               IN THE SUPREME COURT OF IOWA
                           No. 62 / 07-0132

                          Filed June 8, 2007

IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

RICHARD NORTON TOMPKINS, JR.,

      Respondent.


      On review of the report of the Grievance Commission.



      Iowa Supreme Court Grievance Commission recommends a thirty-day

suspension of the respondent’s license to practice law.      ATTORNEY

REPRIMANDED.



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

complainant.



      Richard Norton Tompkins, Jr., Mason City, pro se.
                                          2

WIGGINS, Justice.

       The Iowa Supreme Court Attorney Disciplinary Board filed a

complaint against Richard Norton Tompkins, Jr., with the Grievance

Commission of the Iowa Supreme Court alleging Tompkins neglected two

matters and failed to respond to the Board’s notices. The Commission

found Tompkins’ conduct violated numerous provisions of the Iowa Code of

Professional Responsibility for Lawyers and recommended we suspend

Tompkins’ license to practice law for thirty days.

       We agree with the Commission that Tompkins’ conduct occurring

prior to July 1, 2005, violated the Iowa Code of Professional Responsibility

for Lawyers. We also find that his conduct occurring after July 1, 2005,

violated the Iowa Rules of Professional Conduct. 1 We do, however, disagree

with the Commission’s recommendation that Tompkins’ license to practice

law be suspended, and instead, publicly reprimand him for his conduct.

       I. Prior Proceedings.

       On August 7, 2006, the Iowa Supreme Court Attorney Disciplinary

Board filed a two-count complaint against Tompkins alleging he violated

various rules of the Iowa Code of Professional Responsibility for Lawyers

and the Iowa Rules of Professional Conduct. Count one involved Tompkins’

conduct related to his client, Derrick Crume, and count two involved

Tompkins’ conduct related to his client, Larry Wayne Hull. The complaint

charged Tompkins: (1) neglected Crume’s case; (2) did not respond to the

Board’s repeated notices and requests for response regarding Crume’s

complaint; and (3) without consent, did not appeal Hull’s criminal case.

       In Tompkins’ answer he admitted receiving three notices of Crume’s

complaint from the Board and failing to respond as required. Tompkins

       1The Iowa Rules of Professional Conduct became effective July 1, 2005, replacing
the Iowa Code of Professional Responsibility for Lawyers.
                                     3

also admitted he represented Hull and without Hull’s consent he failed to

file and serve the appellant’s brief. Tompkins admitted due to this failure

he was assessed a $50 fine and Hull’s appeal was dismissed.

      The Commission found Tompkins violated the Iowa Rules of

Professional Responsibility for Lawyers DR 6-101(A)(3) (a lawyer shall not

neglect a client’s legal matter) and DR 7-101(A)(1) (a lawyer shall zealously

represent his clients) when he neglected Crume’s legal matter.           The

Commission also found Tompkins violated DR 6-101(A)(3) when he

neglected Hull’s appeal. Finally, the Commission found when Tompkins

failed to respond to the Board’s notices he violated DR 1-102(A)(1) (a lawyer

shall not violate a disciplinary rule), DR 1-102(A)(5) (a lawyer shall not

engage in conduct that is prejudicial to the administration of justice), and

DR 1-102(A)(6) (a lawyer shall not engage in any other conduct that

adversely reflects on the fitness to practice law).       The Commission

recommended Tompkins be suspended for thirty days with automatic

reinstatement upon the expiration of the suspension period.

      The Commission’s decision was not unanimous.              Two of the

Commission members filed a joint dissent in this case. The dissent found

even though “[i]deally, [Tompkins] should have communicated the lack of

available options to Mr. Crume from the start,” the record did not

affirmatively establish client neglect. Further, the dissent pointed out that

although Tompkins’ failure to respond to the Board was inappropriate, his

conduct did not establish a pattern of this failure. With regard to the Hull

complaint, the dissent found Tompkins did not violate the ethics rules

because Hull was not prejudiced in light of the ruling in the companion case

nor was Hull dissatisfied with Tompkins’ representation. The dissent would

have imposed a sanction of public reprimand rather than suspension.
                                     4

      II. Scope of Review.

      This court reviews attorney disciplinary proceedings de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa

2006). Ethical violations must be proven by a convincing preponderance of

the evidence.   Id.   Even though we consider the Commission’s factual

findings and discipline recommendations, we are not bound by them. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Powell, 726 N.W.2d 397, 400 (Iowa

2007). Upon review, this court can impose a greater or lesser sanction than

the Commission recommended. Iowa Ct. R. 35.10.

