               IN THE SUPREME COURT OF IOWA
                              No. 10–1756

                         Filed February 25, 2011


IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

JAMES STEPHEN CONROY,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance commission recommends a six-month suspension of

attorney’s license to practice law and that, prior to reinstatement of the

attorney’s license, attorney be required to provide a certification in

writing from a physician or mental health professional verifying

attorney’s fitness to practice law. LICENSE SUSPENDED.


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

complainant.



      James Conroy, Mount Vernon, pro se.
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APPEL, Justice.

        In this case, the Iowa Supreme Court Attorney Disciplinary Board

filed charges against attorney James Conroy alleging multiple violations

of the rules of professional conduct. The Grievance Commission of the

Supreme Court of Iowa found that the board had established a number

of violations and recommended that Conroy’s license to practice law be

suspended for six months. The commission further recommended that,

prior to reinstatement of his license to practice law, Conroy be required

to provide a certification from a physician or mental health professional

verifying that he is capable of practicing law.

        I. Facts and Procedural Background.

        The board filed a two-count complaint against Conroy in June

2010.    Count I related to alleged ethical violations in connection with

Conroy’s representation of Billy Sanders, while Count II related to

Conroy’s representation of Jerry Donnell.

        In Count I, the board alleged that Conroy: (1) failed to maintain

books and records sufficient to demonstrate compliance with trust

account requirements, (2) did not furnish a timely and complete

accounting regarding earned fees, (3) ceased returning Sanders’s

telephone calls and lost communication with Sanders, and (4) failed to

respond to the board’s request for information and documents.           The

board asserted that Conroy’s alleged conduct violated Iowa Rules of

Professional Conduct 32:1.1 (competence); 32:1.3 (diligence); 32:1.4

(communication); 32:1.15 (safekeeping property); 32:1.16(d) (declining or

terminating representation); 32:8.1 (failure to respond); 32:8.4(a), (d)

(violation of ethical rules and conduct prejudicial to the administration of

justice); and the Client Trust Account Rules 45.2(2) (action required

upon receiving of funds), and 45.7 (advance fee and expense payments).
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       In Count II, the board alleged that Conroy: (1) failed to maintain

books and records sufficient to demonstrate compliance with trust

account requirements, (2) neglected Donnell’s legal matters and did not

communicate adequately with him, (3) received $6100 in insurance

proceeds for damage to Donnell’s house but did not forward the proceeds

to Donnell, 1 (4) failed to furnish Donnell a timely and complete

accounting regarding earned fees, (5) failed to turn over requested files to

Donnell upon request, and (6) did not respond to a letter from the board

requesting information and documents.              The board asserted that this

conduct violated the same rules as those violated in Count I.

       Other than filing a personal appearance, Conroy failed to respond

to the board’s complaint or respond to its discovery requests. As a result

of his failure to respond, this court entered an order temporarily

suspending Conroy’s license to practice law in September 2010.

Conroy’s license remains under temporary suspension.

       Further, the board filed a motion to limit the scope of the

commission hearing to the issue of sanctions in light of Conroy’s failure

to respond.      The commission sustained the motion.                The board also

withdrew its allegation that Conroy violated rule 32:1.1 (competence).

       At the hearing on sanctions, Conroy testified he had voluntarily

ceased the practice of law. He stated that as a solo practitioner he had

personal family problems and felt overwhelmed with his work. Conroy

denied alcohol, drug, or gambling-related issues. He stated that he had

not been diagnosed as having depression and that, because his personal

       1The  board did not allege that Conroy converted the funds for his own use. A
conversion of settlement funds for personal use would be a serious violation of our
disciplinary rules. See Iowa Ct. R. 32:8.4(c); Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Allen, 586 N.W.2d 383, 389 (Iowa 1998) (observing that “[w]ith some
exceptions, this court has consistently revoked a lawyer’s license for converting client
funds”).
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issues were behind him, therapy was unnecessary. He explained that if

he practices law again he would ensure that he had mechanisms in

place, such as hiring staff or having a relationship with another attorney,

to make certain that he does not get overwhelmed again.

      The   commission    found    that   Conroy   had     violated   various

disciplinary rules and recommended that his license be suspended for

six months. The commission also recommended that Conroy be required

to certify his fitness to practice law from a qualified physician or mental

health professional before reinstatement of his license.

      II. Standard of Review.

      Our standard of review of commission findings is de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 677 (Iowa

2010). The board bears the burden of proving attorney misconduct by a

“convincing preponderance of the evidence.”        Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Earley, 774 N.W.2d 301, 304 (Iowa 2009). Although

this burden is less demanding than proof beyond a reasonable doubt, it

requires a greater showing than the preponderance-of-the-evidence

standard. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674

N.W.2d 139, 142 (Iowa 2004). The Iowa Supreme Court is not bound by

the findings and recommendations of the commission, but “the

commission’s   findings   and   recommendations     are    given   respectful

consideration.” Earley, 774 N.W.2d at 304.

