed fraud in violation of the law.

      As I have previously said,

             We, as a court and as the regulatory body for our
      profession, have an obligation to protect the public from
      dishonest attorneys. I echo the beginning of this dissent—
      dishonesty is a trait that disqualifies a person from the practice
      of law. A person who uses his law license to steal money or
      aids another to do so is per se unfit to practice law. Cases like
      this give the public the perception that a license to practice
      law is a license to steal.
                                    26

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bieber, 824 N.W.2d 514, 534

(Iowa 2012) (Wiggins, J., dissenting).

      For the reasons stated in my dissent in Bieber, I would revoke Noel’s

license to practice law. See id. at 530–34. A revocation allows him the

opportunity to reapply for his license after at least five years under our

recently amended Iowa Court Rule 34.25(7)–(9) (2018).