      III. Findings of Fact.

      We find the facts as follows. Tompkins was admitted to the Iowa bar

in 1976 and practices in Cerro Gordo County. Court-appointed cases make

up about one-third of his practice or about thirty cases at any time.

      A. Derrick Crume matter.     On January 21, 2004, a permanency

hearing regarding Crume’s child was held. The court ordered the child to

remain in the care of the Iowa department of human services (DHS) for

placement in foster care. A review of this decision was set for July 21.

      During the January hearing Crume was represented by another

attorney, however, this attorney withdrew because Crume filed an ethics

compliant against that attorney.      The court appointed Tompkins to

represent Crume at the permanency hearing review.

      At the time Tompkins was appointed to Crume’s case, Crume was

incarcerated at the Benton County jail awaiting trial on federal child

pornography charges. By March 2004 Crume was convicted of the charges

and faced an eleven- to fifteen-year sentence. Additionally, Crume was

convicted by the Minnesota courts of third and fourth degree sexual

misconduct and is a registered sex offender. These convictions made it
                                      5

probable that if the mother’s parental rights were terminated, Crume’s

parental rights would also be terminated in order to place the child in a safe

and permanent home.

       Between the time Tompkins was first appointed to represent Crume

until the time he received the first notice of Crume’s complaint, Tompkins

failed to respond to numerous letters and calls in which Crume made

various demands of Tompkins.

       One of Crume’s demands was that Tompkins return an original letter

he had sent Tompkins to copy. Tompkins did not return the letter as

requested. At the hearing Tompkins acknowledged it was wrong not to

return the letter. Crume also demanded Tompkins provide him the exhibits

presented at a previous permanency hearing and specific pages of the Iowa

Code. Tompkins did not provide Crume with any of these copies because,

in Tompkins’ opinion, the documents were not necessary for the case.

       Crume was able to reach Tompkins by telephone and talk with

Tompkins about gaining access to the mother’s psychological evaluation.

After this conversation, Tompkins spoke to the judge about releasing the

evaluation to Crume. The judge advised Tompkins to make an application

to the court to determine whether Crume could have access to the

evaluation. Tompkins filed Crume’s request for the mother’s evaluation

with the court. After doing so, he advised Crume of the filing by letter. The

application was never set for hearing by the court and no order was entered.

Tompkins acknowledged he should have pushed for a hearing, but he did

not.

       Additionally, Crume requested that Tompkins contact him in order to

prepare for the review hearing. However, Tompkins responded to few of
                                     6

Crume’s letters, did a poor job of communicating with Crume, and did not

manage Crume’s expectations concerning the review hearing.

      On June 28 Crume filed a complaint with the Board. Even after filing

the complaint, Crume continued to send Tompkins letters, becoming more

demanding and insistent that Tompkins respond to his requests. Tompkins

received the Board’s notification of Crume’s complaint on July 14. Also on

July 14, DHS and the court appointed special advocate (CASA) issued the

case reports prepared for the July 21 hearing. After receiving Crume’s

complaint, Tompkins decided he needed to withdraw from the case.

Tompkins stopped working on the case and filed an application to withdraw

and motion for continuance. The application and motion were granted by

the court.

      Tompkins never responded to the Board’s first notification of the

complaint as required by our rules.        On August 10 the Board sent

Tompkins another request to respond to Crume’s complaint. Tompkins

received the Board’s request on August 13, but he did not respond. The

Board sent Tompkins a final notice on October 8.