      III. Discussion.

      At the outset, we note that the allegations of an ethics complaint

are deemed admitted if the respondent fails to answer within the

specified time. Iowa Ct. R. 36.7. As a result, the commission properly

found that the allegations of the complaint were deemed admitted. See

id. We thus proceed to the issue of sanctions.
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      Once misconduct is shown, we may impose a harsher or more

lenient sanction than that recommended by the commission. Iowa Ct. R.

35.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Humphrey, 738

N.W.2d 617, 618–19 (Iowa 2007). While there is no standard sanction

associated with a particular type of misconduct, “prior cases can be

instructive.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ackerman, 786

N.W.2d 491, 497 (Iowa 2010). In determining the appropriate sanction,

the court weighs the aggravating and mitigating circumstances and

considers “the nature of the violations, the need for deterrence,

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

whole, and the violator’s fitness to continue to practice law.”      Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ramey, 639 N.W.2d 243,

245 (Iowa 2002).

      We begin our analysis with a review of similar disciplinary cases.

In Iowa Supreme Court Board of Professional Ethics & Conduct v.

Kennedy, 684 N.W.2d 256, 260–61 (Iowa 2004), the court found that the

attorney had neglected her clients, engaged in client fund account

violations, and failed to cooperate with disciplinary authorities.   The

court noted that the attorney did not have prior disciplinary action

brought against her and that the attorney had taken steps to correct the

problems underlying the case. Kennedy, 684 N.W.2d at 261. Based on

these facts, the court concluded that a sixty-day suspension was

appropriate. Id.

      We imposed a slightly longer suspension in Iowa Supreme Court

Board of Professional Ethics & Conduct v. Adams, 623 N.W.2d 815 (Iowa

2001).   In Adams, the attorney failed to complete work he had

undertaken, made multiple misrepresentations to his clients, failed to

keep proper accounting records, and failed to return client files.   623
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N.W.2d at 818. As aggravating factors, the court noted that the attorney

was deceitful and had a prior reprimand.        Id. at 819.   The court also

found mitigating factors, including the admission of wrongdoing and

cooperation with the disciplinary process.       Id.   The court imposed a

three-month suspension. Id.

      Finally, in Iowa Supreme Court Board of Professional Ethics &

Conduct v. Kallsen, 670 N.W.2d 161, 166–67 (Iowa 2003), the court

considered the appropriate sanctions for an attorney who was found to

have committed neglect, failed to render appropriate accounts, failed to

properly pay a client upon request, and failed to cooperate with

disciplinary authorities. The court imposed a three-month suspension,

noting that the attorney was no longer engaged in the practice of law.

Kallsen, 670 N.W.2d at 168.

      Upon our review of these cases and the record in this case, we

conclude that a sixty-day suspension is adequate. In this case, Conroy

voluntarily ceased the practice of law and had received no disciplinary

sanctions prior to the commencement of the proceedings.           Our cases

establish that voluntarily ceasing the practice of law and lack of prior

discipline are mitigating factors. Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Lickiss, 786 N.W.2d 860, 871 (Iowa 2010); Kennedy, 684 N.W.2d at

261; Kallsen, 670 N.W.2d at 168. While Conroy, at the outset, failed to

cooperate with the board, his ongoing five-month temporary suspension

as a result of this default is an adequate punishment for this infraction.

See Lickiss, 786 N.W.2d at 870 (holding that the attorney’s four-month

temporary suspension for noncooperation was adequate discipline for a

violation of rule 32:8.1(b)).

      With respect to the commission’s requirement that Conroy submit

a certification of his fitness to practice law, Conroy testified that external
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proof of his fitness to practice law under the circumstances of his case

“seems a reasonable request.” We agree. Prior to reinstatement, Conroy

must provide this court with an evaluation from a licensed health care

professional verifying his fitness to practice law. Before the evaluation,

Conroy must submit the name of the proposed evaluator and the nature

of the proposed evaluation to the board for approval. See Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Joy, 728 N.W.2d 806, 816 (Iowa 2007).

      IV. Conclusion.

      For the above reasons, we suspend Conroy’s license to practice law

in this state indefinitely with no possibility of reinstatement for sixty days

from the date of the filing of this opinion. This suspension applies to all

facets of the practice of law as provided in Iowa Court Rule 35.12(3).

Within forty days of the suspension, Conroy must provide this court with

a board-approved evaluation from a licensed health care professional

verifying that Conroy is fit to practice law. Costs of this action shall be

assessed against Conroy pursuant to rule 35.26(1).

      LICENSE SUSPENDED.