      Tompkins admitted he violated the Iowa Rules of Professional

Responsibility for Lawyers with regard to his failure to respond to the

notices. In explaining why he failed to respond to the Board, Tompkins

stated:
              I am not sure. I think that I was so incensed by Mr.
      Crume’s demands and thought that his complaint was so
      frivolous and it would take so much time, that it was like
      dignifying it to even respond. I know that it was faulty thinking
      and I have always preached to others that if you do nothing
      else, at least respond. I had even discussed the matter with
      the attorney who represented him before me and against whom
      Mr. Crume had also made a frivolous complaint, but still I did
      not respond. Of course I deeply regret my lack of response as
      it is so stupid not to respond.
                                             7

       B. Larry Wayne Hull matter. Although Tompkins stated it was not his

choice to represent Hull in his criminal appeal, due to a conflict in the state

appellate defender office, Tompkins continued his representation of Hull

from trial to appeal. At Hull’s request, Tompkins filed a notice of appeal.

However, Tompkins did not file a brief with this court. On August 24, 2005,

the clerk of the supreme court assessed Tompkins a $50 penalty because he

failed to file and serve a proof brief. Under Iowa Rule of Appellate Procedure

6.19(2), Tompkins had fifteen days from service to remedy this default or

risk dismissal of the appeal for want of prosecution.                  Iowa R. App. P.

6.19(2). The clerk also notified Tompkins if the appeal was dismissed as a

result of his failure to comply, the Board would be notified of Tompkins’

inaction and it may serve as grounds for an investigation of neglect of a

client’s legal matter. Tompkins did not remedy this default and the appeal

was administratively dismissed.

       The clerk notified the Board of Tompkins’ inaction and possible client

neglect. However, Hull did not complain to the Board. Tompkins testified

Hull was “quite satisfied with [his] trial work in the case.”

       Tompkins admitted he should have moved for withdrawal of the

appeal rather than simply letting the court administratively dismiss the

case. During the hearing Tompkins apologized for not following the proper

procedures. However, Tompkins denied his inaction violated the ethics

rules. Tompkins claimed he did not violate the rules because Hull’s appeal

was frivolous in that Hull’s co-defendant, Jeffrey Nitcher, had lost his

appeal. 2


       2In State v. Nitcher, 720 N.W.2d 547, 560 (Iowa 2006), the case involving Hull’s co-
defendant, this court found the evidence supported Nitcher’s conviction. However, we
remanded the case for the district court to rule on Nitcher’s motion for new trial using the
correct weight-of-the-evidence standard.
                                     8

      IV. Violations.

      A. Derrick Crume matter. Tompkins’ alleged misconduct relating to

Crume occurred prior to July 1, 2005. Therefore, his conduct is governed

by the Iowa Code of Professional Responsibility for Lawyers. Tompkins’

failure to respond to the Board’s inquiries violates DR 1-102(A)(5) and DR 1-

102(A)(6). See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moorman, 729

N.W.2d 801, 804 (Iowa 2007) (failing to respond to the Board’s notices

violates DR 1-102(A)(5) and DR 1-102(A)(6)); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. McCarthy, 722 N.W.2d 199, 204-05 (Iowa 2006) (finding

an attorney violated DR 1-102(A)(5) and (6) when he was dilatory in

responding to the Board’s notices of complaint). Further, even when the

complaint is not well-founded, an attorney is not excused from providing

necessary information to the Board. Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Scheetz, 568 N.W.2d 663, 664 (Iowa 1997).

      The Board also charged Tompkins with a violation of DR 6-101(A)(3).

DR 6-101(A)(3) provides “[a] lawyer shall not [n]eglect a client’s legal

matter.” Iowa Code of Prof’l Responsibility DR 6-101(A)(3). Professional

neglect usually will involve lawyer “indifference and a consistent failure to

perform those obligations that a lawyer has assumed, or a conscious

disregard for the responsibilities a lawyer owes to a client.” Iowa Supreme

Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 94 (Iowa 2006) (citation

omitted). “Generally, professional neglect consists of more than a single act

or omission and it may involve procrastination.” Id. at 94-95. “Neglect

cannot be found if the acts or omissions complained of were inadvertent or

the result of an error of judgment made in good faith.” Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Joy, 728 N.W.2d 806, 812 (Iowa 2007).
                                     9

      Tompkins was faced with a client with nothing more than time on his

hands, making weekly demands on Tompkins’ time. Tompkins knew there

was not much he could do for Crume until he reviewed the DHS and CASA

reports. Although Tompkins did write to Crume on two occasions, he failed

to inform Crume of the situation and most of Crume’s letters went

unanswered. When an attorney neglects his client by repeatedly failing to

respond to the client’s requests, or keep his client informed about the

progression of the case, an attorney violates DR 6-101(A)(3). See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 817-18

(Iowa 2007) (citing a failure to communicate with clearly distraught clients

as an instance of neglectful conduct).     Accordingly, we agree with the

Commission     that    Tompkins’    consistent    disregard    of   Crume’s

correspondence and his failure to keep Crume informed of the status of the

case violated DR 6-101(A)(3).

      Additionally, the Board charged Tompkins with a violation of DR 7-

101(A). It provides:

      (A)   A lawyer shall not intentionally:

      (1)    Fail to seek the lawful objectives of a client through
      reasonably available means permitted by law and the
      disciplinary rules, except as provided by DR 7-101(B). A lawyer
      does not violate this disciplinary rule, however, by acceding to
      reasonable requests of opposing counsel which do not
      prejudice the rights of a client, by being punctual in fulfilling
      all professional commitments, by avoiding offensive tactics, or
      by treating with courtesy and consideration all persons
      involved in the legal process.

      (2)   Fail to carry out a contract of employment entered into
      with a client for professional services, but a lawyer may
      withdraw as permitted under DR 2-110, DR 5-102, and DR 5-
      105.

      (3)   Prejudice or damage a client during the course of the
      professional relationship, except as required under DR 7-
      102(B).
                                     10

Iowa Code of Prof’l Responsibility DR 7-101(A). We do not believe the Board

proved a violation of DR 7-101(A).

      Tompkins was obligated to represent Crume at the review hearing.

Tompkins could not advise Crume of what needed to be done until he

received the DHS and CASA recommendations.             If DHS and CASA

recommended the child should be returned to the mother, Tompkins would

have probably advised his client to support the recommendations. If the

reports recommended otherwise, Tompkins and Crume likely would have

devised a strategy and a position to present at the review hearing based on

the reports.   These reports were not available to Tompkins until after

Tompkins became aware of Crume’s complaint. Therefore, Tompkins did

not fail to seek the lawful objectives of his client, fail to carry out the

contract of employment, or prejudice his client because he was notified of

the complaint before he could act on the DHS and CASA reports. Under

these circumstances the Board failed to prove Tompkins violated DR 7-

101(A).

      B. Larry Wayne Hull matter. Tompkins’ alleged misconduct involving

Larry Wayne Hull occurred after July 1, 2005. Therefore, his conduct is

governed by the Iowa Rules of Professional Conduct.

      Under Iowa Rule of Appellate Procedure 6.104(1), if Tompkins

determined “after [a] conscientious investigation of the entire record . . .

that the appeal is frivolous and that [he] cannot, in good conscience,

proceed with the appeal, [he] may move the supreme court in writing to

withdraw.” Iowa R. App. P. 6.104(1). When doing so he must also “advise

the defendant in writing of the decision as to frivolousness accompanied by

a copy of counsel’s motion and brief.”      Id. 6.104(2).   This allows the

defendant the opportunity to pursue the appeal even if counsel advises
                                      11

against it. Id. 6.104(4). Tompkins admitted he should have moved for

withdrawal from the Hull appeal rather than simply letting the court

administratively dismiss the case.         However, he argued because the

outcome would have remained the same, no ethical rule was violated.

      Nevertheless, even when a client instructs an attorney to fail to

comply with appellate deadlines so that the appeal can be administratively

dismissed, this court has found the attorney neglected the appeal. Comm.

on Prof’l Ethics & Conduct v. Thomas, 495 N.W.2d 684, 686 (Iowa 1993).

The burden is on the attorney to comply with the appellate deadlines

regardless of a client’s instruction or interest in the case. Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 105 (Iowa 2006) (citing

Iowa R. App. P. 6.19). “Unless the court relieves an attorney of his or her

responsibility to the client on appeal, as an officer of the court, the attorney

is required to file the appropriate documents and briefs.” Id. If an attorney

fails to comply with appellate deadlines, this conduct constitutes neglect

and amounts to conduct that is prejudicial to the administration of justice.

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Daggett, 653 N.W.2d 377,

380 (Iowa 2002). “To simply wait for the court to dismiss the case for lack

of prosecution is neglect, inappropriate, and unethical.” Lesyshen, 712

N.W.2d at 105. Such handling of appellate matters is a disservice to the

client and the judicial system. McCarthy, 722 N.W.2d at 204.

      Under the Iowa Rules of Professional Conduct, “[a] lawyer shall

provide competent representation to a client. Competent representation

requires the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.” Iowa R. of Prof’l Conduct

32:1.1.   As a comment to the rule states, “[c]ompetent handling of a

particular matter includes inquiry into and analysis of the factual and legal
                                      12

elements of the problem, and use of methods and procedures meeting the

standards of competent practitioners.” Id. 32:1.1 cmt. 5.

      At the time Tompkins received the default notice from the clerk of the

supreme court, our rules required him to file his brief or move under rule

6.104 that the appeal is frivolous. Consequently, Tompkins’ disregard of

the default notice demonstrates his incompetence in handling the appeal

and constitutes a violation of rule 32:1.1.

      Another rule implicated by Tompkins’ failure to file his brief or move

under rule 6.104 is rule 32:1.3. This rule requires “[a] lawyer shall act with

reasonable diligence and promptness in representing a client.” Iowa R.

Prof’l Conduct 32:1.3.     A comment to the rule indicates, “[u]nless the

relationship is terminated as provided in rule 32:1.16, a lawyer should carry

through to conclusion all matters undertaken for a client.” Id. 32:1.3 cmt.

4. Hull was satisfied with Tompkins’ services at trial and did not dismiss

Tompkins as his attorney on the appeal. Accordingly, Tompkins’ failure to

follow through with the appeal is a violation of rule 32:1.3.

      Finally, rule 32:8.4(d) states, “[i]t is professional misconduct for a
lawyer to: . . . (d) engage in conduct that is prejudicial to the administration

of justice.” Id. 32:8.4(d). Again, a comment is helpful in explaining a

lawyer’s obligation under rule 32:8.4(d). The comment states:

             A lawyer may refuse to comply with an obligation
      imposed by law upon a good faith belief that no valid obligation
      exists. The provisions of rule 32:1.2(d) concerning a good faith
      challenge to the validity, scope, meaning, or application of the
      law apply to challenges of legal regulation of the practice of law.

Id. 32:8.4(d) cmt. 4. Tompkins’ failure to comply with the default notice was

not done with a good faith belief that the notice did not require compliance.

Our case law makes it clear that an attorney cannot use a default notice to

dismiss an appeal in lieu of the attorney’s obligation to comply with our
                                     13

appellate rules. Moorman, 683 N.W.2d at 552. Therefore, disregarding the

default notice violates rule 32:8.4(d).

      V. Sanctions.

      To determine Tompkins’ sanction,
      we consider the nature of the violations, protection of the
      public, deterrence of similar misconduct by others, the lawyer’s
      fitness to practice, and the court’s duty to uphold the integrity
      of the profession in the eyes of the public. We also consider
      aggravating and mitigating circumstances present in the
      disciplinary action.

Powell, 726 N.W.2d at 407-08 (internal quotation and alteration omitted).

The goal of our ethics rules is “to maintain public confidence in the legal

profession as well as to provide a policing mechanism for poor lawyering.”

Id. at 408 (internal quotation omitted).

      Generally, in attorney disciplinary cases involving neglect alone, this

court has imposed discipline ranging from a public reprimand to a six-

month suspension. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Frerichs, 718

N.W.2d 763, 767 (Iowa 2006).       When neglect is compounded by other

misconduct, a more severe sanction may be required.              Id.      When

determining the sanction, an important factor for this court to consider “is

the prejudice caused by the neglect.” Joy, 728 N.W.2d at 815.

      Tompkins neglected his representation of Crume by failing to

communicate with Crume and respond to his inquiries. Further, without

his client’s consent, Tompkins allowed Hull’s appeal to be administratively

dismissed, neglecting his client, and wasting judicial resources. However, it

seems little prejudice was caused to either Crume or Hull.

      Considering Crume’s status as a sex offender, current sentence for

child pornography, and past criminal history, Crume almost certainly would

not have successfully maintained his parental rights if the mother’s rights
                                      14

were terminated. Also, Hull likely was not prejudiced by Tompkins’ failure

to follow through on his appeal. Hull’s co-defendant, Nitcher, appealed his

conviction on the same grounds as Hull. We affirmed Nitcher’s convictions,

and only remanded the case to the district court for the court to apply the

correct standard of review on a motion for new trial. State v. Nitcher, 720

N.W.2d 547, 560 (Iowa 2006). The Board did not present any evidence

indicating Nitcher was granted a new trial on remand. We can assume Hull

would have received the same ruling on his motion for new trial because

Hull joined in Nitcher’s motion for new trial.

      Further, there are aggravating factors in the record. This is not

Tompkins’ first disciplinary action. See Frerichs, 718 N.W.2d at 768 (stating

“we must consider [an attorney’s] previous disciplinary problems”). In 1987

Tompkins received a two-year suspension for unlawfully entering residences

and searching for women’s undergarments he used to sexually gratify

himself. Comm. on Prof’l Ethics & Conduct v. Tompkins, 415 N.W.2d 620,

624 (Iowa 1987). Since that suspension Tompkins sought treatment for his

sex addiction, has been readmitted to the practice of law, and continues to

be treated for his addiction. There is nothing in the record to indicate his

addiction affects his present practice of law.

      In 1997 he also received a public reprimand for neglecting a client

matter. In 1998 he received another public reprimand for charging a non-

refundable minimum fee.

      Considering the nature of Tompkins’ violations, the protection of the

public, deterrence of similar misconduct by others, Tompkins’ fitness to
practice, our duty to uphold the integrity of the profession in the eyes of the

public, aggravating circumstances, mitigating circumstances, and the

sanction we have given in similar cases, we believe the appropriate sanction
                                     15

for Tompkins’ neglect and failure to respond to the Board’s notices is a

public reprimand. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo,

730 N.W.2d 202, 207-08 (Iowa 2007) (publicly reprimanding an attorney for

neglect of one client matter even though the attorney had two prior

admonitions and one public reprimand); Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Alexander, 727 N.W.2d 120, 122-23 (Iowa 2007) (publicly

reprimanding an attorney where the attorney admitted the charge of

neglect, but failed to respond to the Board’s notice of investigation); Iowa

Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 619 N.W.2d 407, 410

(Iowa 2000) (publicly reprimanding an attorney for neglect of one client

matter and his failure to respond to the Board’s inquiries even though the

attorney had previously been barred from appellate practice for two years

due to neglect and was also publicly reprimanded for neglect); Iowa Supreme

Ct. Bd. of Prof'l Ethics & Conduct v. Erbes, 573 N.W.2d 269, 270-71 (Iowa

1998) (publicly reprimanding an attorney for his neglect of a client matter

and failure to cooperate with Board); Iowa Supreme Ct. Bd. of Prof'l Ethics &

Conduct v. Mears, 569 N.W.2d 132, 134-35 (Iowa 1997) (publicly

reprimanding an attorney for his neglect of two matters even though the

attorney had three prior admonitions for undue delays in processing clients’

matters).

      VI. Disposition.

      We impose a public reprimand on Tompkins rather than the

suspension recommended by the Commission. We tax the costs of this

action to Tompkins pursuant to Iowa Court Rule 35.25.

      ATTORNEY REPRIMANDED.
